Unfortunately, Ukrainian legislation did not provide for effective legal mechanisms to protect the property interests of affected Ukrainian citizens and entrepreneurs.
Compensation in civil proceedings
The general principles of compensation for property damage are provided for in Art. 22, 1166 of the Civil Code of Ukraine and Art. 225 of the Civil Code of Ukraine. Their norms provide that a person who has suffered damages as a result of a violation of his civil right has the right to compensation, and damage caused to the property of a natural or legal entity is compensated in full by the person who caused it.
As a rule, property damage is compensated in the manner of civil proceedings – by applying to the court with an appropriate claim against the guilty party. At the same time, the plaintiff is obliged to provide evidence confirming the fact of causing damage and its amount, as well as the guilt of a specific person in its commission.
It is obvious that normal civil justice procedures are ineffective in redressing wartime damage. In most cases, the victims cannot know which of the enemy servicemen harmed them, and cannot collect evidence of his guilt.
Moreover, even if by some miracle such evidence is obtained, the filing of a civil lawsuit against this person will not ensure the restoration of the violated rights of the victims due to the illusory probability of the execution of the court decision to collect funds from her for compensation of the damage caused.
Compensation in criminal proceedings
The legislation of Ukraine allows the possibility of compensation for property damage also in criminal proceedings. In particular, in accordance with Part 1 of Art. 1177 of the Civil Code of Ukraine, Part 2 of Art. 127, Part 1 of Art. 128 and Part 1 of Art. 129 of the Criminal Code of Ukraine, a person who has suffered property damage as a result of a criminal offense has the right during criminal proceedings before the start of the trial to file a civil claim against the accused or a person who bears civil responsibility for his actions, and the court, passing a guilty verdict, satisfies the civil claim fully or partially or refuses it.
The most common legal basis for compensation for property damage caused by military actions is the violation of the laws and customs of war (Article 438 of the Criminal Code of Ukraine), which, in particular, prohibit the warring parties from causing excessive damage to the peaceful (civilian) population, not caused by urgent military necessity.
However, compensation for property damage caused on these grounds is also not an effective way of protection.
Firstly, since the current laws and customs of war allow damage to the property of the civilian population in the case of real military necessity, not every case of capture/destruction/damage of civilian property can be considered a war crime.
Secondly, in criminal proceedings, the duty to identify guilty persons and collect evidence of their guilt is assigned to the state. State investigative bodies have significantly greater organizational and procedural capabilities for obtaining evidentiary information than individual victims, however, in the conditions of war, the collection and recording of relevant evidence by them is objectively difficult in many cases.
Thirdly, the possibility of compensation for damages under such a procedure depends on the conviction of the guilty person, while it is obvious that in most cases the property status of the convicted persons will not allow them to actually compensate for the damages caused by them.
The legislation of Ukraine declares that in certain cases the state assumes the obligation to compensate for the damage caused as a result of criminal offenses (Part 2 of Article 1177 of the Civil Code of Ukraine and Part 3 of Article 127 of the Criminal Procedure Code of Ukraine).
In particular, such a case is provided for in Art. 19 of the Law of Ukraine "On Combating Terrorism", according to which compensation for damage caused to citizens by a terrorist act is carried out at the expense of the State Budget of Ukraine in accordance with the law, with the subsequent collection of the amount of this compensation from the persons who caused damage.
Although the anti-terrorist operation in the east of Ukraine lasted for almost 8 years, the procedure for compensation by the state to the victims has not been legally defined until now, and it is impossible to receive such compensation.
Compensation in lieu of restitution
First of all, it is necessary to distinguish between two fundamentally different legal procedures, which most Ukrainians do not distinguish well from one another:
1) compensation for the damage caused is the recovery from the guilty person of sums that allow the victim to fully compensate for the losses incurred and/or to restore the original situation;
2) payment of compensation is a type of state social assistance, when the state at its own expense pays a certain category of victims money in the amounts and under the conditions that will be determined by the state itself.
There are no special laws in Ukrainian legislation that would regulate the procedure for compensation for damage caused by military actions. However, at the same time, there are separate legal norms that provide for the possibility of paying compensation to the victims, namely, Art. 84, 85, 86 of the Civil Protection Code of Ukraine provide for the procedure for the state to provide assistance to persons who have lost their homes as a result of emergency situations (according to Part 3, Article 5 of the Civil Protection Code of Ukraine, situations of a military nature also belong to emergency situations).
First of all, it is necessary to understand: these norms do not provide for the obligation of the Ukrainian state to compensate all victims. They oblige the state to help only one category of victims – those who lost their homes. At the same time, the payment of monetary compensation to such victims is only one of the possible ways of providing them with assistance from the state.
