Ukrainian legislation provides for compensation mechanisms for property lost by citizens during the war, but the Russian Federation is fully responsible for the damage caused by the aggression

Ukraine has legislation providing for compensation to citizens for property forcibly taken from them (mobilised). It may be obtained under the conditions and in accordance with the procedure laid down in the regulations. 

Taking into account the provisions of the Law of Ukraine "On Mobilisation Preparation and Mobilisation" and the definition of "mobilisation" in this Law, the mobilisation of property should be considered as the provision of property to the Armed Forces of Ukraine or other military formations of Ukraine during mobilisation with subsequent reimbursement by the state in case of transfer of this property to the state, destruction of such property or damage by the state of Ukraine.

The mobilisation of property is a form of its requisition (expropriation) within the meaning of the Civil Code of Ukraine and the Law of Ukraine "On the Transfer, Expropriation or Seizure of Property under the Legal Regime of Martial Law or State of Emergency". However, while Article 3 of this Law provides that expropriation of property under martial law or a state of emergency may be carried out with preliminary full compensation of its value, and subsequent expropriation only if preliminary full compensation is impossible, in the case of mobilisation of property, such compensation, with subsequent full compensation of its value, shall be carried out within five subsequent budgetary periods after the lifting of martial law, at the expense of the state budget.

This conclusion was reached by the Grand Chamber of the Supreme Court.

According to the circumstances of the case, on 13 July 2014 the plaintiff was forced to leave her home in the town of Krasnohorivka, Mariinka district, Donetsk region, due to shelling.

The plaintiff believed that her property had been mobilised in connection with an emergency situation arising from the anti-terrorist operation (ATO). The mobilisation of the plaintiff's property is confirmed by the very fact that the military personnel of the Armed Forces of Ukraine were in her house.

In view of this, she filed a lawsuit against the state of Ukraine represented by the Ministry of Defence, the State Treasury Service and the Cabinet of Ministers of Ukraine, seeking compensation for the full value of the house, household items and property in the house and the land on which it is located, as well as compensation for non-pecuniary damages.

The courts of previous instances rejected the claim. After thorough consideration of the plaintiff's cassation appeal, the Grand Chamber of the Supreme Court partially granted the appeal by altering the reasoning of the contested decisions in part and leaving them unchanged in the other part.

The Grand Chamber of the Supreme Court found that the plaintiff had not proved that she had lost the ability to use her property as a result of the occupation of the house by the military of the Ukrainian Armed Forces, and not as a result of shelling by armed groups supported by the Russian Federation, which led to the plaintiff and her family moving to another settlement.

Additionally, the Grand Chamber of the Supreme Court highlighted that the plaintiff had questioned her entitlement to Ukraine's mandatory acquisition of her house and plot of land, which she had vacated with her family due to the risk of shelling in another region.  However, the plaintiff does not say whether these circumstances would have occurred without Russia's aggressive actions against Ukraine. The court does not know whether she claims compensation from the Russian Federation for the same damage caused by the armed aggression against Ukraine.

The Grand Chamber of the Supreme Court also stated that in accordance with part 9 of Article 5 of the Law of Ukraine "On Ensuring the Rights and Freedoms of Citizens and the Legal Regime in the Temporarily Occupied Territory of Ukraine", compensation for material and non-pecuniary damage caused to the state of Ukraine, legal entities, public associations, citizens of Ukraine, foreigners and stateless persons as a result of the temporary occupation is fully the responsibility of the Russian Federation as the occupying power.

The court found unconvincing the plaintiff's arguments that she suffered non-pecuniary damage as a result of the occupation of her house by the military of the Armed Forces of Ukraine, and not as a result of the danger caused by the aggression of the Russian Federation, which had led the plaintiff and her family to change their place of residence.

The Grand Chamber of the Supreme Court took into account the fact that the plaintiff, who was of retirement age, was worried about spending her savings and the value of the apartment she allegedly sold in Donetsk in order to buy a house and land in Krasnohorivka, where she would not be able to live for even one year. Given these life circumstances, the state of constant stress, nervousness and other emotional suffering, the plaintiff could have developed illnesses. However, the Grand Chamber of the Supreme Court did not agree that there was a causal link between these sufferings and diseases, on the one hand, and the actions of Ukraine, on the other hand. There is no reason to believe that these sufferings and illnesses are the result of the temporary presence of military personnel of the Armed Forces of Ukraine in the plaintiff's house and on the land. In addition, the plaintiff acknowledged that she had changed her place of residence before Ukrainian military personnel were temporarily stationed in her house and on her land plot.

The mere temporary use of the plaintiff's property by the Armed Forces of Ukraine, which is subordinate to the fulfilment of the constitutional duties of both the Armed Forces of Ukraine and the plaintiff as a citizen of Ukraine (Articles 17 and 65 of the Constitution of Ukraine), cannot be an act causing non-pecuniary damage to the plaintiff. According to another approach, the fulfilment of a constitutional duty (part 1 of Article 65 of the Constitution of Ukraine) by any citizen would entail causing moral harm to him or her, which does not correspond to the essence of the fulfilment of this duty.

The Resolution of the Supreme Court of 13 September 2023 in case No. 757/64569/16-ц (proceedings No. 14-19цс23) - https://reyestr.court.gov.ua/Review/114203267.

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