Volume 12 - Issue 63
/ March 2023
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DOI: https://doi.org/10.34069/AI/2023.63.03.30
How to Cite:
Khmyz, M., Sopilnyk, R., Hudyma, V., Semchuk, Y., & Sopilnyk, L. (2023). Socio-political discourses on war-related damage to
ukrainian citizens: Analysis of public policy in the context of court cases. Amazonia Investiga, 12(63), 319-329.
https://doi.org/10.34069/AI/2023.63.03.30
Socio-political discourses on war-related damage to ukrainian citizens:
Analysis of public policy in the context of court cases
Суспільно-політичні дискурси про збитки громадянам України, пов’язані з війною:
аналіз публічної політики в контексті судових справ
Received: March 10, 2023 Accepted: April 20, 2023
Written by:
Mariana Khmyz1
https://orcid.org/0000-0003-3553-8022
Rostyslav Sopilnyk2
https://orcid.org/0000-0001-9942-6682
Vitaliy Hudyma3
https://orcid.org/0000-0001-6708-3910
Yurii Semchuk4
https://orcid.org/0000-0001-8862-0172
Liubomyr Sopilnyk5
https://orcid.org/0000-0002-6256-0121
Abstract
The purpose of this study is to identify mechanisms
based on effective political decisions that will fully
impose material damage caused by military actions
on the aggressor country. The methodological basis
of the work was formed by general theoretical and
special scientific methods, which ensured the
formation of reliable conclusions and the solution
of the tasks. In the course of this study, the author
identified the main procedural problems faced by
citizens in the process of ensuring the right to
compensation for damage caused to them as a result
of hostilities. The analysis of the Supreme Court's
case law shows that after the start of the full-scale
invasion of the Russian Federation, the courts
began to take a radically different approach to
resolving the issue of compensation in favor of
citizens, and in fact deny the immunity of the
aggressor state. Authors identify the main political
decisions that will be useful in the future for the
actual resolution of the issue of compensation for
damages. The author analyzes certain legal acts that
define the mechanism of compensation for damage.
The author assesses the international achievements
1
PhD in Law, Associate Professor of the Department of Economic and Legal Disciplines, Lviv University of Business and Law,
Ukraine.
2
DrSc in Law, Professor, Honored Lawyer of Ukraine, Professor of the Department of Economic and Legal Disciplines, Institution
of higher education “Lviv university of business and law”, Ukraine.
3
PhD in Law, Associate Professor, Department of Judiciary, Prosecutor’s Office and Advocacy, Institution of higher education “Lviv
university of business and law”, Ukraine.
4
PhD in Law, Head of the Department of Economic and Legal Disciplines, Institution of higher education “Lviv university of business
and law”, Ukraine.
5
Graduate student of the Department of Judiciary, Prosecutor’s Office and Advocacy, Institution of higher education “Lviv university
of business and law”, Ukraine.
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of Ukraine that will further simplify the procedure
for compensation for damages, in particular,
international legal acts. In general, the study
assessed the real state of affairs in Ukraine
regarding compensation for damage to citizens as a
result of armed aggression and concluded that
effective mechanisms for such compensation have
not yet been implemented.
Keywords: citizens, court decision, damage,
General Assembly, protection of reparations, war.
Introduction
The full-scale invasion of Ukraine by the Russian
Federation was the largest attack in Europe since
World War II. The Russian Federation is
committing the most serious international crimes
that violate fundamental human rights. The
aggressor country has caused suffering to
millions of Ukrainian citizens who have been
forcibly deported to Russian territory or forced to
leave their homes due to constant shelling and
bombardment and have become internally
displaced. People lost their property and the
ability to work. In essence, by one cruel decision,
millions of citizens were deprived of their
constitutional rights, which are enshrined in
Article 3 of the Constitution of Ukraine,
according to which a person, his or her life and
health, honor and dignity, inviolability and
security are recognized in Ukraine as the highest
social value (Law № 254к/96-ВР, 1996). It is
currently difficult to estimate the actual number
of war victims. That is why the consequences of
the war should be counterbalanced by real
actions of the state in combination with
international experience and efforts to involve all
possible jurisdictions, both national and
international.
