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The “GIFT” FROM TSAR: WHY RUSSIAN COMPANIES SHOULD NOT ENCROACH ON UKRAINIAN ASSETS

02 November 2022

Dmytro VORONTSOV, attorney

There have been revealed a lot of evidences of committing war crimes by Russia and its “puppets”, but Russian authorities are not going to stop, and they continue to facilitate in revealing more facts and evidences by international investigative teams.

Thus, in October 2022 Volodymyr Putin issued one more decree on annexation of Zaporizhzhya and Kherson Regions of Ukraine. Obviously, this decree is illegal and void. In addition, the Kremlin decided to transfer assets, forcibly left by Ukrainian businessmen on temporary occupied territories, to Russian companies. The respective statement was made by the Kremlin’s spokesman Dmytro Peskov. He said, that “it was not reasonable to leave abandoned assets idle, and RF government had started working on the issue”.

Actually, there is some similarity between actual nationalization and transfer by the Kremlin of assets on temporary occupied territories of Ukraine to Russian companies in 2022, and doings that took place in annexed Crimea in 2014 and the following years. Of course, there are also differences, but with the same effect, which is colossal losses of Ukrainian business.

It is well-known, that Russia does not acknowledge both international conventions and decisions of international courts. Moreover, before the full-scale war the Kremlin used to hire foreign law firms and took part in international arbitration proceedings, but now Russia even doesn’t delegate its representatives to participate in court hearings referring to the position that “this court has no jurisdiction to consider cases with Russia being a part of the dispute”.

The Kremlin’s logic (if we assume it really exists) is quite simple. It is a complete confidence in its impunity and incapability of “west justice”. Still, it is not to stop Ukraine and Ukrainians.

Anyway, before assessment of the prospects of receiving compensation of losses and bringing Russian authority to criminal liability, it is reasonable to determine legal qualification of Putin regime’s actions. At that, such a qualification is to cover application of both provisions of national and international legislation since in case of war crimes the national and international legislation are closely related.

It should be noted, that taking into account numerous documented facts of committing war crimes, it can be reliably affirmed that the following war crimes have took pace:

  • Waging aggressive war (Article 437 of the Criminal Code of Ukraine);
  • Violating the rules and the customs of the war (Article 438 of the Criminal Code of Ukraine);
  • Genocide (Article 442 of the Criminal Code of Ukraine);
  • War crimes, crimes against humanity and crimes of aggression (Articles 7 and 8 of the Rome Statute of the International Criminal Court).

The list of probable future accusations is not final.

At the same time, what can be done with Russian companies granted with the assets of Ukrainian companies on temporary occupied territories? In this case, the legal qualification is quite ambiguous and it will depend, in the first place, on further actions with Ukrainian business assets (e.g. demolition of property can be qualified under the Article 194 of the Criminal Code of Ukraine).

Obviously, the official qualification of Russian companies’ actions will be made by domestic law-enforcement bodies, but it can be already stated that the national legislation does not allow to unequivocally qualify actions based on specific compositions of the crimes defined by the Criminal Code of Ukraine. Hence, it can be treated as general war crimes against property as well as economic crimes (in particular, legalization of property received in criminal way) or it can be qualified as complicity in committing some war crimes.

It is important to take into account that, first of all, Putin and his puppets (occupying authorities) and Russia itself as the aggressor state are liable for any unlawful actions against the property of Ukrainian companies on the temporary occupied territories. In its turn, transferring Ukrainian assets to Russian companies as “a gift” is a direct consequence of annexation of the part territories of Zaporizhzhya and Kherson Regions.

Bringing to liability of rascals from some Russian companies would be reasonable in the event the officials of the specific Russian company committed specific crime against the assets of Ukrainian company defined by the Criminal Code of Ukraine or by the international treaties, ratified by Ukraine.

Based on the court proceedings as to the property of Ukrainian companies forcibly left in Crimea, it is remarkable that most of them were initiated against Russia which unlawfully annexed peninsula and set the condition for the further nationalization of Ukrainian assets located therein. Taking into account that all civilized world shall not recognize legality of annexation of Crimea as well as annexation of part Zaporizhzhya and Kherson Regions, any decrees of the Russian dictator shall have no legal effect. Therefore, granting Ukrainian assets to anyone by Putin is a war crime itself (including demolition and grabbing property). Investigations in such type of cases have been initiated and will be the subject of consideration by the International Criminal Court.

Consequently, Ukrainian business should focus on recording facts of demolition/ruination/loss of property as a result of Russian aggression and take part in current investigations and court proceedings against aggressor state.

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