It does not matter who fired

January 27, 2017 the lawyer of the Ukrainian Helsinki Human Rights Union (UHHRU) Yuliya Naumenko has achieved the first positive decision of the court of first instance in relation to compensation for houses destroyed as a result of “anti-terrorist operation” in the Donetsk region. If the courts of appeal and cassation court upheld that decision in force, an elderly couple from the water will get 6.7 million UAH of compensation for a lost home.

At Julia have success in two other similar cases: the decision in favor of the plaintiffs by the Appeal Court of Donetsk region and the Supreme spetssuda in civil and criminal cases.

In the event that the final decision on some of the top ten things that she is, will still be negative, complaints of people affected by the conflict in eastern Ukraine, consider the European Court of Human Rights.

Edition of “The Island” talks with Yulia Naumenko about the details of these processes.

– Julia, the case, you won in the Pechersk court, something different from other similar cases?

– It’s not the only thing, and it is not unique. Almost all of the frontal area is destroyed. Quite a lot of citizens appealed to the Ukrainian Helsinki Human Rights Union, of sand, water, experienced.

Initially, we have filed a complaint in all these cases to the European Court. Then there was a positive precedent: a suit by a resident of Slavyansk, upheld the Court of Appeal of Donetsk region. Slavic Court dismissed the claim, and the Court of Appeal of Donetsk region considered the refusal unlawful. Now the case is on appeal.

We have developed a strategy to advocate, developed a form of action, which is on our website. With such action people can apply to the court, even on their own, without lawyers, and also exempt from court fees.

– How to obtain an exemption from the court fee?

– This is a special request, a separate item in the lawsuit. We describe, on the basis of what rules we can ask to release the plaintiff from paying the court fee, apply the relevant documents: a certificate from the Pension Fund, and from the tax that a person has a low income, an extract from the registry of the reported crimes, and pleading of the suit, please court to release the claimant from the court fee.

– What is considered a low income?

– I think it’s less than two thousand hryvnia. That is, the income should be several times smaller than the court fee. Five thousand for the trial will no longer be low-income.

Several of our lawsuits are now pending in the Pechersk court. One lawsuit has already been considered and it has been taken a positive decision. We were made victims of pictures of destruction, acts of inspection of their home by representatives of local authorities and, of course, the documents of ownership. they also themselves as witnesses testified about the actual damage to their home.

We are based on the law on the fight against terrorism, article 19, and on the Code of Civil Protection. These are the two basic legal act, which allow people to receive compensation for houses destroyed as a result of anti-terrorist operation. In addition, there is a practice of the European Court, and now the Ukrainian court, which can be driven as an example of the judges.

– Who is a defendant?

– The main defendants – a Cabinet and the State Treasury Service, because the recovery of compensation comes from the state budget. But we have also filed a lawsuit against all those who one way or another involved in the antiterrorist operation. It is the headquarters of the ATO, the Ministry of Internal Affairs, the National Guard and the Ministry of Defense of Ukraine.

Based on today’s practice, I think it’s the number of respondents have cut and make claims to the Cabinet as a representative of the State and the State Treasury Service.

– Why do almost all cases are dealt with in the Pechersk court?

– Because our respondents are registered mainly in the Pechersk district. Given that almost all the plaintiffs also live in Kiev, we have chosen this approach and filed claims against the defendant.

– How to be a victim in a situation where it is impossible to prove which side action led to destruction?

– In fact, we did not have argued. We have proved the fact that housing has been destroyed, and that it was destroyed as a result of the terrorist act at the time of the ATO. That is, no matter who was shooting. These two arguments should be enough for the court to take a positive decision.

– Do I understand correctly that those people who have a house destroyed in the territory uncontrolled by the Ukrainian authorities, there is no chance to get compensation?

– The fact is proved by the destruction not only of the local administration act. It is possible to prove the photos, media coverage, the OSCE reports, videos, testimonies of witnesses, can make even the neighbors act of inspection of an apartment or home, you can and should take the acts of local de facto authorities, firefighters. Anyway this information in the aggregate to prove the fact of the destruction of the house due to the anti-terrorist operation.

There are lawsuits from those people who have a house left in the uncontrolled territories. Whether or not our courts to satisfy such claims, I now can not say. There is one solution for the occupied territory: Judge Pechersk district court dismissed the claim, the appeal is also denied, and cassation quashed the decision and returned the case for retrial.

– How long stretches this process, from the first to the court of cassation?

– It’s not always the same. There are legitimate terms of cases, but some judges violate them. For example, the case must be painted within a week, but some judges for two months does not even prescribe the proceedings. They attribute this to the large loading.

Came one defendant – was postponed. Next meeting – the judges over working time, once again postponed. Transfer – it is at least a month, or even a half. And, accordingly, all this is stretched to a sufficiently long period. I think that in the best case for 4-5 months. Some actions, I know, not even considered in June.

– According to your impressions, the process is delayed artificially, or objectively?

