In 2014, in connection with the invasion of Russian troops in Ukraine, the Anti-Terrorist Operation was launched and the territories on which it takes place were determined. However, there is a list of settlements where the activities of state authorities are temporarily not extended. Who is responsible for the death of people in the territory under the control of the state and how to collect moral damages?
By Decree of the President of Ukraine dated April 14, 2014 No. 405/2014 “On the decision of the National Security and Defense Council of Ukraine dated April 13, 2014 “On urgent measures to overcome the terrorist threat and preserve the territorial integrity of Ukraine”, ATO was launched.
The territory of the anti-terrorist operation covers the territory of Ukraine, which includes the settlements specified in the list approved by the Cabinet of Ministers of Ukraine in accordance with the specified Decree of the President of Ukraine dated 04.14.2014 No. 405/2014. The order of the Cabinet of Ministers of Ukraine dated November 7, 2014 No. 1085-r approved the list of settlements on the territory of which state authorities temporarily do not exercise their powers, and the list of settlements located on the demarcation line.
According to part 2 Art. 1177 of the Civil Code of Ukraine, the damage caused to the victim as a result of a criminal offense shall be compensated to him at the expense of the State Budget of Ukraine in the cases and procedure provided for by law. The ECtHR noted that the right to state compensation for victims of a criminal offense in Ukraine has never been unconditional.
Part 1 of Art. 19 of the Law of Ukraine dated 20.03.2003 No. 638-IV “On Combating Terrorism” provides for a special rule according to which compensation for damage caused to citizens by a terrorist act shall be carried out at the expense of the State Budget of Ukraine in accordance with the law and with subsequent collection of the amount of this compensation from persons who have been harmed, in accordance with the procedure established by law. In addition, compensation for damage caused by a terrorist act to an organization, enterprise or institution is carried out in accordance with the procedure established by law (Part 2 of Article 19 of this Law).
Given the content of the specified provisions of the Law, the realization of the right to receive the specified compensation is dependent on the existence of a compensation mechanism, which must be established in a separate law.
Let’s analyze the judicial practice that is being formed today on the issue of compensation for moral damage as a result of anti-terrorist operation.
Resolution of the Supreme Court as part of the panel of judges of the First Judicial Chamber of the Civil Court of Cassation dated January 18, 2023 in case No. 644/8115/18 (proceedings No. 61-15831СВ20)
The circumstances of the case.
On July 10, 2014, in the territory of the village of Opytne, Yasynuvatsky district, Donetsk region, during an anti-terrorist operation and fighting, Person 4 received a bullet wound through the back surface of the chest with damage to internal organs and died from the injuries.
According to the death certificate, issued on July 11, 2014 by the department of state registration of civil status acts of the Kuibyshev District Department of Justice in the city of Donetsk, PERSON_4 died in the village. Survey of Yasynuvat district of Donetsk region. According to the medical certificate of death No. 96 dated July 11, 2014, the cause of death of PERSON_4 was acute blood loss, a bullet wound through the back surface of the chest with damage to internal organs.
On August 28, 2017, the investigative department of the second department (located in the city of Mariupol, Donetsk region) of the SBU in Donetsk and Luhansk regions began a pre-trial investigation in criminal proceedings No. of Ukraine (a terrorist act that resulted in the death of a person).
On July 26, 2018, PERSON_2, PERSON_3, and PERSON_1 were recognized as victims and reminders about the victim’s procedural rights and obligations were handed over. The persons involved in the crime have not been identified.
On August 29, 2018, the decision of the Executive Committee of the Kharkiv City Council No. 562 PERSON_3 and the decision of the Executive Committee of the Kharkiv City Council No. 563 PERSON_1 granted the status of a child who suffered as a result of hostilities and armed conflicts, taking into account the fact that the children suffered psychological violence (moral and psychological suffering, which does not require proof and which the children suffered in connection with the death due to the wounding of their father — PERSON_4).
