Introduction
The preamble of the United Nations (UN) CharterFootnote 1 enshrines at the regulatory level the unification of the UN’s efforts as one of its activities’ goals to save future generations from the calamities of war, which have brought untold grief to humanity. For this purpose, among other things, it is envisaged that efforts to maintain peace and security be combined to ensure the use of armed forces in no other way than in the general interest. This document entered into force on 24 October 1945, but unfortunately, it did not save humanity from armed conflicts in the future. According to the authors’ calculations, 225 armed conflicts occurred worldwide during the twentieth century, including wars between States. At the beginning of the twenty-first century, the unleashing of armed conflicts and participation in them of the Russian Federation on the European territories of Georgia (2008), Syria (since 2011) and Ukraine (since 2014) is a cause for concern. In the latter case, the full-scale invasion of the territory of Ukraine by the Russian invaders on 24 February 2022 caused the emergence and development of several crises, not only between the warring parties but also in the world as a whole. Thus, the aggressor’s blockade of Ukrainian seaports almost led to a food crisis in the countries of Asia and Africa, which are consumers of Ukrainian food. In addition, the imposition of economic sanctions on the Russian Federation became a prerequisite for the refusal of democratic European States from several Russian goods and products supplied by it. The crisis related to the relocation of Ukrainian citizens who left their homes due to the military invasion of the Russian Federation to other States was no exception. In the latter case, the number of such displaced persons, according to various calculations, is about 14 million, about 12 million of which found refuge in the territory of European Union countries.
The foregoing makes it possible to characterize the attack of the Russian Federation on Ukraine not only as a conflict between these subjects of international public law but also as an aggression of the Russian Federation against the world community. This conclusion is explained by the negative consequences of armed aggression against Ukraine for humanity, which were discussed above. However, today, there is an increasing debate about the forms and methods of compensation for the damage caused by the military aggression of the Russian Federation. This issue requires legislative support not only at the level of the national legislation of Ukraine but also in States that are directly or indirectly allies of Ukraine and do not support the actions of the aggressor country, having blocked, within their jurisdiction, the assets of Russian capital and the material reserves of this country in different forms. However, in such cases, the mechanism and terms of transferring material values to the victimized party, the moment of transfer of property ownership and the purpose of using the assets by the party victimized by armed aggression remain undefined.
The subject of the discussion is the reimbursement of expenses caused by military aggression, particularly by the Russian Federation. At the same time, the authors aim to investigate the current legal realities regarding the prospects of compensation for material losses due to hostilities caused by the aggressor State to Ukraine in many aspects, including destroyed and damaged infrastructure, and causing damage to property, life and health of its population. At the same time, the question of compensation for damage due to military aggression will not be discussed only in terms of calculating caused damage after the cessation (stopping) of such aggression. In the example of the national legislation of Ukraine, it is demonstrated that there is the possibility of referring to injured persons as not only those who have directly suffered from material damage as a result of military aggression but also as internally and externally displaced persons and any other residents who consider the presence of caused damage as a result of military aggression of another State.
The above-mentioned actions are implemented thanks to providing legal assistance to participants in disputed material legal relations by persons with appropriate qualifications. They are lawyers and other persons defined by the procedural legislation. Discussing the specified problems would be impossible without analysing the European Court of Human Rights (ECHR) practice. The following pages of this work focus on the existing practice of raising questions about compensation for damage caused by military aggression before the ECHR. At the same time, such States as Cyprus, Moldova, Russia, etc., were indicated as responsible entities.
As part of the study, it is planned to investigate theoretical and legal aspects, considering many practical issues regarding improving the conditions for providing legal assistance in compensation for damage caused by military aggression cases. In this regard, it should be noted that internally displaced persons, as a result of the military aggression of the Russian Federation against Ukraine, belong to the “social” strata of the population to whom the State provides social assistance according to their rights. In this aspect, the monetary payment of material assistance by the State and international organizations, the exemption of such individuals from paying court fees when applying to the court for the protection of their rights and interests protected by law, the provision of preferential loans for the purchase of housing, etc. should be noted. In general, the aggressive war of the Russian Federation against Ukraine starting on 24 February 2022, and hostilities since 2014 have affected many national legal institutions.
