How Ukraine Can Overcome Russia’s Absolute Immunity and Take Funds from the Aggressor

Wednesday, 8 June 2022

When Ukrainians file suits against Russia in the national courts of Ukraine or other countries, Moscow will declare that foreign courts have no right to consider such lawsuits. It enjoys absolute immunity even if the Russian army commits crimes in Ukraine.

The same outcome will await Ukrainians when they try to seize Russia's foreign property and forcibly sell it in Ukraine or other countries to enforce court rulings against Russia.

Find out more about why Russia's immunities are not absolute, and national courts should deny Russia immunity in lawsuits for damages in armed aggression in Ukraine. Read the article by Ulysses' partner Oleh Marchenko Aggressor with Undermined Immunity: How Courts Direct Russia’s Money to Compensate Losses from the War.

The courts of Italy, Greece, and South Korea have already denied immunity to the aggressors: Germany and Japan. The courts motivated their decisions that states could not abuse their sovereign rights and that the recognition of immunity would lead to injustice and denial of justice. Ukraine has already taken this path in suits against the Russian aggressor.

The courts of Ukraine made most of the decisions to deny sovereign immunity to the aggressor state (Russia).

So far, at least 83 (!) decisions and rulings on claims against Russia for compensation for armed aggression in Ukraine have Ukrainian courts seized Russian property, denying it immunity.

For example, the Holosiiv District Court of Kyiv awarded a Ukrainian citizen compensation for damage caused by the illegal occupation of Donbas. They motivated the decision by saying that Russia, as an aggressor state, has no right to judicial immunity in Ukraine.

And the Ukrainian Supreme Court has confirmed this position recently.

However, we should acknowledge that such court decisions in Italy, Greece, South Korea, and Ukraine are now rather the exception. However, Russian armed aggression against Ukraine may change the approaches of states and national courts to sovereign immunities.

Could anyone think that the United States and dozens of other countries would block the foreign exchange reserves of the Central Bank of the Russian Federation? After all, with rare exceptions, the property of central banks was considered completely inviolable under international law! But Russian aggression is changing the world.

The state can and should assist Ukrainian citizens and enterprises affected by armed aggression to obtain compensation from the Russian Federation in court. It is necessary to pass a bill that will deprive Russia of immunity from lawsuits related to armed conflict.

In addition, Ukraine should introduce new mechanisms at the legislative level that will help plaintiffs more effectively obtain compensation from Russia in court.

Ukrainian procedural law should provide for the right of courts to issue rulings on the seizure of Russian property worldwide.

It also makes sense to set long statutes of limitations (for example, 30 years) for claims against Russia for damages caused by its armed aggression against Ukraine and for enforcement of court decisions and investment arbitrations against Russia (for example, 15 years).

It, of course, is not a complete list of legislative changes that the Ukrainian legal system needs to prosecute Russia. But allied states must change their legislation at the same time.

In addition, in response to Russian armed aggression, Ukraine, in exercising its inalienable right to individual self-defense, may introduce any other measures to get more of Russia's funds in court.

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