It is a road map for actions in the event of damage or destruction of buildings, which will help to legally correctly record the damage caused by war, to carry out inspections and restoration work, and to obtain the opportunity to compensate for losses in the future.
The building owner’s procedure should include the following key steps:
It is essential to keep all documents that confirm the existence of property rights to the real estate. Such documents may include:
The documents must be in original or notarized copies. If you have scanned copies of these documents in PDF format, they should be stored with the manager’s digital signature.
In case of loss of these documents, duplicates have to be provided. Extracts from state registers can be used as proof of ownership.
It is also worth keeping documents confirming the value of the damaged or destroyed building and property therein. These may include the company’s financial statements, primary accounting documents, such as invoices, certificates of completion, receipts, and property valuation reports or documents that reflect the property’s value, such as a pledge or mortgage agreement.
2.1 Apply to the authorized bodies to obtain confirmation that the damage to the building was caused by hostilities and not by other causes unrelated to the war. Such authorities may be:
2.2 Take photos and video recordings of the damaged building. At the same time, it is desirable to use software that records metadata, including the date, time, and place where photos and videos were taken, to ensure that the content is authenticated. For example, it could be the EyeWitness to Atrocities app for Android.
2.3 Collect publicly available information confirming the events that resulted in the damage or destruction of the building. It may include materials published in the media and social networks, messages from public authorities or local governments, etc.
Materials from the Internet can help form an evidence base:
2.4 Submission of a report to the Register of Damaged and Destroyed Property. An information report is submitted to this Register by the Procedure for submitting an information report on damaged and destroyed real estate as a result of hostilities, terrorist acts, and sabotage caused by the armed aggression of the Russian Federation against Ukraine, approved by the Cabinet of Ministers of Ukraine No. 380 of 26.03.2023. An information notice may be submitted to the Register using the Diya portal through an ASC administrator or a notary.
The list and amount of information that can be submitted to the Register of Damaged and Destroyed Property is provided in the Procedure for Maintaining the Register, approved by the Cabinet of Ministers of Ukraine No. 624 of June 13, 2023.
It is necessary to call the police to submit applications for initiation of criminal proceedings for the fact of destruction of property and recognition of the injured party, as well as to find out the number of criminal proceedings in the Unified Register of Pre-Trial Investigations.
Before starting the inspection work, you should contact the regional office of the State Emergency Service of Ukraine to have the building demined and obtain a Demining Certificate.
If possible, after receiving the demining document, you should contact property appraisers for an expert opinion on determining the amount of losses incurred because of property damage and lost profits. The inspection of the damaged object can be carried out at the owner’s or manager’s decision. Currently, the length of the queue for an appraisal is generally measured in years, so it is worth using the services of private appraisers.
The Cabinet of Ministers Resolution No. 423 of 05.04.2022 “On Amendments to the Procedure for Inspection of Commissioned Construction Objects” regulates the procedure to be applied when inspecting objects damaged as a result of hostilities to decide on the possibility of further operation and develop restoration measures.
The inspection of damaged facilities is carried out according to the Methodology approved by the Ministry of Regional Development Order No. 144 dated 06.08.2022, which defines the specifics of the work.
Based on the results of the inspection, a report is drawn up, which should contain a conclusion on the technical condition of the building, recommendations for its further operation, the possibility of performing restoration or dismantling works, as well as, if necessary, information on damaged load-bearing and enclosing structures, engineering systems, indicating the degree and extent of damage, and fundamental decisions on their restoration or strengthening. This report is the basis for deciding to carry out work to restore the damaged facilities or dismantle them. The inspection report shall be accompanied by an inspection report in the form specified in the Methodology (“Appendix 7”) and contain information on the specific category of damage to the facility.
The Resolution “On Approval of the Procedure for Dismantling Objects Damaged or Destroyed as a Result of Emergencies, Military Operations or Terrorist Acts” provides a mechanism for dismantling damaged or destroyed buildings and structures or parts of them based on decisions made on the results of a technical inspection by the Procedure for Inspection of Commissioned Construction Objects.
The Procedure for Performing Urgent Work to Eliminate the Consequences of the Armed Aggression of the Russian Federation Related to Damage to Buildings and Structures, approved by Cabinet of Ministers Resolution No. 473 of 19.04.2022. The restoration of damaged facilities through construction or reconstruction should be carried out based on a technical inspection report by the developed and approved project documentation.
Cabinet of Ministers Resolution No. 470 of 19.04.2022 amended the Procedure for Approval of Construction Projects and Their Examination, according to which, during martial law, the development of construction projects for the overhaul of facilities damaged as a result of hostilities is allowed to be carried out as part of a defective act that defines the physical scope of work, an explanatory note specifying the conditions of work, and estimate documentation based on a report on the results of the inspection developed according to the Procedure for Inspection of Commissioned Construction Objects, approved by the Cabinet of Ministers of Ukraine No. 257 dated 12.04.2017.
