Contact center of the Ukrainian Judiciary 044 207-35-46
ABOUT THE SUPREME COURT
FOR CITIZENS
ACTIVITY
PRESS-CENTER
Forms of compensation for damage caused as a result of hostilities, during and after armed aggression, national legislation and its application practice on compensation for damage to the life of a civilian (compensation for non-pecuniary damage to relatives of the deceased), the practice of the European Court of Human Rights on compensation for damage caused by injury to health or death during armed aggression - these and other issues were highlighted by Svitlana Yakovlieva, Supreme Court Judge of the Criminal Cassation Court, in her speech at the XI Annual Forum of Legal Advisers.
The speaker noted that the issue of compensation for damage was extremely relevant, as the armed aggression of the Russian Federation causes damage not only to property, but also to the lives and health of citizens.
Svitlana Yakovlieva spoke in particular about forms of compensation for damage caused by military operations. Thus, after the end of armed aggression, the following are possible: contributions (seizure of property or compulsory payments in favour of the victorious state in the war), reparations (one of the forms of material liability that arises for a subject of international law for damages caused to another subject of international law as a result of an offence, which directly includes war, and the nature and amount of reparations depends on the damage caused), confiscation, restitution, and substitution.
In the course of armed aggression, a compensation mechanism may be used (when the state legislatively establishes the possibility of compensation to persons affected by military operations). In addition, there are two mechanisms of compensation for damages that involve the court: the civil law mechanism (individuals and legal entities bring actions before the court) and the criminal law mechanism (civil action in criminal proceedings).
The judge noted that, in her opinion, one of the most effective mechanisms for compensation for damage caused by military operations today is the filing of a civil claim in criminal proceedings. Criminal proceedings involve the gathering of reliable evidence to prove not only the offence, but also the damage caused by that offence. The basis for compensation for war damage is the registration of the fact of committing war crimes (according to the Prosecutor General's Office, as of 15 November 2023, almost 110,000 criminal proceedings under Article 438 of the Criminal Code of Ukraine (violation of the laws and customs of war) have been registered). The mere fact that the commission of a war crime has been registered, and the subsequent pre-trial investigation and gathering of evidence in criminal proceedings, gives a person who has suffered damage as a result of that crime the right to claim compensation.
Another mechanism for compensation is to apply to the European Court of Human Rights. However, the use of this mechanism is not straightforward, as all available remedies at the national level must be exhausted before an application to the ECtHR can be made.
Svitlana Yakovlieva, speaking about the national legislation and the practice of its application regarding compensation for damage to the life of a civilian (compensation for non-pecuniary damage to the relatives of the deceased), pointed out different approaches to the investigation: before the full-scale invasion on 24 February 2022, the investigation was conducted under Article 258 of the Criminal Code of Ukraine, and afterwards - under Article 438 of the Criminal Code of Ukraine.
The speaker also outlined the range of cases relating to the issues of reimbursement and compensation considered by the ECtHR:
For more details, see Svitlana Yakovlieva's presentation (https://is.gd/t2Oy5J) and the video of the forum (http://surl.li/nfpci).
The event was organised by the Yurydychna Praktyka publication.
_03_03.png)
