New Rules and Claim Forms Approved for Registering Damage Caused by Russian Aggression Against Ukraine

On 16 July 2024, the Register of Damage Caused by the Aggression of the Russian Federation against Ukraine (“RD4U”) published the long-awaited Rules and Claim Forms for new claims categories. In particular, this allows state- and privately owned legal entities to submit claims (along with relevant evidence) related to damage or destruction of critical and non-critical infrastructure, as well as of residential immovable property.

Background

In May 2023, following UN Resolution A/RES/ES-11/ 5, titled “Furtherance of remedy and reparation for aggression against Ukraine”, the Council of Europe established the RD4U through an enlarged partial agreement. The RD4U is intended to record all eligible claims for compensation related to damage, loss and injury caused by Russian aggression in Ukraine, including the evidence supporting these claims. In March 2024, the list of Categories of Claims Eligible for Recording was adopted. Since 2 April 2024, only one category of claims has been open for submission – claims by individuals related to damage or destruction of residential immovable property (Category A3.1).

Details

The Rules and Claim forms that were most recently released open for submission additional categories of claims for individuals who have suffered due to the Russian aggression against Ukraine (involuntary internal displacement; death of an immediate family member; missing immediate family member; and damage or destruction of non-residential immovable property).

In addition, the following categories are now open for the state of Ukraine, state-owned entities and private legal persons (categories B1.1 – B1.4 and C1.1 – C1.4):

• Damage or destruction of critical infrastructure,
• Damage or destruction of non-critical infrastructure,
• Damage or destruction of residential immovable property – residential areas, and
• Damage or destruction of residential immovable property – common use areas.

Legal persons can only submit their claims via Diia through representatives. To this end the RD4U adopted “Rules on the Use of Representatives”, which among other matters, regulate the rules for representation of legal persons. They provide that an individual who is recorded in the registry of legal persons as having general authority to act for and on behalf of that legal person (such as a director or a chairperson) shall be considered its “Principal Representative” and shall have the authority to submit claims on behalf of that legal person. Principal Representatives may appoint other representatives to submit claims on behalf of the legal person by issuing Digital Authority in Diia. Such Digital Authority cannot be subdelegated further.

The general procedure for submitting a claim form by a legal person can be summarised in the following steps:

• A representative should be appointed or identified through Diia.
• The representative should select and fill in the relevant claim form on Diia. Although claims may be submitted both in Ukrainian and English, it is advisable to submit the claim in English.
• The representative must attach the following to the selected claim form: • Proof of identity and authority to act on behalf of the claimant • Proof of ownership of the property • Information on how the property was damaged or destroyed • Description and assessment of the damage and destruction • Information on the approximate amount of the claim
  
  It is particularly important that documents submitted should include detailed (and to the extent possible, complete) evidence of damage / destruction, as well as of the quantum of the claim. The rules and claim forms do not provide for any specific requirements as to the type and / or form of evidence that must be submitted. This should be decided on a case-by-case basis. Amendment of the claim or filing additional evidence is possible only until the RD4U Executive Director forwards the respective claim to the RD4U Board.
• Upon completion of submission, the claimant will receive a confirmation of submission through Diia, which contains a unique claimant number, claim number and an automatically generated list of information and evidence submitted with the claim. This serves as confirmation of the completion of the Claim and the date of its submission to the RD4U.
• The RD4U will process and review the claim and its supporting evidence and then decide whether the claim is to be entered into the register. The decision of the RD4U will be communicated in the prescribed manner via Diia.

It is expected that the RD4U will begin accepting these new claims in August 2024, marking a significant step forward in addressing the extensive damage caused by Russian aggression and providing a structured means for affected parties to seek redress.

Limitations and exclusions

1. Temporal and territorial limits

For a claim to be recognized as admissible and recorded in the RD4U, it must meet three conditions. First, the destruction, damage or loss must occur on or after 24 February 2022. Second, the incident must have taken place within the internationally recognized borders of Ukraine, including its territorial waters. Third, the destruction, damage or loss must have resulted from internationally wrongful acts committed by Russia in or against Ukraine.

2. Relevant Categories

To date, the RD4U has approved and released rules and claim forms pertaining to many – but not all – categories of claims. Additional claim forms are expected to be adopted soon, after which the respective categories of claims will become open for submission. These will include forms for damage or destruction of non-residential immovable property; loss of historic, cultural, and religious heritage; business and other economic losses (including loss of control of property in temporarily occupied territories); and humanitarian expenditures.

3. The mandate of the RD4U

The role of the RD4U is solely to record claims for reparations; it will not examine or evaluate the claims on their merits, assess their value or order any payments. These functions will be performed by a future international compensation mechanism that is yet to be established. The RD4U is the first step towards creating this mechanism, and its mandate includes facilitating ongoing efforts for its establishment. The first meeting on the creation of an international instrument to establish a Claims Commission for Ukraine took place on 9-10 July 2024. This Claims Commission will be tasked with examining compensation claims submitted to and recorded by the RD4U, assessing the claims and supporting evidence and determining the compensation amount due in each case.

Although the RD4U is not the final step in receiving reparations, it is highly advisable to file a claim once the relevant category becomes open for submission.