Law as a weapon against Russian aggression: Secretary of the Grand Chamber of the Supreme Court speaks about mechanisms for recovering damages from the aggressor state and peculiarities of overcoming judicial immunity

Sovereign states are equal in the international legal framework. The jurisdictional immunity of states is enshrined, in particular, in the European Convention on the Immunity of States of 1972, the UN Convention on Jurisdictional Immunities of States and Their Property of 2004. The concept of judicial immunity is also enshrined in Ukrainian law: the Law of Ukraine ‘On Private International Law’ provides that a foreign state cannot be involved in a lawsuit in a national court without the consent of the competent authorities of the foreign state. However, after the beginning of Russia's armed aggression in 2014 and its unleashing of a full-scale war against Ukraine in 2022, the issue of judicial immunity of states has become particularly acute.

Vitalii Urkevych, Secretary of the Grand Chamber of the Supreme Court, emphasised this at the event ‘International Arbitration: Law as a Weapon against Russian Aggression’.

According to the Secretary of the SC Grand Chamber, the Supreme Court could not but respond to the problems related to the need to overcome the judicial immunity of the Russian Federation. He noted that several rulings set out the legal position of the Supreme Court on judicial immunity in cases where the aggressor state is the defendant.

Thus, the rulings of the Civil Cassation Court of the Supreme Court of 14 April 2022 in case No. 308/9708/19 and 18 May 2022 in case No. 760/17232/20-ц refer to the possibility of non-application of judicial immunity of the Russian Federation. The Supreme Court concluded that in cases where the aggressor country is the defendant, national courts have the right to ignore the immunity of such a state and consider cases, in particular, on compensation for damage caused to an individual as a result of armed aggression. In other words, if a country is an aggressor state, does not respect the sovereignty of another state, and grossly violates its international obligations, national courts should also disregard its judicial immunity.

These resolutions also set out a number of criteria under which the Russian Federation does not enjoy judicial immunity, such as:

• the subject of the claim is compensation for moral damages caused to individuals - citizens of Ukraine as a result of the death of another citizen of Ukraine;
• the place of damage is the territory of the sovereign state of Ukraine;
• the damage was caused by agents of the Russian Federation who violated the principles and purposes enshrined in the UN Charter regarding the prohibition of military aggression committed against another state, Ukraine;
• the commission of acts of armed aggression by a foreign state is not an exercise of its sovereign rights, but a violation of international obligations;
• as a general rule, damage caused in Ukraine to an individual as a result of unlawful actions of any other person (entity) may be compensated by a decision of a Ukrainian court.

"At the same time, the consideration of such cases at the national level is accompanied by many difficulties. For example, the trial takes place in the absence of the defendant, which raises the issue of compliance with the principle of adversarial proceedings. Also, there is no mechanism for notifying the defendant of the proceedings. The Supreme Court has not yet commented on these issues, as no cassation appeals have been filed against the decisions of the courts of previous instances on the recovery of damages,' explained Vitalii Urkevych and added that the decisions of national courts on the recovery of damages from the aggressor state establish important circumstances that may be taken into account when forming the international Register of Damages Caused by the Aggression of the Russian Federation against Ukraine.

The event was organised by the Mamutov Institute of Economic and Legal Studies of the National Academy of Sciences of Ukraine.