Access to justice in the context of war in Ukraine – article by Secretary of the Grand Chamber of the Supreme Court Vitalii Urkevych

Access to justice in the context of war in Ukraine

Vitalii Urkevych, LL.D., Prof.[1]

Abstract

Access to justice implies the possibility of a person's unhindered appeal to the court for the protection of his rights.

The war launched by the Russian Federation against Ukraine in 2014, and more over the full-scale invasion of the aggressor state at the end of February 2022, have a negative impact on the implementation of the right to a fair trial. Citizens are often deprived of the opportunity to go to court, a significant number of court files is now under the control of the aggressor state. Often Ukrainian judges cannot properly administer justice due to the need to postpone the hearing of cases because of allert of air attack, lack of electricity and heat supply.

To solve the above and other problems regarding access to justice in the conditions of the war in Ukraine, a number of measures are taken: changing court venue, wide use of video conference service for court hearing etc.

Legal conclusions of the Supreme Court regarding the grounds on which the Ukrainian courts can ignore the jurisdictional immunity of the Russian Federation in cases about collection of damages play an amportant role in brinning the aggressor state to the liability.

Key words: access to justice, war in Ukraine, changing coutr venue, jurisdictional immunity, aggressor state.

Right of access to justice in legislation and practice of the ECtHR

Access to justice implies the possibility of unimpeded recourse to the courts to protect one's rights.

The right of access to justice is guaranteed both by Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms[2] (hereinafter – the Convention) and by the provisions of the national legislation, according to which the jurisdiction of the courts extends to any legal dispute and any criminal charge (Article 124 of the Constitution of Ukraine[3]).

In addition, the right of access to justice and to a fair and public hearing within a reasonable time by an independent and impartial tribunal are among the inalienable human rights enshrined in Articles 8 and 10 of the Universal Declaration of Human Rights, adopted by the United Nations General Assembly on December 10, 1948[4].

The European Court of Human Rights (hereinafter – the ECtHR) has repeatedly emphasized in its judgments, including those against Ukraine, the need to strictly observe the guarantees of the right of access to justice.

At the same time, in its judgment in the case of Bellet v. France[5], the ECtHR has noted that the right of access to the courts must be “practical and effective” and not “theoretical or illusory”.

According to the established caselaw of the ECtHR, the right of access to the courts is not absolute; it may be subject to limitations permitted by implication, particularly regarding the conditions of admissibility of an appeal. This right may be subject to limitations due to its nature, as the right of access to the courts requires regulation by the state. However, such limitations may not affect the exercise of this right in such a way or to such an extent that the very essence of the right is violated. These limitations must pursue a legitimate aim and there must be a reasonable degree of proportionality between the means used and the aims pursued, which was established by the ECtHR in cases Mushta v. Ukraine[6], Kreuz v. Poland[7], Golder v. the United Kingdom[8] and Stanev v. Bulgaria[9].

Negative impact of the war on judiciary

1. The war unleashed by the Russian Federation against Ukraine in 2014, and even more so the full-scale invasion of the aggressor state at the end of February 2022, have a negative impact on the exercise of the right of access to the courts, primarily in terms of access to justice.

Citizens are often deprived of the opportunity to go to court, as certain territories of Ukraine are now temporarily occupied and the state cannot ensure not only the functioning of courts in these territories, but also physical access to their premises.

There exist a list of territories where hostilities are or were conducted or temporarily occupied by the Russian Federation. This list is constantly updated, and the latest one was approved by the Order of the Ministry of Communities and Territories Development of Ukraine No. 376 of February 28, 2025[10].

The list contains the names of: 1) territories (cities, towns, villages, communities) where hostilities are possible, 2) territories of active hostilities, 3) territories of active hostilities where state electronic information resources operate, and 4) territories of Ukraine temporarily occupied by the Russian Federation.

Given the dynamic nature of the war, this list enables state authorities and all interested parties to have up-to-date information on the territories where hostilities are or were conducted or temporarily occupied by the Russian Federation, with the dates of the beginning and the end of these circumstances.

