Maryinka, a satellite town outside Donetsk, is under constant artillery attack. Today, the once million-strong city of Donetsk is under the control of the self-proclaimed “Donetsk People’s Republic” (DNR), while Maryinka is under control of Ukrainian forces. In some places, the distance between firing positions is a few dozen metres. Many streets on both sides are frequently under bombardment. Some houses are still occupied by their owners, others by military.
Before June 2015, Tetiana Peredelska and her family lived in a house in the grounds of a boarding school on the outskirts of Maryinka, alongside similar private houses. Since the beginning of the conflict, Ukrainian forces have occupied the nearby hospital, then the boarding school buildings and later other residential buildings.
In 2014-2015, the Ukrainian army was still a poor substitute for a fighting force. With no experience of actual armed conflict, demoralised and plundered through corruption, the army was mostly reliant on volunteers - both people who provided equipment and supplies and those who stood ready to fight. Yet these hastily thrown together volunteer battalions also included a certain number of looters and sadists.
By spring 2015, few residents would stay overnight in Maryinka. But during the day, when there was no fighting, people would come to work on their gardens - many still believed that the war would be over quickly. Nobody expected to have to abandon their homes for long: some houses on the front line had already been occupied by fighters and pillaged.
“Then they started to fire single shots at us from the hospital,” Peredelska tells me.
“Someone was working in their allotment and ‘bang’, a bullet flies into a fruit tree. Or they’re walking over to their garage and a bullet hits it. One day I went out onto my porch and a bullet landed in the handrail. In other words, we realised that they wanted to scare us off and get rid of us. The only road we could use to take anything out went past the hospital, but they said to us clearly: ‘As soon as we see anyone, whether on foot or in a car, we’ll fire.’ All the paths out of town were crossed by tripwires, which we had to step over wherever we went. And then they started firing automatic rounds at our feet. This is how they got rid of us.”
It was four months before residents were able to return to their homes. They spent that time going through all possible channels. Eventually, they were allowed to collect their belongings. But it was all too late.
“Most of my stuff had disappeared,” says Tetiana. “My fridge had been replaced by an old one which they needed to store their food. There was no crockery, no bed linen, no secure entrance doors – they had even stole the motor from our jacuzzi. And other people’s stuff was lying all over the floor.”
Tetiana Peredelska has spent more than two years trying to get compensation from the Ukrainian government for the loss of her home. But her application is still in the primary court. The Maryinka houses, which were used by the Ukrainian troops, became a target for the opposing side and are now seriously damaged or demolished by gunfire.
According to approximate estimates, more than 20,300 homes have been damaged or demolished in the Kyiv-controlled parts of the Luhansk and Donetsk regions alone since the start of the war. Responding to an information request, the Ministry of Justice informed that there are currently 158 applications for compensation in Ukrainian courts at various levels. Some cases have already gone to the Supreme Court and been sent back round again. And not a single family has received any compensation from the state.
A political issue
On 4 April 2019, Ukraine’s Supreme Court was supposed to decide on a compensation application over a domestic property destroyed during bombardment. This decision was to provide a benchmark for lower level courts. The long awaited decision, however, wasn’t taken: the court ruled that it required more time to examine the case papers.
All issues connected with the war are controversial and deeply political. The Ukrainian courts do all they can to delay taking decisions, wanting to avoid as much political responsibility as possible. Meanwhile, many of the courts are effectively paralysed by Ukraine’s stop-start judicial reform. This means that some judges are temporarily unable to carry out their work. In Kyiv’s Pechersky district court, for example, where most lawsuits against the government are lodged, “only a third of judges are working”, says Yulia Naumenko, a lawyer with the Ukrainian Helsinki Human Rights Union.
Naumenko has lodged around 30 lawsuits connected with compensation for property damaged or destroyed in the conflict. “The first positive decision taken in the lowest court was confirmed on appeal,” she tells me. “The respondents then lodged a counter-appeal, which was accepted for examination in June 2017. The old Higher Specialised Court didn’t manage to examine the case in time, so in June 2018 it was passed to the new Supreme Court. It has still not been even allocated a date for examination. There is also my appeal against the appeal court’s decision, which was immediately allocated to the new Supreme Court and assigned a date of 19 March 2018, but has still not been examined. This constitutes a breach of procedure, and there is no constitutional explanation for it.”
