Holding Russia accountable for war damage should ensure full compensation for losses caused and prevent future acts of aggression - Supreme Court judge

For the Ukrainians, the question of compensation for the moral and material damage caused by Russia is not up for debate. The only question is what methods and mechanisms will be used to compensate for this damage, and how to ensure that the Russian economy will never be capable of repeated acts of aggression against Ukraine and the world as a whole. After all, the war that Russia started against Ukraine in 2014 with so-called hybrid warfare has become a test for all democratic countries to see if they can withstand aggression.

This was emphasised by Oleh Tkachuk, Judge of the Grand Chamber of the Supreme Court, at the International Scientific Conference "Liability for War Damage in Europe".

"Ukraine is trying to formulate a position through internal regulations that would allow it to demand and receive reparations from Russia in the future. Our European partners, in particular Poland, strongly support our efforts to stop the advance of Russian tanks towards Europe and to seek legal compensation for the damage caused by Russia to Ukraine," said Oleh Tkachuk.

The judge of the Grand Chamber of the Supreme Court said that as of 1 October 2023, more than 100,000 criminal proceedings on war crimes and crimes of aggression had been registered in Ukraine. More than 1,400 criminal proceedings regarding crimes against peace, human security and international law and order are pending in Ukrainian courts. The Supreme Court is also considering similar cases. However, Ukrainian courts alone will be unable to seek compensation for the destruction caused by Russian aggression towards Ukraine. We need the help of the international community in this regard," the speaker stressed.

The Supreme Court is fully aware of the legal aspects and complexity of the problems of interstate regulation of issues related to compensation for war damage. Accountability for launching and waging an aggressive war should include not only political consequences for the dominant aggressor regime, but also tangible economic sanctions. This should guarantee full compensation for material and moral damage and prevent the aggressor's economy from being directed towards further militarisation.

In addition, Oleh Tkachuk recalled that the Supreme Court issued several decisions on the judicial immunity of the Russian Federation in cases of damage to Ukrainian citizens. In particular, in 2018 the Supreme Court concluded that responsibility for violations of the Constitution and laws of Ukraine, human and civil rights and freedoms in the temporarily occupied territories of Ukraine, in particular in the Luhansk region, should be imposed on Russia as the occupying power in accordance with the norms and principles of international law (Resolution of the Civil Cassation Court of the Supreme Court of 21 November 2018 in case No. 2/381/134/16 (No. 381/2635/16-ц)).

This point was further developed in the Resolution of the Civil Cassation Court within the Supreme Court of April 14, 2022, in case No. 308/9708/19. In it the Supreme Court stated that the Russian Federation, having committed an unprovoked and large-scale act of armed aggression against Ukraine, numerous acts of genocide against the Ukrainian people, has no right to continue to invoke its own judicial immunity, thus denying the jurisdiction of the courts of Ukraine to consider and resolve cases on compensation for damage caused by acts of aggression to an individual - a citizen of Ukraine. The Supreme Court was guided by the fact that the aggressor country did not act within its sovereign right of self-defence, but rather treacherously violated all of Ukraine's sovereign rights, and therefore, of course, does not enjoy its judicial immunity in this category of cases.

Also, in its Resolution of 18 May 2022 in case No. 428/11673/19, the Civil Cassation Court of the Supreme Court concluded that the court of Ukraine has the right to ignore the immunity of the Russian Federation and consider cases on compensation for damage caused to an individual as a result of Russia's armed aggression, in a lawsuit filed against this foreign state. As stated in the Resolution, maintaining the immunity of the RF is incompatible with Ukraine’s international legal obligations in the field of counter-terrorism. In the present case, the judicial immunity of the Russian Federation is not applicable in view of the violation of the state sovereignty of Ukraine by Russia, which does not constitute an exercise by the Russian Federation of its sovereign rights protected by judicial immunity.

The event was organised by the Ministry of Justice of the Republic of Poland and the Lech Kaczyński National School of Public Administration.