After the outbreak of armed aggression, not only
state institutions but also the legal system as a
whole faced difficult challenges (Kaplina, 2022).
Accordingly, the need for adequate lawmaking,
taking into account the challenges of war, has
become particularly acute.
Since 2014, citizens have been filing lawsuits in
search of justice in courts where the Russian
Federation is the defendant. An analysis of the
established case law on compensation for
damage shows that before the full-scale invasion,
the courts were somewhat loyal and did not seek
real ways to punish the aggressor country. It was
only in April 2022 that the vector of the legal
position changed dramatically. However, a
positive resolution of court cases does not
guarantee a real solution to the issue of
compensation for damage, as the defendant in
these cases is a state that does not respect the
same legal values. Therefore, it is important that,
along with the judicial resolution of the issue of
compensation, citizens have the opportunity to
use other mechanisms to help them restore their
violated rights. Such mechanisms should be
created by the state and ensure the simplified
procedure for obtaining compensation by
citizens, but at the same time prevent abuse by
persons who are not entitled to such
compensation.
Thus, the purpose of this work is to
systematically analyze the case law of national
courts, in particular, the Supreme Court of
Ukraine, as well as the legal acts that determine
the conditions, procedures, and mechanisms for
compensation for damage to citizens. Based on
the study, the author proposes effective
recommendations for compensation for citizens
who suffered from the war started by the Russian
Federation.
Literature Review
The topic of war has become particularly acute
for all citizens of Ukraine. Researchers also do
not stay away from this negative phenomenon.
For example, Komnatnyi (2022) paid attention to
the issue of inspecting residential properties
damaged as a result of the war, in particular, the
author investigated the introduction of effective
mechanisms for compensation for damage by
adopting appropriate regulations. Anisimova
(2020) also studied the same issue, but the author
conducted her research in the context of the
events that took place in the East of Ukraine
before the full-scale invasion, but the conclusions
Khmyz, M., Sopilnyk, R., Hudyma, V., Semchuk, Y., Sopilnyk, L. / Volume 12 - Issue 63: 319-329 / March, 2023
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drawn by the author are relevant to this study.
The issue of the state immunity of the Russian
Federation in court cases on compensation for
damages was studied by Cherniak (2022) and
Spiesivtsev (2022a), the latter paying special
attention to the issue of compensation for
damages after the end of the war. The topic of
reparations was also reflected in their works:
Podupeiko (2022), Mykolenko and Kaminets
(2022). Thus, Podupeiko studied the issue of
compensation for citizens since 2014, from the
beginning of the temporary occupation of certain
territories and concluded that Ukraine has taken
a number of legal actions to bring the Russian
Federation to justice for acts of terrorism and
discrimination, and, accordingly, to obtain
compensation from the aggressor country. While
studying the issue of compensation for damage
caused by armed aggression, Mykolenko and
Kaminets rightly pointed out the gaps in the
national legislation regulating compensation for
damaged property. Solomko (2022) assessed the
UN General Assembly resolution “Provision of
Remedies and Reparations for the Aggression
against Ukraine” in her article. The general
theoretical topic of legal nihilism, which is also
important in the context of this study, was
addressed by Rezvorovych (2022).
Methodology
The search for a methodological basis for the
study was carried out in the following areas:
studying scientific works and summarizing the
ideas of well-known scholars who have studied
the issue of compensation for damage to citizens;
analyzing Ukrainian legislation and the case law
of the Supreme Court of Ukraine; conducting
research on specific approaches to solving the
problem of damage compensation, including
through international cooperation, as well as
analyzing concepts in this area of scientific and
practical activities of Ukrainian scholars and
practitioners.
