Case: compensation of the damage caused to the natural complexes of the “Kamianska Sich” National Nature Park as a result of the armed aggression in the amount of UAH 4,921,190,250.15 in favor of the State of Ukraine, and the State Budget of Ukraine by the Russian Federation, represented by the Ministry of Foreign Affairs of the Russian Federation.
Region: Ukraine, Kherson region.
The essence of the case:
On February 24, 2022, the Russian Federation launched a full-scale military invasion of Ukraine, which is still ongoing.
The entire territory of Ukraine, without exception, suffers from rocket and artillery shelling, including the objects of the protected areas. One of these sites is the Kamianska Sich National Nature Park (NNP) located in the Kherson region. The Kamianska Sich NNP has been repeatedly shelled and part of the territory is under occupation, resulting in environmental damage worth UAH 4,921,190,250. 15.
EPL filed the lawsuit with the purpose to ensure compensation for the above-mentioned damage caused to the Ukrainian people as a result of the full-scale invasion of the Russian Federation into the territory of Ukraine and violation of environmental legislation.
Parties:
Plaintiff – International Charitable Organization “Environment-People-Law”, Defendant – Russian Federation represented by the Ministry of Foreign Affairs of the Russian Federation, third parties without independent claims on the side of the Plaintiff – “Kamianska Sich” National Nature Park, State Environmental Inspectorate (SEI) of the Southern District (Zaporizhzhia and Kherson regions), the Ministry of Justice of Ukraine, third parties without independent claims on the side of the Defendant – the Ministry of Justice of the Russian Federation.
The problem and key facts:
During the period of martial law, from February 24, 2022 until now, the Kamianska Sich National Nature Park has been repeatedly shelled, and from March 09, 2022 to November 09, 2022, part of the territory was under occupation, resulting in damage to the unique nature of the park.
On November 14, 2022, the UN General Assembly adopted a resolution on Russia’s reparations for damage caused to Ukraine, which states that Russia must compensate for the damage caused by its armed aggression against Ukraine.
On October 13, 2022, the Ministry of Environmental Protection and Natural Resources of Ukraine adopted Order No. 424, by which it approved the Methodology for Determining Damage and Losses Caused to the Territories and Objects of the Nature Reserve Fund as a Result of the Armed Aggression of the Russian Federation (hereinafter – the Methodology for Determining Damage to the NRF).
Clause 3 of the Methodology for Determining the Damage to the NRF establishes that the determination of the extent and scope of damage and losses caused to protected areas by the armed aggression of the Russian Federation is carried out in order to: assess national and sectoral restoration costs; determine the amount of compensation to the state for damage to the environment and the national heritage of the state to which the protected area belongs; and file to courts, including international courts, appropriate lawsuits for compensation.
Pursuant to Article 13 of the Constitution of Ukraine, land, its subsoil, atmospheric air, water and other natural resources located within the territory of Ukraine, natural resources of its continental shelf, exclusive (maritime) economic zone are the objects of property rights of the Ukrainian people. On behalf of the Ukrainian people, the rights of the owner are exercised by state authorities and local bodies of self-government within the limits determined by this Constitution.
Pursuant to Article 22 of the Civil Code of Ukraine, a person who has suffered damages as a result of a violation of his or her civil right is entitled to compensation. Damages shall be compensated in full, unless a contract or law provides for compensation in a smaller or larger amount.
Therefore, the Ukrainian people have the legal right to demand compensation for the damage caused, and such damage must be compensated by the Russian Federation to the state of Ukraine in full.
In order to determine the damage caused to the environment in the Kherson region, on 23.03.2023, the Head of the Kherson Regional Military Administration adopted the Order No. 129 “On the Commission for Determining the Environmental Damage Caused by the Emergency and/or Armed Aggression and Hostilities during Martial Law in the Kherson Region” (hereinafter – the Commission).
On September 15 and 26, 2023, the Commission established the facts of damage and losses to the territories and facilities of the Kamianska Sich National Nature Park as a result of the armed aggression of the Russian Federation, which were recorded in the inspection reports.
Through adoption of the acts above, the Commission obliged the State Environmental Inspectorate of the Southern District (Zaporizhzhia and Kherson regions) to calculate the damage caused to the Kamianska Sich National Nature Park as a result of the armed aggression of the Russian Federation.
According to the response of the SEI of the Southern District dated 20.11.23 No. 4498/04/2-05/06/2-34, the total amount of damage caused to the Kamianska Sich National Nature Park as a result of the armed aggression of the Russian Federation is UAH 4,921,190,250. 15.
Believing that this damage should be fully compensated by the Russian Federation to the Ukrainian people, in early 2024 the EPL filed a corresponding lawsuit in court.
However, the first-instance court, reinforced by the decision the appellate court, left the claim without consideration, citing the fact that EPL does not have standing for such a claim. In the reasoning part of the decision, the court gave the following arguments:
– the public organization has actually filed a lawsuit in the interests of the state of Ukraine against another state. ICO EPL is not empowered to file lawsuits in the interests of the state of Ukraine;
– a public organization is authorized to represent the interests of an individual (citizen) or community as a part of society, and the state as a sovereign on its own territory is a representative of the people who founded it, and the entire society of Ukraine;
– the purpose of the activity of public organizations in matters related to the environment is, as a rule, the representation of the interests of society from violations caused by the behavior of the state itself, that is, the purpose of public organizations is to act in these relations against the state, and not in its interests.
Disagreeing with this position of the lower courts, EPL appealed their decisions to the Commercial Court of Cassation as part of the Supreme Court. However, in view of the fact that the case involves an exceptional legal issue, we have prepared and filed a motion to refer the case to the Grand Chamber of the Supreme Court. The panel of the Commercial Court of Cassation satisfied our request.
The decision of the court of first instance can be found here.
Please read the decision of the appellate court here.
More details in Ukrainian can be found here.