The legislative body of Ukraine, the Verkhovna Rada of Ukraine, has rightly made numerous changes to the relevant normative legal acts, which regulate many different issues related to judicial proceedings in conditions of military aggression. This block of issues can include changing the jurisdiction of courts under occupation or threat of occupation to other courts of the relevant jurisdiction located in safer areas. In addition, the possibility of delivering justice remotely has been introduced at the legislative level, thanks to video communication systems, which minimizes or even makes unnecessary the presence of a certain group of people in one place, i.e. in the State body – the court. This, in turn, leads to saving the lives of the subjects of procedural legal relations in the case of possible enemy shelling with various weapons. After all, Ukrainian procedural legislation provides for a specific procedure for notifying interested parties about the time and place of the trial in cases if they live in the temporarily occupied territories of the State, as well as specific rules for proving the circumstances that take place in the specified territories.
Literature Review
The issues of regulation of legal relations that arose during the war (martial law) are discussed in the pages of legal literature. In particular, the authors published a scientific work, the subject of which was the study of civil procedural legal relations related to the recognition in a court of law when applying the rules of a separate proceeding of civil proceedings to recognize the fact of birth or death in the temporarily occupied territories of Ukraine (Gusarov and Popov Reference Gusarov and Popov2020). The emergence of similar, as well as other, legal relations, which arose during the introduction of martial law and are regulated by the norms of civil procedural law, is explained by the constant renewal of the circle of social relations, which are regulated by the specified norm of law (the subject of civil procedural law) and the method of its legal regulation. In this regard, it is worth agreeing with the existing scientific position that a significant expansion of the categories of cases considered according to civil justice rules has been observed for several years. This, in turn, makes it necessary to rethink certain classical provisions of the doctrine of civil procedural law to align them with modern realities (Komarov and Tsuvina Reference Komarov and Tsuvina2021). When discussing the specifics of compensation for damage due to military aggression, the question arises of researching the activity of the Bar as an institution that ensures the provision of professional legal assistance. In this regard, the interest of academic legal circles in studying the Bar as a whole, as well as individual aspects of its activity and the peculiarities of disciplinary proceedings concerning its activity, should be noted (Nazarov et al. Reference Nazarov, Ovcharenko, Kovalyova and Remeskova2019).
Legislative regulation of legal relations that arose during military clashes and their scientific analysis are not limited to the issues outlined in the previous paragraph. Consideration of the issue of compensation for material damage by the aggressor State is not possible without an analysis of the humanitarian, economic and financial consequences of Russia’s invasion of the territory of Ukraine. In this aspect, a deep scientific analysis was carried out in one of the scientific works by specialists of the Vienna Institute for International Economic Studies (Astrov et al. Reference Astrov, Ghodsi, Grieveson, Holzner, Kochnev, Landesmann, Pindyuk, Stehrer, Tverdostup and Bykova2022). The content of this work actively explores, first of all, the financial consequences of such aggression for the parties to the conflict and the consequences of the economic sanctions introduced by the international democratic community for the Russian Federation. However, despite the economic component of this scientific source, the authors of the article did not investigate the institution of reparations, including compensation for damage, by the aggressor State and the economic consequences of their introduction to the subject of international law, which caused military aggression against the neighbouring State (Astrov et al. Reference Astrov, Ghodsi, Grieveson, Holzner, Kochnev, Landesmann, Pindyuk, Stehrer, Tverdostup and Bykova2022). Among Ukrainian jurists, the research direction of Filatova-Bilous (Reference Filatova-Bilous2022) draws positive attention. In one of her works, the researcher highlights the issue of compensation for damage caused by violation of housing rights in connection with military aggression.
The coverage of the issues presented in this article has been useful thanks to the use of literature on various aspects of compensation for damages. We are talking about compensation for damage to the State as a victim of military aggression and compensation for damage to citizens as a result of, for example, their displacement. In this aspect, a scientific article deserves attention, the author of which notes the increasingly protracted nature of displacement along with the shortened nature of return (Kyrydon and Troyan Reference Kyrydon and Troyan2022). Many displaced persons are in legal uncertainty and do not receive compensation according to the norms of international law. An attempt is made in the work to provide a formula for compensation to interested persons (Mohee Reference Mohee2021).