According to part. 9th, 10th century 86 of the Civil Code of Ukraine, payment of monetary compensation to victims for lost housing at the expense of the state is carried out on the condition that they voluntarily transfer their destroyed or damaged housing to the state, and the amount of such compensation is determined not from the real value of the destroyed or damaged housing, but from the indicators of the indirect cost of its construction in the relevant region of Ukraine.
Resolution No. 947 of the Cabinet of Ministers of Ukraine dated 18.12.2013 approved the general procedure for providing and determining the amount of monetary assistance to victims of emergency situations. In 2020, this procedure was updated – by Resolution No. 767 of the Cabinet of Ministers of Ukraine dated September 2, 2020, changes were made to it, according to which the document's effect was extended to determine the amount of monetary assistance to victims whose residential buildings (apartments) were destroyed as a result of a military emergency caused by armed aggression of the Russian Federation.
According to p.p. 4, 5, 7, 12 of this order, local self-government bodies form a commission with the involvement of public representatives and specialists, which conducts an inspection of damaged or destroyed housing as a result of an emergency situation of a military nature and, based on the results of such an inspection, issues a certificate recognizing a person injured as a result of an emergency situation. Decisions on the payment of monetary assistance to the victims and its amount are made by local executive bodies, namely, commissions created by them to consider issues related to the provision of monetary compensation to the victims.
These procedures may not be perfect, but they are still in place, which allows local self-government bodies to record the fact of damage and issue certificates of recognition of victims.
As of February 24, 2022, the indicated procedure for providing and determining the amount of monetary assistance to the victims was in effect and could be used to record damages caused by the military aggression of the Russian Federation and pay compensation to the victims. However, after the start of hostilities, the government of Ukraine began to introduce new procedures.
About the normative acts adopted after the beginning of the military aggression of the Russian Federation:
On March 20, 2022, the Cabinet of Ministers of Ukraine adopted Resolution No. 326, which approved the Procedure for determining damage and losses caused to Ukraine as a result of the armed aggression of the Russian Federation. Despite the loud name, this normative act did not provide a methodology for recording the damage caused and determining the amount of the damage caused. The document only obliged state bodies to develop such methods within six months.
On March 26, 2022, the Cabinet of Ministers of Ukraine adopted Resolution No. 380, which approved the Procedure for submitting an information notice about damaged and destroyed immovable property as a result of hostilities, acts of terrorism, sabotage caused by the military aggression of the Russian Federation , which provided for the possibility of submitting information notices about destroyed/damaged immovable property through the Diya web portal. In accordance with this procedure, information notices about damaged or destroyed property were submitted on a declaratory basis – without checking the relevant facts. In this regard, the entry into the state database of information on receiving a notification from the victim about the damage caused to him cannot be considered as a legal record of the fact of such damage.
On 04/05/2022, the Cabinet of Ministers of Ukraine adopted Resolution No. 423, which approved changes to the Procedure for conducting inspections of construction objects put into operation , approved by Resolution No. 257 of the Cabinet of Ministers of Ukraine dated 04/12/2017, namely, it was stipulated that inspections of damaged or destroyed buildings are carried out by the decision of the owner of the object or authorized bodies (bodies of local self-government or military administrations) by involving specialists who have a qualification certificate for the right to perform inspection works in the construction of objects, as well as specialists with the qualification level "leading" or "I category » by specialization "engineering and construction design in terms of ensuring mechanical resistance and stability":
– design engineers;
– consulting engineers;
– construction experts.
On 04/19/2022, the Cabinet of Ministers of Ukraine adopted resolution No. 473, which approved the Procedure for the implementation of urgent works related to the elimination of the consequences of the armed aggression of the Russian Federation , related to the damage to buildings and structures, which provided that the inspection of damaged objects is carried out by the decision of the authorized bodies by forming a commission , which includes specialists who have obtained a higher education in the field of knowledge "Construction and Architecture".
Based on the results of the survey, the commission draws up an act according to the established model, which is the basis for entering information into the State Register of damaged or destroyed property, which does not yet exist at this time, but its creation is provided for by draft law No. 7385 dated 05/17/2022.
On April 28, 2022, the Ministry of Development of Communities and Territories of Ukraine issued Order No. 65, which approved the Methodology for the inspection of buildings and structures damaged as a result of emergency situations, hostilities, and acts of terrorism , according to which the inspection of damaged or destroyed buildings and structures is carried out in accordance with the Procedure for conducting the inspection put into operation construction objects , approved by Resolution of the Cabinet of Ministers of Ukraine No. 257 dated 04.12.2017.
