Author: Markiyan Bem

There is no doubt that Ukraine should be serious about the investigation and documentation of the crimes committed by Russia in the course of one more regular wave of unprovoked brutal war launched on February 24, 2022. Here large-scale criminal actions of Russians are meant: encroachment on the territorial integrity and sovereignty of Ukraine (Art. 110 of the Criminal Code), war propaganda (Art. 436 of the CC), planning, preparation, launching and waging a brutal war (Art. 437 of the CC).

In case criminal proceedings get registered under the above articles, Ukraine, represented by its state authorities, as well as individuals and legal entities, will be entitled to file a civil lawsuit against the persons acting as suspects within these criminal proceedings. Filing such a lawsuit, as well as a number of other circumstances, may serve the grounds for arresting the property of the persons involved in the aggression, and later – for irreversible seizure of this property in favour of those affected.

Court decisions on arresting and seizing the property, made by Ukrainian courts, should have pre-judicial effect within other national and international processes. On the other hand, such decisions may be referred for enforcement in other countries and become the basis for property confiscation.

Filing a civil lawsuit against individuals suspected/accused within certain criminal proceedings will create good opportunities for reimbursement of the damages caused by the aggressor. The amount of possible compensation can be assessed on the basis of the cost of the property of Russians located beyond the Russian territory, on which sanctions have been imposed. Mainly, frozen assets of Russian oligarchs are meant by such property, and their size as of today is assessed as 13.83 bln. Euros.

However, in the context of damages caused by Russian aggression, this amount is rather insignificant. Of much greater interest are the assets of Russian legal entities and the very aggressor state. Frozen assets of the Central Bank of Russia alone make some $300 bln. as of today.

It should not be forgotten that section XIV-1 of the Criminal Code of Ukraine presupposes the possibility of applying measures of criminal law nature to legal entities.

The Criminal Code of Ukraine was supplemented with this section back on May 23, 2013, but up till now its provisions have not been applied in practice, at least such practice is not mentioned in available sources. Meanwhile, the circumstances of Russian aggression create favourable conditions for applying the above provisions of criminal law.

Under paragraph 4, part 1, Art. 96-3 of the Criminal Code of Ukraine, one of the grounds for applying measures of criminal law nature to legal entities is commission of any of the criminal offences envisaged by Articles 109, 110, 113, 114-2, 146, 147, part 2-4, Art. 159-1, Articles 160, 260, 262, 436, 437, 438, 442, 444, 447 of this Code by their authorized person on behalf of and in the interests of the legal entity.

The above list includes the criminal proceedings invaders can potentially be incriminated: encroachment on the territorial integrity and sovereignty of Ukraine (Art. 110 of the CC); war propaganda (Art. 436 of the CC); planning, preparation, launching and waging a brutal war (Art. 437 of the CC); violation of the laws and customs of war (Art. 438 of the CC).

Under part 2, notes to Art. 96-3 of the Criminal Code, the above criminal offences are acknowledged to be the ones committed in the interests of the legal entity in case they have led to:

1) obtaining illegal profit by it, or

2) have created conditions for obtaining such profit, or

3) were aimed at evasion of the responsibility envisaged by the law.

It is also important that under part 2, Art. 96-4 of the Criminal Code, measures of criminal law nature may be applied by court to subjects of private and public law, both residents and non-residents of Ukraine, including state authorities and local self-government bodies.

Under Art. 96-6 of the Criminal Code of Ukraine, measures of criminal law nature that may be applied by court to legal entities include penalty, property seizure, liquidation of the legal entity.

Application of the above provisions in practice should enable to compensate for the damages incurred due to the war, at the expense of Russian companies.

For example, if the management of a certain savings bank passes a decision to take some measures promoting Russian aggression against Ukraine, it actually becomes an abettor in waging the brutal war or making an encroachment on the territorial integrity or sovereignty of Ukraine.

Such measures include finance (crediting) of the Russian military and industrial complex, in particular, over the period after the unprovoked aggression of February 02, 2022 occurred, or creation of the mechanism of salary payment to the representatives of the occupation administration, etc.

Crimes of this nature are definitely committed in the interests of this savings bank. In case the fact of commission of such actions by the company employees is proven, the court may apply measures of criminal law nature to it, in particular, seize its property. 

As mentioned in the previous article,  the very criminal proceedings may be conducted in the absence of the accused and the representatives of the legal entity, but the decision passed as the result of such proceedings may be addressed for enforcement beyond Ukraine.

A similar mechanism can be applied to the assets of the Central Bank, in case it is proven that it promoted Russian aggression through the actions of its staff. Thus, the Central Bank is also a legal entity, hence, all the above rules are also applicable to it. Moreover, part 2, Art. 96-4 of the Criminal Code presupposes that measures of criminal law nature can be applied by the court to state authorities and local self-government bodies.

Finally, it should be indicated that application of the above measures of criminal law nature to legal entities, in particular, to the Central Bank, will not result in the automatic seizure of Russian assets beyond the country. However, as the minimum, a strong evidence base will be collected with this view, and, as the maximum, legal grounds for such actions will be developed.

Diligently collecting and recording the evidence base of Russia’s crimes, Ukraine will be able to confidently state that it has done its best and now it’s the business of our partners. And they can help us with what we cannot do ourselves: creating the international court/tribunal or the claims commission for the sake of punishing Russian criminals, bringing Russia to international legal account, charging the damages.

The material has been prepared with the support of the International Renaissance Foundation within the project "#Compensation4UA/Reimbursement of war damages for Ukraine. Development of the models of legal and institutional reimbursement mechanism".