Compensation or its Illusion. The Report Center for Civil Liberties

Table of contents.

1. General Overview of the Situation
2. Legislation of Ukraine
3. International Law
4. Court practice in Ukraine
5. Conclusions
6. Recommendations

1. General Overview of the Situation

Since 2014, the Russian Federation has initiated a prolonged act of aggression against Ukraine, occupying Crimea and parts of the Luhansk and Donetsk regions. On February 24, 2022, Russia launched a full-scale invasion of Ukraine, and military actions have continued across nearly the entire territory of Ukraine.

As a result of Russian aggression, millions of Ukrainians, businesses, and the Ukrainian state have suffered significant material and moral damages. Before the full-scale invasion in 2022, there had been little serious discussion at the international and national levels regarding the grounds and procedures for compensation for the damages caused by Russia. Court rulings on the matter were isolated and, more importantly, consistently negative concerning the issue of compensation. The state did not offer any realistic mechanisms, and no state policy addressed compensation.

Immediately after February 2022, Ukrainians began filing lawsuits en masse against the Russian Federation in Ukrainian civil and commercial courts, seeking compensation for material and moral damages resulting from the act of aggression. At the time, they viewed this process as virtually the only realistic means of obtaining compensation. This was also due to uncertainty about whether any other mechanisms, including international ones, would come into effect. Recognizing that no other compensation mechanisms existed, the courts changed their approach in April 2022 and began granting such claims. This effectively marked a shift in state policy, as the state thus proposed the only feasible mechanism at that time – filing lawsuits against the Russian Federation.

It was not until February 2023 that a specific law, the Law on Compensation for Damage and Destruction of Certain Categories of Real Estate, was adopted. This gave rise to the state program eRecovery.

In November 2023, Ukraine acceded to the Enlarged Partial Agreement on the Register of Damage Caused by the Aggression of the Russian Federation against Ukraine, which initiated the establishment of the International Register of Damage caused by Russia’s aggression against Ukraine. Currently, this international mechanism exists in the form of the International Register, which collects damage claims from certain entities. The collection of claims began in April 2024, and gradually, the circle of entities eligible to submit claims is expanding. The following stages involve the creation of a Commission to assess the admissibility of these claims, determine the amount of compensation, and establish a fund from which payments will be made to the specific victims.

Thus, an international compensation mechanism has now started collecting claims, although it is still unclear when it will be fully operational and, even more so, when payments might begin.

In parallel, there is the national eRecovery mechanism. Applications to eRecovery are only possible for damaged or destroyed real estate. However, this mechanism has published a methodology for assessing damages, and compensation is already being paid to people. At the same time, applying to eRecovery effectively deprives a person of the right to apply to the International Register. Therefore, individuals need to choose between property damage or destruction, as applying both mechanisms simultaneously is impossible.

Despite the development of these two mechanisms, judicial practice continues to expand in cases where individuals or legal entities file lawsuits for compensation for damages caused by Russia in Ukrainian courts. This document analyzes international law, national legislation, and judicial practice in the context of such cases and attempts to assess the possible consequences of such state policy. It also provides specific recommendations for the future state policy regarding compensation for damages caused by Russia’s aggression.

We did not aim to assess the work of the Register or eRecovery, the problems of their interaction, or the sources for covering the damages, nor the issue of assessing the amounts of damage to specific individuals, which are separate topics for discussion. Instead, we focused on evaluating judicial practice in the context of compensation, as it raises the most questions and may lead to serious negative consequences.

Ukrainian and international experts have repeatedly discussed the issues highlighted in this study during private discussions, and thus, the research also includes opinions expressed by participants in such discussions.

2. Legislation of Ukraine

The filing of lawsuits against the Russian Federation for compensation of damages caused by its aggression by citizens and legal entities, as well as decisions of national courts, are based on the following legal provisions of Ukrainian legislation.

Prior to the full-scale invasion, such cases were considered under Article 19 of the Law on Combating Terrorism, which stipulated that damages resulting from a terrorist act must be compensated by the state of Ukraine. In 2023, this provision was clarified to specify that such compensation must occur in accordance with procedures established by the Cabinet of Ministers. This effectively limited the potential for citizens to file lawsuits against the state of Ukraine. As a result, courts largely dismissed such claims. 

In June 2024, the European Court of Human Rights (ECtHR) declared inadmissible the application in the case of Futornyak v. Ukraine , which concerned the refusal to compensate for destroyed property and the obligation of the state to establish a mechanism for compensating such property in accordance with the Law on Combating Terrorism. 

There were also isolated cases against the Russian Federation in national courts. Before 2022, they were mostly dismissed. However, since 2022, the situation has changed. In particular, plaintiffs in courts and the courts themselves have used the following legal arguments to substantiate the shift in judicial practice.

