In brief
On 14 April 2022, the Supreme Court rendered a resonant resolution in case No. 308/9708/19, which gave the green light to satisfy claims for the collection of damages against the aggressor state on the territory of Ukraine.
Prior to this resolution, the possibility of satisfying such claims was limited by the application of judicial immunity for the respondent state, which is based on the general international principle of sovereign equality of states: "equals have no jurisdiction over each other."
In more detail
Since 2014 — the beginning of the Russian armed aggression against Ukraine — there have been isolated decisions of first-instance courts satisfying the claims of individuals for recovery of damages to life, health and property of such individuals due to Russian armed aggression. However, such decisions were overturned by the higher-instance courts based on ignorance of the respondent state's judicial immunity.
In the abovementioned resolution dated 14 April 2022, the Supreme Court established a new approach to assessing the judicial immunity of the aggressor state by stating that the Russian Federation has gone far beyond its sovereign rights by carrying out armed aggression against Ukraine. Therefore, it has no right to enjoy its judicial immunity in cases regarding the collection of damages caused by such acts of aggression to an individual — a citizen of Ukraine.
At the same time, in a recent resolution dated 18 May 2022 in case No. 760/17232/20-ц, the Supreme Court reiterated its legal position that Ukrainian courts have the right to ignore an aggressor state's judicial immunity in cases related to inflicting damage to life, health and property.
Arguments of the Supreme Court
In substantiating its position, the Supreme Court noted the following:
- The Russian Federation has no right to invoke its judicial immunity, given the commission of armed aggression against Ukraine and the violation of the fundamental principles and provision of international law.
- the lack of the Russian Federation's right to invoke its judicial immunity is also based on the provisions of Article 12 of the UN Convention on Jurisdictional Immunities of States and Their Property (2004), which should be applied as rules of customary international law.
- the application of judicial immunity for the Russian Federation in this category of cases would lead to a violation of Ukraine's international obligations in the field of counter-terrorism under the Council of Europe Convention on the Prevention of Terrorism (2005) and the International Convention for the Suppression of the Financing of Terrorism (1999), which impose positive obligations on the participating state (Ukraine) to protect victims of terrorism.
Maintaining the Russian Federation's judicial immunity in this category of cases would lead to a violation of the claimants' rights to access court, since in light of the Russian Federation's denial of any responsibility for armed aggression against Ukraine, appealing to Ukrainian courts is the only possible resource for the claimants to protect their violated rights.
Significance for future litigations
The Supreme Court, by rendering the abovementioned resolutions, has taken a significant step to protect fundamental human rights and freedoms violated by the armed aggression of the Russian Federation, given the fact that the conclusions set out in the Supreme Court's resolutions are mandatory for the lower courts while applying the legislation in similar legal relations.
In other words, the Supreme Court has removed the legal barrier to bringing the Russian Federation to responsibility for armed aggression against Ukraine and its citizens. We expect new decisions on the recovery of damages inflicted by the Russian Federation's full-scale military aggression on the territory of Ukraine to be rendered.
