The civil court of cassation as part of the Supreme Court provided additional justification for its conclusion regarding the judicial immunity of the Russian Federation in the case of compensation for damage caused by the aggressor state.
We will remind that the first conclusion on this issue was made by the Central Committee of the Supreme Court on April 14 of this year. The full text of the resolutions in case No. 308/9708/19 can be found here .
Additional substantiation was made by the Supreme Administrative Court of Ukraine in the resolution of May 18, 2022 in case No. 760/17232/20-ts .
The circumstances of the case
The local court closed the proceedings in the case because the Law of Ukraine "On Private International Law" establishes judicial immunity against a foreign state in the absence of the consent of the competent authorities of that state to involve it in participating in the case in the national court of another state, in particular as a defendant.
This position was supported by the court of appeal.
The Supreme Court annulled these decisions and referred the case to the court of first instance for further consideration.
Justification of the CCS of the Supreme Court
The SC proceeded from the following main arguments:
Maintaining the jurisdictional immunity of the Russian Federation will deprive the plaintiff of effective access to the court to protect his rights, which is incompatible with the provisions of paragraph 1 of Article 6 of the Convention on the Protection of Human Rights and Fundamental Freedoms
- According to Part 1 of Article 2 of the Civil Procedure Code of Ukraine, the task of the civil judiciary is the fair, impartial and timely consideration and resolution of civil cases in order to effectively protect the violated, unrecognized or disputed rights, freedoms or interests of natural persons, the rights and interests of legal entities, and the interests of the state.
- Article 55 of the Constitution of Ukraine enshrines the state's duty to ensure the protection of human and citizen rights and freedoms by the courts.
- According to paragraph 1 of Article 6 of the Convention on the Protection of Human Rights and Fundamental Freedoms, everyone has the right to a fair and public hearing of his case within a reasonable time by an independent and impartial court established by law.
- According to the practice of the European Court of Human Rights, the limitation of the right to a fair trial, in particular through the application of the judicial immunity of the state, corresponds to paragraph 1 of Article 6 of the Convention only if it: 1) pursues a legitimate goal; 2) is proportional to the pursued goal; 3) does not violate the very essence of the right of access to the court.
- The ECtHR has repeatedly recognized that the granting of immunity to a state in civil proceedings pursues the legitimate aim of upholding international law to promote civility and good relations between states through respect for the sovereignty of another state.
- Thus, the application of judicial immunity of the Russian Federation in the case of a claim for damages should have a legitimate purpose, in particular, the promotion of civility and good relations between states through compliance with international law. At the same time, Russia's armed aggression against Ukraine, carried out in violation of the fundamental principles and norms of international law, in particular the UN Charter, international law crimes committed by its armed forces in Ukraine exclude, at the initiative of the Russian Federation, the issue of civility and good relations between countries.
- This deprives the application of judicial immunity of the Russian Federation, which limits the plaintiff's right to a fair trial, of its legitimate purpose.
- According to the practice of the ECtHR (relevant decisions are given), the restriction will be incompatible with paragraph 1 of Article 6 of the Convention if there is no reasonable proportion between the means used and the aim pursued. Also, when considering the issue of access to the court in the context of the application of the jurisdictional immunity of the state, it is necessary to ensure that the restrictions that are applied do not limit and do not reduce the remaining access of the person in such a way or to such an extent that the very essence of the right (access to the court) is violated. .
- It is common knowledge (does not require proof) that the Russian Federation rejects the recognition of any responsibility for its illegal military activities in Ukraine. There is no reasonable reason to assume that the plaintiff's violated right could be protected by filing a lawsuit in the court of the Russian Federation.
Thus, the plaintiff's appeal to the Ukrainian court is the only reasonably available means of protecting the right, the deprivation of which would mean the deprivation of such a right altogether, that is, it would deny the very essence of such a right.
