Authors: Markiyan Bem, Ivan Horodyskyy

Among the proposals that can be heard from experts regarding possible mechanisms for confiscating Russian assets, primarily the frozen reserves of the Central Bank of the Russian Federation, is the improvement of the procedure for enforcing decisions of international justice bodies. This implies that the states that manage Russian assets can confiscate these assets if international courts award compensation to Ukraine or victims of Russian aggression.

Such an international judicial body could be the International Court of Justice. However,recent judgments in two cases initiated by Ukraine against the Russian Federation[1], in which the Court took a very cautious approach, make it doubtful that the third case - "On False Accusations of Violation of the Convention against Genocide" - will use sufficiently strong language to be considered as a legal basis for confiscation.

Another body that can award compensation to Ukraine is the European Court of Human Rights (ECHR). Although the ECHR does not have jurisdiction over cases involving Russia's actions after September 16, 2022, even in cases involving violations committed before that date, it is possible to award satisfaction in the form of large-scale compensation[2].

In this regard, some experts argue that since the Court has jurisdiction, there should be a mechanism for the enforcement of judgments in the absence of Russia's consent to voluntary fulfillment. However, this approach - the confiscation by states of Russian assets under their jurisdiction to enforce international court decisions in favor of Ukraine, including the ECHR - seems rather controversial. 

First of all, decisions of international courts have legal significance not only for the parties to the case but also become precedents for all states that recognize their jurisdiction. In the case of the ECHR, for example, we are talking about 46 member states of the Council of Europe. Consequently, other states will also refer to this mechanism when applying to the court or at the stage of execution of ECHR judgments.

Also, in this case, the ECHR may open a "Pandora's Box" when courts in different member states to the European Convention on Human Rights will derogate from sovereign immunities by referring to such a decision and interpreting it necessarily. Currently, there are a significant number of ECHR judgments that states refuse to comply with for one reason or another. In such circumstances, there is a risk that the enforcement process will turn into a kind of vendetta when the state against which the judgment is made refuses to comply with it, but any other Council of Europe member state may enforce such a judgment at the expense of its assets on its territory. 

The idea of introducing this mechanism exclusively in relation to Russia is unacceptable in light of the current interpretation of the European Convention on Human Rights and the practice of the ECHR. Such an approach would contradict the principles of the Council of Europe and other international organizations and treaty relations between member states, in particular the principle of equal access to mechanisms and instruments.

Another factor to consider is the nature of the rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Convention does not provide for liability for the crime of aggression, crimes against humanity, war crimes, or genocide. The ECHR also ruled against the application of the Convention during the hot phase of an armed conflict in favor of the party suffering from aggression. "In the long run, the benefits gained from the introduction of such an enforcement mechanism may simply not justify the difficulties associated with its implementation. 

In conclusion, it should be noted that to introduce such a mechanism, the provisions of the Convention need to be amended. In addition to being a long and complicated process, such changes will be adopted by the current composition of the Council of Europe member states, and therefore this mechanism will apply to these states. Extending it to Russia seems impossible.  

Again, recent decisions of the International Court of Justice show that international courts will continue to take a cautious approach to prevent its decisions from being used as a direct basis for taking certain measures against Russia.

Therefore, relying on the decisions of international courts as a prerequisite for the confiscation of Russian assets is too optimistic. More important are the legal facts (violations, damage, compensation awarded, etc.) that will be established in them and that may be relevant in the process of compensation in the future, including within the framework of an international compensation mechanism.