Judicial practice in cases related to the war of the Russian Federation against Ukraine and approaches to the application of judicial immunity of states: Secretary of the Grand Chamber of the Supreme Court delivered a lecture to a foreign audience

Judicial practice in cases related to the war of the Russian Federation against Ukraine and approaches to the application of judicial immunity of states: Secretary of the Grand Chamber of the Supreme Court delivered a lecture to a foreign audience

The invasion of the territory of Ukraine by the Russian Federation, which began in late February 2014, and the conditions of Russia's full-scale war against Ukraine have undoubtedly affected every Ukrainian and all spheres of life in our country. The hostilities are also affecting the functioning of the Ukrainian judicial system. Constant air raids, lack of electricity, shortage of judges and court staff, destruction of court buildings by rocket attacks and the occupation of large parts of Ukraine are factors that have a negative impact on the judicial process. At the same time, new categories of cases have emerged during the war, raising highly complex legal issues.

Vitalii Urkevych, the Secretary of the Grand Chamber of the Supreme Court, spoke about this during a guest lecture, which was part of a series of events with the participation of judges of supreme courts from around the world organised by the Global South Network, an international interdisciplinary network for the exchange of knowledge in the social, religious, political, legal and economic spheres.

Vitalii Urkevych informed the foreign audience about the practice of the Supreme Court in war-related cases. For example, according to the legal position of the Grand Chamber of the Supreme Court (Resolution of 28 February 2024 in case No. 415/2182/20), the subject of liability for the crime of planning, preparation, initiation and waging of an aggressive war is a person who has the appropriate authority, resources in the field of international relations, internal affairs, defence, industry, economy, finance, or occupies a social position that allows him to influence the decisions of authorised persons.

In addition, the speaker noted that in the Resolution of the Grand Chamber of the Supreme Court of 13 September 2023 in case No. 757/64569/16-ц, the Supreme Court concluded that compensation for material and non-material damage caused as a result of the temporary occupation to the State of Ukraine, legal entities, public associations, citizens of Ukraine, foreigners and stateless persons is fully the responsibility of the Russian Federation as the occupying power.

As the Secretary of the Grand Chamber of the Supreme Court reminded, in the first months after the start of the full-scale invasion of Ukraine by Russia, the Supreme Court made an important legal statement on the judicial immunity of the aggressor state. This conclusion was formulated for the first time by the Civil Cassation Court of the Supreme Court in its resolution of 14 April 2022 in case No. 308/9708/19. In this case, the Supreme Court was guided by the fact that in case of application of the "tort exception", any dispute that a citizen of Ukraine has on its territory, even with a foreign country, including the Russian Federation, may be considered and resolved by a court of Ukraine as a proper and competent court. Thus, after 2014, when considering a case in which the Russian Federation is identified as a defendant, a Ukrainian court has the right to ignore the immunity of this state and consider cases on compensation for damage caused to an individual as a result of the armed aggression of the Russian Federation.

In its subsequent practice, the Supreme Court provided additional arguments for the non-application of the judicial immunity of the aggressor state. In particular, maintaining the jurisdictional immunity of the Russian Federation would deprive the applicant of effective access to a court for the protection of his rights, which is contrary to the provisions of Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms. Moreover, maintaining the immunity of the Russian Federation is incompatible with Ukraine's international legal obligations in the field of combating terrorism, since, pursuant to Article 11(1) of the Council of Europe Convention on the Prevention of Terrorism of 2005, Ukraine shall take such measures as may be necessary to ensure effective, proportionate and dissuasive punishment for terrorist offences.

At the same time, Vitalii Urkevych warned that there is a problem of correlation between the right of access to a court, the right to an effective remedy and the judicial immunity of the state. Modern international law favours the theory of functional (limited) state immunity, according to which the principle of state immunity applies only to activities of the state that are of a sovereign nature (acta jure imperii), as opposed to activities that are not related to the exercise of sovereign functions by the state, for example in the field of economic and trade relations (acta jure gestionis). At the same time, serious human rights violations arise out of State action outside the framework of international trade and economic activity, and therefore do not fall under the rule of State immunity as acta jure gestionis.

Drawing on the case law of foreign courts (Ferrini; Jones, Mitchell and Others v. Saudi Arabia), the International Court of Justice in the case of Germany v. Italy and the European Court of Human Rights (Al-Adsani v. the United Kingdom; Jones and others v. the United Kingdom), the speaker outlined different approaches to the application of judicial immunity of States.

At the end of the lecture, the Secretary of the Grand Chamber of the SC stressed that it is time to change the approach in international law to the concept of absolute jurisdictional immunity of a State. The refusal to make any exceptions to the application of judicial immunity can result in victims of war crimes or other gross human rights violations being deprived of the possibility to go to court and of receiving adequate reparation. It is the national courts of Ukraine that have a unique opportunity to contribute to a change in international legal approaches to state immunity by resolving claims related to the war waged by the Russian Federation against our country,' concluded Vitalii Urkevych.

Presentation by Vitalii Urkevych - https://supreme.court.gov.ua/userfiles/media/new_folder_for_uploads/supreme/2024_prezent/ENG_SC%20Practice%20in%20Cases%20on%20War_lecture_University%20of%20Leicester%20_6%20September%202024.pdf