Compensation for damage caused by the aggressor State due to hostilities has attracted the scientific interest of lawyers. Stefanchuk (Reference Stefanchuk2022) paid attention to the problems of the restoration of Ukraine in the context of transitional justice and new challenges and goals in this connection. At the same time, some authors have considered the issue of compensation through the right to life, which is enshrined in the norms of civil law. It plays an important role in refraining from wars, as it is the basis of the principles of civilian immunity and jus in bello discrimination. However, it is sometimes interpreted as an obligation on the belligerents to exclude causing harm to the civilian population. Moreover, the authors argue that in addition to this obligation, the right to life also includes the obligation to pay compensation to civilians whose right to life has been violated. It is proposed that States should establish the obligation to pay compensation for damage to individual civilians who suffered due to military operations. The cited work discusses liability standards that can be applied to determine the timing of payment (Schulzke and Carroll Reference Schulzke and Carroll2018).
A study on the jurisdiction of the Netherlands International Criminal Court (NIC Court) cannot be overlooked (Janssen and Kool Reference Janssen and Kool2017). The specificity of the court’s competence lies in that, according to the authors, its powers include the consideration of international crimes and the payment of compensation to the victims of such crimes. Along with the competence to consider special criminal laws for the trial of international crimes, it applies the “customary” civil law of the Netherlands to assess compensation claims. However, compensation for international crimes entails problems that are very different from domestic crimes: international crimes are usually committed against a large number of victims and often result in bodily harm. Many compensation claims are likely to be found inadmissible by the NIC Court.
As a result, the victims will not be able to use the advantages inherent in the award of compensation within the framework of the criminal process. The study also examines the judicial and reparation standards that the International Criminal Court and group action programmes applied to simplify the processing of large claims and the settlement of large numbers of personal injury cases. The cited article concludes that adopting international reparations standards by the NIC Court could facilitate the assessment of a large number of civil claims within criminal proceedings without any loss to the defendant’s legitimate interests about other types of proceedings. However, these standards require the NIC Court to strike a new balance between individual and symbolic compensation (Janssen and Kool Reference Janssen and Kool2017). The conception of the specified authors is logical. This conclusion is explained by the expediency of consideration of civil-law claims for compensation for damages caused by military aggression, in conjunction with the imposition of criminal-law punishment for the above-mentioned crimes.
Materials and Methods
In the course of the study, a comparative legal method is used for a more detailed study of various types of legal assistance in civil proceedings in litigation related to cases of compensation for damage caused as a result of armed aggression. Also, the authors use the method of alternatives, which helps to explore different scientific concepts and scientific points of view of leading jurists who studied various issues related to legal aid in civil proceedings, as well as issues of consideration of cases on compensation for damage caused by military aggression.
In general, the application of methods of scientific knowledge in the publication of scientific research according to the purpose and task makes the work logically and consistently structured. In this aspect, it is expedient to characterize the importance of applying a certain method or principle of scientific activity in scientific research. Danilyan et al. (Reference Danilyan, Dzeban, Kalinovsky, Kalnytskyi and Zhdanenko2018) showed an example and proved the expediency of using the appropriate toolkit of interrelated and mutually complementary general scientific and individual methods inherent in the research topic. Their research methodology is based on the system and principles of structural–functional analysis. In scientific research, the entire set of necessary interrelated and complementary universal scientific and specific methods inherent in research should be used. At the same time, priority is not given to any of the methods. Universal scientific approaches should be combined with the methods of modern scientific processes. These include empirical methods and the analytical–synthetic method. A comparative method is also used (Danilyan et al. Reference Danilyan, Dzeban, Kalinovsky, Kalnytskyi and Zhdanenko2018). At the same time, the analysis of the modern legal regulation of the issues presented in the article did not cause the need to use the historical method of scientific knowledge since compensation for damage due to military aggression in each period has its inherent characteristics and their historical and legal analysis is not considered appropriate in this scientific article. However, the limits of research methods do not cover criminal means of protecting the rights and freedoms of subjects of legal relations, which are dealt with in one of the research works (Haltsova et al. Reference Haltsova, Kharytonov, Khramtsov, Zhytnyi and Vasyliev2021).
