If you were forced to move out of the occupied Donbass or the Crimea and think that you do not have the right to material compensation, then you are deeply mistaken. At least, the public organization Sila Prava believes so. It helps people affected by the Russian aggression to receive compensation through the court. For example, internally displaced persons can count on €35 000, and families of dead ATO servicemen - on €60 000.
In early October 2017, the Obolonsky District Court of Kyiv established the legal fact of the forced relocation of Larysa and Yuriy Khandryg from the occupied Donbass "as a result of the armed aggression of the Russian Federation against Ukraine and the occupation of part of the territory of the Donetsk oblast". The next step will be the filing a claim for compensation for moral and material damage caused by this aggression.
And this is not the only example when the Ukrainian court recognized the fact of Russian armed aggression and established the amount of compensation that Russia must pay. All-Ukrainian movement Sila Prava has been dealing with such cases since the end of 2014.
This is a unique case for Ukraine, when the judicial system outstrips the legislative system. After all, the Verkhovna Rada after three years of war finally decided (only in the first reading so far) to recognize Russia as an aggressor, and the Ukrainian courts have passed more than a hundred such decisions from 2015.
"We pursue three goals: the first one is to help our citizens to receive compensation for damage, the second one is to materially punish the aggressor, and the third one is to legalize the facts of Russian aggression, occupation, human rights violations and war crimes that will be evidences for the future international tribunal", - the chairman of Sila Prava All-Ukrainian Movement Andriy Senchenko told OstroV.
Any Ukrainian who suffered from armed aggression of the Russian Federation (for example, IDPs from the Donbass and the Crimea, volunteers, families of dead servicemen, etc.) can apply to the public organization Sila Prava (23 regional offices throughout Ukraine), where they will be helped to compose a statement of claim and will be accompanied throughout the whole trial free of charge. Obviously, the Russian Federation does not recognize the decision of the Ukrainian courts and will not pay anything voluntarily, therefore, as A.Senchenko notes, they took care of the mechanism of payment of compensation. But first things first.
The emergence of the idea and its legal justification
"If any victim of Russian aggression visits a fashionable lawyer's office, they will receive a response that it is necessary bring a case to the European Court of Human Rights. We have centers for providing free legal assistance, created by the Ministry of Justice of Ukraine for grant funds. And we tested them by sending there IDPs. In one center they asked: "Why do you need it?" In another one, they said some nonsense that you can file lawsuits against the Russian Federation only after the end of the MH17 trials. This demonstrates the absolute unpreparedness of the state to answer this question", - the chairman of Sila Prava says.
The organization does not deny the importance of the European Court of Human Rights and does not discourage citizens from filing claims, but note that this is not an effective tool for mass circulation. After all, 2 million people live on the controlled territory of Ukraine, which can be considered directly affected: families of dead military and civilians, wounded and injured military and civilians, servicemen who have been captured, internally displaced persons and so on.
In addition, the European Court can consider, for example, several dozens of similar claims, and only this will take several years. As a result, the Russian Federation will simply refuse to comply with the decision on legal grounds, because Russian Constitutional Court has determined that international law does not have priority over its domestic legislation.
In this regard, lawyers of Sila Prava decided to develop a legal strategy that would help to appeal to the Ukrainian courts with claims against the Russian Federation. But it turned out to be a difficult task, because our country has never come across such precedents.
It turns out that until the 1970s, all countries used the concept of absolute immunity of the state - one country cannot judge another country in its courts.
After a while, a concept of functional immunity of the state was developed. It operates nowadays.
"And there are two principles that are of interest to us: the first one - if one state in its actions committed against another state went beyond the limits of sovereign powers, then this state loses judicial immunity in the victim’s courts. The second principle is - if as a result of the actions of one state committed in the territory of another, the citizens of that other state were killed, then the guilty party does not have judicial immunity in the courts of the country in which the damage was done", - Senchenko said.
There were two attempts to regulate this principle by international conventions, but they failed. But this does not mean that the concept of functional immunity of the state does not work - each country has decided to introduce it in its own way into its legal field.
For example, the countries of the so-called common law (Great Britain, the United States, Australia) adopted laws on judicial immunity, and countries of continental law (France, Germany, Denmark) formed judicial practice, relying on the fact that the court decision is also a source of law.
Experts of Sila Prava first drafted a bill where it was written that the state is deprived of immunity in respect of litigation "related to death or bodily injury or damage or loss of tangible property". But they decided to abandon this idea, because then Ukraine would lose the right to sue Russia for seizing the Crimea and the circumstances of the first phase of military operations in the Donbass.