In the course of researching the topic of
compensation for war-related damage to citizens
of Ukraine, various general theoretical, special
scientific methods and approaches were used to
study the subject matter of the study, which
ensured the formation of reliable conclusions and
the solution of the tasks set. The following
methods were used in the course of the study:
formal legal, comparative legal, analytical,
synthetic, analogy and generalization.
The theoretical basis of this study was formed by
such primary sources as: The Constitution of
Ukraine, the Law of Ukraine “On Compensation
for Damage and Destruction of Certain
Categories of Real Estate Objects as a Result of
Hostilities, Terrorist Acts, Sabotage Caused by
the Armed Aggression of the Russian Federation
against Ukraine”, and the “State Register of
Property Damaged and Destroyed as a Result of
Hostilities, terrorist acts, sabotage caused by the
armed aggression of the Russian Federation
against Ukraine” (Law № 2923-ІХ, 2023), the
Civil Protection Code of Ukraine, the Civil Code
of Ukraine, as well as bylaws of the Cabinet of
Ministers of Ukraine that define the mechanisms
of compensation for damage caused by
hostilities. The key role in the topic was played
by the Supreme Court rulings, the systematic
analysis of which reveals a fundamental
modification of the Supreme Court's legal
position after the start of the full-scale invasion.
Thus, the analysis of the aforementioned case
law and legal acts regulating the issue of
compensation for damage in the war was carried
out using formal legal and analytical methods. In
particular, to determine the unified legal position
of the Supreme Court, the author used the
analytical and synthetic methods by identifying
common features and generalizing similar
conclusions, which ensured the integrity and
structure of the study.
In addition to the methods mentioned above, this
paper uses logical, structural-functional, and
system analysis methods, as well as other special
methods of scientific cognition.
Results and Discussion
The large-scale military actions of the Russian
Federation after February 24, 2022, which led to
significant losses, damage, and destruction.
According to various estimates, the amount of
damage ranges from hundreds of billions to a
trillion US dollars. Real estimates will be
possible only after the war is over. In such
circumstances, the issue of protecting the
violated rights and interests of the affected
persons has become particularly acute. The
citizens of Ukraine who lost their loved ones and
relatives and who suffered physical suffering,
moral harm, property (material) damage from the
destruction of and damage to property have
suffered enormous damage. The issue of
compensation for the damage caused by the
aggressive actions of the Russian Federation has
been raised since 2014. In this regard, since the
beginning of the temporary occupation of certain
territories, Ukraine has taken a number of legal
actions to obtain compensation from the Russian
Federation: five cases are pending in the
European Court of Human Rights on Ukraine's
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applications against the Russian Federation, and
the International Court of Justice is considering
Ukraine's claim against the Russian Federation to
hold the latter accountable for acts of terrorism
and discrimination, and the financing of
terrorism (Podupeiko, 2022).
Today, human and civil rights and freedoms
should remain a priority for the state, even in the
context of martial law throughout Ukraine, which
is a difficult phenomenon for our country today,
and certainly causes difficulties in the
functioning of the mechanism for the protection
and enforcement of constitutional rights and
freedoms (Savaida & Cherevko, 2022). Violation
of individual rights, especially the right to life,
honor, dignity, housing, property, security, and a
weak mechanism for their legal protection
undermine faith in the law, in the ability of the
state to ensure order and peace in society and to
protect people from criminal attacks. The
powerlessness of the law does not generate a
positive attitude towards it on the part of the
population but only causes irritation, discontent,
and protest (Rezvorovych, 2022).
Therefore, the issue of regulatory regulation and
practical compensation for losses to the
population is particularly acute. Until March
2023, the issue of compensation for damage or
destruction of residential real estate caused by
hostilities, terrorist acts, sabotage caused by the
military aggression of the Russian Federation
remained unresolved, and in fact, Ukraine lacked
a systematic and structured mechanism for
providing compensation or material assistance to
victims of the military aggression of the Russian
Federation (Komnatnyi, 2022).
