The Webinar “Ecocide and Offences against the Environment in Armed Conflict: a Need for New Lawfare?”
The Webinar “Ecocide and Offences against the Environment in Armed Conflict: a Need for New...
16 August 2021
Human rights activists accuse the state in violation of the rights of victims in the ATO zone. In their view, the Government has not adopted adequate laws; the existing has been working poorly.
Representatives of the Strategic Litigation Center UHHRU, the Kharkiv Human Rights Protection Group, the Civic Committee for Protection of Constitutional Rights and Freedoms and Ukrainian ministries of social policy, defense, infrastructure, and interior participated in the round table in the Office of the Ukrainian Parliament Commissioner for Human Rights. They discussed mechanisms for compensating victims of the armed conflict in Eastern Ukraine for losses, their proposals and perspectives. The topic of the discussion was very difficult, because of the absence of an efficient procedure to solve the pressing issues.
Mykhailo Chaplyha, the Representative of the Commissioner for Public Relations and Information Technology, said that he just could not imagine how the affected persons would receive the compensations for their destroyed houses from the Treasury. Moreover, this process could be extremely time-consuming. This topic should be discussed now, even if today there was no money to pay, but the problem should be formulated in advance. In the future, such fund could be created, so the people, who were waiting for the payments, would be known.
Mykola Kozyrev, the Head of the Civic Committee for Human Rights Protection, said that, on the one hand, the International Red Cross classified the conflict in Ukraine as an intra-state armed conflict. However, on the other hand, the conflict has been actively supported by the Russian Federation. This controversy makes it difficult to clearly understand those, who should compensate for the damage.
‘After the annexation of Crimea and the battle of Ilovaisk, the military units of the Russian Federation have been clearly identified. Consequently, this country is a participant in the conflict. So we can apply to courts, using the principle of universal control that, in fact, Russia exercises on the occupied territories, and therefore is liable for damages’, says Mykola Kozyrev.
First of all, in doing so, UN must recognize the aggression of the Russian Federation towards Ukraine. Human rights organizations could help Ukrainian officials and diplomats to officially recognize Russia as the aggressor and deprive it of the right to vote when making the decisions regarding Ukraine.
Anatolii Martynenko, the injured resident of the Troitske village, Popasna district, Luhansk oblast, lived under fire for six months. After the operations near Debaltsevo started, terrorists and the Russian army started to bomb the village. In the result, five inhabitants were killed; many homes were destroyed. On January 28, 2015, Anatolii together with others were evacuated to Lysychansk. Later he came to Kyiv. Three months later he received a call from his village, informing him that looters broke into his house and stole all valuable possessions. Anatolii wrote a letter to the battalion commander of the Ukrainian Army, appealed to the Security Service and the Prosecutor General’s Office. Finally, a criminal proceeding was opened, but the investigator from the district police office was not able to do anything, even with the list of suspects, because many of them were armed. The proceeding was terminated. A few months later, a shell tore into the Anatolii’s house and destroyed it. Local authorities needed six months to conclude the crime.
Now Anatolii cannot even get to his house because all ways to it are mined. His neighbors say that the militants dismantle the remnants of building materials from ruins. In Kyiv, Anatoly spends almost all his money for room rent; the social payment to an IDP is only 884 hryvnias. Without his pension, he could not afford to food and medicine.
According to Yevhen Chekariov, the Lawyer of the Civic Committee for Human Rights Protection, in Ukraine there are thousands of people like Anatolii. The State has not solved the problem for two years of the conflict. There is already a case, when a victim was awarded a compensation for destroyed home through court action, but our courts simply cannot consider so many claims for compensation, if every victim applies to a court. Therefore, this problem should be addressed at the legislative level. Several relevant bills have been already registered in the Parliament, but they have not been yet accepted. According to Yevhen Chekariov, the corresponding amount of money to cover the losses must be already included in Ukraine’s budget for 2017.
The next problem is to cover non-pecuniary damage to those who have been held captive by separatists and subjected there to torture and other ill-treatment, like Oleksandr Hryschenko, an inhabitant of Luhansk and former captive. He was arrested at the workplace and accused of espionage. Unfortunately, Oleksandr had a camera; his memory card contained lots of photos taken from Euromaidans in different regions of Ukraine. After viewing these pictures, separatists promised to shoot him or to maim. Then they forwarded him to the terrorist group ‘Batman’, where he was held for six months. There he suffered abuse and torture. They released him only because of quarrels among them. When he was already on the territory controlled by Ukraine, Oleksandr registered in the missing people database, and accordingly, police made a search for him. He asked to exclude him from this database and showed documents, but later police came to the hostel, where he lived, to arrest him as a criminal that was wanted. The police demanded to provide a certificate stating that he was in captivity. Without the help of human rights activists, he would have still been in such an uncertain situation. Moreover, the hospital refused to conduct a medical examination of Oleksandr, explaining that the status of a captive applies only to soldiers.