The decision on the scope of the design documentation is made by the chief architect of the project and/or the project chief engineer in agreement with the customer, which is specified in the design assignment.
Clause 5.4 DSTU N B.V. 1.2-18:2016 allows, if necessary, to carry out an examination and assessment of the technical condition of individual parts of the object, separated by functional or structural characteristics. A separate part of the object can be assigned to a worse category of technical condition than the object as a whole.
In the case of partial damage to the building, an expert with a qualification certificate of the appropriate level can determine the possibility of operating the damaged building or its parts, provided that there is no threat of reducing the reliability and safety of the functioning parts.
Works on restoration of individual structures of buildings and structures to eliminate the consequences of emergencies (accidents) and restore the functioning of facilities intended to ensure the vital activity of the population without changing their geometric dimensions are included in the List of construction works that do not require documents entitling them to perform, and after which the facility is not subject to commissioning.
The restoration of the facilities is carried out by the Procedure for preparatory and construction works approved by the Cabinet of Ministers of Ukraine No. 466 dated 13.04.2011.
Filing a claim to court to recover damages from the Russian Federation is carried out after all expert opinions have been received and the fact of the event has been duly registered.
There are several instances in which Ukrainian plaintiffs can apply for compensation for damages for destroyed property.
6.1 Appeal to a Ukrainian court
This route is one of the easiest ways to compensate for damages caused by Russian armed aggression. The likelihood of the claim being accepted for consideration and the claims being satisfied is high, and Russia does not appeal such decisions.
Ukrainian court decisions in such cases can be enforced abroad based on international treaties on legal assistance or, in their absence, based on the principle of reciprocity, the existence of which is presumed. However, given the ongoing war between Ukraine and Russia, there is a possibility that foreign courts will consider the decisions of Ukrainian courts against Russia to be unjust and politically motivated and refuse to enforce the relevant judgments. In addition, in light of the severed diplomatic relations between Ukraine and the Russian Federation, Ukrainian courts cannot notify the Russian Federation of a claim against it, send procedural documents, etc. It gives grounds for foreign courts not to allow enforcement of decisions of Ukrainian courts against the Russian Federation.
Obtaining a favorable decision from the Ukrainian court, which will fix the amount of damages, will allow the future to apply to the European Court of Human Rights (ECHR) or investment arbitration or compensation commission if such are established after the end of the war in Ukraine.
6.2 Applying to the ECtHR
This method is simple and inexpensive, as many Ukrainian lawyers have successful experience in representing clients before the ECHR, and the body itself does not charge court or any other fees and has no requirements for the plaintiff’s citizenship or nationality.
Applying to the ECHR requires proving the exhaustion of all available remedies at the national level or the fundamental absence of such a possibility.
It is worth noting that the ECHR has jurisdiction to consider disputes exclusively regarding violations of rights that occurred before September 16, 2022, as on that day, Russia was excluded from the Council of Europe, which makes it impossible for the ECHR to consider claims against it starting from that date. At the same time, the Russian Federation will be able to refuse to comply with the ECHR judgments, and today, the mechanisms for enforcement of such decisions are absent.
6.3 Recourse to the courts of foreign countries where Russian assets are located
The key obstacle to filing lawsuits against the Russian Federation in foreign courts is the doctrine of sovereign immunity of foreign states, which significantly complicates lawsuits against the Russian Federation, seizure of its property, and recovery of such property by court decisions. Appealing to the US courts has good prospects because, unlike European countries, the US does not recognize the doctrine of absolute sovereign immunity of foreign states and allows suing them, seizing their property, and recovering damages from them.
6.4 Appeal to Investment Arbitration
It is potentially the most effective way to compensate for the losses caused by the armed aggression of the Russian Federation in terms of the amount of compensation and the effectiveness of the enforcement of the award against the Russian Federation. However, this way is an expensive and time-consuming process.
Arbitration tribunals that consider such claims are highly analytical in their approach to the analysis of evidence and usually award compensation for the entire amount of the claimed damages, or at least very close to it. In addition, the New York Convention allows for the arbitral awards against the Russian Federation to be recognized and enforced in virtually any country worldwide.
6.5 Applying to a compensation commission
At the time of writing, this way of compensation is theoretical, as the war is ongoing, and no such commission has been established yet. Given the historical precedents, there are two possible models for establishing such commissions: based on a peace agreement between Ukraine and Russia or under the auspices of the UN.