Сompensation for housing destroyed by the Russian Federation

We have already begun to receive appeals from citizens whose homes were destroyed by the actions of the Russian Federation, so, given the high urgency of this issue, we want to acquaint you with our conclusions.

First of all, it should be noted that two main potential areas of compensation can be considered:

1. national – an appeal for compensation to state bodies of Ukraine;

2. international – an appeal to the European Court of Human Rights (hereinafter – “ECHR“) with claims directly against Russia.

Below we consider the mechanism and prospects of each of these areas.

1. National mechanism of compensation for damage¹

First of all, it should be noted that as of today, there is no national mechanism to compensate for the damage caused to citizens as a result of damage / destruction of their housing as a result of hostilities. However, there is an initiative of the state authorities to introduce such a mechanism.

Thus, in the first reading the Parliament has already adopted the Draft law № 7198 “On compensation for damage and destruction of certain categories of real estate as a result of hostilities, terrorist acts, sabotage caused by military aggression of the Russian Federation (hereinafter – the Draft law).

The Draft law (in case of its further approval and entring into force) will provide for the payment of compensation or financing for the construction / renovation of housing. To do this, you will need to apply and provide supporting documents to the specially created Commissions at local executive committees at the location of the relevant housing. At the same time, compensation and financing will be provided on the terms of the citizen’s assignment in favor of Ukraine of the right of the relevant claim to the Russian Federation.

The Draft law states that the procedure for providing compensation and other procedural issues should be established by the Cabinet of Ministers of Ukraine.

At the same time, today in Ukraine there is a mechanism for submitting an application on damaged housing through the app “Diya”, introduced by the Resolution of the Cabinet of Ministers № 380 dated March 26, 2022.

The submission of such an application does not guarantee the receipt of compensation, but in any case it can be used as one of the proofs of damages under the above-mentioned Draft law, or in case of further adoption of any other compensation mechanism.

In view of this, in any case we recommend to submit an application through the app “Diya” by individuals – owners of damaged (destroyed) housing.

Thus, now Ukraine is taking the first steps towards the introduction of a national mechanism to compensate for the damage caused to the housing of citizens as a result of hostilities, and is already receiving information about damaged housing through the app “Diya”, which should be used by all victims.

2. International mechanism of compensation through ECHR²

2.1. Submission of an application

It should be taken into account that in order to submit an application to the ECHR, several key issues need to be substantiated in detail, which we will consider below.

2.1.1. Determination of the defendant

As you know, the main principle of the European Convention on Human Rights (hereinafter – the Convention), on the basis of which the ECtHR exercises its justice: the claim is filed in a country that has jurisdiction over the territory.

That is, as a general rule, if the rights were violated in Ukraine, the claim must be filed in Ukraine. But on the other hand, in the situation of military aggression of the Russian Federation on the territory of Ukraine, the lack of guilt of Ukraine in causing damage is obvious.

Therefore, in the practice of the ECtHR there are some exceptions regarding situations of armed conflict, but this is not ambiguously: there are cases when the aggressor country was found guilty, but there is also the opposite practice.

For example, in 2015, Ukraine at the level of the Verkhovna Rada made a statement of withdrawal from the Convention and the inability to exercise its full jurisdiction in the ATO area, as reported by numerous international organizations. Since then, this refusal has made it easier for the applicants to justify the designation of the Russian Federation as a defendant who actually exercises jurisdiction in the ATO area.

In the current situation, Ukraine has not yet adopted official acts defining the territories occupied since February 24, at least temporarily occupied, has not made official statements of waiver of jurisdiction over any territories, etc. And although, as far as we know, since the beginning of the war, Ukrainian citizens have already filed claims with the European Court of Human Rights against the Russian Federation, but so far, we have no information on the acceptance of such claims for consideration.

Thus, today when filing a claim with the European Court of Human Rights, there is a certain risk of refusal due to the difficulty of identifying the Russian Federation as a defendant who exercised effective control over the relevant territory where the event occurred.

It should also be noted that in connection with the expulsion of Russia from the Council of Europe, on March 22, 2022, the ECtHR adopted a resolution according to which Russia ceases to be a member of the European Convention on Human Rights on September 16, 2022. This means that the ECHR will be able to accept and consider applications against Russia only for violations that occurred before September 16, 2022.

2.1.2. Passage of national instances

As well, as a general rule, an application to the ECHR must be preceded by the passage of all national courts in the defendant’s country. However, in cases of claims against the aggressor state, the ECHR in practice often makes exceptions and accepts claims without going through national courts, provided that the impossibility of going to court in the aggressor’s country is ineffective.

2.1.3. Evidence of damage and the circumstances of its infliction

To apply to the ECHR, a citizen will need to collect evidence of all circumstances independently: ownership of housing, a document from a state body on destruction or damage, evidence of damage to housing precisely because of hostilities, evidence of the presence of the Russian military on that day in the relevant territory (if such circumstances took place), etc.

2.1.4. Deadline for filing a claim with the ECHR

It should be noted that, as a general rule, the term for applying to the ECHR is 4 months from the date of the final judgment at the national level. But in case of damage caused by the aggressor country there will be no decisions of the national court (see above), the four-month period must be deducted from the date of damage to property.

If a citizen decides to file a claim with the ECHR, it is extremely important to comply with and fulfill all of the above formal and procedural requirements in the process of drawing up and filing such a claim, otherwise there will be a high risk of not accepting the application for consideration on formal grounds (taken into account the fact that the number of claims regularly received by the ECHR, significantly exceeds the allowable workload of this court, therefore a very large number of claims are not accepted for consideration purely because of formal shortcomings).

2.2. Consideration of the case and execution of the decision

If all the requirements for preparing a claim are met and the claim is accepted for consideration by the ECtHR, it should be taken into account that the consideration of a case in the ECHR takes a very long time: the average term for considering cases today is 5 years, and the maximum may be more than 10 years.

If a positive decision is received, it must be remembered that it is not carried out automatically, but it must be carried out by the defendant – the Russian Federation, which today is one of the leaders in non-compliance with ECtHR decisions and, as far as we can see from open sources, has a law allowing such decisions to be recognized as unconstitutional and not to perform. At the same time, the ECHR today does not have a mechanism for forcing states to comply with their decisions.

It should be summerised, that considering the international direction:

– on the one hand, it is necessary to collect all the necessary evidence and draw up a claim (with a thorough justification of all material and procedural aspects) no later than within 4 months from the date of destruction (damage) housing;

– on the other hand, if the statement of claim is accepted for consideration by the ECHR, one must be prepared for a sufficiently long consideration of the case (at least five years), as well as for the lack of guarantees of the practical execution of the court decision (i.e., actual compensation for damage) by the Russian Federation.

Based on the above factors, each citizen needs to make an independent decision on the advisability or inappropriateness of filing a claim with the ECHR.

At the same time, regardless of whether a citizen will file a claim with the ECHR or not, in any case we recommend filing an application in app “Diya” in order to record the fact of damage to housing as a result of hostilities.