Currently, 96 Ukrainian courts are located in territories temporarily occupied by the Russian Federation[11].

2. The aggressor state controls a significant portion of case files that were considered by the courts and stored in the archives of the courts of Ukraine before Russian invasion.

Since the beginning of the war in 2014, with few exceptions, case files have remained in the temporarily occupied territories and territories of hostilities. The same happened in 2022 after the start of the full-scale invasion.

Of course, the lives, health and safety of judges and court staff were and are a priority for court management. At the same time, documents containing state secrets or those intended for official use were destroyed in those courts where it was possible for safety reasons.

After the start of the full-scale invasion, in March 2022, the Supreme Court approved Recommendations for courts of first instance and appellate courts in case of seizure of a settlement and/or a court building or in case of risk of seizure by the enemy[12].

However, unfortunately, there was no proper preparation at the national level for the possible outbreak of war involving judges and court staff. This led to their exposure to danger and the loss of a significant number of case files, which often cannot be restored in full.

In its caselaw, the Supreme Court has repeatedly faced the need to review court decisions in cases whose files remained on the temporarily occupied territories or were destroyed. Restoration of such case files requires considerable time, which affects the timing of the consideration of cases, and in certain cases is impossible.

3. It is not uncommon for Ukrainian courts to be unable to administer justice due to the need to postpone hearings as a result of air alerts, lack of electricity, heating, telephone and Internet connections in the courtroom, all caused by missile and drone attacks by the aggressor state.

According to official data, since the beginning of the full-scale invasion, air alerts have been declared in Ukraine approximately 58,000 times. Donetsk region is the leader in the number of alerts – more than 6,000 times. In the Kharkiv, Zaporizhzhia, and Dnipro regions, the air alert sounded more than 5,000 times in each; in the Poltava, Sumy, Mykolaiv, Kherson, and Kirovohrad regions – more than 3,000 times. The longest continuous air raid alarm persisted more than 50 hours in the city of Kharkiv[13].

It is clear that under such circumstances, the work of the courts in these regions, and, accordingly, citizens' access to justice and courts, cannot be ensured at the proper level.

After an air alert is declared, the parties to the case, judges, and court staff have to go to the nearest shelter, and the hearing is postponed.

This situation is typical of not only regions where hostilities are underway, but also of the relatively calm regions in western Ukraine. For example, in the Zakarpattia, Chernivtsi, Lviv, Ivano-Frankivsk and Volyn regions, air raid alerts have sounded more than 600 times in each region since the start of the full-scale invasion[14]. This also negatively affects the work of the courts in these regions.

Of course, the work of the courts and access to justice is also affected by power outages due to Russian drones or missiles hitting energy facilities. Although courts are critical infrastructure that must be provided with electricity on a regular basis, the overall situation in Ukraine's energy grid is not conducive to this.

Unpredictable power outages and Internet disconnections disrupt videoconferences with court participants and cause malfunctions in electronic court records, including the Electronic Court system, which allows people to apply to the court, among other functions.

4. A significant number of Ukrainian court buildings have been damaged, and some of them have been completely destroyed, as a result of the hostilities.

According to the State Judicial Administration of Ukraine, which provides logistical support to the courts, as of April 2025, 132 court buildings have been damaged since the beginning of the full-scale invasion, 16 court buildings were completely destroyed.

The most damaged or destroyed court buildings are located in the Kharkiv (25 buildings), Donetsk (24 buildings), and Mykolaiv (21 buildings) regions.

In addition, 6 premises of the Territorial Departments of the State Judicial Administration of Ukraine and the Territorial Departments of the Judicial Protection Service in the Donetsk, Zaporizhzhia, Mykolaiv, Odesa, Kharkiv, Chernihiv, and Kherson regions were damaged[15].