The application of the above methods of scientific knowledge is due to the peculiarities of applying the methodology in law at present. They are caused by the need to implement European standards of administration of justice and European values in general into the national law of Ukraine as a whole. Therefore, modern studies are not based on the principles of methodological monism, and as a result of their preparation, a research methodology is applied, taking into account the pluralism of methodological ideas. At the same time, one should consider the fact that the basis of this study is a dialectical methodology, which, combined with a synergistic approach, makes it possible to trace the functioning of the subject of this article in the modern unstable conditions of military aggression. The comparative–legal method of scientific research, in turn, is due to applying the comparative direction of methodology. At the same time, the cybernetic principles of the methodology are applied indirectly, as they explain the prospects of management approaches not only in the recovery of damage caused by military aggression but also in management mechanisms that will ensure the real implementation of the decisions of the competent body (bodies) regarding the satisfaction of the demands of the plaintiff or his or her representative (lawyer).
Ethical Approval
All procedures performed in studies involving human participants followed the ethical standards of the institutional and national research committee, along with the 1964 Helsinki Declaration and its later amendments or comparable ethical standards.
Consent to Participate
Informed consent was obtained from all individual participants included in the study.
Consent for Publication
All individual participants agreed to be included in the study.
Results
The issue of providing legal aid in wartime is multifaceted and includes institutional and individual features of a lawyer’s activity in the defined conditions. First of all, the general difficulties in providing legal aid should be noted, due to constant hostilities in certain regions of Ukraine, including the shelling of critical infrastructure facilities, which damages the energy system and, as a result, leads to emergency power outages, paralysing the work of State bodies, including courts. Along with this, an equally important factor that affects the timeliness and completeness of the court’s consideration of cases is the daily air alarms, the announcement of which forces the courts to postpone court sessions for the safety of their participants.
In general, focusing exclusively on the problems of providing legal aid in cases of compensation for damage caused by military aggression, the issue of developing a proper and effective mechanism for protecting victims’ civil rights at both the international and national levels is acute. In this regard, the resolution of the UN General AssemblyFootnote 2 should be welcomed, which contains recognition by UN countries of the need to create an international mechanism for compensation for damages caused to Ukraine by the Russian Federation and recommendations to States regarding the creation of an international registry of losses. It is about documenting evidence and information regarding damage, loss or mutilation caused to individuals, legal entities and the State of Ukraine. At the same time, the specified mechanism is currently only at the discussion stage, and its specific structure has not yet been presented.
No less important is the mechanism of protection of violated rights through appeal to the ECHR, which several subjects have already used. The application of this mechanism and the improvement of the quality of legal aid in such cases can be facilitated by the practice of the ECHR, formed during the consideration of applications submitted in different years under similar circumstances, in particular, the decision of the ECHR in the cases: Case of Al-Skeini and others v. The United Kingdom;Footnote 3 Case of Catan and others v. the Republic of Moldova and Russia;Footnote 4 Case of Ilaşcu and others v. the Republic of Moldova and Russia;Footnote 5 Case of Kerimova and others v. Russia;Footnote 6 Case of Loizidou v. Turkey;Footnote 7 Case of Cyprus v. Turkey;Footnote 8 Case of Assanidze v. Georgia;Footnote 9 Case of Chiragov and others v. Armenia;Footnote 10 Case of Sargsyan v. Azerbaijan;Footnote 11 Case of Maharramov v. Azerbaijan;Footnote 12 and others.
At the same time, in our opinion, the mechanism for protecting the rights of war victims within the national legal order requires special attention, both at the doctrinal and practical levels, taking into account, first of all, the number of violations of such rights by the aggressor State. In this aspect, it is important to consider not only the rights violations that have occurred since the full-scale invasion on 24 February 2022, but also those that have occurred during the previous eight years since the start of the 2014 Russian–Ukrainian war. The latter requires appropriate legislative decisions on the part of Ukraine, which will allow lawyers to build effective strategies to protect the rights and interests of citizens who have been harmed as a result of the military and occupation actions of the aggressor State.
Along with the legislation that regulates the protection of the rights and legitimate interests of internally displaced persons and the legal regime of temporarily occupied territories, the first steps in this direction were the decisions of the Ukrainian government, adopted in the form of Resolution No. 326 of 20 March 2022,Footnote 13 which approved the procedure for determining damage caused to Ukraine as a result of the armed aggression of the Russian Federation. Further, the government adopted some other resolutions related to the issues of fixing the relevant damage (Resolution No. 380 of 26 March 2022;Footnote 14 and Resolution No. 473 of 19 April 2022Footnote 15 ). For the first time, these legal documents describe the different types of losses, how they should be assessed, and the process for reporting property that was damaged or destroyed because of fighting, terrorism or sabotage caused by Russian military aggression.