On 23.02.2023, the Verkhovna Rada of Ukraine
adopted the Law of Ukraine “On Compensation
for Damage and Destruction of Certain
Categories of Real Estate as a Result of
Hostilities, Terrorist Acts, Sabotage Caused by
the Armed Aggression of the Russian Federation
against Ukraine, and the State Register of
Property Damaged and Destroyed as a Result of
Hostilities, Terrorist Acts, Sabotage Caused by
the Armed Aggression of the Russian Federation
against Ukraine” No. 2923-IX. According to the
website of the Verkhovna Rada of Ukraine, the
law will enter into force on 22.05.2023 (Law №
2923-ІХ, 2023), and only then will effective
mechanisms for compensation for the damaged
property be implemented.
It should be emphasized that the above draft law
was submitted to the Verkhovna Rada of Ukraine
in March 2022. In fact, during the year of the war,
the issue of determining the legal and
organizational framework for compensation for
damage and destruction of certain categories of
real estate was not regulated by law, and the
mechanisms, procedures, conditions for the
payment of monetary compensation and other
compensation for damage caused by hostilities
were regulated by special bylaws approved by
the Cabinet of Ministers of Ukraine, as shown in
Table 1.
Table 1.
Resolutions of the Cabinet of Ministers of Ukraine that determined the specifics and mechanisms of
compensation for damage caused as a result of hostilities
No.
Resolution of the Cabinet of Ministers of Ukraine
Basic mechanisms and procedures
1
Procedure for submitting an information report on
damaged and destroyed real estate as a result of hostilities,
terrorist acts, sabotage caused by the military aggression of
the Russian Federation of March 26, 2022 No. 380 (Order
№ 380, 2022)
defines the conditions, mechanism, and procedure for
filing applications for damaged and destroyed real estate
as a result of hostilities.
2
The Procedure for Determining Damage and Losses
Caused to Ukraine as a Result of the Armed Aggression of
the Russian Federation of March 20, 2022 No. 326
(Decree №326, 2022)
establishes the procedure for determining damage and
losses by the competent authorities.
3
The Procedure for Performing Urgent Work to Eliminate
the Consequences of the Armed Aggression of the Russian
Federation Related to Damage to Buildings and Structures
No. 473 of April 19, 2022 (Resolution № 473, 2022)
establishes a mechanism for recording damage to
buildings and structures of various forms of ownership
caused by the armed aggression of the Russian Federation
4
The Procedure for Providing and Determining the Amount
of Financial Assistance to Victims of Emergency
Situations and the Amount of Financial Compensation to
Victims Whose Residential Buildings (Apartments) were
Destroyed as a Result of a Military Emergency Caused by
the Armed Aggression of the Russian Federation No. 947
of December 18, 2013 (Law № 947, 2013)
roviding and determining establishes a mechanism for p
the amount of financial assistance to victims of
emergencies and the amount of financial compensation to
victims whose residential buildings (apartments) were
destroyed as a result of a military emergency caused by
sion of the Russian Federation.the armed aggres
Source: Authors' elaboration based on the Resolutions of the Cabinet of Ministers of Ukraine
(Order № 380, 2022; Decree № 326, 2022; Resolution № 473, 2022; Law № 947, 2013)
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The above acts do not cover the entire problem
but essentially define a certain procedure for
determining damage, the specifics of filing
applications, and the procedure for recording
damage to property.
Analyzing Procedure No. 326, we can identify
the main areas of damage determination, which
are shown in Table 2.
Table 2.
Areas of damage and loss determination
Areas of damage and loss determination
No.
