ISSN 2663-0583 (Online)
ISSN 2663-0575 (Print)

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In July 2022, a few new Online First publications were placed online under these links:

 

Note from the Field 

Access to Justice Amid War in Ukraine Gateway 

 

‘The Legality of the Russian Military Operations Against Ukraine from the Perspective of International Law’ 


written by Maya Khater 

 

The current study seeks to discuss the grounds used by the Russian authorities to legalise their war against Ukraine, indicating the falseness of these grounds and considering the efforts of the United Nations and the International Community that aim to cease Russian aggression against Ukraine. It aims to demonstrate the falseness of Russian legality in its war against Ukraine by identifying the violations and crimes related to the Russian attack under international laws and norms, including the Charter of the United Nations, rules of international humanitarian law, and international human rights law, emphasising on the potential accountability mechanism for perpetrators of international crimes during the Russian war against Ukraine.

Russia has used military force against Ukraine several times since 2014 and seized several Ukrainian critical and strategic locations, including them in the Russian territory, coinciding with escalating protests by Pro-Russian separatist groups, especially in Donetsk and Luhansk, where these groups declared their independence in February 2022. Furthermore, Russia has declared it started a special military operation aiming at peacekeeping in those two regions, in addition to claiming that its intent was to stop genocide crimes undertaken by Ukraine in the eastern region of Donbas. This research concentrated on the legality of the latest Russian military operations that started on 24 February 2022 from the perspective of contemporary international law. 

The research uses the descriptive analysis method, which is based on the precise description and in-depth analysis of the topic through gathering detailed data related to the research problem, analysing and interpreting legal texts and relevant information, and proposing appropriate solutions and recommendations that expose the Russian violations of international law, attempt to stop these violations, and preserve the state unity and territorial integrity of Ukraine.

The research concludes that the Russian military operations against Ukraine represent a blatant violation of international law and an undermining of universal security. As a consequence, this negatively affects the friendly relationships among the members of the international community, in accordance with the provisions and principles of contemporary international law and the resolutions of international legitimacy.

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Note from the Field 

Access to Justice Amid War in Ukraine Gateway 

 

‘Territorial Tort Exception? The Ukrainian Supreme Court Held that the Russian Federation Could Not Plead Immunity with regard to Tort Claims Brought by the Victims of the Russia-Ukraine War’ 


written by Bohdan Karnaukh

 


The jurisdictional immunity of a state means that the state cannot be involved as a defendant in a case considered by a foreign court. In Ukraine, the rule on the jurisdictional immunity of a foreign state is enshrined in Art. 79 of the Law of Ukraine ‘On Private International Law’. Until 14 April 2022, the Ukrainian Supreme Court rigidly applied the provisions of the said article and recognised the Russian Federation’s immunity with regard to claims brought by Ukrainian citizens seeking compensation for harm caused by the armed conflict that commenced in 2014. Yet shortly after 24 February 2022, when Russia’s aggression against Ukraine entered a new phase, i.e., the phase of full-scale war, the Supreme Court changed its mind.

This note addresses the ruling of the Ukrainian Supreme Court of 14 April 2022 in case no. 308/9708/19, where the Court held that the Russian Federation could not plead immunity with regard to tort claims brought by the victims of the Russia-Ukraine war. In reaching this conclusion, the Court relied on the territorial tort exception enshrined in the European Convention on State Immunity (Basel, 16 May 1972) and the UN Convention on Jurisdictional Immunities of States and Their Property. Though neither of the two conventions has been ratified by either Ukraine or the Russian Federation, the Court found that these conventions indicate a general tendency in international customary law towards limiting the jurisdictional immunity of the states.

The reasoning of the Supreme Court is examined by scrutinising the authorities the Court adduced in support of its ruling, as well as by putting the ruling in the broader context of the jurisprudence of the International Court of Justice (ICJ) and European Court of Human Rights (ECtHR). 

 It is concluded that what the Supreme Court utilised is not the territorial tort exception but rather the ‘human rights/jus cogens’ exception. Further, the case before the Ukrainian Supreme Court is distinguishable from the ICJ and the ECtHR cases, where it was held that notwithstanding gross violations of human rights, the respondent state should nevertheless enjoy immunity. Unlike those cases, the Ukrainian case was tried amid the ongoing war, when no reparation agreements had been concluded, the legitimate aim of ‘promoting comity and good relations between states’ had been frustrated, and it was no longer possible to justify the restriction of the plaintiff’s right of access to a fair trial.

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Sustainable Justice and Dispute Resolution 

 

‘The Implementation of E-justice within the Framework of the Right to a Fair Trial in Ukraine: Problems and Prospects’

written by Maksym Maika

 


Problems and prospects for the implementation of the concept of e-justice within the framework of the right to a fair trial in Ukraine are especially relevant today due to the digitalisation of state and legal relations. The components of the right to a fair trial and their relationship to the implementation of e-justice; a system of legal regulation, recent legislative changes, current conditions, and prospects for the development of e-justice in Ukraine require further research.