Until recently, all compensation claims cited Ukraine’s anti-terrorism legislation, which obliges the government to compensate citizens for damages caused by a terrorist act. Prior to May 2018, the war in eastern Ukraine had the official status of an anti-terrorist operation. But this status was changed a year ago, and the conflict is currently known as the Joint Forces Operation.
As a result, Ukraine’s courts have begun to base their practice on a Civil Protection Code. This has meant that courts reject claims on the grounds that applicants have not contacted their local authorities to transfer them their damaged property in exchange for compensation.
“Flying squads of three to five people, well kitted out, and without identifying marks, would visit local people to announce a clear-up operation"
This situation reached the height of absurdity in August 2018. Then, Ukraine’s Supreme Court rejected a 17,600 hryvnya (£519) compensation claim for property harmed in the course of military action, partly because its owner hadn’t officially applied to transfer her property to the Donetsk regional military-civilian administration.
Meanwhile, in February 2019, a Kyiv appeal judge tore apart the argument made by a representative of Ukraine’s Cabinet of Ministers, who couldn’t describe the procedure to transfer property to a local administration: there are no legal provisions for it. The regional military-civilian administrations in Luhansk and Donetsk refuse to buy damaged property, citing the lack of a mechanism for the process.
People who have won their cases in two courts also find it hard to get their decisions carried out. Yulia Naumenko and other lawyers have had cases where they have managed to contact the treasury service for their allocated payout before the government has lodged an appeal. But the treasury has the same answer for everyone: the state budget contains no lines on compensation caused by terrorist acts.
On the front line
“We won our appeal nearly a year ago. We took our forms to the treasury twice. But they gave us a manipulative answer, saying that there was currently no mechanism for paying compensation and that we would be given it as soon as it appeared. Yulia Naumenko wrote another letter, stating that there were reserve funds, but the answer was the same. The regional government refused to take our damaged property,” Olena and Ihor Loshadkin from Piski, a village near Donetsk, tell me.
At the start of the war, control of Piski was won and lost several times. But at the end of July 2014, the Ukrainian Army established firm control.
“Flying squads of three to five people, well kitted out, and without identifying marks, would visit local people to announce a clear-up operation,” the Loshadkins recall.
“We don’t know who they were, but their behaviour suggested they were cops. They walked along the street, systematically opening any locked house. They would then turn out every cupboard, searching for money and jewellery, and after that they started collecting any valuable office equipment. That was the first round of pilfering. After that, the Ukrainian Army and volunteer forces went through the remaining houses looking for food. Anything they found, they took. Another couple of months - and somebody needed new clothes. Then they started removing any consumer electrics – washing machines, TVs and fridges.
“Sometimes volunteer fighters would buy sell these consumer goods for next to nothing, and then buy arms and ammunition from the Ukrainian Army troops.”
The cellars of houses in this formerly prosperous suburb became shelters not only for the local population, but also Ukrainian troops and volunteer battalion members. And they were also, of course, targets for the other side. Over a few months Piski, which was located near Donetsk Airport, a very intense area of fighting, was almost razed to the ground, and its population plummeted from around 2,500 to eight.
“Our house burned down ‘just at the right moment’, when the airport had lost its strategic significance. Then, the main aim was simply not to lose Piski to the separatists,” says Ihor Loshadkin.
Together with the house, Ihor Loshadkin lost a unique blacksmith’s workshop, which he’d put together over 30 years. The compensation the Loshadkins can expect will also be miserable compared to the real value of their property, and the assessment of the material loss suffered by people affected by the war usually includes just buildings and not their contents.
After 2015 the war entered a new phase, says Ihor Shantefort, a UNHCR cluster coordinator for housing and non-food consumer goods in Ukraine. Intensive fighting continued not on the frontline, like before, but in seven flashpoints in the two border regions – Piski is one of them.
Troops no longer permit local residents to enter Piski. State representatives and surveyors cannot visit these kind of sites due to the danger
Troops no longer permit local residents to enter the village. State representatives and surveyors cannot visit these kind of sites due to the danger, but this means they cannot draw up official papers on damaged property, or evaluate the amount of damage. Local people, however, manage by hook and by crook to get photos and videos proving that their homes have genuinely been destroyed.
For a long time, some villages and small towns here had no legitimate local government (some still don’t) which could at least collect data about the destruction. And in this sense, Piski has been lucky.