The Constitution of Ukraine, in Article 55, provides that every individual has the right to defend their rights and freedoms in court. According to Article 124 of the Constitution of Ukraine, the administration of justice in Ukraine is entrusted exclusively to the courts, whose jurisdiction extends to any legal dispute and criminal accusation. This provision emphasizes the comprehensive nature of judicial power in the country and its key role in protecting the constitutional order and human rights. Article 129 of the Constitution enshrines the fundamental principles of justice, which are constitutional guarantees of the right to judicial protection, including the adversarial nature of the parties and their freedom to present their evidence to the court and prove its validity.

The Law of Ukraine “On Private International Law” establishes the principle of judicial immunity concerning foreign states on the territory of Ukraine in cases involving private law disputes.

There is a debate about whether these claims fall under the regulation of private law, but in our view, there are more arguments to assert that it pertains to private rather than public law: compensation for damages within the framework of civil law based on civil law norms, using civil liability tools, and following the procedure of private law disputes.

Part 1 of Article 79 of the Law on Private International Law defines the judicial immunity of a foreign state, according to which filing a claim against a foreign state, involving a foreign state in a case as a defendant or a third party, seizing property belonging to a foreign state and located in Ukraine, applying other measures to secure the claim concerning such property, and enforcing claims on such property may only be allowed with the consent of the competent authorities of the respective state unless otherwise provided by an international treaty of Ukraine or Ukrainian law. At the same time, Part 4 of Article 79 of this law stipulates that if another country does not respect this immunity concerning Ukraine, Ukraine is also allowed to deviate from this immunity.

However, judicial practice has expanded the interpretation of this exception to violations of immunity to include broader violations of Ukraine’s sovereignty and international law norms.

Whether Ukraine should continue to adhere to this limitation remains a subject of debate, as the Russian Federation essentially violated Ukraine’s immunity in processes involving the seizure of state property in Crimea, and later in the Luhansk and Donetsk regions. This provides substantial grounds to believe that the Russian Federation may indeed not have immunity in Ukrainian jurisdiction; however, this requires careful substantiation in court rulings. To date, Ukrainian courts have merely recognized the act of aggression and numerous violations of international law by the Russian Federation as grounds for disregarding Russia’s immunity in Ukrainian courts.

Ukrainian legislation, in the context of civil relations, includes foreign states and other public law entities as participants in civil relations. Part 1 of Article 16 of the Civil Code of Ukraine guarantees every individual the right to defend their violated, unrecognized, or disputed rights or legitimate interests in court.

Mechanisms for the protection of civil rights and interests provided by points 8 and 9 of Part 2 of Article 16 of the Civil Code of Ukraine include compensation for damages and other forms of compensation for material and moral harm. Damages, as defined in Article 22 of the Civil Code of Ukraine, include both actual losses and lost profits and are subject to full compensation in accordance with a contract or law. According to Parts 1, 2, and 3 of Article 22 of the Civil Code of Ukraine, a person who has suffered damages as a result of a violation of their civil rights is entitled to compensation. Damages include:

1. losses incurred by a person in connection with the destruction or damage to property, as well as expenses incurred or to be incurred by a person to restore their violated rights (actual losses);
2. income that a person could have actually received under normal circumstances had their rights not been violated (lost profits).

The principles of fairness, impartiality, and reasonableness of a court decision, outlined in Article 263 of the Civil Procedure Code of Ukraine, require the court to choose and apply legal norms that correspond to the specific disputed legal relationship, taking into account the conclusions of the Supreme Court regarding the application of relevant legal norms. According to the same article, a decision can be considered justified if it is made based on fully and comprehensively clarified circumstances, which the parties refer to as the basis of their claims and objections, and are confirmed by the evidence examined in the court session.

Moreover, courts and plaintiffs substantiate their positions by referring to Articles 6 and 13 of the European Convention on Human Rights in the context of access to justice and the state’s obligation to establish mechanisms for the protection of human rights. However, such a reference is quite debatable since it appears justified only in cases where the state of Ukraine is the violator of human rights. In our context, we are dealing with human rights violations committed by another state, and therefore Ukraine cannot have any obligations regarding these violations—raising the question of whether Ukraine has obligations under the European Court of Human Rights (ECtHR) to establish such a protection mechanism. Moreover, in the Futornyak v. Ukraine case mentioned earlier, the ECtHR ruled that the state’s obligation to protect property rights is not unlimited and must be assessed in context. Thus, the mere fact of damage does not automatically impose an obligation on the state to establish a compensation mechanism.

If the state does establish a mechanism, it would bear partial responsibility for its implementation, as the mechanism must be effective, meaning it should lead to the restoration of rights or proper compensation. Furthermore, relying on the right to a fair trial also seems flawed, as this right includes the obligation of the state to execute court decisions. Regarding this category of cases, Ukraine does not have legal instruments to enforce such court rulings.

Therefore, the opposite may occur—Ukraine may be accused of failing to execute such court decisions against the Russian Federation, as it sanctioned this legal mechanism for the protection of rights through the courts. Ultimately, our state may be required to enforce all national court decisions.