The author used the following methods to solve the relevant tasks: dialectical – problems in the functioning of e-justice in Ukraine; historical analysis –the evolution of the legal regulation and the scientific, legal doctrine of e-justice; analysis and synthesis – analysis of legal regulation, recent legislative changes, the current state of and prospects for the development of e-justice in Ukraine; deduction – allowed the author to move from the general provisions of legal theory to the application of these postulates in the study of e-justice; system analysis – suggesting ways to overcome the problems in the functioning of e-justice in Ukraine; formal and dogmatic – providing an analysis of the norms of current legislation; theoretical modelling – formulating the draft of legislative changes; comparative – a study of foreign experience in the legal regulation of e-governance, taking into account the practice of justice in Ukraine.

The author has identified problems in the functioning of e-justice in Ukraine and normative, legal, material, technical, and organisational problems in realising the principles of the right to a fair trial for citizens of Ukraine, taking into account the concept of e-justice as a component of e-governance. To solve these problems, the following are proposed: normative regulation of the procedure for submission and examination of e-evidence; certification and standardisation of computer equipment and software in the field of e-justice; legal education activities of the state in terms of promoting e-governance; improving the computer literacy of citizens and civil servants.

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More Online First Articles:
 

Note from the Field 

Access to Justice Amid War in Ukraine Gateway 

 

 

 

Natalia Antonyuk 


A CRIMINAL AND LEGAL ASSESSMENT OF COLLABORATIONISM: A CHANGE OF VIEWS IN CONNECTION WITH RUSSIA’S MILITARY AGGRESSION AGAINST UKRAINE 

 


The dynamics of amendments to the Criminal Code of Ukraine after the start of the war show that the criminal law was not sufficiently ready for application during the war. First of all, a number of acts that are socially dangerous have not been singled out as criminal acts. Some existing articles needed to be amended to differentiate criminal liability. 

It is possible to state that collaboration activities have a high level of public danger and should therefore be criminalised. The severity of punishment for such actions depends on the type of collaborationism. Scholars and law enforcers in countries analysing Ukraine’s experience and changes in criminal law in connection with the war should clearly delineate the criminal range of acts of treason and analyse whether there are any socially dangerous acts that are obviously harmful to national security but remain outside of the notion of treason. 

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Note from the Field 

Access to Justice Amid War in Ukraine Gateway 


Oksana Uhrynovska, Anastasiia Vitskar 


ADMINISTRATION OF JUSTICE DURING MILITARY AGGRESSION AGAINST UKRAINE: THE ‘JUDICIAL FRONT’
 


This article is devoted to the study of the peculiarities of the administration of justice in the context of the large-scale military aggression of the Russian Federation against Ukraine. Within this framework, the authors carried out a detailed analysis of the recommendations on the work of courts in martial law provided by the Council of Judges of Ukraine and the Chairman of the Supreme Court. Taking into account the recommendations adopted during the conditions of martial law and the current jurisprudence formed at that time, the peculiarities of civil proceedings in martial law were singled out and analysed in detail, focusing on a specific procedural institution. 

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Maryna Stefanchuk 

MODERN TRENDS IN THE FORMATION AND DEVELOPMENT OF THE HUMAN RIGHTS MECHANISM IN UKRAINE


The article highlights the modern determinants of the formation and function of institutions of the national human rights mechanism in Ukraine. Particular attention is paid to the institutions of the justice system as key elements of the national human rights mechanism, the formation and functioning of which, at the present stage, are determined by a number of factors, at both internal (national) and external (supranational) levels. It is established that external determinants determine the impact on the human rights mechanism in Ukraine through functional indicators of its effectiveness in the evaluation and reporting documents of the institutions of the supranational (international) human rights mechanism. Internal determinants dictate the impact on the national human rights mechanism through functional indicators of its effectiveness in the evaluation and reporting documents of national human rights institutions, the results of sociological research, and expert assessments and depend directly on the ‘quality of law’. The current trends in the development of human rights mechanisms in Ukraine, which are enshrined in a number of corresponding strategies in the field of human rights due to the need to improve the state’s activities to promote and ensure human rights and freedoms, create effective mechanisms for their implementation and protection in the field of development of the justice system as a whole, as well as its constituent institutions, such as the prosecutor’s office and the bar. Emphasis is placed on the priority of reaching consensus among stakeholders in the implementation of these strategic documents as a normative component, which determines the development trends of the institutional and functional components of the national human rights mechanism. 

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Adrián Vaško 


THE LEGAL REGULATION OF SPECIAL MEANS BY THE INTELLIGENCE AGENCY OF THE SLOVAK REPUBLIC WITHIN THE CASE LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS 


The article is focused on the use of special rights or means by the intelligence agency of the Slovak Republic. The use of these statutory means in a democratic society is in the public interest, especially in the context of current security challenges (e.g., international organised crime, terrorism, etc.). At the same time, however, the use of special means by the intelligence agency represents a significant interference with guaranteed fundamental human rights and freedoms, in particular, the right to privacy.
T
he author states that the legal regulation is likely to require an amendment in the short term to ensure compliance with Art. 8 of the Convention: the right to respect for private and family life. Then, in the case of a complaint by a Slovak citizen regarding interference with the right to privacy using special means by the intelligence agencies of the Slovak Republic, it can be said that there was a violation of this right. 

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