Directions
1
Human losses and related social costs
2
Economic losses associated with human losses
3
Military losses
4
Losses associated with ensuring public safety and order
5
Social protection of war veterans
6
Loss of housing stock and amenities
7
Loss of public buildings
8
Loss of housing and communal facilities
9
Damage to land resources
10
Loss of subsoil
11
Damage to water resources
12
Damage caused to the atmosphere
13
Losses of the forest fund
14
Damage to the nature reserve fund
15
Loss of transportation infrastructure and electronic communication network infrastructure (including
physical)
16
Loss of energy infrastructure;
17
Losses of cultural heritage; 18) (except for defense industry enterprises
18
Economic losses of enterprises, including business entities
19
Losses of institutions and organizations (except for institutions and organizations of the defense
industry)
20
Economic losses of defense industry enterprises (including business entities);
21
Losses of institutions and organizations of the defense industry
Source: authors' development based on the analysis (Decree № 326, 2022)
In the context of this study, we consider the issue
of damage to citizens, in particular in connection
with the loss of housing stock and human losses,
and related social costs.
At present, in the midst of the war in Ukraine, the
general principles of compensation and
reimbursement of damage to victims of
emergencies (including military operations) are
essentially in place and are enshrined in the Civil
Code of Ukraine (Articles 22, 225 and 1166 -
compensation for damage caused by violation of
civil rights) (Civil Code of Ukraine № 435-IV,
2003) and Art. 89 of the Civil Protection Code of
Ukraine, which refers to the provision of housing
to victims whose housing has become
uninhabitable as a result of an emergency, and in
our case, armed aggression (Civil Protection
Code of Ukraine № 5403-VI, 2012).
Mykolenko and Kaminets (2022), in their study
of the issue of compensation for damage caused
by armed aggression, rightly noted that the
above-mentioned provisions of the Civil
Protection Code do not oblige the Ukrainian state
to compensate all victims. They require the state
to help only one category of victims - those who
lost their homes. At the same time, monetary
compensation to such victims is only one of the
possible ways the state can provide them with
assistance. The state pays monetary
compensation to victims of housing loss
provided that the victims voluntarily hand over
their destroyed or damaged housing to the state,
and the amount of compensation is not
determined by the actual value of the houses
destroyed or damaged. In this case, the principle
of subsidiarity of the European Union would be
effective, but at this stage, Ukraine is deprived of
such a mechanism, as it is not a member of the
said Union (Kumar, 2021).
At the same time, there is a need for special
regulation of compensation for victims.
Anisimova (2020) studied the issue of
compensation for damages, even before the full-
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scale invasion of Ukraine by the Russian
Federation troops and identified the main areas
of the state's proper response to the challenges
faced by citizens in the context of armed conflict.
In particular, the author correctly emphasized the
need to create a special legislative framework
that would regulate the mechanism of
compensation for damages to the population
whose housing was damaged or destroyed. It is
necessary to take into account the significant
scale of the damage and the need to provide
housing for citizens who have lost their homes.
In today's context, we can state that the author's
forecasts have begun to be realized through the
adoption of Law No. 2923-IX (Law № 2923-ІХ,
2023).
Since the existing mechanisms of compensation
for damage do not give the desired result, citizens
are looking for ways to solve the problem on their
own, including by filing a lawsuit against another
guilty party for compensation for material and
moral damage. In our case, the guilty party for
the damage caused by the war is the Russian
Federation.
Analyzing the case law of the Supreme Court,
which was formed even before the full-scale
invasion of the Russian Federation, in particular:
the decision of 03.06.2020 in case No.
357/13182/18 (Resolution 357/13182/18, 2020);
the decision of 13.05.2020 in case No. 711/17/19
(Resolution 711/17/19, 2020); resolution of
24.06.2020 in case No. 711/16/19, (Resolution
711/16/19, 2020), one can safely trace one
negative trend that national courts dismissed
such claims, referring to the provisions of Art. 79
of the Law of Ukraine “On Private International
Law”, which stipulates that filing a claim against
a foreign state, involving a foreign state as a
defendant or third party, seizing property owned
by a foreign state and located on the territory of
Ukraine, applying other means of securing a
claim to such property and foreclosing on the
such property may be allowed only with the
consent of the competent authorities of the
relevant state, unless otherwise provided by an
international treaty of Ukraine or the law of
Ukraine. The Law of Ukraine “About Private
International Law” essentially provided an
opportunity to avoid liability for damages (Law
№ 2709-IV, 2005).