Considering the legal position outlined in point 38 of the Venice Commission’s Opinion on Georgia’s Law on Occupied Territories, which states that a state’s intention to regulate legal relations in occupied territory may be indicative of its responsibility for that territory, the intention of the state to implement an effective compensation mechanism, including in judicial practice for individuals affected in temporarily occupied territories, may create legal liability for Ukraine.

In summary, courts base their decisions on general provisions regarding the right to access the courts, the right of the court to hear disputes concerning any legal relations, and an individual’s right to compensation for damages incurred. The provisions of Article 79 of the Law of Ukraine “On Private International Law” are regarded as competing norms that should be applied in consideration of the requirements of the Constitution and the exception defined in Part 4, meaning that Russia’s consent in such cases is not required.

Courts also justified their decisions by stating that the state must ensure a mechanism for the protection of rights. However, since 2022, the situation has changed. In 2023, a special law on compensation for damaged or destroyed certain real estate objects of citizens was adopted, under which the eRecovery mechanism was launched. Additionally, in 2024, the International Register of Damage — an international compensation mechanism for a broader circle of citizens and legal entities — became operational. However, this has not had any impact on judicial practice.

3. International Law

The issue of state immunity in the courts of other countries is not new and has already been the subject of many discussions, studies, and judicial practice.

State immunity is a doctrine based on the principle of public international law, according to which state sovereignty would be violated if a sovereign state were subjected to the jurisdiction of national courts of another sovereign state without its consent. There is a widespread practice of applying immunity from lawsuits, as well as from the enforcement of judicial decisions. There is absolute immunity, where any lawsuits are prohibited, or restrictive immunity, which allows lawsuits arising from commercial agreements and damages but imposes limitations on the enforcement of such decisions. Although these norms do not exist in treaty-based international law, they are applied by almost all countries, as they are widely recognized as customary international law.

Attempts to codify these norms in international treaties have not gained significant traction to date.

The European Convention on State Immunity has entered into force, but only eight members of the Council of Europe have ratified it. Neither Ukraine nor Russia are parties to the Convention.

The UN Convention on Jurisdictional Immunities of States and Their Property was adopted, but it has not entered into force. Ukraine and Russia are also not parties to this agreement.

In the 2012 case Germany v. Italy (Greece) on jurisdictional immunities, the International Court of Justice (ICJ) recognized that “customary international law continues to require that a state be granted immunity when dealing with torts allegedly committed on the territory of another state by its armed forces and other state organs during armed conflict.” This conclusion is supported by the rulings of the European Court of Human Rights. In this case, the ICJ found the following violations on Italy’s part:

1. denial of Germany’s immunity by local courts;
2. enforcement of judgments by seizing German property on Italian territory;
3. recognition and enforcement of Greek court decisions on the same matter within Italy.

At the same time, it should also be noted that the court emphasized that there is no contradiction between state immunity and a state’s obligation to pay reparations. The obligation of the violating state to pay reparations does not depend on national court rulings and exists independently of such rulings.

In this case, the separate and dissenting opinions of the judges are also particularly noteworthy. For instance, Judge Ad Hoc Gaja stated that this issue lies within a “grey area.” Judge Koroma emphasized that a provision requiring a state to pay compensation to individuals would have been unthinkable in 1907, when the Fourth Hague Convention was concluded. In turn, Judge Cançado Trindade pointed out that when considering the relationship between state immunity and claims for war reparations, one must take into account the evolution of law. It is worth noting that Judge Cançado Trindade’s dissenting opinion from the court’s ruling stands out due to its reasoning, and some of his positions will be cited later. In particular, the judge noted that the complexity and uniqueness of this case lie in the fact that the violating state itself acknowledged all violations and voluntarily agreed to make the appropriate reparations. “State immunities are… a privilege, and they cannot continue to abstract from the evolution of international law that is taking place today in the light of fundamental human values” . The judge emphasized that such acts by a state, including international crimes like those committed by the Third Reich during World War II, are neither acts jure gestionis nor jure imperii, but rather delicta imperii — crimes for which no immunity exists. Judge Cançado Trindade repeatedly referenced the following arguments in support of his position:

• Such serious violations of human rights and international law, in general, constitute breaches of jus cogens, which cannot simply be dismissed or forgotten by relying on state immunity.
• A crucial aspect is the inalienable right of the victim to access justice. In such cases, the very act of providing the victim access to justice itself constitutes a form of reparation, ensuring that the victim receives fair satisfaction.
• It is incorrect to assume that there is, or cannot be, any conflict between fundamental jus cogens norms and procedural rules of state immunity. This tautological assumption leads to the preservation of state immunity even in the face of grave violations of international law .