On 18.05.2022, the Ministry of Agrarian Policy and Food of Ukraine issued Order No. 295, which approved the Methodology for determining damage and losses caused to the land fund of Ukraine as a result of the armed aggression of the Russian Federation , according to which the information base for determining damage and losses is any documented information ( survey reports, reports of commissions on the determination of damages, reports on expert monetary valuation of land plots, primary accounting documents, information from the State Land Cadastre, land management documentation, etc.), and the amount of damages caused to owners of agricultural land plots is determined by commissions created by local state administrations or local self-government bodies in the manner determined by Resolution of the Cabinet of Ministers of Ukraine dated 04/19/1993 No. 284. At the same time, the value of residential buildings, industrial and other buildings and structures, including unfinished construction and unearned income, is included in the amount of such damages.
So, the government of Ukraine itself created a conflict regarding how exactly the fact of damage to property should be recorded:
– by the commission established by the self-governing body in accordance with the resolution of the Cabinet of Ministers of Ukraine No. 767 dated September 2, 2020;
– the owner or manager of the real estate object in accordance with the resolution of the Cabinet of Ministers of Ukraine No. 257 of April 12, 2017;
– the commission established by the authorized body in accordance with the resolution of the Cabinet of Ministers of Ukraine No. 473 dated 04.19.2022;
– a commission created by the local state administration or local self-government body in accordance with the resolution of the Cabinet of Ministers of Ukraine dated 04.19.1993 No. 284?
At the same time, it remains unclear:
– who and how should it be established that the property was damaged as a result of hostilities, and not for other reasons?
– how should the owner or authorized bodies carry out inspections of objects located in the war zone or in territories occupied by the enemy?
– can other evidence be used to confirm the facts of the destruction or damage of property, in addition to the inspection reports drawn up by the relevant commissions – inspection protocols of the scene of the incident drawn up by investigators in accordance with the requirements of the Code of Criminal Procedure of Ukraine; inspection reports of objects drawn up by forensic experts; photo, video materials, witness statements, etc.?
– when determining the amount of damage, can generally recognized methods and standards for assessing the amount of damage be used, which involve the use of complex assessment methods, and not only the method of calculating the replacement cost of construction, the application of which is established by the above-mentioned normative acts?
The Ukrainian government partially recognized the existence of these problems: on 14.06.2022, the official website of the Cabinet of Ministers of Ukraine published information on the need to simplify the procedure for registering notices of destruction or damage to property and introducing a single form of inspection report and a unified estimate of the cost of damages. However, this intention has not yet been realized.
On August 4, 2022, on the official website of the Ministry of Economy of Ukraine, the project was published for discussion on the Methodology for determining damage and the amount of damage caused to enterprises, institutions and organizations of all forms of ownership as a result of the destruction and damage to their property in connection with the armed aggression of the Russian Federation, as well as lost profit due to impossibility or obstacles in the conduct of economic activity .
This project contributes to the resolution of some of the controversial issues regarding the application of damage assessment methods, but does not at all relate to the problems related to the procedure for carrying out surveys and recording the facts of damage or destruction of the property of the victims.
Regarding the standards of proof
Recording the facts of damage as a result of hostilities is the first stage of any legal procedures: both those related to the provision of state aid (compensation, subsidies) to the victims, and those related to bringing the guilty to legal responsibility.
At the same time, the legal mechanism for recording the facts of damage, on the one hand, should not be overly burdensome for the victims, and on the other hand, it should meet the standards of proof that can be applied by foreign courts when deciding the issue of seizing the assets of the aggressor country for compensation damage caused
In particular, the principle of adversariality of the parties, which consists in their freedom to provide their evidence and prove their persuasiveness, is one of the fundamental principles of justice. However, in cases related to the infliction of damage as a result of hostilities, the possibility of observing this principle may be limited for objective reasons. It is obvious that representatives of enemy armed formations will not participate in legal procedures for recording the facts of the damage caused by them, and Ukrainian state authorities cannot be considered impartial in these procedures, since they actually represent one of the parties to the conflict. As a result, the facts of harm to the civilian population improperly recorded by the Ukrainian state may be called into question in the future
In addition, the victims do not have the freedom to provide evidence regarding the facts of damage to property located in the zone of active hostilities or in the occupied territories, in particular, they are physically unable to fulfill the requirements of Ukrainian legislation and ensure the examination of damaged or destroyed property by relevant specialists. Therefore, the most affected category of victims actually remains without legal protection at all.
From the above, it can be seen that there is an urgent need for the state to create a legal mechanism for recording the facts of damage, which would meet the following conditions:
– the organization of the work of the commissions for fixing the facts of causing damage should be entrusted to local self-government bodies with the maximum involvement of the public in their work and the minimum participation of representatives of state authorities;
– a separate procedure must be provided for the owner's independent recording of the facts of damage to his property and his independent collection of relevant evidence;
– it must be provided that data obtained during a pre-trial investigation or investigation may be used as evidence to establish the facts of causing damage to property;
– the mandatory involvement of specialists should be envisaged only at the stage when it is necessary to determine the degree of damage to the property and the technical possibility of its restoration, because special knowledge is not required to visually detect the fact of damage or destruction of property;
– it should be possible to identify and record evidence that shows that the property was damaged or destroyed as a result of the actions of military formations and/or the commission of war crimes, but within the limits of this procedure, a final legal decision about the causes of the damage should not be made;
– it should be assumed that in cases where there is no physical possibility of access to the damaged or destroyed object for its inspection, then the fact of damage can be recorded remotely according to a simplified procedure, and for such cases a special method of assessing the amount of damage should be used.
