In Ukraine, a registry of war-caused losses was launched. How to submit a claim and why compensation should be requested, even if you have already received it — Markiyan Klyuchkovskyi, registry executive director, explains

On April 2, 2024, the International Register of Damage caused by Russian aggression was launched in The Hague. It was created on May 17, 2023, the agreement was signed by more than 40 states — members of the Council of Europe, as well as the USA, Japan and Canada. Applications for housing that Russia damaged or destroyed during the war can be submitted to the register. The countries must now establish a Compensation Commission that will study all claims and assess the real amount of damages. At the third stage, Russia must pay compensation. How and when it will happen, no one knows yet. Babel correspondent Oksana Kovalenko visited The Hague and spoke with the registryʼs executive director Markiyan Klyuchkovsky. He explained how the system will work and why applications for compensation need to be submitted, even if Ukraine has already compensated the losses.

How many applications were received on the first day?

In the first day, we received 510 applications, and we expect from 300 to 600 thousand applications in total. From a technical point of view, this is a test of how well the system is working, whether there are problems. Obviously, they will be, because Diia is also working with international data transfer for the first time in history.

Until now, it is possible to submit applications via Diia only?

Yes, for now only via the Diia mobile application. This service will be available on the Diia.gov.ua portal in two weeks. This is important for legal entities, which will also be able to submit applications later. It takes more time to prepare the functionality [for legal entities].

Letʼs break down the algorithm step by step. What documents are required, what is automatically added by system, what should be uploaded?

The information in the application can be divided into several groups. The first group is about the applicant. The second is about property: this refers to property itself and the right to own it. The third is about destruction. Diia helps us a lot, because if a person is registered in it, the system pulls data from registers, individual tax number, passports. That is, we already have information on the first group.

In Diia, most likely, there is already information about real estate owned by a person. That is, the system will probably display an apartment or a house. But Diia pulls up the property, which is registered in the State Register of Property Rights, and it started working in 2013. If from that time there were no transactions with housing — that is, it was not donated, inherited, sold — then there was no reason to register it. But it is very easy to change this — you need to contact a notary or state registrar, and they will enter the property in the register.

But there will be cases when this registration will be impossible. For example, if the documents were burned, and the property is in the occupied territory. Then we will still ask people to try to register an application in the register. If they receive a refusal from the notary or state registrar, then they should show us this refusal and provide all possible testimony and evidence that this is really their property. It can be scans of documents, receipts for utility services in the ownerʼs name — anything. And we will consider this application then.

The applicant can indicate what exactly happened. For example, destruction by an airstrike, missile, drone, artillery fire, or damage caused by an occupation. Separately, we singled out the ruining of the Kakhovka HPP. Because in this case this may refer to consequences on a large area and far from hostilities. A person will be able to indicate that he or she does not know what happened — not everyone can understand what exactly damaged the property. We will ask such people to indicate either the date or the period in which everything happened.

The next step is a monetary assessment of the destruction. It is optional, because this assessment may not be available. But if there is an act of commission examination, thatʼs good. A person can order such an assessment himself. There may be other evidence — for example, how much the apartment or house was bought for.

If people used the "eRecovery" program, then information about the damage is recorded in the Register of Damaged and Destroyed Property, and people have a certificate of damage inspection commission from the local authorities. At the first stage, we will take information from this register.

Will you take inflation into account when valuing property?

This is the competence of the future Compensation Commission. People participating in the "eRecovery" program could receive compensation from the state. But usually this program does not compensate the amount in full. The goal of "eRecovery" is to provide a shoulder and help restore housing to those people who need it now. Therefore, we encourage people to apply to us as well. The wait will be longer, but our goal is to receive full compensation.

How long does it take to apply?

We conducted testing. If the application is the simplest — that is, all the documents are present, then users spent 7.5 minutes. More complex cases mean more time, everything is individual.

What next category of losses do you plan to enter in the register?

The approved list of categories consists of 44 items. But we will launch them gradually. We have chosen for ourselves the format of work in three-month cycles. During this time, we need to develop rules, requirements for evidence for each category, connect those systems that exist so that evidence is pulled automatically. The registry board, which approves all these rules, meets once a quarter.

There are several main criteria: how gross violations of international law have occurred, how widespread they are, and how accessible the evidence is. For the time being, I can say very tentatively about the following categories: death, injury, torture, deprivation of liberty, sexual violence, possibly deportation. But it is possible that we wonʼt make it with the deportation in the next three months.

If we talk about crimes, what evidence can there be? And how to register them? Will it be possible to pull some documents automatically from the Ukrainian Unified Register of Pretrial Investigations?

This is one of our most difficult questions. If a projectile flew into the house, everything is simple with the evidence — here is the destruction, they are visible, they were photographed. In the case of war crimes, for example if it is sexual violence, there is no such evidence, and perhaps there will never be. Of course, the best thing is to record the event, contact the law enforcement officers and doctors. But in conditions of war or occupation, this is unlikely.

International practice in such situations says that the requirements for such evidence should not be as high as, for example, for the destruction of housing. It is likely that we will often have to rely simply on the statement of the injured person. The more detailed it is, the better.

That is, the person himself will have to collect these testimonies? But it can be assumed that not all people are honest, do you take this into account?

