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. The court also noted that Russia does not recognise Ukraine’s sovereignty, thus undermining the principle of sovereign equality of states, which is the main rationale for granting immunities to foreign states.
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. Although the Judgement relates to the claim for moral damages, the Supreme Court has defined the scope of the ‘tort exception’ broadly, including in it also damage caused to health, life, and property of persons. In view of the provided reasoning, it can be expected that the Supreme Court will make similar conclusions in cases dealing with other torts, including those where damage is caused to property of individuals and legal persons.
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