Also worthy of attention are the draft laws registered in the Ukrainian Parliament, which relate to the procedures for compensation for damage caused by the aggressor State (No. 5177 of 1 March 2021;Footnote 16 No. 7198 of 24 March 2022;Footnote 17 No. 7385 of 17 May 2022Footnote 18 ), which are still at the discussion stage. In particular, the draft law of Ukraine No. 5177Footnote 19 provides for the creation of a State Register of Property destroyed, damaged and lost as a result of armed aggression, and also defines the mechanisms for providing compensation to injured persons. Adopting these normative acts will become an important basis in the general process of finding appropriate satisfaction mechanisms from the aggressor State’s criminal actions.
In the context of the national judicial mechanism for the protection of the rights of victims, it is worth highlighting many general issues that will need to be resolved in procedural law soon, in particular determining the jurisdiction of cases on compensation for damage and losses caused by the armed aggression of the Russian Federation, as well as the jurisdiction of such cases; development of standards of proof; solving the issue of court costs and ensuring the right to professional legal assistance; determination of the ways of execution of court decisions in the defined category of cases. This will make it possible to develop general approaches to court consideration of this category of cases and methods of providing legal assistance to victims.
Considering the nature of the disputed legal relationship, the possibility of assigning such cases to civil jurisdiction, that is, their consideration and resolution according to the rules of civil procedure, is justified. At the same time, the latter will require the introduction of a special and simplified procedure for considering the claims of injured persons in civil procedural legislation, which will make it possible to protect the violated rights promptly. Considering that the defendant in such cases will be a specific subject – the State – the main obstacle to consideration of such cases by national courts is the immunity of the Russian Federation. At the same time, the legal conclusions of the Supreme Court regarding State immunity, set out in the Resolution of 14 April 2022, in Case No. 308/9708/19,Footnote 20 may contribute to the impetus for further discussions and the determination of the possibility of overcoming such immunity.
In the mentioned resolution, the highest judicial body quite thoroughly and convincingly formulated the position that the State does not have the right to invoke immunity in cases related to harm to health or life if such damage is caused in whole or in part in the territory of the State of the court, and if the person who caused the damage was at that time in the territory of the State of the court (“tort exception”). The Supreme Court noted that a feature of the legal status of the State as a subject of international relations is its immunity, which is based on the general principle of international law: “An equal over an equal has no power or jurisdiction.” However, a necessary condition for observing this principle is mutual recognition of the country’s sovereignty, so when the Russian Federation denies the sovereignty of Ukraine and commits a war of aggression against it, there is no obligation to respect and observe the sovereignty of this country.
The Supreme Court emphasized that after the start of the war in Ukraine in 2014, the court of Ukraine, considering a case where the defendant is the Russian Federation, has the right to ignore the immunity of this country and consider cases of compensation for damage caused to an individual as a result of the armed aggression of the Russian Federation on a claim filed against this foreign country. The court proceeds from the fact that in the case of the application of the “tort exception”, any dispute that arose between a citizen of Ukraine on its territory, even with a foreign country, the Russian Federation, in particular, can be considered and resolved by a court of Ukraine as a proper and competent court.
The above conclusions of the Supreme Court were further developed in the resolutions of 18 May 2022,Footnote 21 8 June 2022Footnote 22 and 22 June 2022,Footnote 23 and made publicly available on the resources of the Unified State Register of Court Decisions.Footnote 24 Taking into account the nature and manifestations of the very violation of civil rights by the enemy State, as well as their massiveness, the effective and efficient protection of the rights of the victims would be facilitated by the tool of group action, discussions about the introduction of which in the national system of civil justice are still ongoing. As an alternative to this tool, it is possible to consider the introduction of the Institute for Exemplary Cases in civil proceedings, which has been operating in the system of administrative proceedings since 2017.
Discussion
According to the provisions of the current legislation, cases in which one defendant and the dispute arose on similar grounds, governed by the same rules of law, and in which the plaintiffs have stated similar claims are recognized as typical. Along with this, which is no less important, such lawsuits are massive. The qualification of a case as a typical case allows one of the numerous cases to be transferred immediately to the Supreme Court for consideration, as a result of which a model decision is adopted, by which the highest judicial body creates certain guidelines for other courts that consider or will consider typical cases in the future. The effectiveness of such a mechanism is largely facilitated by the status of the Supreme Court as an institution, the fundamental function of which is to ensure the unity of judicial practice, as well as its legal conclusions, which are formed based on the results of cases that arise from similar legal relations.
