Ukrainian IDP proves in court she was displaced due to Russian occupation. Can she make Russia pay?

Fleeing Amvrosiyivka to Dnipro

The summer of 2014 was alarming for the Zdorovtsov family of Amvrosiyivka, with distant explosions heard and nearby settlements under fire. The Ukrainian military would liberate the town on 5 June 2014 from the Russian-hybrid forces, set up positions some half a kilometer away from the town. In their hometown, Tetiana and her husband Oleksandr would be among the few pro-Ukrainian residents who would volunteer to support the army. Tetiana says, there were only five people like them there in Amvrosiivka,

“Most were waiting for Russia to come. It was like 1917 was repeating itself (the year when the Russian Empire collapsed followed years of civil unrest and Communists taking power, - Ed.), when people had nothing, they had nothing to lose, but they believed they would get unexpected benefits," Tetiana recalled, "Our men were convinced that if we help our military, this horror will end sooner. But we did not take into account one thing - the forces were unequal."

With his work related to land management, Tetiana's husband had access to detailed maps of the area and handed over the available information to the soldiers, and for that, he found himself in the "execution lists" compiled by local militants who were waiting for the Russian occupation and collecting data on pro-Ukrainian residents. The family also volunteered to bring food and clothing for Ukrainian soldiers and helped with the construction of dugouts. Ms. Zdorovtsova said that over time their neighbors and separatists started intimidating and threatening her and her family - there was an arson attempt on her house and her husband and she found themselves on the so-called "execution lists."

"The military came to us and said, 'We can't protect you,'" says Tetiana, so on 14 August 2014, Tetiana and Oleksander had to leave their home together with a retreating column of Ukrainian soldiers, under fire.

After more than a month of Russia's cross-border artillery and rocket attacks at the advancing Ukrainian forces who were about to take full control of the uncontrolled 400-kilometer stretch of the Ukrainian border, Russian regular ground forces, aided by Russian-controlled militias, started a massive counter-offensive from the Russian territory in both Luhansk and Donetsk oblasts in mid and late August 2014. The Ukrainian forces left Amvrosiivka completely on 19-23 August 2014, and on the 24th the city fell to the advancing Russian regulars. The latters' offensive later resulted in the encirclement of the Ukrainian troops near the city of Ilovaisk, where hundreds of them were eventually killed on 29 August.

After settling in the city of Dnipro, the Zdorovtsov couple remained optimistic and even tried to help others. Tetiana's husband, who was fond of painting, volunteered to teach in an art studio for displaced children. He later died of a serious illness and Tetiana began to fight for her rights on her own, realizing that she was unlikely to be able to return to her home in Amvrosiyivka, which had been looted by the militants.

Proving Russia guilty in courts

Since around early 2019, Tetiana started her legal battle. In a court in Dnipro, Tetiana tried to establish the fact that she became an IDP not of her own free will but due to Russia's armed aggression against Ukraine and the occupation of the Donbas. In the occupied territory, everything of any value was looted from her abandoned house that rendered it uninhabitable. For legal advice, Tetiana had contacted the Ukrainian Helsinki Human Rights Union (UHHRU) reception center based on the Sich Human Rights Group in Dnipro. Lawyer Maryna Kiptila took up the case and filed an application with the court of the primary jurisdiction or of the first instance in the Ukrainian legalese.

"I need the state to officially recognize me as a displaced person so that I could go on to apply to the European Court of Human Rights and demand compensation from the Russian Federation. I understand that it can take years, but what else can I do?” argued Tetiana half a year into her legal battle.

As Ms. Kiptila explained, unlike refugees protected by the 1951 Geneva Convention Relating to the Status of Refugees, IDPs are not protected by any internationally binding mechanism, and therefore the effective protection of the displaced depends solely on the state in which they live.

“Since the certificates of forced relocation don't mention a reason for being displaced, citizens of Ukraine have the right to go to court to establish the reasons. This is stated in the decision of the Supreme Court, in particular, the one dated 14 March 2018,” according to Maryna Kiptila.

Initially, the Dnipro-based court of primary jurisdiction frivolously rejected Tetiana's claim, ruling that she allegedly failed to prove that her being an IDP was linked to Russian aggression.

“The judge called me to his office and said, 'What, have you grown so proud of yourself? Half of the court here are just like you!'” Zdorovtsova said. "I did not expect such an attitude and even asked, 'Are you really a judge?'"

Later, a court of appeal still upheld the decision of the first instance court.

“The court advised us to file a lawsuit, because, as they believed, we want to obtain compensation. Instead, we didn't mention compensation, but only asked to establish the fact,” said Ms. Kiptila, "It seemed simple - the practice has been established by the Supreme Court, and this wasn't the first time that the court would recognize that the act of internal displacement had been a result of armed aggression, but the court for some reason didn't understand such arguments."

