The issue of compensation for damage caused by armed aggression has been in the focus of attention of the Ukrainian judicial system since 2014. And in light of the full-scale Russian invasion on February 24, it became even more urgent.
The Convention on the Protection of Human Rights and Fundamental Freedoms and the practice of the European Court of Human Rights serve as guidelines for national courts in protecting the rights and freedoms of people and citizens. The Supreme Court also forms fundamental positions regarding the protection of property rights of persons who have suffered from armed aggression. The judges of the Great Chamber of the Supreme Court Tetyana Antsupova and Dmytro Gudyma told what nuances should be paid attention to when considering such cases during the round table.
Thus, Tetyana Antsupova dwelt in more detail on the issues of jurisdiction and responsibility of the state in cases related to the protection of the rights of persons who suffered from armed aggression. When considering this category of cases, she noted, in addition to the analysis of national legislation, judges should pay attention to the issue of the state's exercise of jurisdiction and effective control over the territory where the events took place. This aspect is key. The search for answers to the primary questions should begin with the analysis of Art. 1 of the Convention, which contains a system-forming norm concerning the obligation to respect human rights, namely those persons who are under the jurisdiction of the state. "It is important to remember: in cases regarding compensation for damage against the background of armed aggression, the most important question to which the court must answer is establishing the exercise of jurisdiction and effective control of the state," the judge of the Supreme Court stated. As was specified, when it comes to Russia's armed aggression against Ukraine, it would, of course, be simpler and easier if the demarcation of jurisdiction were established by an international court. However, national courts are the first to deal with this category of cases, that is why thorough answers should be in their decisions. There are many decisions about this in the practice of the ECtHR. In particular, according to Tetyana Antsupova, the test of effective control was applied in such cases as "Loizidou v. Turkey", "Al-Skeini and Others v. the United Kingdom" (Al-Skeini and Others v. the United Kingdom) , "Katan and others v. Moldova and Russia", "Cyprus v. Turkey". The judge paid special attention to the methodology of consideration of interstate cases. For example, in a fairly recent decision of the ECtHR in the case "Georgia v. Russia (II)", the Court avoided assessing the circumstances of human rights violations during active hostilities. In this regard, ECtHR judge Helen Keller expressed her own opinion that the fact-finding methodology used by the ECtHR is not suitable for establishing the facts of mass violations of human rights.
When deciding the issue of state jurisdiction, the judge of the Supreme Court noted, it is worth remembering that the presence of territorial jurisdiction in internationally recognized borders does not equal the state's responsibility within these borders. In cases in which the question of jurisdiction arises, the court must first of all answer it, and only after that – the question of the state's responsibility through the prism of negative or positive obligations.
Tetyana Antsupova also analyzed Art. 15 of the Convention on derogation from obligations during an emergency. According to the content of this article, during war or other public danger that threatens the life of the nation, the state may take measures derogating from its obligations under the Convention. In this case, the state must inform the Secretary General of the Council of Europe about the measures it has taken and the reasons for their application. You can check the following information about Ukraine on the official website of the Council of Europe in the "Treaties of the Council of Europe" section.
Judicial protection of property rights
Judicial protection of the property rights of persons who suffered from armed aggression was analyzed in the practice of the Great Chamber of the Supreme Court by the judge of the Supreme Court, Dmytro Gudyma. According to him, there were not so many such cases, but they actually set out the entire methodological base that will help judges of the first and appellate instances to apply relevant conclusions and resolve similar cases.
As indicated, the Grand Chamber of the Supreme Court considered three such cases. The first case concerned compensation by the state for moral damage caused by the death of the mother, which occurred as a result of a terrorist act in the territory not controlled by Ukraine, where the anti-terrorist operation was carried out (decision of the Supreme Court of Ukraine of May 12, 2022 in case No. 635/6172/17). The second case is about compensation by the state for property damage caused by a terrorist act (in the amount of the real value of the property) due to damage to a commercial real estate object in the territory controlled by Ukraine in the city of Mariupol (decision of the Supreme Court of Ukraine of September 4, 2019 in case No. 265/6582/16 -ts). The third case related to property damage caused to the enterprise as a result of the theft of equipment belonging to the company in the territory controlled by Ukraine, where the anti-terrorist operation was carried out (resolution of the Supreme Court of the Armed Forces of September 22, 2020 in case No. 910/378/19).
According to Dmytro Gudyma, in such cases the courts should pay attention to several points. First, the grounds of the lawsuit are, in fact, the circumstances that substantiate the claim. He noted that specific prescriptions of normative acts and the Convention are often mistakenly considered grounds for a lawsuit. However, such grounds are the circumstances with which the claims are connected. It is from these circumstances that it is possible to establish the violation by Ukraine of which obligations under the Convention (negative, positive material or positive procedural) the plaintiff complains about. Establishing the obligations that Ukraine has violated is the key to satisfying the claim and awarding compensation of the appropriate amount.
Secondly, before establishing whether Ukraine has violated the obligations with which the plaintiff relates its claim, it should be determined whether it exercised jurisdiction in the sense of Art. 1 of the Convention in the territory where, according to the claimant, the violation occurred. Thanks to the ECtHR's decision on admissibility in the case "Ukraine v. Russia (Regarding Crimea)", it is safe to say that the Russian Federation has been exercising effective control over the Autonomous Republic of Crimea since February 27, 2014, while Ukraine has lost the opportunity to exercise its jurisdiction. "But the big question that will have to be solved remains the time until which our state exercised or could exercise power in specific temporarily occupied territories of Donetsk and Luhansk regions and in some territories that were temporarily occupied after the full-scale invasion of February 24, 2022," – said Dmytro Gudyma.
If the court establishes that Ukraine exercised jurisdiction over a certain territory at the time when the events with which the plaintiff relates his claim took place, then, according to the judge of the Supreme Court of Ukraine, it is necessary to establish whether our state properly fulfilled its convention obligations. If it is not appropriate, then in this case it should be established which duty she violated – a negative duty (for example, the death of a person by the forces of the state or destruction, damage to private property) or a positive duty (the state should create appropriate compensation mechanisms, conduct an objective and effective investigation by an independent body of violations of relevant rights, etc.).
We would like to add that this national round table "Judicial protection of property rights of victims of armed aggression" in online format was jointly organized by the National School of Judges of Ukraine and the Council of Europe project "Internal displacement in Ukraine: development of lasting solutions. Phase II" on June 17, 2022.