It is important to note that the Italian precedent does not end there. In its decision NO. 238 – YEAR 2014, the Italian Constitutional Court disagreed with the decision of the International Court of Justice and declared unconstitutional certain provisions of Italian legislation recognizing the jurisdiction of the ICJ over Italian national courts “solely to the extent that it obliges the Italian judge to comply with the February 3, 2012 judgment of the International Court of Justice, which requires Italian courts to deny jurisdiction over actions of a foreign state that constitute war crimes and crimes against humanity that violate inviolable human rights” . The judgment raises the issue of a conflict between Italy’s international legal obligation and its obligation under its own constitution. This decision led to the filing of at least 25 new lawsuits against Germany in Italian courts, which led to Germany’s repeated application to the International Court of Justice for a new decision, including restrictive measures . 

Taking into account the Italian judicial practice, in order to reconcile the conflict of international and national jurisdictions, the Italian authorities adopted Decree No. 36/2022 of April 30, 2022 (hereinafter referred to as the Decree). The Decree establishes a new compensation mechanism for indemnifying individuals who have confirmed their right through a national court. The mechanism for creating the national fund and the procedural conditions for enforcement are defined in Article 43 of the Decree. A crucial element of the mechanism is the establishment of strict time limits under which compensation can be obtained, namely: “The Fund is available to those who have received a final judgment confirming their right to compensation for damages. Such a final judgment must have been issued in proceedings initiated either before the Decree-law came into force (i.e., May 1, 2022) or within 30 days after the Decree’s entry into force, created under Article 43(6). Later requests will be rejected. Under Article 43(3), new enforcement proceedings based on compensation claims cannot be initiated or continued. Ongoing enforcement proceedings, on the other hand, are terminated.” . Таким чином, законодавець створив часові межі після спливу яких, відповідно до національного закону, рішення національних судів не можна буде виконати. 

Italy has effectively released Germany from the claims of Italian victims of Nazi mass murder and established that it will pay all compensation instead of the German state through a special fund, the government allocates the relevant resources according to a decree of the Ministry of Economy, agreed together with the Ministries of Foreign Affairs and Justice and published in the Official Journal on July 1, 2023. By legislative decree of September 29, 2023, the deadline for submitting new requests was extended to December 31, 2023 .

The Compensation Fund for victims of crimes was established by Decree No. 36 of 2022 with a budget of 20 million euros for 2023 and 13,655,467 euros for the three-year period of 2024-2026. The Fund ensures the continuity of the Agreement between Italy and Germany, which came into force by Presidential Decree No. 1263 of April 14, 1962. The Ministry of Finance’s regulation, issued in agreement with the Minister of Foreign Affairs and International Cooperation and the Minister of Justice on June 28, 2023, sets out the procedures for accessing the Fund and the methods of disbursing funds to eligible individuals.

Article 43 of the Italian Decree-Law closely resembles the German law of August 2, 2000, which established a fund to compensate Holocaust victims who were subjected to forced and slave labor in Germany and the territories it occupied during World War II. Article 16(2) of this law terminated ongoing legal proceedings in German courts (at the time, there were tens of thousands of claims) and transferred the claims to the fund for compensation. In its decision of December 7, 2004 (1 BvR 1804/03), the German Federal Constitutional Court ruled that this transfer was compatible with the German Constitution (Article 14 of the Basic Law, the right to property). It is not uncommon in international practice to replace private claims, which are prohibited by state immunity, with a (domestic) compensation scheme .

In the jurisdictions of the United States (under the Foreign Sovereign Immunities Act), Canada (under the State Immunity Act and the Justice for Victims of Terrorism Act), as well as some other countries, there is a legislatively established possibility for individuals who have suffered from terrorist acts or terrorism-related activities by other states to file lawsuits against those states. However, this limitation on state immunity is being challenged in the case of Iran v. Canada before the International Court of Justice (ICJ), where the court has yet to issue a ruling . Until a ruling is made in this case, it cannot be definitively stated that such state practices align with international law. Additionally, such practices are clearly defined by national law, which limits immunity only in specific instances, mainly concerning property within the jurisdiction of these countries. Similarly, the U.S. Supreme Court case TURKIYE HALK BANKASI A. S., AKA HALKBANK v. UNITED STATES is gradually shaping the practice of limiting sovereign immunities in U.S. legal practice, but a final decision has not yet been reached.

Thus, there is currently an established international practice of recognizing state immunity from prosecution in the national courts of other states. Attempts to limit such immunity, which have been made in certain jurisdictions (Italy, Brazil, the USA, Canada), are clearly defined by national law, have specific goals and limitations, and mainly concern property under the jurisdiction of these countries. However, the compliance of this national practice with international law has not been determined. The future decision of the International Court of Justice in the Iran v. Canada case, as well as a second ruling in the Germany v. Italy case, should provide further clarity.

It should also be noted that the issue of Russia’s immunity in Ukrainian courts must be considered within a broader context, taking into account Russia’s actions in the occupied territories and how they relate to Ukraine’s sovereign immunity.