So the attorney had to file a cassation appeal and, finally, the Supreme Court ruled that the appeal should be re-examined. The hearing took place on 1 December 2020 in the Dnipro Court of Appeal and it overturned the decision of the primary jurisdiction, satisfying Zdorovtsova's claim. The court ruled

"...to establish the fact that the forced relocation of [the litigant], in November 2014 from the occupied territory of Donetsk Oblast of Ukraine occurred due to the armed aggression of the Russian Federation against Ukraine and the occupation of part of the territory of Donetsk Oblast by the Russian Federation."

Next step: European Human Rights Court

At the national level, no mechanism still emerged to compensate for the property lost in the occupied territories, so the only option for IDPs is to demand compensation from Russia as an aggressor country using the international judiciary, particularly the European Court of Human Rights (ECHR).

"The decision of the Ukrainian court will be additional proof that the internal displacement took place as a result of the armed aggression of the Russian Federation," said lawyer Maryna Kiptila.

Ms. Kiptila is convinced that there are chances for a positive decision as there were such precedents before. For example, Cypriot citizen Loizida who lost her property in Cyprus sued Türkiye and ECHR ruled in 1996 that she remained a legal owner of her property but lost control of it as a result of the denial of access to her plot and that the person is "entitled to compensation for losses directly caused by this violation of his rights."

"It is important to note that from the beginning the person complained and asked to be compensated for the damage due to lack of access to her property, and ECHR ruled that she was also entitled to compensation for non-pecuniary damage,” Maryna Kiptila said.

Now, both Tetiana and her attorney Maryna realize that ECHR's proceedings may last years, but are convinced that a success story can set an example for other IDPs who have lost their homes due to Russian aggression, the UHHRU concluded.

IDPs vs Russia

Prior to Tetiana Zdorovtsova's case, there were precedent cases in Ukrainian courts, which not only established the facts that the Russian aggression caused the material losses but also ordered Russia to pay damages.

• Read also: Russian invasion caused IDP situation in Ukraine ‘worse than after Chernobyl’ - Rozenko (2015)

Precedents

One of the first establishments of such a legal fact occurred back in 2016 when Kyiv’s Holosiivskyi District Court ruled that a woman who had lived in Ukraine’s Luhansk Oblast was forced to involuntarily relocate from her home as a result of Russia's military aggression. In June 2019, there was the first compensation claim of a displaced person against Russia to win in a Ukrainian court. The Solomianskyi District Court of Kyiv ordered the Russian Federation to pay 1,043,778 hryvnias ($37,000) in compensation to journalist Hanna Andrievska, who was forced to leave the occupied Crimea and was persecuted by the FSB. It was expected that the compensation will be paid through the sale of state property of the Russian Federation located in Ukraine. The same month, the Lychakiv District Court of Lviv satisfied the claim of the Chaika family of IDPs from Luhansk Oblast and ordered the Russian Federation to pay them 4.7 million hryvnias (about $168,000) in moral compensation for the forced relocation due to military aggression. Members of the Chaika family proved in court that the reason for their relocation to Lviv was Russia's attack on Ukraine, and therefore they deserve compensation for a sharp change in their usual way of life. The Chaikas had lived in Stanytsia Luhanska, which was occupied in the early stages of the war then liberated by the Ukrainian army in August 2014, yet remained next to the front for years.

• Read also: European Court of Human Rights hints Russia responsible for Donbas damages (2017)

As of September 2020, there were hundreds of equivalent decisions, according to Andriy Senchenko, the head of the NGO Power of Law that assists the victims of the Russian aggression in the Donbas and Crimea.

"We already have hundreds of similar decisions [on compensation] for the affected citizens, and several thousand first-stage decisions - establishing the fact itself - [of various-level courts] up to the Supreme Court of Ukraine. There are several hundred judgments on loss reimbursement for the families of the killed ones, internally displaced persons, and other categories of victims,” said Senchenko, who himself had to flee his homeland, Crimea, for mainland Ukraine.

Precedents in Ukraine's legal system

Unfortunately, the existing precedent cases don't mean much in Ukraine. Unlike the common law justice systems used in the US, the UK, and the British Commonwealth countries with courts applying the principles of past precedential decisions to the cases they hear, Ukraine utilizes the civil law system in which courts decide cases using primarily codified provisions on a case-by-case basis. The civil law systems are typical of mainland Europe. In their rulings, Ukrainian judges can use decisions of the Constitutional Court and the European Human Rights Court as de-facto precedents in order to clarify the existing laws or correct a legal deficiency. However, there is no such thing as a "judge-made law." Judgments in civil cases don't create new legal norms and practices in Ukraine: cases dealing with the same issues can end in entirely different decisions. That is why despite hundreds of similar precedents and practices established in many courts across the country, a Dnipro city district court initially rejected Tetiana Zdorovtsova's claim that was satisfied only at the cassation stage. Ms. Zdorovtsova's attorney Maryna Kiptila believed that seeking compensation from Russia in Ukrainian courts is hopeless because "such a decision will be difficult to enforce in Ukraine against the defendant - the Russian Federation." That's why she and Tetiana see a case in ECHR as a better way to go.

