“…The legal determination of forced displacement of a petitioner out of the occupied zone of Luhansk Oblast as a consequence of the armed aggression by the Russian Federation can be undertaken only by a court. This is because Ukrainian legislation does not specify any other mode, outside of court, to determine a causal connection between the displacement of a person out of the zone of armed conflict in Eastern Ukraine and the armed aggression by the Russian Federation…” with such a decision the newly founded High Court distinguished itself on March 7, 2018.
The internally displaced person, who is the petitioner in this case, left Luhansk for Kyiv because of the war. He turned to a court for an official acknowledgement of the reason for his displacement. The High Court, in its decision, pointed to the state’s instrument of court rulings as one of the means to protect its citizen’s rights and freedoms. But a closer look is in order here; are the Ukrainian courts really fit to protect the victims of war under the current circumstances?
Since the beginning of the armed conflict in Eastern Ukraine, legal proceedings have led to ambiguous results for those affected by the war. They can be roughly split into two categories.
1. Court decisions as a result of criminal proceedings: By their very nature, such rulings can hardly be expected to restore the violated rights of war victims. They have a rather procedural character, because they indict members of illegal militias and sentence them. Such sentences can perhaps serve as a form of moral satisfaction for the victims of armed groups since they analyse particular events and bring the perpetrators to responsibility. For instance, such rulings can focus on cases like these:
“…In the period since the end of October 2014 until the beginning of March 2015, Defendant 2 and Defendant 4, acting as members of an illegal armed group of the “DPR” and the “Semenovskiy Battalion”, have personally participated in combat and attacks against the Ukrainian Armed Forces and other government organs engaged in the Anti-Terrorist Operation. This happened, among other places, in the villages Sakhanka, Leninskoe and Oktyabr (all in Dontesk Oblast), which led to loss of life and other severe consequences for life and health of Ukrainian civilians and members of the armed forces…” (Verdict of the Krasnoarmeysk rayon court, Donetsk Oblast, September 22, 2017)
2. Court rulings for the acknowledgement of legal facts and an approval of compensation payments: The significance of such rulings is that they establish a causal connection between the war in Eastern Ukraine and the damage suffered by the victim. When it comes to financial compensations for loss of health or property a disputed question arises. It concerns the legal immunity of governments and the competence of national courts in examining the legal culpability of neighbouring states. In both cases Ukrainian legislation does not foresee specific procedures that would allow them to rule over compensations for war victims. But the legal practice continues to develop towards more rulings in favour of the petitioners.
“…having analysed the presented circumstances and evidence in this case, the court reached the conclusion, that the death of the petitioner’s son was as a direct consequence of the occupation of a part of Ukraine’s territory, including a part of Donetsk Oblast in the course of a military aggression by the Russian Federation against Ukraine (Which is a widely known fact and therefore does not require further proof according to part II article 61 of the Code of Civil Procedure)”. (Verdict of the Brovary Rayon Court of Kyiv Oblast, September 5, 2017).
The Ukrainian government takes the position that the Russian Federation as an aggressor state bears material and immaterial responsibility for losses and damages that occurred during the armed conflict in Eastern Ukraine. A resolution of the Verkhovna Rada, Ukraine’s Parliament, speaks about the necessity of working out a methodology to determine the amount of damage and the loss to Ukraine that was inflicted during the armed aggression by the Russian Federation.
International legislation stipulates the legal responsibility of states for armed aggressions carried out by them. Therefore, armed aggression by a state falls into the competence of international courts. The International Court of Justice, the International Criminal Court and the European Court of Human Rights are all examining the consequences of the armed conflict in Eastern Ukraine. What is more, the European Court of Human Rights also hears individual cases of people affected by the war.
The main challenge of these procedures is to establish facts: Is it sufficient in order to determine the responsibility of the Russian Federation, to proof that it is in control of the self-proclaimed “DPR” and “LNR”? Which particular damages were caused by their actions? The quality and completeness of evidence brought forward to prove such a link will have a crucial effect on key international decisions. What this evidence will eventually be is very hard to predict now. What is already clear is that it will be worth to put up a greater effort to strengthen Ukraine’s position in international court procedures against Russia.
On October 2 at 16:00 in Poltava Art Museum human rights defenders presented the publication "City, where the war had started" about...
On October 2 at 16:00 in Poltava Art Museum human rights defenders will present the publication "City, where the war had started" ab...
Interactive exhibition of testimonies "On the Rift" about the violation of rights of civilians during the war in Donbas was presente...
The Secretariat of the Coalition «Justice for Peace in Donbas»
04060, Kyiv, Ryzhska str., 73 G