As a result, it was decided to follow the countries of continental law, which decided that the court judgment is also a source of law.
"We have developed a legal strategy that relies on functional immunity. We prepared an appropriate analytical note that was submitted to the Supreme Court, which recognized that we are right. And after that we went to the courts. We did not reinvent the wheel", - stresses the Sila Prava head, and notes that such a decision of Ukrainian courts is not easier to execute than a decision of the European Court of Human Rights, if it involves the Russian Federation, because it ignores all international decisions.
How it works
First of all, we are talking only about the individual claims of citizens. The strategy is divided into two stages. At the first, lawyers help citizens to establish the legal fact that they suffered as a result of Russian armed aggression in court.
In the framework of this procedure there is no defendant, but there are so-called interested parties, where Russia is indicated as a state. No court session is held unless there is evidence that the Russian side is officially notified and has received all judicial documents.
"We are very sensitive about these issues, the Russian Federation is notified through the embassy by mail with a notification of receipt. Court hearings are held only if there is an answer from the post office that the official received the documents", - Andriy Senchenko explains.
Each judicial statement with the evidence and the application of all the necessary documents consists of approximately 140-180 pages.
After the court satisfies the first claim, the lawyers proceed to the second stage, when the amount of damage that was done to each victim is calculated. Then a new lawsuit is filed, where Russia is no longer acting as an interested party, but as a defendant. And the decision of the court indicates how much the Russian Federation is obligated to pay the citizen.
Sila Prava notes that not only material, but also moral damage, which was caused as a result of aggression, is calculated.
"If we are talking about moral damage, we rely on the practice of the European Court of Human Rights, and when we talk about material damage, we rely more on the internal regulatory framework. For example, if the house and personal property of a citizen are destroyed as a result of artillery shelling, we base on the 2008 decision of the Cabinet of Ministers on the procedure for compensation of lost housing and personal property as a result of floods in Western Ukraine. The consequences are the same, the reasons are different", - Senchenko says.
The amount of damage is calculated by the lawyers of Sila Prava individually. But in general, different categories of citizens can expect such compensation:
- families of deceased servicemen - from €60 000 for each member of the family;
- servicemen who received wounds, injures and psychological traumas - from €20 000 (for minor wounded) + compensation for the loss of labor capacity + compensation for costs of treatment and prosthesis;
- former prisoners of war and civilians who were in unlawful confinement - from €20 000;
- internally displaced persons - from €35 000 + compensation for financial damage;
- citizens who lost their personal property - the amount of compensation depends on the value of the lost property.
Ukrainian courts, albeit slowly, but make positive decisions, which oblige the Russian Federation to pay compensation. For example, in 2016, Yarmolyntsi district court of the Khmelnytskyi oblast sustained Svitlana Kostishyn's case for compensation of non-pecuniary damage to the amount of €180 000, caused by the death of her husband during service in the Donbass.
And in March 2016, Holosiivskyi district court of Kyiv established that the involuntary resettlement of Iryna Veryhina from the territory of the Luhansk oblast occurred "as a result of the armed aggression of the Russian Federation against Ukraine and the occupation of part of the territory of the Luhansk oblast by the Russian Federation". Five months later, the court decided to collect €35 000 of non-pecuniary damage and €4625 of financial damage from the Russian Federation in favor of I.Veryhina.
"We understand that the Russian Federation will pay nothing voluntarily", - Andriy Senchenko says.
Therefore, the lawyers of Sila Prava took care of how and from where these funds will arrive in the account of Ukrainians, to whom courts will allocate compensation payments.
And as a means to secure claims for subsequent payments, they secured the seizure of $3 billion of Russian credit, which was taken in the times of Yanukovych in 2013. At the end of 2016, Kyiv court sustained the case of I.Veryhina, according to which the arrest is imposed on this loan.
By the way, Russia has already filed a lawsuit against Ukraine to the High Court of London to recover this debt. Initially, Kyiv lost this case, and the court delivered a judgement in favor of Moscow. After that, Ukraine took an appeal, and thus, the payments on the loan were suspended before judgement.
"We do not conflict with London Court because other parties are represented there. The Russian Federation proves to Ukraine there that we must repay the debt. Our country lost the first instance, and I predict that we will lose the second instance as well. I believe that no one in the world will want to create a precedent, when one country, while not in a state of war with another country, does not pay its debts. This is a payback for calling the war as ATO", - the head of Sila Prava notes.