In particular, national courts dismissed claims on
the grounds that the Russian Federation cannot
be a defendant in a case without the consent of
their embassy in Ukraine. The courts also
suspended proceedings until they received
responses to the Russian Embassy's consent or
non-consent to the Ukrainian court's
consideration of a particular case. Even in the
justice systems that we consider to be the most
perfect, dispute resolution usually takes a long
time and is expensive, and no one but lawyers
understand this process (Melnychenko, 2021).
Similarly, in the case of the above cases, they
were delayed, and citizens did not receive the
desired result.
Legal scholars have proposed a solution to the
judicial immunity of the Russian Federation in
Ukrainian courts, in particular by deviating from
the rule of judicial immunity, guided by the
principles of reasonableness and fairness
(Spiesivtsev, 2022a).
However, the vector of negative judicial practice
on the protection of the rights of citizens affected
by the armed aggression of the Russian
Federation has changed dramatically after the
Supreme Court adopted a ruling of 14.04.2022 in
case No. 308/9708/19, which overturned
previous court decisions in this case (Resolution
308/9708/19, 2022).
According to the case, the woman filed a lawsuit
against the Russian Federation for compensation
for non-pecuniary damage suffered by her and
her children in connection with the death of her
husband and the father of her children as a result
of the Russian armed aggression in Ukraine. In
justifying its decision, the Supreme Court
referred to the European Convention on the
Immunity of States of 16.05.1972 (Article 11)
and the UN Convention on Jurisdictional
Immunities of States and Their Property of
02.12.2004 (Article 12).
The fact that deserves attention in the context of
the above case is that Ukraine is not a party to
any of these conventions, which the Supreme
Court referred to in its decision. The European
Convention on the Immunity of States of 1972
(Council of Europe, 1972) has not been widely
used - it has entered into force only in 8 states:
Austria, Belgium, Cyprus, Great Britain,
Luxembourg, the Netherlands, Germany, and
Switzerland. The 2004 UN Convention on
Jurisdictional Immunities of States and Their
Property (Liga 360, 2002) has not yet entered
into force, as only 22 states out of 30 signatory
states have ratified it (Austria, Czech Republic,
Equatorial Guinea, Finland, France, the Islamic
Republic of Iran, Iraq, Spain, Italy, Japan,
Kazakhstan, Latvia, Lebanon, Liechtenstein,
Mexico, Norway, Portugal, Romania, Saudi
Arabia, Slovakia, Sweden, Switzerland, and
Spain). At the same time, these conventions are
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certainly worthy of attention, primarily because
they reflect the trend in international law to
recognize that there are limits to which a foreign
state has the right to claim immunity in civil
proceedings (Cherniak, 2022).
The court substantiated the application of
conventions not ratified by Ukraine by the fact
that the rules formulated in them and relating to
the limits of damage, inadmissibility of invoking
judicial immunity (in case a state crosses the “red
line”), must be observed by absolutely all states,
because these rules are Jus Cogens (rules of
international law binding on all participants in
the civilized world).
In addition, the Supreme Court in its decision
No. 308/9708/19 stated the following: “Given the
fact that the Russian Federation has been
carrying out armed aggression against Ukraine
since 2014 and continues to do so as of the date
of this decision, there is no need to send requests
to the Russian Embassy in Ukraine for the
Russian Federation's consent to be a defendant in
cases of compensation for damage in connection
with the Russian Federation's armed aggression
against Ukraine and its disregard for the
sovereignty and territorial integrity of the
Ukrainian state. And starting from February 24,
2022, such a request will not be possible due to
the severance of diplomatic relations between
Ukraine and the Russian Federation”. The
judge's inner conviction probably played a
significant role in making this decision.
