Ukrainian courts can render a large number of judgments on compensation for damage caused by the aggressor state, but the path to their enforcement is not easy

The point was made by Maryna Chervynska, Secretary of the Second Judicial Chamber of the Civil Cassation Court of the Supreme Court, during a regular online meeting of donors and implementers of rule of law projects/programmes.

The topic of the event was the creation of sustainable compensation mechanisms to hold Russia accountable for the damage caused by the war. At the meeting, Iryna Kirieieva, legal advisor to the Register of Damages Caused by Russian Aggression against Ukraine (RD4U), and Hanna Khrystova, head of the RD4U Kyiv office, informed about the plans and priorities of RD4U, which started accepting applications for compensation in April 2024 in The Hague (Netherlands).

During the discussion of this issue, Maryna Chervynska recalled the decision of the Supreme Court regarding overcoming the judicial immunity of the aggressor country (resolution of the Civil Cassation Court of the Supreme Court of 14 April 2022 in case No. 308/9708/19), in the case of compensation for damage caused to an individual as a result of the armed aggression of the Russian Federation.

At the same time, the Secretary of the Judicial Chamber stressed that consideration of such cases by national courts does not mean its automatic enforcement. In addition, any decision to recover funds must be allowed to be enforced.

According to Maryna Chervynska, an example of real satisfaction for damage caused to citizens and businesses is the Law of Ukraine "On Compensation for Damage and Destruction of Certain Categories of Real Estate as a Result of Hostilities, Terrorist Acts, Sabotage, caused by the armed aggression of the Russian Federation against Ukraine, and the State Register of Property Damaged and Destroyed as a Result of Hostilities, Terrorist Acts, and Sabotage Caused by the Armed Aggression of the Russian Federation against Ukraine" (23 February 2023, No. 2923-IX). It is in this Law that the state has provided a clear administrative mechanism for compensation outside of court decisions.

As the judge noted, the said Law contains a novelty, according to which the state of Ukraine undertook to compensate for the damage caused by the aggressor country. Simultaneously with the provision of monetary compensation for the destroyed real estate, the recipient of compensation enters into an agreement on the assignment to the state/territorial community of the right to claim against the Russian Federation for compensation for the destroyed real estate caused by hostilities, terrorist acts, sabotage caused by the armed aggression of the Russian Federation against Ukraine, in the amount of the compensation received.

This provision is effective because, firstly, it uses an administrative mechanism and does not raise the problems that may arise in the enforcement of court decisions. Secondly, it is obvious that it is more efficient for the state, which has accumulated the right of claim against the aggressor country, to receive satisfaction than for each citizen individually.

The meeting also touched upon the possibilities of compensation for moral damages, legislative initiatives related to this issue, the experience of other countries and the difficulties that may arise in implementing such compensation mechanisms.

In addition, the meeting participants discussed national mechanisms for addressing the needs of individuals and businesses that have suffered damage, loss or injury caused by the war; plans and priorities of the Register of Damage Caused by the Aggression of the Russian Federation against Ukraine (RD4U), problems of collecting evidence and documenting losses of affected farmers, etc.

The event was also attended by Supreme Court Judge of the Criminal Cassation Court Svitlana Yakovlieva and Head of the Division for International Cooperation Lina Hubar.

The meeting was organised by the USAID Justice for All Program.