The prospect of qualifying such claims as typical is obvious in the aspect of claims for compensation for damage and losses caused by the Russian Federation’s military actions. Therefore, the Supreme Court should consider at least one of them exemplary, which will provide an impetus to simplify and speed up consideration of the expected avalanche of lawsuits that will be filed in the coming years.
There can be specific advantages of using the Institute for Exemplary Cases in civil proceedings thanks to the adoption by the Supreme Court of one exemplary decision on a claim for compensation for damage and losses caused by the aggressor State and the following will become possible:
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(a) determination of the typical features of such cases and the circumstances of an exemplary case, which determine the typical application of substantive law norms and the procedure for applying such norms, as well as circumstances that may affect the application of substantive law norms in a different way than in an exemplary case;
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(b) determination of standards of proof for this category of cases;
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(c) formulation of legal conclusions regarding the application of substantive law norms, which will be subject to mandatory consideration by other courts when considering similar claims in the future.
The above will ultimately allow us to build a concrete model of judicial protection of the civil rights of persons who suffered from armed Russian aggression and, no less importantly, will create the prerequisites for the rapid restoration of violated rights.
In the field of providing legal assistance in the defined category of cases, regardless of the model that the legislator ultimately chooses, the main layer of the lawyer’s activity will be forming an appropriate evidence base, the study of which will enable the court to make a well-founded decision on compensation for the damage caused.
It is worth noting that there are no unified standards of proof in cases of compensation for damage caused by military actions. They are also not developed at the level of ECHR practice. From the above, it can be concluded that a lawyer preparing a claim and participating in a court hearing can use any means of proof provided by national procedural law (witness testimony, written evidence, material evidence, electronic evidence and expert opinions). The examination of such evidence should ensure the establishment of at least the following facts:
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(a) cause of damage and its size;
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(b) causing damage to the injured person – the plaintiff;
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(c) cause-and-effect relationships between military actions and the infliction of damage;
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(d) causing damage by the aggressor State.
Considering the obviously criminal nature of the Russian Federation’s military actions, materials from official investigations of competent authorities, which document war crimes within the framework of criminal proceedings, can be a valid basis for providing qualified legal assistance in civil proceedings. Also, depending on the specifics of the damage caused, it is no less important for the lawyer to observe the general rules for collecting and processing evidence to ensure the requirements for their propriety and admissibility.
When discussing the issue of protecting the rights of victims of Russian armed aggression and providing such persons with legal assistance, one cannot fail to pay attention to the problem of enforcing decisions in the cases of compensation for damage. The behaviour of the Russian Federation and its officials does not allow us to reasonably expect voluntary compensation for the damage caused, as well as the implementation of the decisions of jurisdictional institutions, which determines the prospect of finding coercive mechanisms for implementing such decisions. One of the ways that can be used in this direction is to cover losses at the expense of seized and confiscated assets of the aggressor State. Thus, at the national level, a mechanism was developed to confiscate the Russian Federation’s and its residents’ assets.
Under the provisions of the Code of Administrative Proceedings of Ukraine, the Laws of Ukraine “About Sanctions”Footnote 25 and “On the Basic Principles of Forcible Seizure in Ukraine of Objects of Property of the Russian Federation and its Residents”Footnote 26 in the procedure of administrative proceedings, the Supreme Anti-Corruption Court of Ukraine may consider cases on the application of sanctions, in particular, collection into State income of assets belonging to a physical or legal person, as well as assets in respect of which such a person can directly or indirectly (through other physical or legal persons) perform actions identical in content to the exercise of the right to dispose of them. At the same time, the amount of assets that can be turned into State income and, in the future, aimed at covering the damages caused by armed aggression will be insufficient. In this regard, much will depend on the position of the international community and organizations and compensation mechanisms developed at the level of international law, for which there is still great hope today.
During the study, the authors highlighted blocks of issues that will cause problems in court consideration of cases on compensation for damage caused by military aggression, taking into account the provision of legal assistance. Along with this, attention is drawn to the lack of definition of the procedure for executing decisions on recovery of damages under the specified circumstances.