The currently effective Civil Procedure Code of
Ukraine provides that when selecting and
applying a rule of law to a disputed legal
relationship, the court shall take into account the
conclusions on the application of the relevant
rules of law set forth in the rulings of the
Supreme Court (Civil Procedure Code of
Ukraine № 1618-IV, 2004). At the same time, the
risks that could arise as a result of the
consideration of the above case cannot be
dismissed, since the court's reference to the
Conventions not ratified by Ukraine could result
in the transfer of such a case to the Grand
Chamber of the Supreme Court, which, if there
were grounds, could deviate from the legal
position expressed in the decision of 14.04.2022.
It is worth noting that case No. 308/9708/19
concerned the recovery of non-pecuniary
damage, but its conclusions were later applied to
the recovery of pecuniary damage. Thus, and in
accordance with the requirements of Part 4 of
Article 263 of the Civil Procedure Code of
Ukraine, the Supreme Court's decision
No. 308/9708/19 of 14.04.2022 became the basis
for further decisions in similar legal relations.
Thus, the Supreme Court issued the following
rulings:
• 18.05.2022 in the case No. 7428/11673/19
(Resolution No. 7428/11673/19, 2022);
• 08.06.2022 in the case No. 490/9551/19
(Resolution No. 490/9551/19, 2022);
• 22.06.2022 in the case No. 311/498/20
(Resolution No. 311/498/20, 2022).
In these decisions, the Supreme Court concluded
that maintaining the judicial immunity of the
Russian Federation is incompatible with
Ukraine's international legal obligations in the
field of counterterrorism. After all, a prerequisite
for compliance with the principle of international
law on judicial immunity is the mutual
recognition of state sovereignty by another
country. A similar conclusion was reached by
Spiesivtsev (2022b) in his study.
Analyzing the judicial practice that has
developed since April 14, 2022, we can trace a
positive trend, namely, the unity of the judiciary
with the people of Ukraine in the fight against the
aggressor state. At the same time, it is important
that judges have knowledge of military law since
when considering disputes about damage caused
by military actions, they should have special
knowledge (Horinov & Mereniuk, 2022).
Having passed the first judicial stage of resolving
the issue of compensation for damage, society
faces new challenges in the actual enforcement
of such decisions. As a general rule, court
decisions can be enforced by seizing the property
of the Russian Federation located in Ukraine, as
well as by applying to foreign courts for
recognition of the court decision and its
enforcement in the country of application where
the property of the Russian Federation is located.
In addition, for the compensation mechanism to
work, assistance must come from the state
through effective political decisions, including
through international cooperation.
For example, By the Decree of the President of
Ukraine of May 18, 2022, No. 346/2022, a
working group was established to develop and
implement international legal mechanisms for
compensation for damage caused to Ukraine as a
result of the armed aggression of the Russian
Federation. Paragraph 2 of this order obliged the
working group to develop and submit proposals
for means and legal instruments for
compensation for damage and losses caused to
Ukraine as a result of the armed aggression of the
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Russian Federation, including reparations,
confiscation, contributions, as well as steps to
implement them, taking into account
international legal mechanisms, international
experience, and judicial practice (Decree
№ 346/2022, 2022).
In early November 2022, Minister of Justice of
Ukraine Maliuska D. met with Ambassador
Extraordinary and Plenipotentiary of Japan to
Ukraine Kuninori Matsuda. The meeting was
also attended by Deputy Minister of Justice
Mudra I. and Third Secretary of the Embassy of
Japan in Ukraine Koga Masayuki. The main
focus of the meeting was to discuss the creation
of a special compensation mechanism for
compensation of losses to Ukraine and
Ukrainians caused by the aggression of the
Russian Federation. The participants also noted
that the international treaty on the establishment
of a mechanism for compensation for damages
caused by Russian aggression is important in the
Ukrainian concept of a compensation
mechanism. This is a treaty that can be joined by
countries that have a large share of the frozen
assets of the Russian Federation (Ministry of
Justice of Ukraine, 2022).
