Ukraine's task in matters of compensation for damages caused by the aggressor is to collect a complete evidence base and establish a clear cause-and-effect relationship between the aggressor's actions and their consequences.
Yevgenia Vakulenko , associate professor of the Department of Corporate Finance and Controlling at KNEU, head of the International Charitable Foundation "Ukrainian Revival of the 21st Century", said this during a "round table" in Ukrinform on the topic "International cooperation on the realization of frozen Russian assets for the benefit of Ukraine".
According to her, it is the work of domestic law enforcement agencies and the decisions of Ukrainian courts that primarily record such a direct cause-and-effect relationship. Moreover, in order for the punishment to be inevitable for Russia, it is advisable to consider separately the civil lawsuits filed on the basis of criminal proceedings.
"If we talk about the effective consideration of proceedings, then first of all we are talking about not just civil lawsuits, but civil lawsuits that were born from criminal proceedings, that is, from the consequences of the occupiers committing criminal crimes. Accordingly, these claims can be considered either together with the criminal proceedings or separately. In order for the punishment to be inevitable for Russia, of course, it is expedient to consider these lawsuits separately, which Ukrainian courts do," said Vakulenko.
After summarizing such decisions and collecting the evidence base, Ukraine, according to her, should go to the jurisdiction of those countries where frozen Russian assets are located, and legalize the decisions made by Ukrainian courts there.
"Having done this and established a connection with one or another frozen asset, we have to prove a cause-and-effect relationship between the actions of its owner and the consequences caused by Russian aggression. A classic precedent here is the Malofeev case, when in January of this year the assets of this Russian billionaire, frozen in the USA since 2014, were seized, because it was proven that he directly financed the terrorist organization "DNR", Vakulenko notes.
However, there is a problem in the legislative regulation of such mechanisms of influence in Ukraine.
According to the expert, the adoption of legislation on additional procedural possibilities for informing such a specific participant in the case as the aggressor state can partially help this, by legitimizing the decisions of Ukrainian courts for foreign jurisdictions.
Vakulenko reminded that more than a year ago, the Verkhovna Rada registered relevant draft laws (Nos. 7520, 7520-1 and 7520-2), which have not yet been adopted.
"Of course, representatives of the aggressor and citizens of the Russian Federation refuse and will refuse to receive notices of summonses to Ukrainian courts in foreign jurisdictions. Therefore, it is very important to record this process, to record it on video, when handing over official letters. After all, it is also an element of the evidence base that will contribute to defending the position of Ukraine and its citizens in foreign courts," the expert noted.
She called on representatives of the expert environment and practicing judges to be more actively involved in the development of mechanisms for solving the problem of frozen assets of the Russian Federation in favor of Ukraine.
"The world is waiting for Ukraine to offer the necessary solutions and mechanisms. And Ukraine needs to work on all this. It is very important that this cannot happen only in a narrow circle of specialists of the Ministry of Justice, it requires the involvement of an expert environment and practicing judges. And this is a big collective effort," Vakulenko added in an exclusive comment to Ukrinform after the "round table".
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Since Russia's actions in Ukraine violate not only the norms of international law, but also its own legislation, the confiscation of Russian assets should be viewed through the prism of combating the financing of terrorism.
This was said by Iryna Ivanets, associate professor of the Department of Institutional Economics of the University of Marburg (FRG), associate professor of the Department of Corporate Finance and Controlling of KNEU, presenting the results of a joint study with the head of the International Charitable Foundation "Ukrainian Revival of the 21st Century" Evgenia Vakulenko.
According to Ivanets, in practice it became clear that the UN does not fully fulfill its main function – taking effective measures to prevent and eliminate threats to peace and suppression of acts of aggression. Therefore, the world community should develop effective mechanisms that will help change the situation.
"In particular, we know that the undeclared war of the Russian Federation, which has lasted for more than 500 days, violates the fundamental articles, such as the "right to life", "the prohibition of torture", "the right to respect for private and family life". And the world must recognize Russia as a gross violator of international law. After all, among other things, the aggressor's actions are characterized by all 14 signs of fascism defined by (British journalist and political scientist – ed.) Lawrence Britt," the expert said.
Among the main violations on the part of Russia, the use of hybrid technologies and aggressive propaganda, built on distorted information, aimed at destroying the people of a neighboring country, was named; violation of territorial integrity and internationally recognized borders; the annexation of a number of territories and the inclusion of the Crimean peninsula, Donetsk, Luhansk, Zaporizhzhia, and Kherson regions into its constitution as its own territories; blockade of Ukrainian ports; the artificial creation and use for their own purposes of terrorist proxy entities "DPR" and "LPR"; sending to the territory of Ukraine armed gang formations and groups that are part of the "LPR" and "DNR", as well as the "Wagner" PMC; gas blackmail of the European energy market; acts of genocide against the civilian population of Ukraine, acts of forced deportation, including children; the use of acts of ecocide as a means of waging war; nuclear terrorism and acts of aggression against civilians and prisoners of war.