If London Court delivers a judgement in favor of Russia again and it comes into effect, then A.Senchenko predicts that representatives of the Russian Federation will come to Kyiv, demanding it to be enforced. In that case, our authorities will have to pay a loan, otherwise arrests of correspondent accounts of Ukrainian banks abroad, arrests of property items and so on may begin. But there is another option that protects Ukraine from the return of this money, - these are decisions of the courts by which this amount is arrested.
"We once arrested the entire amount, and in the other legal proceedings, we arrest it only in some stated claims of a particular applicant", - A.Senchenko emphasizes.
And then, in his opinion, the answer of Ukrainian authorities could be the following: "We recognize and respect the decision of London Court. We recognize the right of demand for this loan, but the Russian Federation court lost the action to the Ukrainian citizens. Judgements on their applications were made by different courts, different judges and in different parts of the country. And the Russian Federation must pay the amounts that were adjudged by these judgements, and only after that, it will be possible to come to the Ukrainian authorities and demand the debt".
According to the calculation of Sila Prava, the total potential of claims to the Russian Federation from the affected Ukrainian citizens is not less than $100 billion.
"The sum is not so fantastic", - A.Senchenko assures. - I always give the military conflict between Iraq and Kuwait as an example. When Iraq attacked Kuwait, the military action lasted two days, after which there were seven months of occupation. The total amount of claims of Kuwait to Iraq is $462 billion. These are claims in the interests of the affected state, business and citizens. By the way, more than $40 billion has already been paid, so all need to be dealt with on time".
Considering the fact that $3 billion will not meet all expenses, Sila Prava propose from now forward to arrest property of the Russian Federation in Ukraine and abroad, what can serve as a lever of pressure on Russia to pay compensation.
As of today, the organization has more than 7200 applications. More than 100 lawsuits to establish the operative fact that a particular person (family) suffered as a result of the armed aggression of the Russian Federation, and 4 decisions to recover money from Russia, were sustained in the Ukrainian courts, and they have already been entered into effect.
But not everything goes smoothly. There is a severe resistance to the judiciary, - Sila Prava notes.
"In some cases, we win in the first-instance courts, in other, when the judge refuses, - in the appeals courts, or in the cassation", - Andriy Senchenko says.
Judges react differently to similar suits. Sila Prava has already formed its own classification of judges in terms of attitude to such applications.
The first category is those who try to avoid consideration of such applications at any costs (about a half). They refuse not in fact, but namely in the consideration.
"In my opinion, these are the judges who are waiting for a political will, so that someone should say from the tribune that it is necessary to take such decisions", - A.Senchenko believes.
The second category of judges who refuse, says that the Supreme Court described the decision in detail at first, and they would rewrite it.
"But in order for the Supreme Court to consider in point of fact, there must be an appeal in fact, and they refuse even to hear the case. It is illegal demands that show a low level of their competence. They have never faced this sphere, this is not a divorce suit, where you need to act strictly according to the Code. In this case, you need to read international documents, understand the core of the matter, and they do not even understand a half of the terms. Some judges, as soon as they see this pack of documents, faint and look for a way without considering", - the head of Sila Prava says.
The third category is judges-internally displaced persons from the occupied territories. There are both people who are tough in the language of law, and those who are in an obvious conflict of interests among them. Someone had relatives, real estate and so on in the occupied territories, but in this case, the law stipulates that the judge should withdraw, but instead, they begin to "make things up".
"There are four judges in Sievierodonetsk, who regularly travel to the occupied territories, and one judge managed to spend 190 days in the occupied territory for two years. And of course, when she goes there every month and falls into hostageship, about what decisions in relation to the Russian Federation can there be a speech? It is necessary to give up on such judges", - A.Senchenko says.
And the fourth category is judges "with absolutely flaccid brains", which are evenly distributed throughout Ukraine.
"This is not surprising. Russia has formed various agent networks in Ukraine in every possible way. If the army and secret services are now beginning to be cleaned somehow, there are problems with the courts", - the head of the social organization explains.
In general, the activities of Sila Prava can be easily called a universal test for the entire judicial system of Ukraine. After all, judges from different parts of the country receive typical lawsuits, but they behave differently.
"And we go with these applications to all the courts of the country, and then, different leapfrog begins: the rudeness, the lack of legal assessment, the unwillingness to learn something and even the aggression. And it is especially difficult, when we go to defend the rights of family of the deceased, and in response, the judge throw hysteric and concerts. I cannot say that this is about everyone, but about a half for sure", - Andriy Senchenko notes.
But despite this, the lawyers of Sila Prava continue to help the affected Ukrainians to make claims against the Russian Federation, and expect that eventually, the aggressor will foot the bills.
Vladyslav Bulatchik, OstroV