A historic event on the way to real recovery of
damages from the aggressor country occurred on
November 14. At its 11th emergency special
session, the UN General Assembly voted in favor
of the resolution “Provision of Remedies and
Reparations for the Aggression against Ukraine”,
which aims to create mechanisms to compensate
Ukraine for the damage caused by the full-scale
Russian aggression. 94 countries supported the
adoption of the document, 73 abstained, and only
14 voted against. Among the countries that did
not support the resolution, in addition to Russia,
Belarus, Syria, the DPRK, Nicaragua, Iran, and
China. The draft resolution was initiated by
Ukraine, Canada, Guatemala, and the
Netherlands. Before the vote, 56 countries signed
the document as co-sponsors (Solomko, 2022).
Returning to the above-mentioned Law No.
2923-IX, which was adopted by the Verkhovna
Rada, it can be unequivocally stated that after its
entry into force, it will be the main regulatory
document that will determine the legal and
organizational framework for providing
compensation for damage and destruction of
certain real estate objects. Considering Art. 2 of
Law No. 2923-IX, we can identify the recipients
of compensation, as shown in Figure 1, and
Figure 2 identifies the persons who cannot be
such recipients.
Recipients of compensation for damaged real estate
Individuals - citizens of
Ukraine
Owners of damaged/destroyed facilities
Legal entities and authorized
persons
Association of co-owners of apartment
buildings
Construction customers
Managers of apartment buildings
Holders of special property rights to an
indivisible residential property
Housing cooperatives that provide
maintenance
Persons who have invested in the
construction of construction projects
Members of housing cooperatives
Heirs of the above persons
Figure 1. Recipients of compensation for damaged property
Source: (Law № 2923-ІХ, 2023)
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The recipients of the assistance cannot be
Persons subject to the Law of Ukraine “On Sanctions”
Persons with a criminal record for committing criminal offenses under Section I “Crimes against the
foundations of national security of Ukraine” of the Criminal Code of Ukraine
Heirs of the above persons
Figure 2. Persons who cannot receive compensation for damaged property
Source: (Law № 2923-ІХ, 2023)
Based on the systematic analysis of the above
law, it appears that compensation will be
provided to the citizens referred to in part 1 of
Article 2 of Law No. 2923-IX in the order of
priority and on the basis of submitted
applications. Despite the fact that the said law
does not provide for a direct obligation to provide
a court decision for the award of compensation,
the availability of such a decision will greatly
simplify the procedure for obtaining
compensation, since the fact and extent of the
damage will already be established by the court.
Conclusions
Summarizing the above, we can confidently state
that the right to judicial protection is one of the
fundamental human rights, this right is
guaranteed by the Constitution of Ukraine and
enshrined in a number of legal acts. It is worth
noting that even under martial law, this
constitutional right of Ukraine is not suspended
or limited. However, in addition to the possibility
of access to justice, it is important for citizens to
receive real results from these lawsuits in the
form of compensation for damage. The study
found that the Verkhovna Rada of Ukraine has
already adopted a law that will provide for
compensation, but the implementation of this law
requires material support, which is a significant
problem for a country at war. In such
circumstances, for the mechanism of
compensation to work, national legislation
should fully impose material damage caused by
the hostilities on the aggressor country. At the
same time, the property of the Russian
Federation located in the territory of third
countries should be used unscrupulously to
compensate for damages, and Ukraine, in turn,
should direct such funds to compensate its
citizens. Such a mechanism cannot ensure
justice, because along with the damaged
property, we have the disfigured lives of millions
of Ukrainian citizens, but it will ensure a fair
material balance and consolidation of
international unity against the aggressor country.
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