Supreme Court judges discuss compensation for damage caused by Russia's aggression against Ukraine with Council of Europe representatives

It has been more than 500 days since Russia launched a full-scale aggression on the territory of Ukraine in violation of international law. Our country and its citizens have suffered terrible damage, and all those involved must be held accountable. The creation of the Register of Damage Caused by the Aggression of the Russian Federation against Ukraine is a key step in the development of an international compensation mechanism. Vitalii Urkevych, Secretary of the Grand Chamber of the Supreme Court, emphasized this at a meeting with Council of Europe experts on national compensation mechanisms for the victims affected by war.

Since 2014, Ukrainian courts have faced problems with compensation for damages caused by the armed aggression of the Russian Federation. According to Vitalii Urkevych, the Supreme Court has already developed a practice of ignoring the judicial immunity of the Russian Federation. "However, the problem goes much deeper and reaches the international legal level, as such issues are regulated by international treaties and agreements," the speaker noted. He emphasized that in cases of compensation for damage caused by the aggressor state, it was important to consider whether the international community would accept such decisions of national courts and whether they would be enforceable in the future. Therefore, in the opinion of the Secretary of the Grand Chamber of the Supreme Court, it would be necessary to reconsider the issue of absolute jurisdictional immunity of states.

The introduction of the Register of Damage Caused by the Aggression of the Russian Federation against Ukraine is an important step towards compensation for the damage caused by Russia to Ukraine and towards the post-war recovery of Ukraine in general. This was stated by the Judge of the Grand Chamber of the Supreme Court, Oleh Tkachuk, who also said that several cases on compensation for damages had been and were still pending before the Supreme Court. The issues in these cases concern, in particular, compensation for damage caused by the loss of property as a result of the Russian aggression, damage caused by the fact that the property is located in the temporarily occupied territory, and damage and losses caused by the necessity of military operations by the Armed Forces of Ukraine. In other words, there are several distinctly different issues of compensation, but they are all directly related to the damage caused by Russian aggression.

In addition, Oleh Tkachuk pointed out that Russia's armed aggression had begun in 2014, so the damage caused by Russia both before and after February 24, 2022, must be fully compensated. The judge noted that the issue also related to compensation for non-pecuniary damage, in particular, for the detention of Ukrainian citizens in prisons on false charges by the Russian Federation in the occupied territories of Zaporizhzhia and Kherson regions and the forced deportation of thousands of children from Ukraine to Russia.

Until 2022, the Civil Cassation Court within the Supreme Court was guided by the concept of absolute jurisdictional immunity of a foreign country. In April 2022, the practice changed dramatically when the Civil Cassation Court of the Supreme Court developed a legal position in the case of compensation for damage caused by the Russian Federation, in effect applying, inter alia, the tort exception. The Supreme Court's legal opinion established the criteria under which Ukrainian courts have the right to consider such cases involving claims against the aggressor country. These criteria include the following: the damage must be caused to a natural person; the damage must be caused on the territory of Ukraine; the damage must be caused by agents of the aggressor state. This was stated by the Supreme Court Judge of the Civil Cassation Court Serhii Pohribnyi.

He emphasized that in order for the international community to accept the decisions of Ukrainian courts in cases of compensation for damage caused by the Russian aggression against Ukraine, certain conditions must be met. Firstly, it is necessary to harmonize the decisions of Ukrainian courts with the standards of a fair decision in an adversarial process, in particular by ensuring that the aggressor country has access to information about court proceedings initiated in Ukraine on claims against Russia. One option may be diplomatic mediation involving third countries. Secondly, it is necessary to organize formal legal representation of the defendant's interests in court by appointing a defendant's lawyer in these cases, observing the requirements of a fair trial, such as its competitiveness, which will improve the quality of court decisions. Thirdly, it is important to respect the principle of discretion, according to which courts cannot base their decisions on evidence that is not publicly available. According to the speaker, this category of proceedings should also provide for appellate and cassation review of the decisions made by the courts of first instance. "Without observing the minimum standards of a fair trial, none of the decisions of Ukrainian courts will be recognized abroad," summarized Serhii Pohribnyi.

Larysa Rohach, President of the Commercial Cassation Court within the Supreme Court, said that the creation of the International Register of Damage Caused by the Aggression of the Russian Federation against Ukraine indicated that practical measures had been taken to ensure a real mechanism for compensation for the damage caused. In this regard, it is necessary to harmonize the external measures taken by the international community with the internal measures taken by the state.

As emphasized by the President of the Commercial Cassation Court within the Supreme Court, commercial jurisdiction deals with compensation for damage caused to legal entities and natural persons engaged in business activities, but this does not change the challenges of considering such categories of disputes, which were also discussed by the previous speakers, who highlighted the problems of considering these cases in civil jurisdiction. After all, in the absence of a person to challenge the decision on appeal or in cassation, such cases do not reach cassation. During the consideration of the respective cases, there were problematic issues related to the jurisdiction of disputes on compensation for damages caused to business entities by the aggression of the Russian Federation against Ukraine. In other words, the answer to the question of whether commercial judges have the competence to consider such claims, given the differences in the wording of the provisions of the procedural codes, is currently affirmative.

Iryna Vorobiova, Judge of the Grand Chamber of the Supreme Court, focused on the regulatory framework of the current procedure for granting monetary compensation. Among other things, she highlighted the resolutions of the Cabinet of Ministers of Ukraine No. 947 of December 18, 2013 and No. 767 of September 2, 2020. The judge also expressed her hope that the Register of Damage Caused by the Aggression of the Russian Federation against Ukraine would help ensure that the victims receive fair compensation, and that the relevant decisions of Ukrainian courts would become one of the tools for recording evidence of crimes and information about the losses or damage caused. Such decisions can serve as an evidence base and part of an international compensation mechanism to recover compensation from the aggressor country in accordance with international law, including at the expense of Russian assets in the world.

At the end of the event, the Deputy Head of the Council of Europe Office in Ukraine, Erlend Falk, thanked the Supreme Court for its continued cooperation with the Council of Europe. Among other participants of the meeting were Supreme Court Judge of the Commercial Cassation Court Kostiantyn Ohorodnik, Head of the Division for International Legal Cooperation of the Supreme Court Lina Hubar, Council of Europe experts Norbert Wühler, Slavica Banić and Eric Svanidze, Head of Division of the Department for the Execution of Judgments of the European Court of Human Rights of the Directorate-General for Human Rights and the Rule of Law of the Council of Europe Pavlo Pushkar, Head of the CoE Project "Strengthening judicial and non-judicial remedies for the human rights protection of the war-affected people in Ukraine" Hanna Khrystova, and Project Manager of the CoE Project "Support for judicial institutions and processes to strengthen access to justice in Ukraine" Iryna Kushnir.

The event was part of a series of consultative meetings organized with the support of Council of Europe projects implemented under the Council of Europe Action Plan for Ukraine "Resilience, Recovery and Reconstruction" for 2023-2026 with representatives of the Ukrainian authorities and other stakeholders to discuss national mechanisms for compensation for war victims. Following the meetings, it is planned to prepare a comprehensive report on all major categories of war victims, as well as on the functioning of national registers and mechanisms for compensation/recovery of damages caused by the Russian aggression against Ukraine.