According to the rules of the civil procedural legislation of Ukraine, cases related to property issues must be considered in the order of civil proceedings, provided that a physical person participates in them as one of the parties. However, it is possible to discuss situations when another jurisdiction, including a body of international jurisdiction, will act as a competent court. In this aspect, the point of view stated at the beginning of the article about the possibility of considering the civil–legal consequences of military aggression by the International Criminal Court, along with the resolution of the issues of prosecution of subjects guilty of armed aggression and war crimes, makes sense.
Questions related to evidentiary activities in the mentioned cases also remain open. The possibility of giving the legal force of evidence to the documents of the occupation authorities, which are not legitimate under the national law of Ukraine, is quite problematic. However, world experience is known for the so-called “Namibian exceptions”. Their rules are applied in modern domestic judicial practice. In one of the rulings,Footnote 27 the Supreme Court noted that the so-called “Namibian exceptions” of the UN International Court of Justice apply to the legal relations that were the subject of judicial proceedings. This stipulates that documents issued by the occupying power must be recognized on the condition that their non-recognition would lead to serious violations or restrictions of citizens’ rights. The circumstances arose when, in 1971, the UN International Court of Justice stated in the document “Legal Consequences for States of the Continued Presence of South Africa in Namibia”Footnote 28 that UN Member States must recognize the illegal and invalid consequences of the continued presence of South Africa in Namibia. However, at the same time, “while official acts performed by the South African Government on behalf of or concerning Namibia after the termination of the Mandate are illegal and invalid, this invalidity cannot be extended to those acts, such as, for instance, the registration of births, deaths and marriages”.Footnote 29 The need to develop a procedure for implementing the decisions of competent bodies should also be included in the discussion block of issues.
Conclusions
Thus, legal assistance in compensation cases for damage caused by military aggression has specific features related to considering disputed legal relations with certain legislative gaps. Without overcoming the latter, which is discussed in this scientific article, a question may arise regarding the legitimacy of the carried-out procedures and, as a result, the implementation of the decisions of the competent bodies on resolving disputes on compensation for damage caused by military aggression.
In the opinion of the authors’ team, the study of options for paying reparations and other compensation to victims of military aggression is promising. At the same time, it is necessary to determine the legitimate procedure for consideration of such typical cases and the appropriate jurisdictional body, the competence of which should include the resolution of such disputed legal relations. Also, further scientific research on improving the legislation regarding the simplified procedure for proving the specified circumstances is considered relevant. The development of the institution of free legal assistance to victims of military aggression who need juridical and legal protection by lawyers and, possibly, by other procedural representatives within their competencies is one more potential direction of research.
Availability of data and materials
Data is available on request.
Competing interests
The authors declare they have no financial and competing interests.
Maksym Shpak has a PhD in Law, and is an Assistant at the Department of Civil Justice and Advocacy at Yaroslav Mudryi National Law University. His directions/topics of main scientific research and interests include: legal aid in civil proceedings as a component of access to justice; provision of legal aid in civil proceedings; professional legal aid in civil cases; participation of a lawyer in civil procedural legal relations; and representation of a lawyer in court in civil cases.
Kostiantyn Gusarov is a Doctor of Law, and Professor and Head of the Department of Civil Justice and Advocacy at Yaroslav Mudryi National Law University. He is a Corresponding Member of the National Academy of Legal Sciences of Ukraine. His directions/topics of main scientific research and interests include general provisions of civil procedure and review of court decisions in the instance procedure.
Oleksandr Popov has a PhD in Law, and is an Associate Professor at the Department of Civil Justice and Advocacy at Yaroslav Mudryi National Law University. His directions/topics of main scientific research and interests include: review of court decisions in civil proceedings; instance functions of the Supreme Court; and problems of ensuring the unity of judicial practice in civil proceedings.
Nataliiya Maryniv has a PhD in Law, and is an Associate Professor at the Department of Financial Law at Yaroslav Mudryi National Law University. Her directions/topics of main scientific research and interests include budget law, financial control, currency supervision, tax and fee administration, tax control and tax audits.
Artur Bulgakov has a PhD in Law, and is an Associate Professor at the Department of History of State and Law of Ukraine. He is the Deputy Dean of the Faculty of Advocacy at Yaroslav Mudryi National Law University. His directions/topics of main scientific research and interests include history of law, land law, and the rational use and protection of natural resources and their international legal support.