A massive rocket attack on Kyiv damaged the facade of the building of the High Qualification Commission of Judges of Ukraine (hereinafter – the HQCJ), and the blast wave in another attack smashed windows in one of the buildings of the Supreme Court and the building of the National School of Judges of Ukraine.

5. According to the UN by December 2024, 6.8 million Ukrainians had been registered abroad as war refugees.

According to Eurostat, there are about 4.3 million people in European countries who fled Ukraine because of the war. The largest number of Ukrainians living in the European Union have been granted temporary protection in Germany (1.17 million), Poland (993 thousand), the Czech Republic (395 thousand), Spain (230 thousand), and Romania (181 thousand).

Ukrainian citizens also fled to other countries, including the United States (more than 500 thousand) and Canada (about 300 thousand)[16].

6. Citizens who are defending Ukraine in the Armed Forces also have limited access to the courts due to their involvement in military operations on the battlefield.

According to open sources, there are about 1 million people in military service in Ukraine, including 700,000 in the Armed Forces of Ukraine[17].

More than 200 representatives of the judiciary have joined the military service. One third of them are serving judges from all instances, who voluntarily joined the Ukrainian Defense Forces[18].

Shortage of judges and court stuff

These and other reasons lead to a decrease in the number of working judges. Today, Ukraine lacks about 2,000 judges in courts of all instances and jurisdictions. There is also a significant shortage of court staff.

According to the HQCJ, there are 1,412 vacant positions in the courts of first instance, including: 1,143 in civil courts, 136 in administrative courts, and 133 in commercial courts[19].

On December 11, 2024, the HQCJ announced a new selection process for local court judges to form a reserve of candidates for positions in the courts of first instance. This will be the largest recruitment in the modern history of Ukraine, with a projected 1,800 positions[20].

The HQCJ is also currently conducting competitions for judges of the appellate courts and the High Anti-Corruption Court.

The staffing situation in the general courts of appeal, which hear civil and criminal cases, is very difficult, with 62% of positions vacant (only 415 judges out of 1,081 are working). In the commercial courts of appeal, 49% of positions are vacant, and in the administrative courts of appeal, 45% of positions are vacant. The High Anti-Corruption Court has 25 vacant judicial positions, and the Supreme Court has 45 vacancies[21].

It should also be noted that there is a significant shortage of court staff – judicial assistants, judge`s associates, clerks, and others – whose work is essential to ensuring the effective administration of justice. Due to insufficient salaries and excessive workloads, the number of vacancies among court staff is significant and continues to grow.

Judicial immunity of the aggressor state and collection damages

The effective realization of the right of citizens to judicial protection in cases where the aggressor state is the defendant is also hindered by the judicial immunity of the Russian Federation, as the latter does not consent to the consideration of such cases by Ukrainian courts.

In this context, the legal conclusions of the Supreme Court set out in its ruling of April 14, 2022, in case No. 308/9708/19[22], regarding the grounds on which Ukrainian courts may ignore the jurisdictional immunity of the Russian Federation in cases involving claims for damages filed by citizens against the aggressor state, are important for bringing the aggressor state to justice.

The Supreme Court noted that the Russian Federation, having committed an unprovoked and full-scale act of armed aggression against the Ukrainian state, and numerous acts of genocide against the Ukrainian people, has no right to further invoke its judicial immunity, thereby denying the jurisdiction of Ukrainian courts to consider and resolve cases for compensation of damages caused by such acts of aggression.

Since 2022, Ukrainian courts have issued 1,482 judgments in cases involving claims for damages against the Russian Federation, including 985 in favor of individuals and 497 in favor of legal entities. The majority of claims were fully or partly granted by the courts, and only a small proportion of claims (up to 5%) were denied.

The largest compensation awarded to an individual amounted to UAH 328 million (about EUR 8.2 million), and the largest compensation awarded to a legal entity – UAH 247 billion (about EUR 6.2 billion).

Since mid-2022, the total amount of damages awarded by the courts to be recovered from the aggressor state has amounted to UAH 913 billion (about EUR 22.8 billion) [23].