Of course. All evidence and statements must come to us from the person himself. This is a fundamental rule. There are a lot of criminal cases [against Russians] — more than 120,000. But these materials are protected by the secrecy of the pre-trial investigation, and even the victims themselves do not always have access to them. Iʼm not even talking about connecting this system to "Diia" and somehow getting the information [from other registries]. We are currently working on finding some way to access this data. The Attorney Generalʼs Office is working to create a register of victims and witnesses. Perhaps we will stop at the fact that we will have some extract from the Unified Register of Pretrial Investigations with a description of [the crime], but without secret data.

There is another aspect. This is the work of international organizations to collect evidence. First of all, these are UN agencies, such as the monitoring mission in Ukraine and the UN Independent Commission for the Investigation of Crimes. They collect data, issue reports, and there are case files behind every figure. As we understand, these materials are also contained in some database with a rather serious degree of verification. We are thinking how to get access to them. This is a difficult issue for the UN agency, because no one has asked them for such access before. But on the other hand, why are they collecting this information anyway? Hopefully not just for reports.

What formula will be used to calculate compensation for displaced persons who were forced to leave because of the war?

It is too early to talk about it. Theoretically, we can rely on the experience of the past. When people in Kuwait fled during the invasion of Iraq, the United Nations Compensation Commission introduced a fixed payment rule. If Iʼm not mistaken, it was $2,000.

There are cases when Russians stole property: from refrigerators and washing machines to works of art in museums. Is it possible to contact the registry?

In general, yes. We have a category about valuable movable property. Kidnapping during occupation, for example, is just as much war damage as destruction [from a missile]. But we are forced to draw a line so as not to get bogged down in the search for televisions, refrigerators, microwave ovens. Letʼs say, the loss of vehicles is an understandable story, so are securities. Works of art will be registered in our country, most likely, in the category of cultural values.

Now you have launched the registry, accepting the first applications. The next stage is to create a Compensation Commission. As I understand it, at the conference was said that it should be done as soon as possible. Will it be a body separate from the registry? Or will it be related?

It will definitely be related to the registry. Based on the results of the registry, a database of verified applications will be created. This is a kind of preparatory work for the work of the commission. The registry will actually become part of the commission. It is too early to say how it will look in practice — there are many possible formats. Now the leaders of the states are inclined to the opinion that the Compensation Commission should be created by an international treaty. Not a partial extended agreement of the Council of Europe, as the register was created, but a full-fledged international agreement between states. In this case, most likely, the compensation mechanism or commission will be a separate international organization. Then it will be necessary to deal with the exotic issue of legal succession between two international organizations for international lawyers.

And the second issue is to expand the circle of participants. We want more countries to participate in the preparation of this international treaty. First of all, countries outside of Europe.

Is it important now that Russia is not ready to pay reparations? Because it depends on how difficult it will be to implement the compensation mechanism.

This is always important. Because the position of Russia determines a lot of issues, and this complicates everything. We have to very delicately put together the puzzle: how to hold the state accountable without its consent. This is the most difficult question that is almost impossible to solve.

But should it be resolved at the stage of creation of the Compensation Commission?

We think not. Russia violated international law, this fact was confirmed by the UN General Assembly and many other organizations. Therefore, it is obliged to compensate, pay reparations, compensations, etc. The task of the compensation commission is only to establish the amount of this compensation and to whom exactly Russia is to blame: these are people, companies, and Ukraine as a state.

The third stage is the most difficult, because it is a question of where to get the funds. We are working out two mechanisms at once — how to act in the event that Russia continues to refuse, and in the event that it does agree to work together.

When will the commission be created?

Until the end of this year. Then there will be a period of ratification of this treaty by various states. There are many options for how we can implement this. When the commission is created, it should be filled with meaning, people. Then it will start working. Further, I would not like to predict anything. Our closest point is a contract by the end of the year.

We talked a lot with you during the last interview in September about the problems with the confiscation of Russian public and private funds, which are now frozen in various countries. Has anything changed since then?

There is only positive dynamics. More and more countries agree that it is not just necessary to find ways of confiscation, but that such ways already exist. In particular, to apply countermeasures. This is a construction in international law that allows actions that are usually considered illegal, but justified under certain conditions, because another country has violated international law.

The simplest example: when one state attacks, that is, commits an illegal act, another state refuses to fulfill its obligations under an international agreement with this country. In normal life, this is illegal. And in this case, such actions are justified.

International law imposes two conditions in order to use such countermeasures. The first is to encourage the cessation of violations. And the second is to provide reparations. Therefore, Ukraine can definitely take advantage of this.

A difficult question: can other countries take countermeasures? If these countries are particularly affected by the violations, then this may be a reason. For example, Russiaʼs aggression against Ukraine has consequences for other countries: in terms of security, economy, finances. But countermeasures can be temporary. And confiscation of assets is a very specific and unilateral action.

Therefore, there is an idea to give Ukraine Russian money as a loan?

There are many ways. One of the proposals is not to call these funds confiscation, but reuse. And then they can become advance reparations from Russia. When Russia itself agrees to pay reparations, makes appropriate decisions, the accounting credit and debit will match. This is very innovative from the point of view of international law.

Belarus provided its territory for Russian aggression. There were Russian bases there, they used airfields, electricity, missiles flew from Belarus to the territory of Ukraine. Should Belarus also pay reparations to Ukraine?

I will give a purely legal answer. Our design is based on the UN General Assembly resolution of March 2, 2022. And there it is written that the aggression was committed by Russia. If the General Assembly or the UN Security Council declare that Belarus has also committed aggression, then it will be possible to talk about it.

Translated from Ukrainian by Anton Semyzhenko.

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