At the beginning of the conflict, village leaders fled to parts of Donetsk region outside of Ukrainian control. In 2015, the Loshadkins assembled Piski’s remaining inhabitants and effectively announced the creation of a new local council. “The regional powers didn’t object,” Ihor tells me. “We organised an official form for volunteers, confirming that they were involved in the fighting, and another one for the courts, about rules and regulations. Nobody knows that Piski has neither a council head nor a secretary. Our forms are accepted by all official organs. Nobody has re-elected us.” More of Yulia Naumenko’s clients come from Piski than anywhere else.
The EHCR lever
“My son stayed in Piski. He said, ‘Mum, at least I can save my house.’ At the age of 31, his heart stopped during a bombing raid. My husband was ill with cancer, and the soldiers brought him here...”
Anna Lashkevych still has two houses in Piski. She now rents a place, with her second son and her grandson, in Pokrovsk, which is in the Ukrainian-controlled part of Donetsk region.
“I organised it all in the name of all the villagers. We wrote to the presidential administration, the Ombudsperson, the MPs, the Cabinet of Ministers and the Ministry for Temporarily Occupied Territories. They all replied that the Ukrainian government was happy to pay us compensation, but that there was no mechanism or legal provision for doing so at present. We have also asked to be given documents on damaged property. But the officials tell us that we are no longer residents of the village of Piski, that we voluntarily abandoned our houses and now have the status of internally displaced persons,” says Anna Lashkevich.
Anna has more than once asked human rights groups for help with the legal issues around her official status, but her case has never come to court. The organisation that currently holds the documents of the former resident of Piski claims that some essential papers are still missing. And the lawyers at the “Right to Defence” charity have been focusing on cases with a clear chance of some success in court. The idea is not so much to access compensation for individual victims, but to create a mechanism for putting pressure on the Ukrainian government.
"One successful case at the ECHR will be enough to put pressure on the Ukrainian government to create an effective compensation system"
“Our goal is to take cases through our national courts in order to prepare cases for examination by the ECHR [European Court of Civil Rights]. One successful case at the ECHR will be enough to put pressure on the Ukrainian government to create an effective compensation system. The ECHR can also take the issue to the Committee of Ministers of the Council of Europe. In that case, the Committee will produce instructions for Ukraine to create an appropriate system,” says Darina Tolkach, a lawyer at “Right to Defence”.
The lawyers are simultaneously sending submissions to both the ECHR and the Ukrainian courts. Yulia Naumenko notes that the very absence of any conclusive decisions from the courts over compensation for property damage caused by the war is in itself proof of the ineffectiveness of the country’s national security system.
But these decisions take time. At the start of this year, the ECHR announced that it wouldn’t look at individual complaints until it had investigated the interstate dispute between Ukraine and Russia. And even earlier, in December 2018, the ECHR stunned Ukraine’s legal community by announcing a practically unprecedented decision: to ban one lawyer from representing anyone’s interests in Strasbourg for life.
The plan that fell apart
“It doesn’t matter what I do now,” says Natalya Tselovalnychenko, head of the Luhansk human rights group. The ECHR has effectively threatened her entire legal and human rights career.
It’s hard to evaluate the court decision on its own merits: the court didn’t publish the text of its decision, just a press release stating that Tselovalnychenko submitted both complaints containing fake documents and complaints from people who were dead. She was also accused of sending the ECHR submissions that were not backed up by any documents other than copies of affected people’s ID documents, as well as mass submissions containing practically identical wording. The court paid little attention to the fact that she also appealed to the ECHR directly, ignoring Ukraine’s national courts.
I managed to speak to several people who had asked Natalya Tselovalnichenko for help. None of them had paid her for her services: the most she had taken in some cases was 150 hryvnya (approx. £4) for composing and posting documents. Her one condition was that she would take half of any compensation awarded to people who had made an agreement with her, with a warning that about 90% of submissions addressed to the ECHR are rejected.
These stories are also united by the fact that after a certain period of time, Tselovalnychenko would break off all contact with her clients. She says she has made around 2,000 complaints, most of them from displaced person or people whose postal address is in an area where there hasn’t been a postal service for a long time. And it’s not surprising that some of the people she helped submit appeals to the ECHR were dead by the time they reached it.
The legal strategy chosen by Natalya Tselovalnichenko was well known in Ukraine’s human rights community from the start. But none of the respected organisations ever supported her, although their own experience proved what she saw as obvious from the beginning: that the Ukrainian government, from the beginning of the war and to this day, has had no means of protecting its peaceful citizens from the conflict.