4. Court practice in Ukraine

The case law on compensation for damage caused by the military aggression of the Russian Federation began to emerge in 2014. As noted above, initially, claims for compensation for property damage caused by the aggression of the Russian Federation were filed against the state of Ukraine under the anti-terrorism legislation. Most of these claims were not satisfied. There were also isolated attempts to file lawsuits against the Russian Federation, but they were mostly unsuccessful. After the invasion of 2022, plaintiffs’ claims began to be addressed exclusively to the Russian Federation, which was a sustainable paradigm shift. 

The key event was the decision of the Civil Court of Cassation of the Supreme Court of April 14, 2022 in case No. 308/9708/19: In resolving the issue of compensation for moral damages inflicted on Ukrainian citizens as a result of the armed aggression of the Russian Federation, the court determined that Ukrainian courts have the right to disregard the judicial immunity of the Russian Federation in such cases. Judicial practice in these matters encounters the principle of sovereign immunity, under which a foreign state can only be held liable in the courts of another state with its consent. However, the Supreme Court of Ukraine has noted that modern trends in international law and the supposed practice of the European Court of Human Rights indicate the possibility of limiting this principle in certain cases.

Thus, even lawsuits filed against Russia before 2022 began to be reconsidered by appellate and cassation courts based on a new approach formed by the Supreme Court. In its ruling, the Supreme Court established the following: The jurisdiction of Ukrainian courts extends to any legal dispute and any criminal charge. In cases provided for by law, courts also hear other matters (Part 3 of Article 124 of the Constitution of Ukraine). In determining whether Russia is subject to judicial immunity in the case under review, the Supreme Court considered the following:

• The subject of the lawsuit is compensation for moral damages inflicted on individuals, Ukrainian citizens, as a result of the death of another Ukrainian citizen;
• The place where the damage occurred is the sovereign territory of Ukraine;
• The damage is presumed to have been caused by agents of the Russian Federation, who violated the principles and purposes enshrined in the UN Charter, particularly the prohibition of military aggression against another state, Ukraine;
• Acts of armed aggression committed by a foreign state do not constitute an exercise of its sovereign rights but rather indicate a violation of its obligation to respect the sovereignty and territorial integrity of another state, Ukraine, as established in the UN Charter;
• Ukrainian national legislation operates on the general principle that damage caused to an individual in Ukraine as a result of illegal actions by any other person (entity) may be compensated by a Ukrainian court (under the “general delict” principle).

The Supreme Court concluded that, in the case of the “delict exception,” any dispute arising on its territory involving a Ukrainian citizen, even with a foreign state, including Russia, can be heard and resolved by a Ukrainian court as the appropriate and competent jurisdiction.

The court also cited Part 4 of Article 2 of the Law of Ukraine “On the Specifics of State Policy on Ensuring the State Sovereignty of Ukraine in the Temporarily Occupied Territories of Donetsk and Luhansk Regions,” which holds Russia responsible for material and non-material damage inflicted on Ukraine as a result of its armed aggression, in accordance with the principles and norms of international law.

The court paid particular attention to Article 79 of the Law of Ukraine “On Private International Law,” which establishes judicial immunity. However, the court interpreted Part 4 of this article as a significant clarification that allows for the limitation of judicial immunity in cases where a state violates international law, leading to the denial of similar immunity to Ukraine, its property, or its representatives in that foreign state. This provides grounds for the Cabinet of Ministers of Ukraine to take appropriate measures, including legal action, if diplomatic measures are insufficient to resolve the situation. Given Russia’s violations of international law and its armed aggression against Ukraine since 2014, the Supreme Court determined that there is no need to uphold immunity in this case, especially when it comes to compensating Ukrainian citizens for damages caused by this aggression.

This position is highly debatable, as Part 4 of Article 79 only pertains to violations of judicial immunity itself by another country, not other sovereign rights. In fact, the court’s logic would allow for the removal of state immunity for any violation of international law. This seems inconsistent with both the content of the exception defined in Part 4 of Article 79 and with international law. It is evident that this provision refers to a reciprocal response to the lifting of Ukraine’s judicial immunity in another country’s jurisdiction, such as the confiscation of Ukrainian state property in Crimea and other occupied territories, although this aspect was not addressed.

Considering the aforementioned arguments and international practice, the Supreme Court determined that in cases concerning compensation for damages to Ukrainian citizens due to acts of Russian aggression on Ukrainian territory, Russia’s judicial immunity does not apply. The court ruled that Russia’s acts of aggression violate the principles of the UN Charter and do not constitute an exercise of sovereign rights, but rather a breach of obligations regarding the sovereignty and territorial integrity of Ukraine.

This position has been reflected in subsequent rulings of the Cassation Civil Court, notably in its decisions of May 18, 2022, in case No. 760/17232/20-c, and of June 22, 2022, in case No. 311/498/20.