The plaintiffs noted that as a result of the death of PERSON_4, they have the right to receive compensation for moral damages from the state of Ukraine in view of the requirements of the Convention on the Protection of Human Rights and Fundamental Freedoms, Geneva Conventions of 1949, Art. 19 of the Law of Ukraine “On Combating Terrorism”, the Constitution of Ukraine and provisions of the Central Committee.
Also, the Plaintiffs noted that at the time of filing this lawsuit with the court, the state had not adopted the law, as provided for in Art. 19 of the Law of Ukraine “On Combating Terrorism”, on the basis of which compensation is paid for damage caused to the health of individuals, as well as compensation for moral damage to relatives of victims of terrorist acts. However, the absence of a relevant law cannot be an obstacle in the protection of their rights.
Reasoning of the Court.
Provided in Art. 19 of the Law of Ukraine “On Combating Terrorism”, the right to compensation by the state in accordance with the law for damage caused by a terrorist act does not, without a special law, give rise to a legitimate expectation of receiving compensation from the state of Ukraine for moral damage caused to the plaintiffs as a result of the death of a husband and father during a terrorist act during the period of anti-terrorist operation, regardless of which territory — controlled or not controlled by Ukraine — the specified act took place.
In the legislation of Ukraine, there is no such legal basis that makes it possible to determine the specific property interest of the plaintiffs in relation to the right to claim on the basis of the Law of Ukraine “On Combating Terrorism” to the state for compensation for moral damage caused by the state in connection with the death of the husband and father during the period of ATO.
Legal conclusions similar in content are set out in the resolutions of the Grand Chamber of the Supreme Court dated 04.09.2019 in case No. 265/6582/16-ts (proceedings No. 14-17cs19), dated 22.09.2020 in case No. 910/378/19 (proceedings No. 12 -23gs20), dated 05/12/2022 in case No. 635/6172/17 (proceedings No. 14-167ts20).
Taking into account the above, there are no legal grounds for satisfying claims on the basis of Art. 19 of the Law of Ukraine “On Combating Terrorism”.
By themselves, the facts of the death of people on the territory under the control of the state, that is, on the territory over which it exercises jurisdiction in the sense of Art. 1 of the Convention on the Protection of Human Rights and Fundamental Freedoms (in particular, within its borders during the periods of anti-terrorist operations, operations of the joint forces), does not mean an automatic violation of the guarantees of the right to life under Article 2 of the Convention. Moreover, it does not mean such an automatic violation and death of people in the territory that the state does not control within its borders for reasons beyond its control (that is, the one over which it does not exercise jurisdiction in the sense of Art. 1 of the Convention; see mutatis mutandis decision of the Grand Chamber of the ECtHR on admissibility in the case “Ukraine v. Russia (re Crimea)” (Ukraine v. Russia (re Crimea)) dated 12.16.2020, applications No. 20958/14 and 38334/18, § 303-352). Likewise, the facts of violations of public order, peace, destruction or damage to property, creating a threat to people’s safety within the borders of Ukraine (in particular, during the periods of anti-terrorist operations, joint forces operations) are not grounds for imposing responsibility on the state under the Convention. including by persons who did not act as agents of this state.
The Grand Chamber of the Supreme Court in its ruling dated 05/12/2022 in case No. 635/6172/17 (proceedings 14-167ts20) issued a legal opinion in which it noted that the provisions of Art. 2 of the Convention. However, the problem in such cases is to establish whether the victim was under the jurisdiction of the State of Ukraine in the sense of Art. 1 of the Convention and whether the State of Ukraine violated certain of its obligations arising from the specified article.
The Supreme Court agrees that the plaintiffs’ loss of their husband and father, who died under tragic circumstances, is irreparable and undoubtedly causes severe moral and physical suffering.
