Recommendations of the Ukrainian Prosecutor General’s Office On Collection of Evidence of Crimes of the Russian Army in Ukraine and Compensations

Based on online discussions between businesses and Oleksiy Boniuk, Head of the Office for the Protection of Investor's Rights within the Prosecutor General's Office, which took place on 14 April 2022, I would like to share the following takeaways and my own observations as to gathering and use of evidence of crimes committed by the russian army in Ukraine:

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1.????Such evidence shall be filed to the following online resource of the Prosecutor General's Office https://warcrimes.gov.ua/ (“WC Site”).

2.????All data submitted this way will be held confidential by the Office. The victim may also submit evidence to other resources, such as https://www.eyewitness.global/. However, such resources will not be official, and prosecutors will not be able to use them. There is no exchange of information between the official resource and other resources.

3.????It is important to submit information not only to DIIA service which will be used for general compensation of damages by the state but also to the WC Site which will be used for criminal justice and respective separate compensation.

4.????The following information about war crimes shall be filed:

4.1.??information on witness (name, surname, contact details, etc.);

4.2.??information on details of the war crime, including its place and time, time of inflicted damage, details of the criminal, if any.

5.????In order to simplify the criminal investigation it is important to show that the described events are not affected by the Ukrainian Armed Forces (ideally, they shouldn’t be there during the crime) so there could be no objection from the RF that either the Ukrainian Armed Forces contributed to the crime or the russian troops actually attacked the Ukrainian troops which excludes qualification of the event as a war crime.

6.????For evidence purposes it is important to turn on the geolocation while taking the pictures of the crime’s scene and download such pictures without any compression.

7.????Satellite pictures could be theoretically used. However, due to quality of such pictures, need to verify their time and other parameters within a separate expertise. This is quite cumbersome.

8.????If you want to show the economic losses it will be necessary to

8.1.??get necessary acts or certificates signed by state authorities on damage to property (such as State Emergency Service, local self-governing authorities etc.);

8.2.??provide the title documents and related to the damaged property;

8.3.??in case of real estate, obtain documents from construction and real estate registries confirming demolishing of he property, if appliable; ?

8.4.??in case of lost profit, respective contracts, financial reports on past revenues, expertise on lost profit depending on each specific case.

9.????All reported crimes will be grouped by prosecutors so there is no need to group them separately.

10.?There will be possibility to obtain information about criminal proceedings regarding submitted evidence. Most likely one criminal proceeding will aggregate a number of episodes connected by the same events, location etc. The aggregation will be determined by respective prosecutors.

11.?The collected evidence will be used in local courts at Law of Ukraine On Main Foundations of Compulsory Confiscation in Ukraine of Property Objects Belonging to the Russian Federation and Its Residents dated 3 March 2022 No. 2116-IX (the “Law”). The Law will be discussed below.

12.?Such evidence could be also used in foreign judicial authorities, e.g. ICJ, specially established tribunal for the aggression of the Russian Federation (yet to be established and now at the process of discussion), local courts in the respective jurisdictions (e.g. in the U.S.) where the courts could assert jurisdiction, European Court of Human Rights or even at investment arbitration tribunals (if the RF establishes control over the respective territory).

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Brief overview of the Law

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The Law was adopted in its entirety on 3 March 2022 and took effect on 7 March 2022 after its signature by the President of Ukraine (the “President”) and its official publication. Draft Law On Introduction of Amendments to Law of Ukraine On Main Foundations of Compulsory Confiscation in Ukraine of Property Objects Belonging to the Russian Federation and Its Residents to Clarify Certain Provisions dated 15 March 2022 No. 7169 (the “Amending Law”) was adopted to amend the Law but have not yet been signed by the President. Don’t discuss the Amending Law for the purpose of this legislative update.?

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Key provisions of the Law are as follows:

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1.????The Law established the main definitions of the terms used, in particular:

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?????????????????????i.???????residents (i.e. residents of the Russian Federation) were defined as legal entities (their branches, representative offices), which carry out its activity in accordance with laws of Ukraine in the territory of Ukraine and which founders (members, shareholders) or beneficial owners are directly or indirectly the Russian Federation and/or in which the Russian Federation directly or indirectly or legal entities which owners (members, shareholders)?or beneficial owners are Russian Federation and/or in which the Russian Federation directly or indirectly owns the share in the charter (authorized) capital, stocks, or other membership (in any form) in a legal entity;

????????????????????ii.???????property objects of the Russian Federation and its residents – movable and immovable property, funds, deposits in banks, stocks, corporate rights, other property (assets, which is located (registered) in the territory of Ukraine and directly or via affiliated persons belonging to the Russian Federation and its residents.?

2.????The Law determined the main principles of the confiscation:

?????????????????????i.???????compulsory confiscation of property objects of the Russian Federation and its residents shall be done on the basis of motives of the social need (including military needs) and is based on principles of legality, transparency, objectiveness, strategic importance, and efficiency.

????????????????????ii.???????compulsory confiscation is carried out without any compensation given the Russian aggressive war against Ukraine.

3.????Grounds and procedure for compulsory confiscation

?????????????????????i.???????Decision on compulsory confiscation shall be passed by a decision of National Security and Defense Council of Ukraine (the “Council”) and is implemented by the Order of the President.

????????????????????ii.???????The draft decision shall be submitted to the Council by the Cabinet of Ministers of Ukraine (the “CMU”) and shall include, inter alia, list of confiscated objects, their identification, terms for confiscation etc.

???????????????????iii.???????Within 6 months after termination of the military state in Ukraine the respective decision shall be approved by Verkhovna Rada of Ukraine (the “Parliament”) via adoption by the respective law

4.????Legal status of the confiscated property

?????????????????????i.???????Confiscated property shall be transferred to the specialized state company (if necessary, established by the CMU on the basis of the confiscated property) for so called commercial management (in Ukrainian “господарське в?дання”). Under the Commercial Code of Ukraine this regime means that the property is owned by the state and the state has some control over it but otherwise property rights belong to the company vested with commercial management rights over the property (including the right to alienate it).

????????????????????ii.???????The registration of the property rights for the state as represented by the CMU shall be done on the basis of the submission from the CMU solely on the basis of President’s Order mentioned above.

???????????????????iii.???????The court decision on interim measures concerning the confiscation of the property shall not be a ground to suspend the process of property rights registration.

???????????????????iv.???????If the registration of property rights is not required by law, the title in the confiscated property shall pass to the Ukrainian state on the date of the President’s order.

5.????Certain observations regarding challenging the confiscation procedure

?????????????????????i.???????In general, it is possible to challenge the President’s Order on the basis of the Council’s Decision in the administrative procedure at Kyiv Administrative Court. Nonetheless, based on my experience even before the war the hearings were very slow at the court and I am not aware about positive outcomes of such challenges.

????????????????????ii.???????If the list of confiscated property will be approved by the Parliament, most likely the confiscation will not be possible to be challenged at Kyiv Administrative Court because it will be necessary to declare the respective law unconstitutional which could be a complicated and long term process.

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If need any support on collecting evidence, please do not hesitate to contact me.

This information does not constitute legal advice and is merely the opinion of the author.

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Best regards,

Maksym