On May 29, 2022, the Committee of the Bar Council of the Kyiv region on issues of interaction with the military administration, law enforcement agencies and the judicial system to ensure the protection of the civilian population under martial law held a meeting with the residents of the buildings that were destroyed as a result of the armed aggression of the Russian Federation during the bombing in the Podilsky district Kyiv, Mezhova Street and Svobody Avenue 10.
During the meeting, consultations and recommendations were provided to the affected residents on the protection of their rights as an affected person. The lawyers of the Committee provided answers and explanations to all the questions raised during the meeting.
Special attention was paid to the mechanism of compensation for property damage caused by the aggressive war of the Russian Federation.
Based on the results of the meeting, the Committee's lawyers prepared and distributed among the victims a Memorandum, which describes in writing the possible ways of compensation for property damage as a result of the armed aggression of the Russian Federation.
The content of the Memo is given below.
Property damage received as a result of hostilities, acts of terrorism, sabotage caused by the military aggression of the Russian Federation consists of the value of damaged or lost property and moral damage.
Damage compensation is possible in two directions:
- By receiving compensation for damaged and destroyed residential real estate objects as a result of hostilities, terrorist acts, sabotage caused by the military aggression of the Russian Federation. The state of Ukraine undertakes the obligation to compensate for the loss of housing in the form of compensation.
- By way of compensation for damages through the filing of a civil lawsuit, where the defendant is the aggressor state of the Russian Federation.
In accordance with the Resolution of the CMU No. 326 of March 20, 2022, the Procedure for determining damage and losses caused to Ukraine as a result of the armed aggression of the Russian Federation was approved , which establishes the procedure for determining damage and losses separately in 18 directions, where, according to paragraph 5, it is determined: loss of housing stock and objects of housing and communal economy – a direction that includes losses of the housing stock and objects of housing and communal economy, objects of unfinished construction of residential real estate, summer cottages and garden houses, actual costs incurred for their restoration.
The main indicators that are evaluated are:
- the cost of destroyed and damaged housing that needs restoration;
- the cost of destroyed and damaged housing and communal facilities that need restoration;
- actual costs incurred for the restoration of the damaged housing stock and facilities of housing and communal services;
- actual expenses for the implementation of monetary compensation to victims whose residential buildings (apartments) were destroyed as a result of a military emergency caused by the armed aggression of the Russian Federation;
- the value of destroyed and damaged objects of low-rise residential construction, including summer cottages and estates, as well as their parts;
- the cost of destroyed and damaged objects of unfinished residential construction.
Determining the damage and amount of damage is carried out in accordance with the methodology approved by the order of the Ministry of Regions, with the approval of the Ministry of Reintegration.
Regional and Kyiv city state administrations are responsible for determining damage and losses in the given direction (during the period of martial law – military administrations);
IMPORTANT : The methodology approved by the order of the Ministry of Regions, with the approval of the Ministry of Reintegration, has not yet been developed, such a methodology does not exist, as of today it is under development.
Regarding receiving compensation
The issue of payment of monetary compensation to victims whose residential buildings (apartments) were destroyed as a result of a military emergency caused by the armed aggression of the Russian Federation is determined by the Procedure
the use of funds provided for in the state budget to provide monetary compensation to victims whose residential buildings (apartments) were destroyed as a result of a military emergency caused by the armed aggression of the Russian Federation, approved by Resolution of the CMU No. 947 of December 18, 2013, as amended by Resolutions of the CMU No. 623 of 10 July 2019; No. 767 dated September 2, 2020 and No. 1301 dated December 9, 2021.
This Procedure, approved by Resolution of the CMU No. 947 of December 18, 2013 with changes in part 4, provides that it is the local self-government bodies, and in their absence – the military-civilian administrations of the settlements, to carry out the survey of damaged or destroyed housing, to record it, to compile and approve lists of victims in the relevant territory and issue certificates of recognition of a person as a victim of an emergency. The form of the Inspection Act and References is an appendix to this Resolution.
The application for compensation for destroyed housing is a free state service "Making a decision on providing monetary compensation to victims whose residential buildings (apartments) were destroyed as a result of a military emergency caused by the armed aggression of the Russian Federation" , whose identifier is 01746 .
This procedure for receiving compensation may be changed after the adoption by the Verkhovna Rada in the second reading of draft law No. 7198, which was adopted as a basis in the first reading on April 1, 2022.
After the entry into force of the Law of Ukraine on the settlement of relations regarding compensation for damage and destruction of immovable property as a result of hostilities, acts of terrorism, sabotage caused by the military aggression of the Russian Federation, applications for compensation for damaged and destroyed immovable property shall be equated to those submitted by natural persons in accordance with this resolution information notices about damage or destruction of residential buildings and premises.