However, the plaintiffs did not substantiate that the State of Ukraine knew about the possibility of shelling by illegal armed formations in the villages. Investigation of the Yasynuvat district of the Donetsk region (according to the excerpt from the EDPR dated 28.08.2017 regarding criminal proceedings No. Therefore, the latter did not substantiate the violation by the State of Ukraine of its positive material obligation to guarantee the right to life.
The death of the husband and father of the plaintiffs and the fulfillment by the State of Ukraine of a positive material obligation to guarantee the right to life of PERSON_4 are not in a cause and effect relationship.
Given the circumstances of this case, there are no grounds for the responsibility of the State of Ukraine for the improper fulfillment of the positive material obligation to guarantee the right to life of PERSON_4.
You can read more about the text of the resolution at the link .
Resolution of the Supreme Court as part of the panel of judges of the First Judicial Chamber of the Civil Court of Cassation dated February 8, 2023 in case No. 423/847/20 (proceedings No. 61-12412СВ22)
The circumstances of the case.
On January 27, 2015 at 11:40 a.m. as a result of artillery shelling of the city. Popasna, Luhansk region, the house at the address in which PERSON_2 was fatally injured, and the plaintiff was injured, was destroyed.
The claimant PERSON_1 is the daughter of the deceased PERSON_2, which is confirmed by the birth certificate and the marriage certificate. According to the certificate of the medical and social expert commission, PERSON_1 has been a person with a disability of the third group since February 6, 2018.
According to the letters of the Main Directorate of the Security Service of Ukraine in the Donetsk and Luhansk regions dated June 2, 2016 and December 26, 2019, the pre-trial investigation in criminal proceedings dated January 27, 2015 No. 12015050150000294 on the grounds of the criminal offense provided for by the second part of Article 258 of the Criminal Code of Ukraine is ongoing. Within the framework of this criminal proceeding, the medical documentation of PERSON_1 was requested for the appointment of a forensic medical examination.
According to the conclusion of the commission’s psychological examination No. 62/19 of March 18, 2020, PERSON_1 has changes in her emotional state, individual and psychological manifestations that prevent her from active social functioning as a person and arose as a result of her injuries when she fell on January 27, 2015 in her home of the Grad system projectiles, with the destruction of her home and the death of her mother.
Reasoning of the Court.
By themselves, the facts of the death of people on the territory under the control of the state, that is, on the territory over which it exercises jurisdiction in the sense of Art. 1 of the Convention (in particular, within its borders during the periods of anti-terrorist operations, operations of the combined forces), does not mean an automatic violation of the guarantees of the right to life under Art. 2 of the Convention. Moreover, it does not mean such an automatic violation and death of people in the territory that the state does not control within its borders for reasons beyond its control (that is, the one over which it does not exercise jurisdiction in the sense of Article 1 of the Convention).
Ukraine remains the object of armed aggression by the Russian Federation (hereinafter referred to as the Russian Federation), which the latter carries out, among other things, through the support and provision of large-scale terrorist attacks. The result of the armed aggression of the Russian Federation against Ukraine was the illegitimate military occupation and subsequent illegal annexation of the territory of the Autonomous Republic of Crimea and the city of Sevastopol – an integral part of the state territory of Ukraine, the military occupation of a large part of the territory of Ukraine in the Donetsk and Luhansk regions. With its illegal actions, the Russian Federation also caused non-material damage to Ukraine, violating the rights of Ukrainian citizens, including the right to life, in the Autonomous Republic of Crimea and the city of Sevastopol, in the Donetsk and Luhansk regions. The victims of the armed aggression of the Russian Federation were the civilian population, in particular women and children.
The death of the plaintiff’s mother and the fulfillment by the State of Ukraine of a positive material obligation to guarantee the right to life of PERSON_2 are not in a cause and effect relationship.
In view of the above, the conclusion of the appellate court that there are no grounds for the responsibility of the State of Ukraine for the improper fulfillment of the positive material obligation to guarantee the right to life of PERSON_2 is correct.
