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Ukrainian-Russian war: Legal front

Author : Volodymyr Pylypenko

12:43, 1 February 2017
Ukrainian-Russian war: Legal front

Author : Volodymyr Pylypenko

Russia and Ukraine Opposition has long grown into a civilizational clash of two value systems - Asian and European

12:43, 1 February 2017

Read the original text at 112.ua.

Open source

Ukrainian challenges have not disappeared. On the other hand, they have become global. The war goes on, not only in the territorial direction, but also in the information, cultural, and especially legal dimension. This is the essence of hybrid confrontation.

Russian aggressors initiate lawsuits against Ukraine in an attempt to legalize before their right to crime. They use all possible methods to do this. For example, in January, a hearing about the "debt of Yanukovych" to Russia in the amount of $ 3 billion took place in the Supreme Court of England. According to the Ministry of Finance, in April we can get a decision on the case.

Related: Russia refuses to hand suspicion over to Yanukovych due to international legal aid

Therefore, Moscow is bravely waving fists in London, as well as in its native Dorogomilovsky district court deciding on the Ukrainian "coup d'etat". But it should be clearly understood that international law is on the side of Ukraine. We did not violate any international norms, so the victory, no doubt, will be ours.

As legal experts, we must not only be prepared for a long struggle with the enemy in the area of the judiciary, but also logically and correctly break the absurdity of Moscow’s pseudo-legal gusts.

The war on several levels

At present, Ukraine’s claims to the aggressor state lie in two planes. First, dimension of public international law, which covers violations of international legal norms. It is a violation of the Russian variety of conventions, multilateral treaties and bilateral agreements. The second plane, private claims of Ukrainian companies and individuals associated with the violation of their rights as a result of the annexation of Crimea, fighting in Donbas, the crimes committed on the uncontrolled territory of Ukraine.

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In the first case, the responsibility of Russia follows the norms of international treaties, which clearly spelled out the procedure of consideration of disputes should be used and what the court is authorized to do by the parties.

Issue of claims for violations of the private nature is more complicated. To be frank, hardly aggressor would carry out the decision of the national court, which would establish responsibility for the violation of the rights of its citizens.

Even if we look at the Russian court, we would lose the dispute, because any action in Putin's Russia is doomed to failure.

Related: SBU detains Russian citizen who helped illegally cross Ukrainian border

At the same time, if the private legal relations are regulated by the contract, it establishes the procedure for resolving disputes. There is a clear explanation on which court should consider the disputes.

On the other hand, if there no contractual obligations, an effective method of solving such disputes (relating to material losses and moral compensation for damage) is the creation of bilateral mixed commission for consideration of claims (arbitration tribunals). The committee consists of one representative from each party and a third person - an expert agreed by both parties of the conflict.

Of course, we should not exclude that in the future, with the collapse of Putin's regime, the Ukrainian-Russian commission can be created in the Russian Federation. But not now. No one can cooperate with the current regime.

Related: SBU detains Russian citizen who helped illegally cross Ukrainian border

Also, the person may appeal to the European Court of Human Rights. But the jurisdiction of this honorable body is limited by standards of the European Convention on Human Rights.

The destruction of the international system of coordinates

There is no doubt that speaking about the public law context, Russia, as an aggressor, has grossly violated the basic international law instruments (Convention on the Elimination of All Forms of Racial Discrimination, the Convention for the Suppression of the Financing of Terrorism, the United Nations Convention on the Law of the Sea).

That is a balanced system of international law that has developed after the Second World War, and it was roughly leveled by the Kremlin leaders.

Also, Ukrainian-Russian intergovernmental agreement on encouragement and mutual protection of investments has been actually nullified.

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And is it easy to use an international judicial mechanism? First, you need to agree with your opponent all the legal facts, in particular violations of the facts. And only then it is possible to supply a statement of claim.

This process can take years. However, without it, there are high risks of the abandonment of the claim without consideration. A striking example is the experience of Georgia, which appealed to the ICJ with a suit against Russia in the framework of the Convention on the Elimination of All Forms of Racial Discrimination. As you know, the idea was rejected by the court of Georgia. This decision was rationalized by improper pursuant of Georgians "homework" - pre-trial consultations and negotiations with the Russian Federation with respect to each individual violation of the Convention on the Elimination of All Forms of Racial Discrimination. Accordingly, Ukraine should use the pre-trial mechanisms as much as possible. This will give the opportunity to lodge such an international claim which cannot be treated as inadmissible.

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Therefore, the decision of the international legal claims of Ukraine to the Russian Federation is a long and rather bureaucratic process that requires careful and coordinated work of different agencies - the Prosecutor's Office, Ministry of Internal Affairs, Ministry of Foreign Affairs, and the like.

A number of Ukrainian companies have already appealed to the international court with private lawsuits. Appropriate mechanisms were provided for the agreement between Ukraine and the Russian Federation. Basically it is the jurisdiction of the Arbitration Institute of the Stockholm Chamber of Commerce (Stockholm arbitration) and the Court of Arbitration at The Hague.

At the same time, the New York Convention of 1958 on the Recognition and Enforcement of Foreign Arbitral Awards establishes a mechanism for implementation of the decision of the States courts.

"Debt of Yanukovych"

Given the specificity of private lawsuits, one can say with certainty that the same situation is with Russia’s claim against Ukraine concerning "debt of Yanukovych." There is nothing to do with interstate claims. Such judicial history is just a good example of how Russia has begun the battle with Ukraine on the legal front.

Regarding the case of a "debt" the ex-president, we are talking about US $ 3 billion. According to the Russian side, Moscow gave the money to Yanukovych as part of a plan to stabilize the economy after the failure of the IMF in 2013 to give our country a regular loan. However, the reality is hardly the same as the Kremlin's ideas about "stabilization". And it should be convincingly explained to the Western community.

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The phrase "credit" can mean the giant bribe in order to achieve certain political results. Moreover, it is not the official credit, but the first (out of five planned) tranche of the National Welfare Fund of Russia. Let me remind you, this is an institution that is part of the mechanism of provision of pensions of citizens of the Russian Federation, and it cannot be subject to the provision of inter-state loans.

In addition, matching funds - $ 15 billion – were planned to be placed in the Ukrainian government bonds. The reasons were clear. Ukraine's dependence on Russia has considerably aggravated.

What are the prospects for the Ukrainian side in the case of the "debt of Yanukovych?" Figuratively speaking, quite vague. And not because the case is considered in the capital of Albion. The result depends on professionalism of the Ukrainian side.

Hard facts

It is known that all the processes in the Supreme Court in London are public - hearings, discussion of the various aspects of the case in the presence of the general public and the media. The court takes into account the whole range of available information (policy statements, comments in the media, witness statements and the like).

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It is obvious that it imposes a special burden of responsibility on the preparation of high-quality evidence on the Ukrainian side. The first reasoned position, professional legal advisers and representatives.

So that the involvement of foreign experts is not a "betrayal", but rather requires a pragmatic approach. After all, it is advisable to have an experienced team for the protection of the Supreme Court in London. Here, the end justifies the means.

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