Such decisions of national courts are important for recording the illegal activities of the Russian Federation and for ensuring further fair compensation for the damage caused by the aggressor to individuals and businesses.

Also relevant in this context is the functioning of the Register of Damages for Ukraine (RD4U)[24], which operates with the support of the Council of Europe and is designed to record all eligible claims for compensation for losses, damages, or injuries caused by the aggression of the Russian Federation in Ukraine or against Ukraine.

Extraordinary measures in judiciary

To address these and other problems with access to justice in times of war, Ukraine is taking a number of measures, including changing court venue and sending cases to courts located in the territories controlled by Ukraine, transferring judges from the occupied territories to other courts, and more.

Thus, by the end of 2024, the venue of 171 courts had been changed due to the inability to administer justice during the martial law. The venue of 60 courts was restored after the liberation of the occupied territories. This means that the venue of 111 courts has now been changed; 96 of them are located in the territories of Ukraine temporarily occupied by the Russian Federation.

Since the beginning of the full-scale invasion, the Supreme Court has been periodically publishing interactive maps[25] showing the courts whose venue was changed due to the inability to administer justice during the martial law, in order to inform litigants and other persons.

The venue of such courts was relocated to other courts either in the same region or in a neighboring region. This means that the workload of such courts has sometimes doubled or even more than that.

Over the past three years, a significant number of judges have been seconded (mostly for a one-year period with subsequent extensions) from courts whose venue was changed due to the inability to administer justice during the martial law. The current number of seconded judges can be found on the Interactive Online Map of Courts to Which Judges Are Seconded, which is available on the website of the High Council of Justice[26].

The equipment of court premises with alternative energy sources, the widespread use of videoconferencing for court hearings, and the development of the Electronic Court system, among other things, have had a positive impact on solving the problems with access to justice in the context of the war in Ukraine.

By the end of 2024, according to the State Judicial Administration of Ukraine, 573 out of 590 courts administering justice were equipped with generators and alternative sources of electricity[27].

During the period from 2022 to 2025, the number of court hearings held via videoconference increased significantly. A new video conferencing portal for participation in court hearings was launched.

Participation in court hearings via a videoconference is available only after registration in the Electronic Cabinet of the Electronic Court system[28]. Such registration gives an individual or a representative of a legal entity the opportunity not only to participate in court hearings via a videoconference, but also to file claims, and any other applications and motions with the court in electronic form.

Conclusion

The foregoing allows for the conclusion that, despite the significant difficulties faced by the judicial system of Ukraine in recent years, it has proven its efficiency and ability to administer justice in times of war.

All activities of the courts and the tireless work of judges and court staff are aimed at ensuring high standards of human rights, including the right of access to justice and the right to a fair trial under the martial law.

[1] Vitalii Urkevych is a judge of the Cassation Commercial Court of the Supreme Court of Ukraine, the Secretary of the Grand Chamber of the Supreme Court since 2023. He also served as a judge of the Grand Chamber of the Supreme Court from 2017 to 2020. He completed his PhD at Yaroslav Mudryi National Law University, Ukraine, in 2007 and served firstly as an Associate Professor, then as a Professor in the Department of Land and Agrarian Law at Yaroslav Mudryi National Law University from 2007 to 2017.

urkevych2014@ukr.net

+380(97)1146744

Pylypa Orlyka St., 4a, Kyiv, 01043, Ukraine

[2] European Convention for the Protection of Human Rights and Fundamental Freedoms (04 November 1950). Available at the ECtHR. Accessed May 25, 2025. https://www.echr.coe.int/documents/d/echr/convention_eng

[3] Конституція України від 28.06.1996 [The Constitution of Ukraine from 28.06.1996]. Accessed May 25, 2025. https://zakon.rada.gov.ua/laws/show/254к/96-вр#Text

[4] Universal Declaration of Human Rights (10 December 1948). Available at the United Nations General Assembly. Accessed May 25, 2025. https://www.un.org/en/about-us/universal-declaration-of-human-rights

