JURISDICTIONAL IMMUNITY AND IMMUNITY OF STATE PROPERTY: SPECIFIC ISSUES OF IMPLEMENTATION AND OVERCOMING IN CONTEXT OF RUSSIAN AGGRESSION AGAINST UKRAINE

Abstract

The article reveals peculiarities of application of jurisdictional immunities and immunities of state property in Ukrainian civil court proceedings against Russian Federation on recovery of losses caused by aggression against Ukraine. It has been established that problem of implementation of jurisdictional and property immunity against state property by Ukrainian courts in context of Russian aggression against Ukraine has two dimensions: international and local, taking into account that respective judgments will be enforced in Ukraine, abroad and may be used for implementation of international compensation mechanism. However Ukrainian legislation, contrary to worldwide tendencies, stipulates concept of absolute immunity, which makes difficult its overcoming from Russia during consideration of abovementioned category of cases. It was proved that it is necessary to make respective amendments Law of Ukraine “On international private law” and elaboration of special legislation for prosecuting aggressor state in civil proceedings. In addition it is worth to considered enter of Ukraine into European Convention on State Immunities 1972 and UN Convention on Jurisdictional Immunities of States and Their Property 2004. It was concluded that Ukrainian practice of application of «delict exemption» and «clean hands» doctrine in cases concerning the recovery of loses caused by aggression against Ukraine actually sums to the appearance of new exemption from application of state immunity, i.e. state can not use immunity in cases connected with international crimes committed by it. It was found that procedural obstacles in cases concerning the recovery of loses caused by Russian aggression against Ukraine appear both due to the actual situation and absence of special legislation regulating procedural aspects of aggressor-state involvement into proceedings. The recommendations for overcoming of such procedural obstacles were worked out. For instance it was proposed: - first, court decisions are to be structures from general to particular issues aiming to avoid possible critics on their discrimination nature, and argumentation is to be concentrated on «delict exemption» and «clean hands» doctrine; - second, in cases with Russian Federation it is necessary comply with terms and order of notification provided by UN Convention on Jurisdictional Immunities of States and Their Property 2004 taking into account respective provisions of Ukrainian procedural legislation; - third, in these category of cases Russian Federation is a respondent embodied by ministries of justice and foreign affairs, and respective notifications and other procedural documents are to be sent through the closest diplomatic mission of Russian Federation in other states; - fourth, in each case it is necessary to indicate evidences that representatives of Russian Federation were involved into causing of damages in context of armed conflict; - fifth, cases concerning the recovery of loses caused by Russian aggression against Ukraine may cover only state property of Russian Federation and under certain circumstances its state enterprises.