“We have no specific law that would guarantee a positive outcome for a case of property damage caused by war. We don’t even have any way of calculating this damage,” says Tselovalnychenko. “We’re talking about events either on the demarcation line or in occupied territory. What kind of papers can an citizen produce in such conditions? They are in a situation of legal uncertainty precisely because the state is doing nothing. Not a single military-civilian administration has taken any measures to help the local population report on damage and losses, and the police refuse to accept reports of crimes from the public.”
The lawyer explains that she was hoping to send missing documents to the ECHR as and when their owners retrieved them. It wasn’t a matter of winning a case, Tselovalnychenko says, but of drawing the Court’s attention to the situation of the victims of the conflict. The ECHR could take “emergency measures” to force Ukraine’s leadership to fill the current legal and regulatory vacuum.
“We imagined the ECHR would resolve all our problems,” says Tselovalnichenko. “We thought that those people in Strasbourg would understand that there was an armed conflict happening here, that we wouldn’t have to prove its exceptionality and the fact that people couldn’t immediately lay their hands on official papers in a situation where there was no local government system in operation.”
The worst damage the war brought to the residents of Ukraine’s Donetsk and Luhansk regions was in 2014-2015, the most violent period of the conflict. People could only apply for compensation for war damage within a period of three years after the damage occurred. Which means that the overwhelming majority of war victims have had no chance of any legal comeback.
The database of damaged and demolished property assembled by the UN Refugee Agency contains 18,500 items from the Kyiv-controlled areas of the two regions alone. And it includes only residential structures, not out-buildings of any kind. The Ukrainian government has also still not set up a database of members of the civilian population affected by the conflict or even of structures destroyed by the war.
According to Ihor Shantefort, about 80% of buildings on the UN database have or had light or medium damage that would cost $1,500 to repair. Most of this damage, in areas without constant bombardment, is being repaired by international humanitarian and religious organisations, who are also building new houses for families and individuals belonging to vulnerable social groups, to replace those destroyed. A small family with an average income can’t, for example apply for this kind of aid: all they can hope for are endless legal wrangles or some help from the state.
Ihor Shantefort feels that Ukraine’s legal procedure for assessing damages is too unwieldy. “Even just reporting broken windows involves taking measurements of the house and describing the materials it is built from,” he says. “And only registered specialists are permitted to do this work. But these guys won’t enter the combat zone – it’s too dangerous. It would be a good idea to adapt regulations for Donbas, so that any engineer or architect, of whom there are plenty working in NGOs, could draw up a job spec for domestic repairs. We can’t give our database to the authorities, as they would immediately come up with questions about who did the estimate and what method they used – there is more than one way.
“Aid from humanitarian organisations also mustn’t be confused with compensation for damages,” Shantefort tells me. “Even people whose wrecked houses have been replaced with new ones are still war victims. But in Ukraine it’s still politically unwise to discuss this issue. And those who have nevertheless managed to take their case to court are then made to feel guilty for getting involved with the government. Meanwhile, officials toeing the government line in these cases nonetheless admit behind closed doors their embarrassment at having to defend the state from their own fellow-citizens. Somewhere in the corridors of power a decision is slowly taking place, to pass special legislation to open the way to the defence and satisfaction of all the affected citizens’ grievances."
“I see it like this,” says Ihor. “Ukraine voluntarily passes a law and pays compensation to all its citizens. At a price, of course. And it tells the ECHR: this is the loss we’ve made. The Russian Federation is an aggressor: it needs to be called to account. So Ukraine can then still defend its citizens. But it doesn’t do that. Instead, it announces to the global community: “We are being subjected to terrorist acts, but the courts say: show us how you’re a victim of a terrorist act”.
“Ukraine needs to collect the evidence itself and take it to international courts,” says lawyer Yulia Naumenko. “Unless it takes measures to defend its war-weary citizens, it will sooner or later be forced by the ECHR to carry its own financial burden.”
Naumenko’s clients are ready to wait, possibly years for the repayment of the damage caused by the war, and then only with help from Strasbourg. And as Shantefort notes, global experience shows that however the situation develops the payout of the compensation could last many years.
On top of all this, the displacement crisis has revealed a general housing problem in Ukraine, with a lack of accessible homes for people in various socially vulnerable groups of the population. In the next few years, hundreds of thousands of old high rise buildings will pass their use-by date, which will guarantee new local crises and social conflicts throughout Ukraine. It’s not too late to avert this, says Shantefort, but the state needs to act now - with the next 30 years in mind.
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