Under such circumstances, the plaintiff did not substantiate the claim for moral damages by the state, did not specify the facts (circumstances) under which it would be possible to claim that the state violated specific obligations (negative, positive material, positive procedural) to guarantee the right to life of her mother.
You can read more about the text of the resolution at the link .
Resolution of the Supreme Court as part of the panel of judges of the Third Judicial Chamber of the Civil Court of Cassation dated 04/21/2023 in case No. 423/405/18 (proceedings No. 61-2285СВ23)
The circumstances of the case.
In February 2018, PERSON_2 filed a lawsuit against the State of Ukraine represented by the Cabinet of Ministers of Ukraine, the State Treasury Service of Ukraine for compensation for the damage caused by the death of a natural person, referring to the fact that unknown persons committed a terrorist act, namely the artillery shelling of the city of Popasnaya Luhansk region, as a result of which her husband died.
According to the indicated fact, on February 9, 2015, information was entered into the Unified Register of Pretrial Investigations, the legal qualification of the act is part 3 Art. 258 (terrorist act that led to the death of a person) of the Criminal Code of Ukraine. However, after three years have passed since the terrorist act was committed, the pre-trial investigation has not been completed, the guilty persons have not been identified and brought to justice. Considers that, under the specified circumstances, the State of Ukraine is obliged to compensate her for moral damage, which consists in irreversible mental suffering and excitement caused by the death of her husband, failure to ensure the defendant’s right to life, guaranteed by Art. 2 of the Convention on the Protection of Human Rights and Fundamental Freedoms, Art. 27 of the Constitution of Ukraine.
Reasoning of the Court.
From the point of view of the Convention, not every foreseeable threat to life obliges state bodies to take specific measures aimed at preventing its realization (see mutatis mutandis the decision of the ECtHR dated 28.10.1998 in the case “Osman v. the United Kingdom” (Osman v. the United Kingdom), application No. 87/1997/871/1083, § 115, 116 and dated 24.10.2002 in the case “Mastromateo v. Italy » (Mastromatteo v. Italy), application No. 37703/97, § 68).
The presence or absence of the result of the investigation is not decisive for assessing the appropriateness of the fulfillment of such a duty. It is mandatory for the state to take measures aimed at identifying and punishing the guilty (mutatis mutandis ECtHR decision of 19.02.1998 in the case “Kaya v. Turkey”, application No. 22729/93, § 86-87 and from 08.11.2005 in the case “Gongadze v. Ukraine”, application No. 34056/02, § 176).
Since the Convention is designed to protect rights that are practical and effective, the state’s violation of any of the convention obligations — both negative and positive material or positive procedural — may necessitate the award of compensation (compensation) for this. The latter may have different forms and sizes, which will depend, in particular, on the type of specific violation, the commission of which must be established by the state under specific circumstances.
In the case under review, the Supreme Court agrees that the plaintiff’s loss of her husband, who died under tragic circumstances, is irreparable and undoubtedly causes great moral suffering for her.
However, as noted by the Grand Chamber of the Supreme Court in the decision dated 12.05.2022 in case No. 635/6172/17 (proceedings No. 14-167цс20), the problem of such a case is not only whether the plaintiff suffered morally, not only how it is better to evaluate this suffering of hers in a monetary equivalent, not even so much in terms of what normative prescription should be applied to award the appropriate compensation.
PERSON_2 did not substantiate that the State of Ukraine could have taken, but did not take measures that would have eliminated the risk of her husband’s death, that the state knew about the possibility of shelling of the city of Popasnaya in the Luhansk region by illegal armed formations in connection with the armed aggression of the Russian Federation and could have taken, but did not take measures to prevent such shelling and eliminate the risk to PERSON_3’s life.
You can read more about the text of the resolution at the link .
Resolution of the Supreme Court as part of the panel of judges of the First Judicial Chamber of the Civil Court of Cassation dated 31.05.2023 in case No. 237/1314/21 (proceedings No. 61-2443СВ23)
The circumstances of the case.