As a result of this judicial practice, as of March 2024, at least 397 rulings had been issued by Ukrainian courts regarding compensation for damages caused by Russian military actions. However, there are no known examples of these rulings being enforced. It is known that enforcement proceedings have been initiated in Ukraine in only 5-6 cases, but this information may not be entirely accurate. Even the judges of the Supreme Court have publicly stated that there is currently no legal mechanism for enforcing such rulings, which indicates the judges’ awareness of the inability to enforce these decisions at the time they are made.

The number of rulings continues to grow, demonstrating an increase in legal practice in this area. As of early September 2024, more than 600 rulings had been issued by Ukrainian courts regarding compensation for damages caused by Russian military actions. This means that since March 2024, the number of such rulings has increased by 50%. It is evident that under the current circumstances, where every Ukrainian citizen has the right to file a lawsuit, millions of citizens may choose to do so in the future.

It is also important to note that rulings to satisfy claims for compensation for damages caused by Russian military actions were issued even before the aforementioned Cassation Civil Court ruling in 2022, though they were isolated cases that were not appealed, and thus remained decisions of local courts. For instance, in its ruling of July 5, 2019, the Primorsky District Court of Odesa in case No. 522/20396/18 granted a claim for compensation from Russia for material and moral damages amounting to approximately two million hryvnias. In this ruling, the court noted that the Russian Federation, by violating several key international treaties and acts, including the UN Charter, the Universal Declaration of Human Rights, the Budapest Memorandum, the Helsinki Final Act of the Conference on Security and Cooperation in Europe, and bilateral treaties with Ukraine, including the Treaty on Friendship, Cooperation, and Partnership and the Treaty on the Ukrainian-Russian State Border, had overstepped its sovereign rights. According to Article 2 of the UN Charter, such actions place the Russian Federation outside the scope of lawful sovereign rights, classifying it as an aggressor state. Given these circumstances, the court concluded that Russia does not possess judicial immunity in cases related to claims for compensation for damages caused by its aggressive actions.

Thus, a clear judicial practice has emerged regarding this category of cases, although the legal reasoning in these court decisions remains highly debatable. Additionally, there is active protection and reinforcement of this existing judicial practice through public statements by judges.

Many law firms and attorneys are advertising their services, promising compensation through the filing of civil lawsuits. Any citizen or legal entity may potentially file such a claim, which could lead to the number of these claims growing into the millions. In these cases, no court fee is charged, so the only barrier to filing may be the cost of legal services.

It is worth noting that the legal reasoning of such court decisions is not of high quality and sometimes contradicts state policy. For example, in court decisions in cases No. 712/1856/24, № 517/382/24, № 183/1685/24 and others, in the reasoning section of their decisions, courts have also referred to the provisions of the Declaration on the Right to Peace, adopted by UN General Assembly (hereinafter referred to as “UN GA”) Resolution 71/189 on December 19, 2016. However, such a legal reference is not appropriate, as, according to the voting results in the UN GA for this resolution, Ukraine abstained from voting. In contrast, the resolution was supported by countries such as the Russian Federation, China, North Korea, Iran, Venezuela, Belarus, Cuba, and others, while almost all European states either voted against or abstained from voting . Given the large volume of national court decisions and their mechanical copying, it can be argued that the quality of these rulings is extremely low and chaotic. Increasingly, there are instances of dishonest assessments of damages aimed at artificially inflating the compensation awarded by the court. The courts do not use any unified methodology for assessing damages, and in most cases, they simply agree with the amount claimed by the plaintiff. In almost all rulings, the court does not evaluate the claimed damages, merely acknowledging the grounds for granting the claim. This aspect of judicial practice poses a significant issue. Currently, there is no methodology for calculating damages or moral harm to victims, leading to the issuance of entirely unrealistic compensation rulings and greatly diminishing the quality and trustworthiness of these decisions. It should be emphasized that the methodology for calculating damages is one of the primary elements in ensuring fair compensation. By awarding compensation without a developed and unified methodology, Ukrainian judges are violating the principle of legality and legal certainty. There is no known effort to implement a unified methodology for calculating moral damages, despite the rapid increase in rulings in this category of cases. This results in huge disparities in damage assessments, ranging from tens of thousands to several million hryvnias for the same type of harm.

Additionally, there are violations of the right to a fair trial in such cases, particularly:

• the absence of proper notification of the defendant about the case;
• the absence of defense representatives for the defendant, or the appointment of one at the state’s expense, with no active defense being provided; in fact, the case is decided solely based on the plaintiff’s claim;
• the lack of case documents in the defendant’s language;
• the failure to send the court’s decision to the defendant;
• the inability for the defendant to appeal the ruling or to restore the appeal period, and even the theoretical right to a review of such court decisions.

All of these serious procedural violations, along with the extremely low quality of the court rulings themselves, virtually guarantee the non-enforcement of such court decisions in any foreign jurisdiction. The primary consideration for enforcing a decision from a Ukrainian court in another country is the adherence to the standards of the right to a fair trial. Without ensuring these standards, the likelihood of enforcing such rulings abroad is significantly diminished.