What shall I do?
It is obvious that the situation is somewhat critical – the sixth month of the war continues, but the victims still do not have an effective legal mechanism to protect their rights and interests.
At the same time, Ukraine has a unique opportunity to create a new legal mechanism for the protection of victims of war, which can be used as a model by the entire international community in the future.
In the civil law of most countries (including the civil law of the Russian Federation) there is a principle according to which the state bears property responsibility for damage caused by its officials. This principle of civil law should be specified: the state must bear full property responsibility for all damage caused by any armed formations under its control or jurisdiction.
As already mentioned above, the procedural legislation of most countries has approved norms that provide for the judicial immunity of states from civil lawsuits. In particular, this norm is contained in Art. 85 of the Law of Ukraine "On International Private Law".
04/14/2022 The Supreme Court expressed a legal position in case No. 308/9708/19, which may become a significant precedent – referring to the norms of international law, the court decided that lawsuits against the Russian state for compensation for damage caused by its armed forces can be sued by the Ukrainian courts, at the place of occurrence of such damage.
Under such circumstances, it is considered appropriate to amend Art. 85 of the Law of Ukraine "On Private International Law", providing for the possibility of injured individuals and legal entities to apply to Ukrainian courts with lawsuits against foreign states for compensation for damages caused by their armed aggression and/or violation of the laws and customs of war by armed formations under their control, if on the territory Ukraine is the place where the damage was caused or the property of the defendant state is located, at the expense of which the claims can be satisfied.
However, the main novel that is proposed to be introduced into law enforcement practice is the adoption of a special law that imposes on the aggressor state the obligation to compensate all damages caused by such aggression, regardless of who caused them.
A similar precedent already exists in Ukrainian legislation – in accordance with Part 3 of Art. 2 of the Law of Ukraine "On Peculiarities of State Policy to Ensure State Sovereignty of Ukraine in the Temporarily Occupied Territories of Donetsk and Luhansk Oblasts" the Russian Federation is held responsible for material or non-material damage caused to Ukraine as a result of armed aggression in the temporarily occupied territory of Donetsk and Luhansk Oblasts.
Therefore, it is considered expedient for Ukraine to adopt a special law on property liability of the Russian Federation for damage caused by its armed aggression, which should provide that:
1) On February 24, 2022, the Russian Federation in violation of Clause 4 of Art. 2 of the UN Charter committed large-scale unmotivated armed aggression against Ukraine.
The fact of large-scale unmotivated armed aggression of the Russian Federation against Ukraine was recognized by the resolution of the extraordinary special session of the UN General Assembly dated 02.03.2022 No. ES‑11/1, in connection with which this fact is common knowledge and has prejudicial significance (not subject to proof during the trial) ;
2) the Russian Federation bears full legal responsibility for property and non-property damage caused to civilian individuals and legal entities as a result of its armed aggression, in particular for property damage caused by armed formations under its control, as well as for property damage caused by armed formations controlled by Ukraine , during their exercise of the legal right to self-defense.
In particular, compensation is subject to damage caused as a result of:
– damage or destruction of property during hostilities;
– seizure of property by armed formations under the control of the aggressor country;
– loss of property by a person who was forced to leave his place of residence due to hostilities or occupation;
3) injured individuals and legal entities have the right to file civil lawsuits against the Russian Federation for compensation of the damage caused to the courts at the place where such damage was caused;
4) in the case of the refusal of the Russian Federation to participate in the legal process, the Ukrainian state ensures the representation of its interests in court by a free lawyer using the system of secondary legal aid;
5) execution of court decisions on recovery of funds from the Russian Federation for compensation of damage caused by its armed aggression should be carried out within the framework of joint executive proceedings under a special procedure, under the control of the Ukrainian state.
Such a law will make it possible to protect the interests of the victims much more effectively, as it will provide the Ukrainian state with legal grounds to turn to the governments of foreign countries with a request to provide legal assistance in the execution of the decisions of Ukrainian courts by levying charges on the assets of the Russian Federation located in these countries
In addition, such a law should provide for the possibility of the victims or the Ukrainian state filing claims against the Russian Federation for compensation of damages directly to the courts of those foreign countries where the property of the Russian Federation is located, at the expense of which the specified losses can be compensated.