On August 24, 2014, in the area of water treatment facilities near the urban-type village of Novotroitske, Volnovasky District, Donetsk Oblast, her son – PERSON_3 and daughter-in-law – PERSON_4, who are the parents of a minor PERSON_2, INFORMATION_1, were killed as a result of hostilities – shelling and hitting an explosive object into a Volkswagen vehicle “. The fact of their death is confirmed by relevant death certificates and medical death certificates.
On August 24, 2014, the investigative department of the Security Service of Ukraine in the Donetsk region entered information into the Unified Register of Pretrial Investigations (hereinafter referred to as the Unified Register of Pretrial Investigations) under No. _ and started a pretrial investigation into the above fact.
The plaintiff noted that PERSON_3 and PERSON_4 were killed in the territory controlled by the Ukrainian authorities. However, law enforcement agencies did not ensure a timely and effective investigation of the specified event.
Reasoning of the Court.
Partly satisfying the claim of PERSON_1, who acted in his own interests and in the interests of a minor PERSON_2, the court of first instance, with the conclusions of which the court of appeal also agreed, based on the fact that the State of Ukraine violated its obligations under Art. 2 of the Convention, and the protection of the rights of the plaintiff and her grandson in disputed legal relations is ensured by the norms of the Constitution of Ukraine and the Convention. At the same time, the courts of previous instances noted that the state did not ensure an effective investigation into the fact of death. The Supreme Court does not agree with such conclusions of the courts of previous instances.
Taking into account the above and all the circumstances of this dispute, the Supreme Court considers that the plaintiff, who acted in her own interests and in the interests of her minor grandson, did not substantiate that the State of Ukraine could have taken, but did not take measures that would eliminate the risk of death of PERSON_3 and PERSON_4, which the state was aware of the possibility of shelling in the area of the sewage treatment plant near the village of Novotroitske, Volnovasky District, Donetsk Region, by illegal armed groups in connection with armed aggression by the Russian Federation, and could have taken, but did not take, measures to prevent such shelling and eliminate the risk to the son’s life and the daughter-in-law of the plaintiff, and accordingly, the parents of the minor PERSON_2.
The death of PERSON_3, PERSON_4 and the fulfillment by the State of Ukraine of a positive material obligation to guarantee their right to life are not in a cause-and-effect relationship.
In disputed legal relations, there are no legal grounds for the responsibility of the State of Ukraine for improper fulfillment of the positive material obligation to guarantee the right to life.
It is a reference to the violation of guarantees of the right to life under Art. 2 of the Convention within the territory controlled by Ukraine, without establishing non-fulfillment or improper fulfillment by the state in a specific situation of a procedural obligation, cannot be the basis for holding it accountable on the basis of the Convention and its protocols.
Thus, there are no grounds for the conclusion that the State of Ukraine has not fulfilled the positive procedural obligation, according to which the state must ensure an objective and effective investigation of the facts of encroachment on human life by an independent body.
You can read more about the text of the resolution at the link .
The main conclusions based on the analysis of court practice:
1. By themselves, the facts of the death of people on the territory controlled by the state, that is, on the territory over which it exercises jurisdiction in the sense of Art. 1 of the Convention on the Protection of Human Rights and Fundamental Freedoms (in particular, within its borders during the periods of anti-terrorist operations, operations of the combined forces), does not mean an automatic violation of the guarantees of the right to life under Art. 2 of the Convention.
2. The presence or absence of the result of the investigation is not decisive for assessing the appropriateness of the obligation to compensate for moral damage.
3. It is a reference to the violation of guarantees of the right to life under Art. 2 of the Convention within the territory controlled by Ukraine without establishing non-fulfillment or improper fulfillment by the state of a procedural obligation in a specific situation cannot be the basis for holding it accountable on the basis of the Convention and its protocols.
Victoria Polishchuk
lawyer, chairman of the NAAU Committee on Labor Law