Ukraine has legal tools to bring russia to justice and compensate for the damage at the expense of russian money and assets, informed Deputy Minister of Justice of Ukraine Iryna Mudra.
Ukraine has filed the first part of an interstate lawsuit with the ECHR to hold russia accountable for violating the Convention for the Protection of Human Rights and Fundamental Freedoms.
«Moreover, the claim will also contain demands for fair compensation for the damage caused to citizens and private legal entities to their property, that is, the violation of property rights contained in Article 1. Additional Protocol 1 of the European Convention. Ukraine will do everything possible to get a decision and recognize russia as responsible for massive violations of human rights, as well as to receive fair satisfaction», noted Iryna Mudra.
In addition, in the case of Ukraine v. russia regarding genocide allegations, the Ministry of Foreign Affairs is also preparing to submit a full memorandum in the coming days. Russia must submit its Counter-Memorial by March 23, 2023. However, these terms may change, because after the submission of the memorandum by Ukraine, russia will have up to 3 months to file their objections to jurisdiction. Ukraine's memorandum is supposed to include general provisions on reparations from russia. The Prosecutor General's Office investigates war crimes committed on the territory of Ukraine and prepares a complete evidence base for the International Criminal Court. The ICC sent a record group of experts consisting of 42 investigators, forensic experts to Ukraine to collect evidences and confirm data on war crimes of the russian army. Unfortunately, Deputy Minister remarked, the ICC does not have the competence to investigate crimes of aggression, because neither Ukraine nor the russian federation have ratified the Rome Statute. To bring the military and political leadership of russia to justice for the crimes of aggression, Ukraine, represented by the Ministry of Foreign Affairs, initiated the creation of an ad hoc international criminal tribunal.
«However, unfortunately, the voiced legal instances do not provide effective mechanisms for obtaining compensation, because, as you know, russia was expelled from the Council of Europe and denounced the Convention on Human Rights. Therefore, even after receiving the decision of the ECHR, which will be clearly a weighty political argument for Ukraine, however, the mechanism for enforcing such a decision in order to recover compensation from the russian federation is unlikely. Therefore, there is a need to develop and implement a new compensation mechanism», emphasized Iryna Mudra.
As Deputy Minister noted, by decree of the President of Ukraine, a working group was created to develop and implement international legal mechanisms for compensation for damage inflicted on Ukraine as a result of the armed aggression of the russian federation. Such a group included Ukrainian statesmen, parliamentarians, representatives of the Government and the President's Office, as well as leading lawyers, including distinguished international ones. The working group is tasked with developing proposals for means and legal instruments for reparations and damages inflicted on Ukraine as a result of the armed aggression of the russian federation. Due to the conclusion of a separate international agreement between Ukraine and interested allied states, which will provide a mechanism for consideration of the claims of Ukraine and other individuals and legal entities affected by russian aggression regarding compensation for losses, a mechanism for ensuring the availability of property of the russian federation, at the expense of which such compensation will be made, and a mechanism for implementing such compensation decisions.
The content of such an international agreement will contain 3 main blocks: Compensation Commission; Compensation Fund with assets; and the mechanism for implementing compensation decisions.
The source for compensation for the decisions of the Commission is the Compensation Fund, which is filled: at the expense of the assets of the russian federation and related persons, arrested and confiscated in the states that are parties of the agreement; at the expense of direct contributions of the russian federation in case of the consent of the russian federation to participate in the mechanism; at the expense of various taxes, fees, duties from the sale of russian goods.
If necessary, there will be an obligation to implement legislation at the national level of participating countries that will enable such confiscation. The decisions of the Compensation Commission will be implemented at the expense of the funds and assets of the Fund. In case of insufficient funds in the Compensation Fund, or non-functionality of the Fund for one reason or another, the execution of the decisions of the Commission will be carried out in the order of exequatur of foreign arbitration or court decisions in the courts of the participating states in relation to all property of the russian federation located on the territory of the participating states.
For judicial enforcement, the participating states undertake to implement appropriate changes in national legislation that limit the sovereign immunity of the russian federation and russian property for the purposes of enforcing decisions based on this treaty.
«So, in order for the mechanism to work, we really need to do a significant amount of work. First of all, it is necessary to ensure the conclusion of an international agreement between Ukraine and the interested allied countries, on the basis of which a compensation mechanism will be introduced. The mechanism is new, unique and requires changes not only at the level of international law in terms of concluding an international agreement, but also in-depth work with the national legislation of many states. Ukraine began very active work in the diplomatic arena. Last week, a Ukrainian delegation consisting of representatives of the Ministry of Foreign Affairs, the Ministry of Justice, and parliamentarians visited the Council of Europe. There were productive meetings with the President of PACE of the Council of Europe; with the Private Office of the Secretary General; with the Secretariat of the Cabinet of Ministers; with the General Directorate for Human Rights and the Rule of Law; with the Directorate of Legal Counsel of the ECHR; with the Directorate for Legal Affairs and Public Law. According to the results of these meetings, it was agreed that Ukraine will speak at the meeting of the Committee of Ministers of CoE, which will be held in September, to obtain a corresponding decision on the creation of a compensation mechanism. There is still a lot of painstaking work ahead. Ukraine and Ukrainians will not stop. Russia will definitely be held accountable, and its military and political leadership will be punished», concluded Iryna Mudra.
Watch more about this in the video:
What are the international mechanisms for compensating for damage for military aggression?
Iryna Mudra about the development of a new mechanism for implementing compensation decisions