The concept of human rights should prevail over the concept of protecting the jurisdictional immunity of the aggressor state - Supreme Court Judge

Today, there is very little case law of international courts and, in particular, the European Court of Human Rights on overcoming the jurisdictional immunity of foreign countries. However, in general, the move away from the principle of absolute jurisdictional immunity is gaining increasing support in international law. This was stated by Serhii Pohribnyi, Judge of the Civil Cassation Court of the Supreme Court, during a roundtable discussion on "Compensating for Losses during Wartime".

In this connection, the judge first of all recalled that in April 2022 the Supreme Court concluded that the Russian Federation does not enjoy judicial immunity, since the commission of acts of armed aggression by a foreign state is not the exercise of its sovereign rights, but a violation of the obligation to respect the sovereignty and territorial integrity of another state, enshrined in the UN Charter (Resolution of the Civil Cassation Court of the Supreme Court of 14 April 2022 in case No. 308/9708/19). The Supreme Court found that in taking such actions, the Russian Federation exceeded its sovereign rights guaranteed by Article 2 of the UN Charter and violated the plaintiff's subjective rights guaranteed by legal norms.

The speaker also focused on the resolutions of the Civil Cassation Court of the Supreme Court of 18 May 2022 in cases No. 428/11673/19 and No. 760/17232/20-ц. In these resolutions, the Supreme Court supplemented its conclusions on the limitation of the jurisdictional immunity of the Russian Federation and noted that upholding the jurisdictional immunity of the Russian Federation would deprive the plaintiff, a Ukrainian citizen, of effective access to court to protect his rights, which is incompatible with Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms. The plaintiff’s recourse to the Ukrainian court is the only reasonably available remedy, the deprivation of which would amount to the deprivation of such a right altogether, that is, would negate the very essence of such a right.

The Supreme Court's conclusions also emphasise that maintaining the immunity of the Russian Federation is incompatible with Ukraine's international legal obligations in the field of counter-terrorism. By committing an act of aggression against Ukraine in violation of all fundamental norms of international law, the Russian Federation has stripped itself of its jurisdictional immunity. It was the aggressive illegal behaviour of the Russian Federation, which led to inevitable negative consequences for Ukraine and the Ukrainian people, that led to the conclusions of the Supreme Court on the limitation of the jurisdictional immunity of the Russian Federation on the territory of Ukraine. In this matter, according to the speaker, the Supreme Court was guided by the concept of the superiority of human rights over all other categories.

According to Serhii Pohribnyi, the application of the legal opinion on limitation of jurisdictional immunity will have the following main legal consequences:

• the judicial system will be able to accumulate claims of Ukrainian citizens for damages caused by the armed aggression of the Russian Federation;
• with the help of civil procedural tools, conditions will be created for recording such damage and obtaining evidence to prove its existence and determine its amount;
• if the relevant court decision is made, a list of Ukraine's claims against the aggressor state in cases to be considered in international institutions can be drawn up.

"Of course, it is difficult to predict how such damage will be compensated. So far, there are no effective mechanisms for compensation. The Russian Federation has no property in Ukraine, so we can only hope that the relevant decisions will be recognised and enforced outside our country. For this purpose, measures should be taken to ensure that decisions of Ukrainian courts on compensation for damage caused by the armed aggression of the Russian Federation are accepted by all civilised countries. The first step is to create a mechanism for informing the defendant of the proceedings and to provide a hypothetical opportunity to obtain information on the documents attached to the case. The second is to ensure the participation of lawyers as representatives of the defendant in court proceedings, who should be appointed by the court to ensure the competitiveness of such proceedings. This would create the conditions for foreign countries not to recognise such decisions of Ukrainian courts as being contrary to public policy," the judge said.

According to Serhii Pohribnyi, it is important that the principle of sufficiency of evidence is implemented in cases of compensation for damage caused by the aggressor state. The court should therefore critically assess the plaintiff's evidence. In this case, the decisions of Ukrainian courts will meet minimum standards of fairness.

The event was organised by the Ukrainian Advocates' Association.