In accordance with Clause 4 of the Procedure for submitting an information report on damaged and destroyed property as a result of hostilities, acts of terrorism, sabotage caused by the military aggression of the Russian Federation, approved by Resolution No. 380 of March 26, 2022, the following may be submitted:
1) independently using the "Diya" mobile application;
2) through the administrator of the center for the provision of administrative services or a notary public
In accordance with Clause 6 of the Procedure determined by Resolution No. 380 of March 26, 2022, the information notice must contain the following data:
1) surname, proper name, patronymic (if available) of the person;
2) the registration number of the taxpayer’s registration card of the person (in case of submission using the mobile application of the Diya Portal (Diya) or the series and number of the passport (for individuals who, due to their religious beliefs, refused to accept the registration number of the taxpayer’s registration card and reported this the relevant state body and have a mark in the passport) (in the case of submission through the Diya Portal);
3) contact details of the person (phone number, e-mail address, other means of communication (if available);
4) information on real estate:
type of real estate object (apartment, other residential premises in the building, private residential building, garden and country house);
registration number of the immovable property according to information from the State Register of Property Rights to immovable property (if available);
total area of real estate. In the absence of accurate information on the total area of real estate, the approximate area is indicated;
address (location) of real estate;
information that the real estate is an object of cultural heritage (if necessary);
5) information on the number of persons who lived in the immovable property;
6) information on damage or destruction of immovable property (date and estimated time of occurrence, description of damage, photo and video recording (if available).
The information specified in subsection 4 of this clause is obtained/confirmed from the State Register of Real Property Rights (if available).
In accordance with the Procedure for Inspection of Commissioned Construction Facilities approved by CMU Resolution No. 257 of April 12, 2017, as amended by CMU Resolution No. 423 of April 5, 2022, a special procedure for the inspection of a damaged facility is determined.
In accordance with clause 1 of the Resolution of the CMU No. 257, this Procedure is applied during the inspection of objects damaged as a result of emergency situations, military actions or acts of terrorism (hereinafter – damaged objects) in order to make a decision on the possibility of further exploitation and development of restoration measures .
According to Clause 2 of the Resolution of the CMU No. 257, the inspection of the object or damaged object is ensured by the relevant owner or manager, an authorized body by involving specialists with appropriate qualifications, namely: responsible executors of certain types of work (services), related to the creation of architectural objects that have passed professional attestation and have a qualification certificate for the right to perform inspection works in the construction of objects of the class of consequences (responsibility) determined by the qualification requirements (hereinafter – executors), or by involving enterprises, institutions and organizations that include such performers.
Information about contractors who can be involved in the inspection of objects with the corresponding class of consequences (responsibility) is contained in the Register of construction activities, which is a component of the Unified State Electronic System in the field of construction
It should be noted that this service provided by the state is aimed at receiving compensation for lost real estate (apartment, other residential premises in the building, private residential building, garden and country house).
IMPORTANT: as of today, the amount of compensation is set to UAH 300,000.00. In Bill 7198, the amount of compensation for lost housing is limited to 150 sq.m., the cost per sq.m. m is determined at the price as of February 23, 2022.
The examination must be carried out in accordance with the procedure defined by Resolution of the CMU No. 257 of April 12, 2017, which must be provided by the territorial management body, currently the military administration.
When receiving compensation from the state, the person who received the compensation must abandon the claim for compensation of damages to the Russian Federation in favor of the state of Ukraine.
Regarding compensation for damages in legal proceedings
A civil lawsuit against the Russian Federation can be filed and considered in criminal proceedings or separately. Such a claim includes compensation for material damage and moral damage.
According to the Resolution of the Civil Court of Cassation as part of the Supreme Court dated April 14, 2022 No. 308/9708/19 regarding the judicial immunity of the state, it is established that: – the national legislation of Ukraine proceeds from the fact that, as a general rule, damage caused in Ukraine to an individual as a result of illegal actions of any other person (entity), can be compensated according to the decision of the court of Ukraine (according to the principle of "general delict").
In simple words: the lawsuit against the aggressor state of the Russian Federation is considered in the courts of Ukraine in the manner determined for the lawsuit proceedings.
IMPORTANT: both for the courts of Ukraine and any international court, establishing a cause-and-effect relationship between the culpable actions of the aggressor of the Russian Federation and the resulting consequences, i.e. the damage caused, will be fundamental in such legal proceedings.
In simple words: in criminal proceedings, a special comprehensive examination must be conducted with the participation of explosives experts to establish the fact of destruction, destruction as a result of an explosion, shelling, etc.
In the criminal proceedings, the evidence base is collected, which gives grounds to establish the guilt of the Russian Federation as an aggressor country.