[5] Judgment in the case of Bellet v. France (04 December 1995). Available at the ECtHR. Accessed May 25, 2025. https://hudoc.echr.coe.int/ukr#{%22itemid%22:[%22001-57952%22]}

[6] Judgment in the case of Mushta v. Ukraine (18 November 2010). Available at the ECtHR. Accessed May 25, 2025. https://hudoc.echr.coe.int/ukr#{%22fulltext%22:[%22\%22CASE%20OF%20MUSHTA%20v.%20UKRAINE\%22%22],%22itemid%22:[%22001-101769%22]}

[7] Judgment in the case of Kreuz v. Poland (19 June 2001). Available at the ECtHR. Accessed May 25, 2025. https://hudoc.echr.coe.int/ukr#{%22fulltext%22:[%22Kreuz%20v.%20Poland%22],%22itemid%22:[%22001-59519%22]} 

[8] Judgment in the case of Golder v. the United Kingdom (21 February 1975). Available at the ECtHR. Accessed May 25, 2025. https://hudoc.echr.coe.int/ukr#{%22fulltext%22:[%22Golder%20v.%20the%20United%20Kingdom%22],%22itemid%22:[%22001-57496%22]}

[9] Judgment in the case of Stanev v. Bulgaria (17 January 2012). Available at the ECtHR. Accessed May 25, 2025. https://hudoc.echr.coe.int/ukr#{%22fulltext%22:[%22Stanev%20v.%20Bulgaria%22],%22itemid%22:[%22001-108690%22]}

[10] Про затвердження Переліку територій, на яких ведуться (велися) бойові дії або тимчасово окупованих Російською Федерацією: Наказ Міністерства розвитку громад та територій України від 28.02.2025 № 376 [On approval of the List of territories in which hostilities are (were) being conducted or temporarily occupied by the Russian Federation: Order of the Ministry of Communities and Territories Development of Ukraine from 28.02.2025 № 376]. Accessed May 25, 2025. https://zakon.rada.gov.ua/laws/show/z0380-25#Text

[11] Аналітична довідка про пошкоджені та зруйновані приміщення судів внаслідок збройної агресії рф та їх відновлення [Analytical report on damaged and destroyed court premises as a result of the armed aggression of the Russian Federation and their restoration]. Accessed May 25, 2025. https://court.gov.ua/storage/portal/dsa/analit_poshkodj_prymish/analit_22_04_25.pdf

[12] Рекомендації судам першої та апеляційної інстанції на випадок захоплення населеного пункту та/або суду чи безпосередньої загрози його захоплення [Recommendations for courts of first instance and appellate courts in case of seizure of a settlement and/or a court building or in case of risk of seizure by the enemy]. Accessed May 25, 2025. https://supreme.court.gov.ua/userfiles/media/new_folder_for_uploads/supreme/war/Recomendatsii.pdf

[13] Аналітична довідка про пошкоджені та зруйновані приміщення судів внаслідок збройної агресії рф та їх відновлення [Analytical report on damaged and destroyed court premises as a result of the armed aggression of the Russian Federation and their restoration]. Accessed May 25, 2025. https://court.gov.ua/storage/portal/dsa/analit_poshkodj_prymish/analit_22_04_25.pdf

[14] Карта повітряних тривог України [The map of air alerts in Ukraine]. Accessed May 25, 2025. https://alerts.in.ua/

[15] Аналітична довідка про пошкоджені та зруйновані приміщення судів внаслідок збройної агресії рф та їх відновлення [Analytical report on damaged and destroyed court premises as a result of the armed aggression of the Russian Federation and their restoration]. Accessed May 25, 2025. https://court.gov.ua/storage/portal/dsa/analit_poshkodj_prymish/analit_22_04_25.pdf