"At the same time, according to Article 2 of the Third Hague Convention "On the Opening of Hostilities", the fact of treacherous aggression of the Russian Federation against a sovereign neighbor is prejudicial and does not require proof. After all, it is obvious and well-known," Ivanets emphasized.
The expert added that, in addition to disregarding all possible norms of international law, the Russian Federation also violates its own legislation – in particular, the military statute – which turns it into a terrorist group.
Accordingly, the world should consider the confiscation of frozen Russian assets through the lens of terrorist financing.
"For us, this is a possible source of restoration of Ukraine. Therefore, together with our partners, we must create a transparent confiscation mechanism that will help us move forward. Accordingly, it is necessary to develop an internationally recognized concept and algorithm for the national jurisdictions of allied states in terms of the application of economic sanctions against the offending country. Plus, there is a very well verified and proven cause and effect relationship between the actions of the aggressor and the damage caused by the war to Ukraine, Ukrainian business and citizens, and the most comprehensive evidence base. We are making progress in fulfilling these three main tasks," Ivanets assured.
Ukraine should improve the procedure for consideration of court cases against Russia – a judge of the Supreme Court
Ukraine needs to improve the procedural legislation as soon as possible regarding the consideration of certain categories of court cases in connection with the armed aggression of the Russian Federation.
This was announced by the judge of the Civil Court of Cassation as part of the Supreme Court, Olga Stupak.
She reminded that the armed aggression of the Russian Federation against Ukraine did not start on February 24, 2022, it has been going on since 2014. Even before the Great War, Ukrainian courts were already considering various categories of cases related to compensation for damages caused by Russia's actions in the east of Ukraine and on the temporarily occupied territory of the Autonomous Republic of Crimea.
"But in the period up to February 24, the courts certainly complied with Ukraine's international obligations. Therefore, when resolving disputes where the defendant was the aggressor state, all measures stipulated by international agreements were taken to notify the participant of the process by sending appropriate letters, appeals, information about the consideration of this or that case using diplomatic channels, i.e. through the Ministry of Foreign Affairs of the Russian Federation. Of course, February 24 changed the system of relations with the aggressor. And we lost the possibility of direct communication and information. Therefore, the question arose: can national courts decide cases on compensation for damages caused by armed aggression, even now, when this aggression is still ongoing," the judge explained.
This, according to her, was the cause of the pause in the consideration of such cases. In order to find legal ways to resolve the situation in Ukraine, the international experience was analyzed, although it turned out to be not very helpful, considering the fact that until now the issues of compensation for the damage caused were resolved after the end of armed conflicts.
On April 14, 2022, the Supreme Court issued the first legal opinions on this issue, citing, based on international documents and practice, the legal justification for why national courts can ignore the immunity of the aggressor country. In particular, in terms of informing the parties to the process, the courts currently act by analogy with the procedure for notifying persons who are in temporarily occupied territories, i.e. through the official publication on the website of the judiciary of information about each case where the defendants are the Russian Federation or citizens of the aggressor country.
However, as experience has shown, when considering cases of recovery of Russian assets in favor of Ukrainian plaintiffs, such justification is not sufficient for foreign courts. This was confirmed by representatives of the legal community of Belgium and Lithuania who participated in the round table.
According to Stupak, the adoption of legislation on additional procedural possibilities for informing such a specific participant in the case as the aggressor state can partially help, legitimizing the decisions of Ukrainian courts for foreign jurisdictions. The judge reminded that more than a year ago, the Verkhovna Rada registered relevant draft laws (Nos. 7520, 7520-1 and 7520-2), which have not yet been adopted.
"A year ago, we already talked about them, placing great hopes on these legislative acts. After all, the documents, in particular, provide for the establishment at the legislative level of the grounds for ignoring jurisdictional immunity during consideration by national courts of cases for which the aggressor country is the defendant. Procedural norms regarding the procedure for informing the aggressor country about the consideration of this or that case were also foreseen. Unfortunately, these laws still remain in the form of draft laws," Stupak stated.
She added that courts of first instance in Ukraine are already considering hundreds of cases on compensation for damages caused by Russian aggression. However, the mechanisms for collecting compensation from the defendant at the international level have not yet been approved.
The participants of the round table also discussed other issues related to bringing the aggressor state to justice in criminal and civil court processes: creation of a new security environment, practical steps of Ukraine's partners, international cooperation in the search for Russian assets, sources and mechanisms of compensation for damages caused by military aggression of the Russian Federation, experience of legalization of decisions of Ukrainian courts in various jurisdictions, evaluation of the evidence base regarding the size and scope of the damages.
In particular, the executive director of the Fund for the Institutional Development of Ukrainian Science Mykola Marchenko and his deputy Anna Islamova (V.M. Koretsky Institute of State and Law), People's Deputy Mykola Velichkovich, managing partner of AC Crowe Ukraine Olena Potopalska, founder of the law firm Law took part in the discussion Consulting (Vilnius, Republic of Lithuania) Hnat Kucheryn, founder of the Justice for Ukraine Foundation, Billiet&Co lawyer Vladimir Linkautan (Brussels, Belgium), leading forensic expert of the Economic Research Laboratory of the Kyiv Research Institute of Forensic Expertise Mykhailo Polennikov.