Together with the terrifying human loss and damage to civilians, more and more businesses are now endangered by the constant threat of attack by the russian federation—let alone those that have already suffered from it.
I. Documentation of Damages
While we hope that there will be no need to use the below manual, we want to ensure that companies are aware of the steps to take if their property in Ukraine is damaged as a result of the russian invasion.
!NB! Before performing any documentation activities, first ensure the safety of employees and other persons involved.
After ensuring their safety, documentation activities should be performed at the earliest convenience. All evidence and information collected in relation to the damaged property should be stored safely, as it is unclear how events will progress further and whether it will be possible to record and collect such information in the future. Additionally, it is recommended to store evidence and information collected in both physical hard copies and digital copies (on protected servers, reserve cloud storage, secured flash drives, etc.).
The main points to consider regarding the documentation of damages:
- Define what exactly happened and what type of damage
has been caused.
(e.g., fire in a warehouse resulting in its partial destruction; the destruction of buildings used for administration purposes by missile attacks; seizure of an integrated plant, etc.) - Document damages by means available to you as soon as
possible.
Among the means available could be the following:
- Surveillance camera footage at your business
facility. If available, upload the footage to a safe
digital storage platform (protected server, cloud, etc.) and make
reserve copies;
- Photo and video recording of the damaged
property. Please note that the scene of the damage
contains "footprints" and other evidence of crimes needed
for future legal proceedings, as well as hazardous objects that can
be still in place. Therefore, make sure that photo and video
documentation is made from a safe distance and does not distort any
footprints or evidence;
- Photos and videos made by employees and bystanders
during the damaging event. If available, collect and store
photos and videos made at the time of the damaging event or
thereafter. Make sure to obtain the consent of the individuals and
secure their personal data privacy;
- List of potential witnesses. Make a list of
potential witnesses, with their full names and all contact details
available, who were eyewitnesses of the damaging event and are
ready to testify in future legal proceedings. Witnesses'
consent and permission of personal data processing must be
obtained, and data privacy ensured; and
- Internal investigation and damage report.
Depending on the type of damage and business facility involved, it
might be required by law, by-laws or company internal policies to
conduct and issue an internal investigation and/or damage report.
Ensure reasonable compliance with such requirements (if any).
- Surveillance camera footage at your business
facility. If available, upload the footage to a safe
digital storage platform (protected server, cloud, etc.) and make
reserve copies;
- Document damages by involving third parties.
Depending on the type of damaging event and damage caused, consider
the relevant types of evidence and other proof that may be
collected from third parties and external sources:
- Documents from the State Emergency Service of Ukraine
and other authorities. As a rule of thumb, if a damaging
event occurs, call the State Emergency Service of Ukraine
as soon as possible. Other relevant authorities and law
enforcements may be contacted as well (if applicable to the event).
After immediate danger from the emergency is mitigated, request
copies of the event reports, expert reports and other documents
issues in relation to the damaging event from the State Emergency
Service of Ukraine and other authorities (if applicable);
- Internet publications. Check whether there are
any confirmations from the aggressor's side as to its
involvement in actions that caused the damage, and collect and
store them (if available)—this could be more than helpful in
the course of establishing the cause of damage. Official
publications issued by the Ukrainian authorities in relation to
circumstances and the cause of the damaging event should also be
collected. In order to ensure the preservation of evidence, it is
recommended to order webpage documentation from specially
authorised agencies;
- Expert and forensic reports. Consider whether
expertise or forensics are needed. It is likely that the
involvement of experts will be needed. When arranging expertise,
the following issues should be addressed:
- what kind of expertise is most appropriate, depending on type of the event and damage caused;
- whether it can be arranged by hiring an independent private expert or should be done through the government's involvement (i.e., requesting expertise within criminal proceedings or other legal action); and
- what actions should be performed to ensure the preservation of
the scene of the damage and objects in the manner required for that
particular type of expertise.
- Amount of damages. Depending on type of the damage caused, consider appropriate means and evidence to prove the amount of damages caused (internal reports, balance sheets, experts' report on damages, etc.).
- Documents from the State Emergency Service of Ukraine
and other authorities. As a rule of thumb, if a damaging
event occurs, call the State Emergency Service of Ukraine
as soon as possible. Other relevant authorities and law
enforcements may be contacted as well (if applicable to the event).
After immediate danger from the emergency is mitigated, request
copies of the event reports, expert reports and other documents
issues in relation to the damaging event from the State Emergency
Service of Ukraine and other authorities (if applicable);
II. Legal Remedies
We analyse below the available options for legal remedies and the possible restitution of damages caused by the russian federation, defining the most plausible and additional solutions.
When considering which options to implement, please note that the effectiveness of the available options to pursue restitution is not yet fully apparent and may change depending on further developments in national and international frameworks (international prosecution of russian aggression, new dispute resolution mechanisms, etc.).