According to Yevhen Chekariov, persons like Oleksandr Hryschenko should qualify as veterans in order to immediately solve many bureaucratic problems. So the Parliament should adopt amendments to the law on the status of war veterans and guarantees of their social protection. The Civic Committee for Human Rights Protection has already developed such amendments. The other problem is that 30% of those who were in captivity cannot prove it by documentary evidence because the separatists do not give information. Instead, two witnesses, who were already veterans, can confirm it.
The next issue is the status of combat veterans to volunteer fighters. Some of them, especially those who have a criminal record cannot get the status. Even after the court’s judgment proves that the person is a volunteer fighter in the ATO, departmental committee of the Ministry of Interior refuses to qualify them as combat veterans. According to Yevhen Chekariov, the new law should be adopted, under which the status of combat veterans may be granted to any citizen in the presence of witnesses and a court judgment.
Yevhen Zakharov, the Director of the Kharkiv Human Rights Protection Group, said that monitoring in the ATO zone showed that the authorities have no clear objectives to document acts regarding the victims of shelling with the mandatory indication of who was driving the fire that led to the destruction. As a result, documentation is done at the discretion of local authorities. In the Sartana village, the head of local council sends the commission to deal with damages after bombings. The commission determines where and who was shooting and draws up an act next day after the bombing. The map of bombings of every house hangs on the village council building. Unfortunately, most of the authorities have no such observations. The Kharkiv Human Rights Protection Group sent 336 requests in this regard to the villages situated along the boundary line and received 126 replies. In addition, the representatives of the Group went to places of shelling as monitoring missions. Their goal was to make passports of settlements, which would document the nature and amount of damage caused during the war. According to Yevhen Zakharov, the destroyed infrastructure and private housing are being rebuilt largely due to international aid organizations. Many building materials were given by enterprises of Rinat Akhmetov. But this is not enough, because only in Luhansk oblast over 7000 houses were destroyed, of which 6206 were private. Among them, only 880 were rebuilt. It was estimated that the recovery of Luhansk oblast needs 8.8 billion hryvnias; in 2015 for both the affected region only 145.8 million hryvnias were allocated.
‘On the occupied territories, rebuilding of damaged housing is progressing much better and faster than on the Ukrainian one, because large Russian funds are being spent there,’ said Yevhen Zakharov.
The Kharkiv Human Rights Protection Group provides legal assistance to victims, preparing applications to the European Court of Human Rights about violations of Articles of the Convention, which protects the right to peaceful enjoyment of property. According to the Group, the biggest problem with the destroyed housing is in Popasna and Stanichno-Luhanskii districts.
Mykhailo Tarakhkalo, the Director of the Strategic Litigation Center of the Ukrainian Helsinki Human Rights Union, reminded that Article 19 of the Law on combating terrorism, which states that any damage caused by a terrorist act is compensated by the state, is in force in Ukraine. In the future, these money will be charged from the person who committed the act. UHHRU engaged in legal practice in Ukraine and the European Court. There are cases, where national courts awarded the compensation in the required amount. In Slovyansk, the State Treasury Service charge money for compensation for a destroyed flat from the budget of Ukraine. But such cases are rare. In general, the courts deny awarding compensation, placing it in dependence on someone, who caused the damage. The latter is currently impossible to prove because the police rarely carry out such investigations. This is unacceptable because Ukraine signed international documents with the obligation to provide such compensation, if the state is involved, and the investigation carried out ineffectively.
‘The lack of effective compensation mechanism eventually lead to growing by 40% costs due to legal representation of a person, compensation for non-pecuniary damage, court costs and so on’, says Mykhailo Tarakhkalo. According to him, in Ukraine there is extremely chaotic formal documentation of crimes in the ATO zone; the systematic collecting of evidence is not established.
Olha Muzychenko, the representative of the Ministry of Social Policy, noted that, of course, the definition of the status of war veteran should be extended so the people, who now lack it, could obtain it. She asked human rights activists to consider the bill number 47-94 (authored by Nataliia Korolevska), which takes into account all these issues. The rights of volunteer fighters will defend the bill № 37-07, and all disputes will solve an interdepartmental commission.
Serhii Kucherenko, the Head of Social Policy Department of the Ministry of Defense, said that the battalions of volunteer fighters have already joined the Ministry of Defense. For example, a well-known Battalion “Aydar” is now the 24th infantry battalion. The problems were only at the beginning of the formation of this battalion when there were many non-regular soldiers. After all, they were granted the combat veteran status. He said that nowadays these documents could be obtained in one day.
Prepared by Oleh Shynkarenko
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