Issues of compensation for the breach of a right as a result of an act being declared unconstitutional addressed at an international workshop

In the modern world, the protection of human rights is the duty of every democratic state, and it has always been of paramount importance to Ukraine. After gaining independence, this obligation was enshrined in the Basic Law of our country. In addition, the Constitution of Ukraine provides for the possibility of compensation for damage caused to individuals or legal entities by acts and actions recognised as unconstitutional.

At the same time, the state must ensure an effective mechanism for the implementation of this possibility and adequate legal protection.

This was emphasised by President of the Supreme Court Stanislav Kravchenko during the International Workshop ‘Is a right without a remedy really a right: issues of compensation for the breach of a right as a result of an act being declared unconstitutional’.

According to the President of the Supreme Court, the relevant provisions are reflected in legislation, in particular in Article 1175 of the Civil Code of Ukraine, which provides for compensation by the state for damage caused to a citizen as a result of the cancellation or invalidity of acts of state authorities. However, the implementation of progressive and consistent steps towards the introduction of a compensation mechanism has effectively stopped.

At present, this aspect of the mechanism is problematic, including issues related to the definition of damage, appropriate remedies, compensation for damage in criminal proceedings, the determination of the proper defendant in this category of cases and the jurisdiction in which such disputes should be considered. 

These and other issues, according to the President of the Supreme Court, need to be properly addressed and, taking into account international experience and the correlation of current approaches with ECHR case law, it is necessary to determine which problems can be resolved through judicial practice and which should be regulated at the legislative level.

Stanislav Kravchenko also expressed his gratitude to the Council of Europe projects ‘Support to the functioning of justice in the war and post-war context in Ukraine’, ‘Strengthening judicial and non-judicial remedies for the human rights protection of the war-affected people in Ukraine’, the OSCE Support Programme for Ukraine ‘Support to national stakeholders in enhancing accessibility of constitutional justice’ and the German Foundation for International Legal Cooperation (IRZ) for their support and assistance in holding this important event.

The initiator of the workshop and moderator of the event, Supreme Court Judge of the Administrative Cassation Court Myroslava Bilak, recalled that this was the fourth workshop to discuss human rights issues. The event is a continuation of the session of thematic seminars launched by the Administrative Cassation Court as part of the Supreme Court in 2019. These seminars were dedicated to the implementation of the Constitution of Ukraine in administrative proceedings, in particular, the impact of the legal consequences of a regulatory act on the protection of human rights being declared unconstitutional, the application of the Constitution of Ukraine as an act of direct effect by administrative courts, etc.

Iryna Kushnir, Project Manager of the Council of Europe's project ‘Support to the functioning of justice in the war and post-war context in Ukraine’, emphasised: ‘When we talk about constitutional rights and freedoms, we are talking about the rights and freedoms enshrined in the Convention for the Protection of Human Rights and Fundamental Freedoms. Genetically, these rights and freedoms are the same and, accordingly, should be equally protected.’

According to her, Ukraine is a unique country in terms of the implementation of the Council of Europe standards, as it had to immediately understand, adopt and apply these standards at the legislative, mental and psychological level. After the implementation of the CoE standards, Iryna Kushnir believes that the next stage will be the implementation of the EU standards and overcoming the related challenges. Therefore, it is necessary to resolve as soon as possible all issues related to ensuring the effectiveness of the protection of constitutional and conventional rights. Iryna Kushnir noted that the notion of effectiveness in the context of human rights protection is fundamental in the light of the case law of the ECHR: no one needs a constitutional court decision that does not have a direct impact on restoring the situation that existed before the violation. Similarly, when it comes to compensation, it is important to strike a balance between the interests of the individual and the public interest.

Oleksandr Vodiannikov, Senior Project Associate of the OSCE Support Programme for Ukraine, raised the question of whether damage in public law is different from damage in private law. The speaker also emphasised the right to file a constitutional complaint under Article 55 of the Constitution of Ukraine. Oleksandr Vodiannikov also emphasised that the effectiveness of the protection of constitutional and conventional rights and freedoms depends on professional interaction between the courts of general jurisdiction and the Constitutional Court of Ukraine. In conclusion, the speaker, on behalf of the OSCE Support Programme for Ukraine, expressed his gratitude to the Supreme Court for many years of fruitful cooperation.

In her welcoming address, Angela Schmeink, Project Manager for Ukraine and Vietnam at the German Foundation for International Legal Cooperation (IRZ), expressed her gratitude to the Ukrainian judges for continuing to administer justice in the face of a full-scale war. Ms Schmeink spoke of the Foundation's long-standing cooperation with the Supreme Court, in particular the Administrative Cassation Court of the Supreme Court, and with the national judicial system in general, and noted the initiative to hold today's event at such a high level. 

Mykhailo Smokovych, President of the Administrative Cassation Court of the Supreme Court, welcomed the participants to the international workshop and said that despite the current challenges and threats, the courts continue to ensure the judicial process and fulfil their constitutional function, which cannot be suspended even during martial law. The speaker also emphasised the importance of the topic raised at the event, as the issues of effective protection of fundamental human rights and freedoms in administrative proceedings are of particular relevance as a result of the declaration of an act as unconstitutional.

Oleksandra Matviichuk, head of the Centre for Civil Liberties, addressed the workshop as a guest speaker. She spoke about the experience of documenting war crimes in the war waged by Russia against Ukraine. ‘Together with our partners, we have created a national network of documentarians and covered the whole country, including the occupied territories. For more than 2.5 years of the full-scale invasion, our joint efforts have documented more than 80,000 episodes of war crimes,’ said the head of the Centre for Civil Liberties.

Oleksandra Matviichuk emphasised that millions of people affected by the war need to rebuild not only their shattered lives, families and visions of the future, but also their faith that justice exists, even if it is delayed. That is why, in her view, the role of the courts is, without exaggeration, one of the most crucial in this historic period. 'Wherever the Ukrainian state is in control, it must restore people's sense of justice. Administering justice under Russian bombs is an act of resistance. But it is also an act of restoring people's faith in the values we are fighting for, which determine the actions and decisions of millions of people, and therefore the survival of our country,' Oleksandra Matviichuk summed up.

The workshop was initiated to discuss issues and exchange experiences in the field of administrative justice in the following areas: consideration and resolution of cases by courts through the prism of protection of human rights guaranteed by part 3 of Article 152 of the Constitution of Ukraine on compensation by the state for damage caused by actions and acts declared unconstitutional; analysing the specifics of judicial protection of rights guaranteed by the Constitution of Ukraine in the absence of a law on state compensation for damage caused to a person; the development of national and international case law on state compensation for such damage; application of the case law of the European Court of Human Rights and the Court of Justice of the European Union in terms of protecting the right to compensation for violations of human rights by the state by conflicting regulations, etc.

The event was attended by judges of the Supreme Court, the Constitutional Court of Ukraine, the European Court of Human Rights, appellate and district administrative courts, academics and international experts.

The speeches of the speakers will be available later on the information resources of the Supreme Court.