– Maybe it really is artificial. For a long time the Verkhovna Rada had promised to adopt a law on compensation for destroyed housing – perhaps the judge waited. In addition, the decision of appeal in the first case did not exist. I can admit that the judges really waiting for some tips on how they deal with such situations.

– Before the European Court, no case has not yet reached?

– We call parallel and in Ukrainian, and the European Court. People who have just won a case at first instance, the appeal is clear. Our state agencies have said they will not miss this opportunity. But the matter will be considered at the same time and in the European Court.

– Is it possible? You do not need to first go through all the instances in Ukraine?

– Ideally – it is necessary, when it is simply a violation of law. Immediately committed the crime. And, in an amicable way, this crime must investigate the police. They need to identify those responsible, and in this criminal case, we could declare a civil suit. This is not happening.

Accordingly, based on the fact that there is no effective investigation, we appeal to the European Court and the European Court until accepts such complaints.

Perhaps now, when there are positive solutions, the Court will deny us. We are writing in Ukrainian, and European Court of Justice at the same time to the European Court left the complaint, if it ultimately did not succeed in the Ukrainian courts, or refuse it if the Ukrainian court did meet her and award compensation.

– How many people would have to wait for a response from the European Court?

– A minimum of three to five years. And it is because we are talking about the war. Under normal circumstances, the complaints are even longer, up to ten years.

– That the compensation awarded by the courts that actually covers the cost of lost property?

– No, because the assessment is made based on verified data. Naturally, to confirm the presence of all the property that was in the house, it is virtually impossible.

– Do not interfere with the decision of the Ukrainian and European Court of Justice against the Ukrainian government to demand compensation from Russia?

– I think not, because when Ukraine will receive a number of such claims, it will itself represents the amount of destruction and the amount of compensation to be paid to citizens. And then she was already in the Hague Court, the Strasbourg Court will be able to sue the Russian Federation and say: You have violated the rights of our citizens to such sum. Compensate us the money that we paid to these people from the state budget.

– That is, to bring Russia now claims, it turns out, does not make sense?

– If in Ukraine was affected registry if Ukraine conducted given the size of the damage, I think, quite reasonably could do it now. Unfortunately, Ukraine is not created until now such a registry and I think that the authorities do not represent the actual number of people who have suffered, even more so – in the territory that is now beyond the control of the Ukrainian government.

– And if the claim against Russia will submit an individual?

– I think it’s pointless. This should be addressed at the international level. You can, of course, to file a lawsuit against the Russian in Russia, but you understand that the court will never satisfy him.

– That is, we can say now that the legal proceedings against the Ukrainian government needed to further sue Russia?

– Yes, I believe that this is a normal mechanism. In addition, all the victims – citizens of Ukraine. First and foremost Ukraine must ensure that their rights to the property as well. In an amicable way, it was possible to provide for a mechanism of compensation to each victim, so he was not with the documents in the court, and the local administration. Ukraine this reason did not. It just turns a blind eye to these problems.

– You could say how many of these cases are now before the courts?

– Personally, I have about ten. Overall, as of December 2016, 25 lawsuits have been filed against the Cabinet. Now, perhaps, they a little more.

– These are the people who took advantage of a special form on the site UHHRU?

– Those who have used the form, those who have turned into centers of free legal aid, if they are disabled or have a very low pension or salary.

– Precedent as such is important for future decisions? The courts will be guided by previous decisions, or it does not happen?

– It does not happen because there is no case law in Ukraine. But I think that if the appeal and cassation instance will support the courts of first instance, which satisfy such claims, these solutions may be relevant to the courts of first instance. However, each case is different, and the solutions will be imposed on an individual basis.

The main thing here – the interpretation of the rules. Someone like Judge Pechersk court, which issued a negative decision in the case of uncontrolled housing on the territory of Ukraine, believes that the plaintiffs have to prove it guilty of the Ukrainian military. But Article 19 of the Terrorism Act does not require proof of fault, it requires proof only of the fact of a terrorist act. And the judges of appeal and court of cassation also interpret it as not required to prove the guilt of the state bodies. Interpretation of rules – this is the main point that local courts should be based.

– It is clear that the payment of compensation to the inhabitants of Donetsk and Lugansk regions – it is also a political issue, and therefore the judge may be afraid to make such decisions. Perhaps because of this case, the refusal and the positive decision somehow fix the situation?

– It is possible that the judge of first instance in some way afraid to take responsibility. But I hope that our judges are still independent from politics and will make decisions based on the law.

– You mentioned the European Court. Relative to what other countries are taking similar decisions?

– Regarding Cyprus against Turkey: solutions for housing, which was destroyed in a terrorist attack.

– Is this kind of complaints are considered by the citizens of Georgia?

– In Georgia, the Court is only beginning to make decisions, but primarily discussed in more serious cases, such as torture. Making regarding the property unavailable. There are solutions on Karabakh on complaints and on the Azerbaijanis and Armenians. But I do not know if they have Armenia and Azerbaijan fulfilled.

Interviewed by Julia Abibok

Sourse, 10/02/2017