Ukrainian courts often do not even attempt to notify the Russian Federation about lawsuits filed against it. In some cases, this is limited to posting a notice on the court’s website. The Cassation Civil Court within the Supreme Court of Ukraine has established that, since 2014, there is no need to send requests to the Russian Embassy in Ukraine regarding Russia’s consent to be a defendant in cases concerning compensation for damages due to the armed aggression committed by Russia against Ukraine. In the resolution of April 14, 2022 the court noted that in the category of disputes concerning compensation for damages caused to an individual, their property, health, or life as a result of the armed aggression of the Russian Federation, the foreign state-defendant does not enjoy judicial immunity from being tried in Ukrainian courts. The Supreme Court indicated that, considering the ongoing armed aggression of the Russian Federation since 2014, there is no need to send a request for consent to participate in the case to this country’s embassy.

Therefore, Ukrainian courts, in view of the procedural difficulties and the severance of diplomatic relations with the Russian Federation, have developed a practice of notifying the Russian Federation as a defendant through the official website of the judiciary. Some courts also send notifications by directing court summonses to the address of the Russian Federation’s embassy, where no one is present, and send court summonses to known email addresses of the Russian Federation’s embassies in Ukraine, or do not notify the defendant at all about the case, applying the legal positions of the Supreme Court.

5. Conclusions

Accordingly, based on our material, we can present the following important conclusions regarding the consideration of lawsuits against the Russian Federation by Ukrainian courts:

1. To date, a large number of lawsuits have been filed by citizens and legal entities in Ukrainian courts against the Russian Federation for compensation for damages caused by aggression. As of September 2024, no fewer than 600 rulings have been issued by the courts.
2. Judicial practice is supported by decisions of the Cassation Civil Court within the Supreme Court, which has ruled that in this category of cases, the immunity of the Russian Federation does not apply due to its violations of international law. It can be stated that such judicial practice is now stable and well-established. The courts themselves are unlikely to change this practice. Moreover, judges consistently support their position publicly in the media.
3. This practice does not fully align with international law, and certain arguments of the courts are based on inaccurate interpretations of international legal norms, as well as on an overly broad interpretation of Part 4 of Article 79 of the Law on Private International Law. In fact, this practice is not based on legal regulation, as no specific legislation governs compensation for damages in such cases. In 2023, the Law on Compensation for Damage and Destruction of Certain Categories of Real Estate as a Result of Hostilities, Terrorist Acts, and Sabotage Caused by the Armed Aggression of the Russian Federation against Ukraine, which provides for an administrative compensation mechanism. The current practice of filing lawsuits for compensation for destroyed or damaged property appears to contradict this law, and courts should reject claims concerning damaged or destroyed real estate based on this legal provision. Additionally, other categories of citizens may refer to the International Register. The courts could very well reconsider their position, established in 2022, given that today, there are two parallel compensation mechanisms in place. However, such a shift is unlikely without an active stance from the defendant. In most cases, these cases do not even reach the appeals stage.

This judicial practice also does not align with the experience of other countries. As noted above, certain countries have legislative limitations on state immunity. However, these limitations are clearly defined in legislation, serve a narrowly focused purpose, and are reinforced by practical enforcement mechanisms, particularly provisions that restrict the scope to assets within the jurisdiction of such states. No such provisions exist in Ukraine. Moreover, this mechanism operates without legislative regulation.

There is a growing trend of this type of claim in Ukrainian courts. Generally, established judicial practice suggests that effectively any Ukrainian citizen or legal entity can file such a claim and demand compensation, if not for material damages, then at least for moral damages. It appears that the limited number of such claims today is due primarily to a lack of public awareness of this procedure, as well as the costs of legal services. However, a significant portion of the legal business sector is now identifying this area as a field of activity, which significantly stimulates the increase in these cases. The outcomes of such activities in national courts may attract the interest of major business players looking to acquire numerous claims with the intent of monetizing them in the future.

The examination of such cases raises numerous controversies and contentious issues that are not clearly defined by legislation, resulting in highly varied practices in addressing these matters. Specifically, there is no legal certainty regarding:

• The issue of territorial jurisdiction for such claims;
• The determination and payment of court fees;
• The problem of inadequate or absent notification to the Russian Federation about court proceedings;
• The absence of representation and translation of documents into Russian;
• Failure to send the court decision to the defendant;
• The lack of guarantees for review of decisions rendered in absentia and failure to uphold even minimal standards of the right to defense;
• Criteria for assessing damages: courts generally set the amount of damages claimed by the plaintiff without any judicial assessment. Currently, no consistent criteria are observed for determining compensation amounts, which violates the principle of fair compensation, as compensation amounts for similar damages can vary by orders of magnitude.

