Judicial immunity in cases of harm on the territory of Ukraine does not apply to the aggressor's country.
Russia has no judicial immunity in cases of harm to Ukrainian citizens in the territory of the Ukrainian state. Therefore, Ukrainians can sue Russia in Ukrainian courts for damages without any additional conditions, according to the ruling of the Civil Court of Cassation of the Supreme Court of April 14, 2022 in the case № 308/9708/19.
In this case, the plaintiff filed a lawsuit against the Russian Federation for compensation for non-pecuniary damage caused to her and her children in connection with the death of her husband and father of her children as a result of armed aggression in Ukraine.
The Court of First Instance denied the claim.
The Court of Appeal decided to send a request to the Russian Embassy to agree or disagree with the Ukrainian court's consideration of this civil case.
At the same time, as a result of the cassation review of the case in the Civil Court of Cassation, the Supreme Court came to the following conclusions.
The Law of Ukraine “On Private International Law” does establish judicial immunity for foreign states. That is, there must be the consent of the competent authorities of the respective state to involve it in the case in the national court, in this case – Ukraine.
At the same time, the European Convention on the Immunity of States , adopted by the Council of Europe on 16 May 1972, and the UN Convention on the Jurisdictional Immunities of States and their Property, adopted by UN General Assembly Resolution 59/38 of 2 December 2004, provide that a State may not invoke immunity if there are two conditions:
- the damage was caused in whole or in part in the territory of the state of the court
- the person who caused the damage was currently in the territory of the state of the court.
Thus, given that Russia has been carrying out armed aggression against Ukraine since 2014 and continues to do so at this time, the aggressor's country is not subject to judicial immunity in cases of causing damage on the territory of Ukraine.
In addition, due to the full-scale Russian invasion of Ukraine on February 24, 2022, Ukraine severed diplomatic relations with Russia, which makes it impossible to send various inquiries and letters to the Russian Embassy in Ukraine due to the termination of its work in Ukraine.
Thus, after the start of the war in Ukraine in 2014, the court of Ukraine, considering the case where the defendant is the Russian Federation, has the right to ignore the immunity of this country and consider cases of damages , inflicted on an individual as a result of armed aggression of the Russian Federation, on a lawsuit filed against this country. No consent of the competent authorities of Russia is required for the consideration of such a case.
It will be recalled that in accordance with the Resolution of the Verkhovna Rada of Ukraine of April 14, 2022 Russia during the armed aggression against Ukraine, which began on February 24, 2022, was recognized as genocide of the Ukrainian people.