Judicial immunity of the Russian Federation does not apply due to customary international law codified in the UN Convention on Jurisdictional Immunities of States and Their Property (2004)
- The provisions of Part 1 of Article 79 of the Law of Ukraine "On Private International Law" shall apply, unless otherwise provided by an international treaty of Ukraine or a law of Ukraine.
- According to the generally accepted and established practice of international judicial bodies, a state may be bound by the provisions of an international treaty, even if it has not ratified such a treaty, if the provisions of such a treaty reflect customary international law.
- As stated in the decision of the ECtHR in the case "Oleynikov v. Russia", if national courts uphold the jurisdictional immunity of a state without any analysis of the applicable principles of customary international law, such courts violate the applicant's right of access to a court even in those cases , when jurisdictional immunity is applicable.
- According to Article 12 of the UN Convention on Jurisdictional Immunities of States and Their Property (2004), which reflects customary international law, a state may not invoke judicial immunity in cases involving damage to health, life or property, if such the damage was caused in whole or in part in the territory of the state of the court and if the person who caused the damage was at that time in the territory of the state of the court.
- Considering the above, the Supreme Court concluded that this article is applicable under customary international law as a codified body of customary international law. Relevant decisions of the ECtHR are given.
- The specified article reflects the basis for limiting the judicial immunity of a foreign state as a result of causing physical harm to a person or property damage, the so-called "tort exception".
The Supreme Court believes that in the matter of the application of the state's immunity from jurisdiction, the relevant norms cannot be interpreted abstractly or in isolation from the established factual circumstances of the case. The specifics and circumstances of each case, as well as the underlying factors, must be fully taken into account. In this case, we are talking about claims for damages for wrongful actions committed by the Russian Federation in the absence of alternative means of damages.
Maintaining the immunity of the Russian Federation is incompatible with Ukraine's international legal obligations in the field of combating terrorism
- In accordance with part 1 of Article 11 of the Council of Europe Convention on the Prevention of Terrorism, Ukraine takes such measures as may be necessary for effective, proportionate and dissuasive punishment for terrorist crimes.
- According to Article 13 of this Convention, Ukraine is obliged to take the necessary measures to protect and support victims of terrorism committed on the territory of Ukraine.
- According to Part 4 of Article 8 of the International Convention on Combating the Financing of Terrorism, Ukraine is obliged to create compensation mechanisms for victims of terrorist crimes. The absence of an appropriate mechanism cannot be a reason for refusing to protect such a right by general means provided by law, including by applying to court.
Thus, the application of judicial immunity of the Russian Federation and refusal to consider the merits of the claim in this case would mean Ukraine's violation of its international legal obligations in accordance with the above-mentioned conventions on combating terrorism.
The judicial immunity of the Russian Federation cannot be applied in view of its violation of the state sovereignty of Ukraine, and therefore it is not an exercise by Russia of its sovereign rights protected by judicial immunity
- The concept of judicial immunity of the state is based on the international legal principle of sovereign equality of states.
- The Supreme Court drew attention to the fact that the Russian military aggression and occupation of the territories of Ukraine is not only a violation of the sovereignty and territorial integrity of Ukraine, but also a violation of the fundamental principles and norms of international law. In addition, such military aggression is accompanied by crimes of genocide against the people of Ukraine, as well as other war crimes committed by the armed forces and the top leadership of the Russian Federation.
- The actions of the Russian Federation went beyond its sovereign rights, since any foreign state has no right to carry out armed aggression against another country. The commission of acts of armed aggression by a foreign state is not the realization of its sovereign rights, but indicates a violation of the obligation to respect the sovereignty and territorial integrity of another state – Ukraine, which is enshrined in the UN Charter.
Therefore, the Russian Federation, having committed an unprovoked and full-scale act of armed aggression against the Ukrainian state, numerous acts of genocide of the Ukrainian people, has no right to invoke its judicial immunity in the future, thereby denying the jurisdiction of the courts of Ukraine to consider and resolve cases of compensation for damage caused by such acts of physical aggression a person – a citizen of Ukraine.