1. The procedure for enforcing such decisions is not defined by legislation. There are no legally established sources of funding for the enforcement of these decisions in Ukraine. Russian Federation assets in Ukraine are nationalized for the benefit of the state based on the law on the fundamental principles of the compulsory seizure of property owned by the Russian Federation and its residents in Ukraine.This law does not provide for the enforcement of court decisions against the Russian Federation. This is a key difference from similar claims in other countries, as noted earlier, where such claims are effectively limited to assets within the jurisdiction of that country. In our case, the state has explicitly determined that Russian Federation property within Ukrainian jurisdiction will never be used to compensate damages to citizens and legal entities. Thus, at present, there is not even a theoretical possibility of enforcing such court decisions in Ukraine.

The enforcement of such decisions in other jurisdictions remains contentious, and to date, there are no examples of enforcement through the seizure of Russian Federation assets abroad. Additionally, clear systemic violations of the right to a fair trial—such as inadequate notification of the opposing party, absence of representation for the other side, breaches of the adversarial principle, and failure to meet even minimal standards of the right to defense—serve as arguments against the potential recognition and enforcement of these decisions in other jurisdictions.

Thus, it is likely that these decisions will never be enforced, either in Ukraine or in other jurisdictions.

2. Court decisions rendered by Ukrainian courts are also highly unlikely to be considered by the Register of Damages caused by Russian aggression. According to the approved agreement, three procedures have been established:: 

• Collection of evidence on damages (the Register sets standards of proof);
• A commission that will determine whether payment will be made, as well as the criteria for calculating the compensation amount and the specific sum to be paid; 
• A fund to accumulate resources for compensation payments.. 

Thus, the Register will independently assess the amount of compensation, and court decisions will likely not be considered in this context, as this would create inequality among victims regarding compensation amounts and standards of proof. The Register will independently determine the grounds and amount of compensation. Court decisions may be considered only in the context of confirming certain facts of harm, alongside other evidence.

3. The following negative consequences can be noted if such judicial practice continues:

• Significant strain on the judicial system if millions of citizens or legal entities turn to this method: under existing practice, virtually anyone can file a claim. Potentially, this could paralyze the judicial system, as even formal consideration of such cases requires time and resources. Currently, the judicial system handles only a few hundred thousand cases per year, and an increase in claims to tens of millions would simply halt the system. This would lengthen the processing time for all other cases and could lead to numerous violations of the right to a fair trial in other matters.
• An increase in claims would lead to excessive expenditures from the State Budget. Each case incurs costs for Ukraine. However, the existence of such rulings does not guarantee any reimbursement of these expenses.
• Such judicial practice establishes a potential systemic violation of the right to a fair trial by Ukraine in the context of non-enforcement of court decisions: Ukraine effectively anticipates that such decisions will not be enforced, as a specific enforcement procedure has not been adopted. Therefore, while Ukraine cannot be held responsible for damages caused by the actions of the Russian Federation, it may bear partial responsibility by offering a protective mechanism that fails to achieve results.
• Victims of Russian aggression will be disillusioned by the actions of the courts and Ukraine, as they will blame them for the non-enforcement of these court decisions.
• Potentially, the Russian Federation could also generate numerous court decisions in Russian courts against Ukraine and later demand their enforcement in third countries, leading to the blocking of Ukrainian assets and other relevant legal consequences. In doing so, the Russian Federation could refer to Ukrainian practices of attempting to enforce Ukrainian court decisions in these jurisdictions as justification for its claims.

4. At the same time, we do not see any positive arguments for such judicial practice, apart from the moral satisfaction of the participants in the process. Victims are unlikely to receive compensation. On the contrary, they will likely waste additional funds on legal assistance and court costs, which will ultimately lead to further traumatization as they realize the exceedingly slim chance of such decisions being enforced.

6. Recommendations:

1. No one can influence the courts in their decision-making; however, the state, particularly the parliament and executive branch, is responsible for establishing a clear public policy on compensating damages caused by Russian aggression. Such a policy is being developed but remains unclear and not fully coordinated, and the existing judicial practice further complicates public understanding and creates issues for the coming decades.
2. Ukraine must urgently introduce legislative amendments to limit the existing judicial practice concerning claims by citizens and legal entities against the Russian Federation in national courts, considering the increasingly active role of the International Register and the creation of a national compensation mechanism for damages or destruction of certain real estate for citizens.
3. More clearly define that victims of crimes committed during Russian aggression in Ukraine have the right to file civil claims in criminal cases for compensation against specific individuals responsible for the crimes, regardless of any compensation received through other mechanisms. Encourage such claims and facilitate their enforcement. Legislation should establish possible procedures for enforcing such decisions.
4. Conduct training sessions for judges handling this category of cases, focusing on safeguarding the right to a fair trial and implementing effective human rights protection mechanisms.
5. Increase public information campaigns to educate citizens about the work of the International Register and the eRecovery program.