Since the end of 2018, the legal team of the Right to Protection CF has won 11 cases, including 4 in the appellate instance for compensation for moral suffering caused by injuries or death of a civilian during the anti-terrorist operation.
Recently, the question of why should Ukraine pay for the death of our fellow citizens, which was actually caused by the aggression of the Russian Federation has been raised more and more often in the society.
We will try to answer it, avoiding the formal legal wording, which is set out in detail in our legal position, which was developed in early 2017, and is reflected in the growing number of court decisions made by the courts of Ukraine.
First, it should be understood that the average Ukrainian does not have the means to identify the perpetrators and prosecute them, as only state-authorized bodies can investigate crimes and prosecute the perpetrators. There is no actual investigation into the deaths of civilians, and the victims are left alone with their grief and helplessness. And it’s not just about the deaths of people in the temporarily occupied territories, where the independent investigation is simply impossible. Thus, parents who have lost their children and orphans, who have lost their parents cannot receive compensation from criminals who have directly taken the lives of their relatives.
It should also be borne in mind that suspects in these heinous crimes are sometimes exchanged between the governments of Ukraine and Russia, depriving victims of the right to a fair trial and receiving some compensation from those individuals.
Second, the Russian Federation is not subject to Ukrainian courts by virtue of the rules of international law and the jurisdictional immunity that follows from it. Victims cannot sue the Russian government in a Ukrainian court, and attempts to do so, which are sometimes heard on the Internet, are not just futile, but can be detrimental to victims in terms of the prospect of receiving any compensation at all.
Thirdly, in accordance with the norms of the European Convention on Human Rights and the case law of the European Court of Human Rights, it is our state that must ensure the security of its citizens and the observance of human rights within its jurisdiction.
In Ukrainian law there is a rule provided by Article 19 of the Law of Ukraine “On Combating Terrorism”, which explicitly provides that the state bears the responsibility imposed by a terrorist act, followed by recovery of compensation paid by the victim to the perpetrators. Why does this rule exist? If we move away from the “dry” legal glossary, we can say in simple words: we all abide by the laws of Ukraine, including paying taxes, and the state, having created appropriate authorities, including law enforcement, in turn, must provide us with the security and protection of human rights. If the state fails to do so, it must pay compensation, including compensation for non-pecuniary damage to the relatives of the victims.
We hope that these court decisions will force the state to finally pay attention to such an important issue as the death of innocent people, and to introduce an administrative procedure for obtaining appropriate compensation.
In addition, these court decisions can and should be used by Ukraine when filing claims against the aggressor state in international courts. Our organization is open for cooperation with the Government of Ukraine on these issues.
If we want to live in a decent European state, we must always remember that in Ukraine there is rule of law, according to the Constitution. And the state must fulfill the obligations enshrined both in international treaties and national laws. Selective application of laws and conventions is what autocratic and non-democratic states usually do. Do we want to become such a state? I’m sure not.
Lawyer, Senior Strategic Lawyer of the Right to Protection CF