- Most plausible options to consider
- Commencement of criminal proceedings in
Ukraine. This option entails additional documentation of
the facts of the damaging event and the damages caused by it. A
civil claim for compensation of damages may be submitted within
initiated criminal proceedings, as well as in a separate civil
proceeding. At the same time, the main drawbacks are the difficulty
to identify the perpetrator, let alone the inability to prosecute
the russian federation as a state.
- Filing evidence of a war crime to the International
Criminal Court (the ICC). The destruction of civil objects
fulfilling a range of criteria may constitute a war crime. As the
ICC actively collects related evidence, it would benefit a
prospective prosecution of russian individuals to be found guilty
of committing or organising attacks on Ukraine in violation of
international law. There might also appear the possibility for
organisations affected by war crimes to apply for reparations,
subject to the relevant provisions of the Rules for Procedure used
by the ICC. With that in mind, it is important to note that filing
evidence should precede the trial itself, which might be held quite
later. Evidence may be submitted via one or several of the
following channels:
- ICC Prosecutor. The Office of the Prosecutor has
established a dedicated portal through which any person that may
hold information relevant to the Ukraine situation can contact ICC
investigators: https://www.icc-cpi.int/ukraine
- Official Ukrainian channels.
- Web portal created with the assistance of the Ministry of Justice of Ukraine, the Office of the President, and others: https://dokaz.gov.ua/
- Web portal of the Office of the Prosecutor General of Ukraine:
https://warcrimes.gov.ua/
- ICC Prosecutor. The Office of the Prosecutor has
established a dedicated portal through which any person that may
hold information relevant to the Ukraine situation can contact ICC
investigators: https://www.icc-cpi.int/ukraine
- Commencement of criminal proceedings in
Ukraine. This option entails additional documentation of
the facts of the damaging event and the damages caused by it. A
civil claim for compensation of damages may be submitted within
initiated criminal proceedings, as well as in a separate civil
proceeding. At the same time, the main drawbacks are the difficulty
to identify the perpetrator, let alone the inability to prosecute
the russian federation as a state.
- Additional options
Please note that the options below are either not yet fully available (due to a lack of regulations needed) or less plausible (due to more significant drawbacks). It is important to keep track of further developments, which could make these options a more effective means to receive compensation.
- Application against the russian federation to the
European Court of Human Rights (the ECHR).1 One
may file an application based on the right to property (Art. 1 of
Protocol 1 to the Convention) being infringed. This option may be
solid ground for establishing russia's fault in
destruction/damage of property shall russia be a plausible
respondent in the case (e.g., when it has effective control over
the territories where damage was inflicted). Drawbacks lie in the
difficulty to enforce the ECHR's decision in russia and their
non-recognition of foreign courts' decisions. Another issue to
consider is that payments under the ECHR's decision are usually
of a compensatory nature and may not cover all damages
claimed.
- Filing a civil lawsuit in Ukrainian courts.
Bearing in mind the difficulties of establishing the exact
person/group of persons attacking property, it would seem to be
more effective to pursue a claim against the russian federation as
a country. However, these proceedings may not reach their aim
unless russia accepts the jurisdiction of Ukrainian courts, which
sounds unrealistic in the given situation. In addition to the
invocation of jurisdictional immunity by russia, the enforcement of
such decisions rendered by Ukrainian courts is likely to face
serious obstacles, including the possible initiation of proceedings
at the International Court of Justice by russia.
- Further options to be considered. This may include the introduction of legislation that would allow businesses to be awarded compensation from the state budget. The international community is also now discussing options for an ad hoc tribunal for war crimes committed by the russian federation's armed forces. Until such a tribunal is established, it is hard to predict whether it would cover questions as to individual payments to those having suffered. There is still the possibility that other effective means of awarding damages will be further created, e.g., special commissions as a part of international organisations with the specific purpose of administrating individual claims. One may also have plausible ground to pursue an investment claim against russia if the relevant requirements for jurisdiction can be established.
- Application against the russian federation to the
European Court of Human Rights (the ECHR).1 One
may file an application based on the right to property (Art. 1 of
Protocol 1 to the Convention) being infringed. This option may be
solid ground for establishing russia's fault in
destruction/damage of property shall russia be a plausible
respondent in the case (e.g., when it has effective control over
the territories where damage was inflicted). Drawbacks lie in the
difficulty to enforce the ECHR's decision in russia and their
non-recognition of foreign courts' decisions. Another issue to
consider is that payments under the ECHR's decision are usually
of a compensatory nature and may not cover all damages
claimed.
Footnote
1. According to the 22 March 2022 Resolution of the ECHR, only those violations of the russian federation that were committed before 16 September 2022 will be adjudicated.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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