[16] Аналітична записка Центру економічної стратегії від 20.02.2025 [Analytical note from the Center for Economic Strategy from 20.02.2025]. Accessed May 25, 2025. https://ces.org.ua/wp-content/uploads/2025/02/ukrayinski-bizhenczi-pislya-troh-rokiv-za-kordonom.pdf

[17] Україну захищають мільйон бійців [Ukraine is defended by a million soldiers]. Accessed May 25, 2025. https://www.bbc.com/ukrainian/features-62099292

[18] Інформація про Міжнародну науково-практичну конференцію «Мир через Право: військові конфлікти та виклики правосуддя» [Information about the International Scientific and Practical Conference "Peace through Law: Military Conflicts and Challenges for Justice"]. Accessed May 25, 2025. https://supreme.court.gov.ua/supreme/pres-centr/news/1727995/

[19] Пост-реліз ВККСУ про початок добору кандидатів на посаду судді місцевого суду [Post-release of HQCJ on the start of the selection process for local court judges]. Accessed May 25, 2025. https://vkksu.gov.ua/news/vkksu-ogolosyla-pro-pochatok-naymasshtabnishogo-doboru-na-posady-suddiv-miscevyh-sudiv

[20] Оголошення ВККСУ про добір кандидатів на посаду судді місцевого суду [Announcement of HQCJ of the selection process for local court judges]. Accessed May 25, 2025. https://vkksu.gov.ua/news/ogoloshennya-pro-dobir-kandydativ-na-posadu-suddi-miscevogo-sudu

[21] Облік посад суддів ВККСУ [Accounting of judicial positions by the HQCJ]. Accessed May 25, 2025. https://vkksu.gov.ua/oblik

[22] Постанова Верховного Суду від 14.04.2022 у справі № 308/9708/19 [Judgement of the Supreme Court from 14.04.2022 in case No. 308/9708/19]. Accessed May 25, 2025. https://reyestr.court.gov.ua/Review/104086064

[23] Аналітична довідка щодо кількості судових рішень щодо відшкодування збитків з Російської Федерації від 23.04.2025 [Analytical report on the number of court decisions on compensation for damages from the Russian Federation from 23.04.2025]. Accessed May 25, 2025. https://opendatabot.ua/analytics/court-against-rf

[24] Register of Damages for Ukraine. Accessed May 25, 2025. https://rd4u.coe.int/en/

[25] Інтерактивна мапа судів, територіальну підсудність яких було змінено у зв’язку з неможливістю здійснювати правосуддя під час воєнного стану [Interactive map showing the courts whose venue was changed due to the inability to administer justice during the martial law]. Accessed May 25, 2025. https://supreme.court.gov.ua/supreme/gromadyanam/terutor_pidsudnist/

[26] Інтерактивна онлайн-мапа судів, до яких відряджено суддів [Interactive online map of courts to which judges have been seconded]. Accessed May 25, 2025. https://hcj.gov.ua/page/interaktyvna-onlayn-mapa-sudiv-do-yakyh-vidryadzheno-suddiv

[27] V Форум суддів за сприяння Програми розвитку ООН (ПРООН) в Україні за фінансової підтримки Уряду Данії від 23.08.2024 [V Forum of judges was organized by the United Nations Development Programme (UNDP) in Ukraine with financial support from the Government of Denmark from 23.08.2024]. Accessed May 25, 2025. https://www.undp.org/sites/g/files/zskgke326/files/2025-02/ua-undp-v-judicial-forum-web.pdf

[28] Про затвердження Положення про порядок функціонування окремих підсистем Єдиної судової інформаційно-телекомунікаційної системи: Рішення Вищої ради правосуддя від 17.08.2021 № 1845/0/15-21 [On approval of the Regulation on the procedure for the functioning of individual subsystems of the Unified Judicial Information and Telecommunications System: Decision of the High Council of Justice from 17.08.2021 № 1845/0/15-21]. Accessed May 25, 2025. https://dsa.court.gov.ua/userfiles/media/new_folder_for_uploads/dsa/richenna_VRP_ECITC_21.pdf