On 14 April 2022, the Civil Cassation Court of the Supreme Court issued its judgement in case No. 308/9708/19 (“Judgement”). The Judgement establishes that national courts have jurisdiction over claims for compensation of damage caused to individuals by military actions of the Russian Federation.
The claim in this case was filed by a Ukrainian citizen and her minor children, who sought compensation of moral damage amounting to nearly UAH5 million. The moral damage was claimed to be caused by the death of claimants’ husband and father, who passed away because of Russian illegal military actions in the temporarily occupied territory of Luhansk region.
The courts of lower instances in this case applied Article 79(1) of Law of Ukraine “On Private International Law”, which establishes foreign states’ jurisdictional immunity and prohibits adjudicating claims against foreign states without their consent. The Supreme Court, however, narrowed down the application of jurisdictional immunity in tort claims.
The Supreme Court substantiated its position by relying on the developments in international law, including tort exceptions to jurisdictional immunity set out in international treaties (although Ukraine is not party to these treaties), which allow courts to ignore sovereign immunity with respect to claims for compensation of damage caused by a foreign state on the territory of the forum state.
The Supreme Court, when applying this exception to the merits of the case, took into account that the Verkhovna Rada recognized Russia as an aggressor state and its actions in the Ukrainian territory since 24 February 2022 as a genocide of the Ukrainian nation. The court concluded that Russian military aggression does not constitute an exercise of its sovereign powers, but, instead, amounts to a gross violation of international law, which must not be covered by state immunity.
Judgement’s influence on further court practice
The Supreme Court stated that “after the start of the war in Ukraine in 2014 the Ukrainian court when examining the case against the Russian Federation, is entitled to ignore its state immunity and continue considering the action for compensation of damage, incurred by an individual in the result of the Russian military aggression, filed against this foreign state”.
Thus, the Judgement provides a legal opportunity for individuals, who suffered damage due to Russian aggression, to file claims for compensation of damage with Ukrainian courts. However, it must be noted that the Judgement arose out of the claim for compensation of moral damage, caused by the death of a person. It remains to be seen, whether the Supreme Court applies the same approach in claims for compensation of other types of damage, suffered by an individual, as well as claims for compensation of damage to property, owned by legal entities or individuals. In view of the provided reasoning, we expect the Supreme Court to make similar conclusions in such other cases.
Note. At the date of publication of this legal alert, the full text of the Judgement has not been made available. We base our legal alert and conclusions on the description of the Judgement, published by the Supreme Court.
By Oleksii Maslov, Counsel, and Valeriia Ustiuhova, Associate, Avellum