Will Russia pay?

Of course, Russia doesn't care much about the decisions of Ukrainian courts and its representatives ignore all the hearings even being notified of them.

"We file all the victims' lawsuits in Ukrainian courts, but we have to seek the enforcement of their judgments - namely to seek compensation from Russia - in international courts," explained Mr. Senchenko of the NGO Power of Law.

Russia has also been rejecting compensation payments ordered by ECHR. For example, in January 2019, the ECHR ruled that Russia must pay Georgia €10 million "for non-pecuniary damage suffered by a group of at least 1,500 Georgian nationals" who were the victims of collective expulsion, unlawful deprivation of liberty, and inhuman conditions of detention in 2006. That year, Russia invaded Georgia which resulted in the occupation of two Georgian regions. Russia has refusef to pay damages to this day. Even after Georgia won the 2008 war case against Russia in ECHR on 21 January 2021, the Georgian justice minister only suggested that this new victory might "have had an influence on Russia’s decision to take part in the discussions" on paying out the compensations ordered two years earlier.

• Read also: Ukraine wins crucial round against Russia over Crimea in the European Court of Human Rights

However, Ukrainian human rights activists hope to find workarounds for Russia's reluctance to pay. Among those Senchenko mentions a possibility to arrest hidden Russian assets in Ukraine but says that this would require support from the Ukrainian authorities,

"Unfortunately, except for our NGO, no one is dealing with the [issues of the war] victims so far. In parallel, we are considering the possibility of legalizing the decisions of Ukrainian courts - such a legal procedure is available in other countries - in order to proceed to arrests of the Russian assets outside Ukraine," Senchenko said.

How many lawsuits may Russia face?

As of the beginning of 2021, Ukraine had 1,459,170 officially registered internally displaced people, according to the Ministry of Social Policies. The number of registered IDPs has been stable for years as it fluctuates around 1.5 million. The most obvious reason why people resettled from the occupied territory and Ukraine-controlled front-line settlements get registered as IDPs is to receive regular social payments ($16-$49 per person). These often can cover families' housing rent expenses. As well, there are some minor benefits such as preferential pre-school and school enrolment for IDP children. However, the actual number of Ukraine's internal refugees from the Russian-occupied areas of Donetsk, Luhansk, and Crimea is indeterminate as there are two unknown variables. The first is the number of bogus IDPs who stay in the Russian-controlled areas but travel to free Ukraine only to get registered and paid. And the second unknown is the number of unregistered IDPs who could either afford to buy a new home or chose to shun the modest payments requiring regular dealings with bureaucratic hoops and paperwork.

• Read also: ECtHR’s Euromaidan decision: Ukraine’s chance to redeem justice

As of early 2016, Ukrainians had filed about 800 lawsuits against Russia in ECHR, according to then Justice Minister of Ukraine Pavlo Petrenko. However, Oleh Tarasenko, a lawyer at the Right to Defense foundation now argues that for at least a year, ECHR has effectively suspended consideration of individual lawsuits for compensation for property destroyed during the armed conflict in the Donbas until it establishes the level of responsibility of Ukraine and the Russian Federation in this matter. Meanwhile, international courts in the EU have been hearing a number of Ukraine v. Russia cases, and this year is going to be rich in the news from the field of international justice related to the armed conflict in Ukraine.

Further reading:

• Ukraine wins crucial round against Russia over Crimea in the European Court of Human Rights
• ECtHR’s Euromaidan decision: Ukraine’s chance to redeem justice
• International Criminal Court finally agrees to open case regarding war crimes in occupied Crimea and Donbas
• Legal battle: How Ukraine sues Russia in international courts
• Punishing Russia for war crimes in Ukraine is possible, but will take time
• Ukraine vs. Russia in The Hague
• What are Ukraine’s chances of winning against Russia in the International Court of Justice?
• Hague receives report on Russia’s war crimes in Ukraine
• Evidence on perpetrators of war crimes in Russia’s war in Donbas to be submitted to The Hague
• Executed in Donbas: activists present data on 95 extrajudicial killings
• Legal battle: How Ukraine sues Russia in international courts
• European Court of Human Rights hints Russia responsible for Donbas damages
• War on terms: who’s fighting against Ukraine in Donbas – terrorists, rebels, insurgents?
• War crimes in occupied Donbas: every second prisoner tortured, 16% witnessed executions
• Probe into Ukraine’s largest military defeat at Ilovaisk pins blame on Russian invasion, admits mistakes
• Ukrainian court establishes IDP forced to move because of Russian aggression (2015)