4.1 The case-by-case approach to HLP claims processing

A primary instability in the Compensation Law is its focus on the processing of claims on an individualized, case-by-case basis. Although the law puts the responsibility for claims processing onto ‘local commissions’, these commissions are nonetheless to process the cases individually. In addition, the law does not make an attempt to align the war-degraded institutional and administrative capacities of local and national governments with the enormous numbers of claims that will be forthcoming. Such a case-by-case approach will by no means be able to handle, at the needed volume and timeframe, the flood of claims that will come. This approach means that either claimants will experience excessively long wait times (years, decades) or large numbers of claims will need to be dismissed from the claims-making process through eligibility rules. Both risk instability among the disaffected claimant population regarding delayed or forgone restitution and recovery (e.g. Haersolte-van Reference Haersolte-van2006). HLP claims processing in other war-affected countries has demonstrated that the difficulties that arise from attempting to treat very large numbers of claims on a case-by-case basis result in significant problems (e.g. Fischbach Reference Fischbach2006; Haersolte-van Reference Haersolte-van2006; Unruh et al Reference Unruh2017; Zimmerman Reference Zimmerman2015). While it may appear that a purposeful choice was made to pursue a case-by-case approach instead of the internationally used best practice ‘category approach’, in reality it was a default decision made by legal drafters who focused on the ‘law first’, combined with little ability to consult with civil society, as noted previously. At a UN reparations conference held in Kyiv in November 2022, there was considerable discussion about this issue. International HLP restitution personnel argued that the problem is as much a social issue as a legal issue and that the law should attend to the social reality. But as is the case generally in war-affected countries, there is an unwillingness by the legal establishment to move towards forms of transitional justice that is able to attend to the crises. The Ukrainian lawyers’ response to such entreaties was that they need to abide by existing legal approaches (which were made for a stable socio-legal landscape and which the current Compensation Law draws from). Hence, for Ukraine the decision to pursue the case-by-case approach was due more to the legal burden of convention and normativity than to an actual choice made between options.

The case-by-case approach in Ukraine will encounter a bureaucratic burden that is profoundly out of step with the abilities of claimants and local and national governments to manage. In the law there are nine separate assessments, or determinations, that the state or other entity needs to perform for each claim application to be processed, depending on the claim. These are:

1. 1. Article 3 describes the need for an individual assessment of the cost of restoration of the property in question for each claim, including a determination as to both the degree of damage and the price of its restoration, with the latter being a significant exercise involving the determination of materials, labor costs and availability.

2. 2. Article 3 also indicates the need for a report on the possibility or impossibility of restoring each ‘real estate object’ subject to a claim application.

3. 3. Article 4 states that the determination as to compensation (or not) is to be decided separately for each ‘real estate object’ by the local commission.

4. 4. Article 5 states that the amount of compensation needs to be determined for each case based on the assessment of the cost of restoring the damaged property.

5. 5. Article 6 indicates that the determination of the financing of alternative land is needed for each relevant case.

6. 6. Article 6 also says that for each case where alternative HLP is to be provided, this determination is to occur on the basis of an agreement among (1) the executive body of a village, settlement or city; (2) the executive body of the council; (3) the construction company; and (4) the claimant.

7. 7. Article 7 describes a separate assessment that is needed for the determination of the cost of restoration of the common property of damaged apartment buildings (hallways, entryways, stairways, elevators, outdoor areas etc.).

8. 8. Article 10 notes that for each case of inherited property, a certificate of inheritance is required as part of the claims application, which necessitates its own process for acquiring the certificate.

9. 9. Article 10 then outlines the nine steps to be taken in order for a decision to be reached for each case, based in part on the assessments submitted with the application.

The very long wait times resulting from the requirement to complete several assessments in order to submit a claim mean that HLP repairs cannot be done by the owners because damage assessments need to evaluate pre-existing damage rather than repaired or reconstructed HLP. As a result, claimants will have to either make repairs anyway because they need shelter in order to reconstruct their lives and, thus, likely forgo the prospect of compensation or refrain from making repairs while they wait, with significant impacts on their lives as they continue to live elsewhere or occupy their damaged or destroyed HLP (e.g. GPC 2020). Both options are daunting prospects for a war-weary population. And, of course, the cost of having the various assessments done will disadvantage the less financially well off.

One of these assessments will be particularly difficult to prepare for. The assessment regarding the value of HLP is quite difficult in war-related compensation processes; with even pre-war HLP, value information difficult to obtain (e.g. ADB 2007; Hurwitz et al Reference Hurwitz2005; van Houtte et al Reference Van Houtte2008). For the calculation of fair market value or replacement value, HLP prices can be very distorted in wartime, reflecting damaged HLP, impoverishment, dislocations, tenure insecurity, lack of buyers and prohibitions on the sale of HLP (e.g. ADB 2007), with the latter being an explicit part of Ukraine’s compensation law. Determining value quickly and fairly on a case-by-case basis will be daunting, requiring significant research; personnel; legal, administrative and institutional capacity; as well as money. These elements are unlikely to be present in the quantities and forms needed in war-stressed Ukraine. The socio-legal problem then becomes one of either long delays in calculating values to be compensated or the estimation of values based on too little or distorted information, which can result in undervalued damaged or destroyed HLP. Both result in lack of trust, confidence and, hence, participation in the process by those needing compensation. There are currently indications from Ukraine that assessments are significantly undervaluing the value of HLP involved in the claims process.

The opportunities for corruption created by the case-by-case approach are additional socio-legal concerns. Corruption opportunities are enhanced with this approach primarily due to the very large volume of separate cases and the requirement that each case be prepared and processed separately. This volume increases the likelihood that a variety of questionable private sector assessment operators will emerge, resulting in the potential for a good deal of bribery and chaos to take place, as occurred with similar assessment requirements for HLP claims in postwar Iraq. In addition, attempting to arrange such assessments while being displaced enhances the prospect for corruption, as the owner is not present to oversee the assessment. Ukraine ranked as the most corrupt country in Europe (after Russia) prior to the war (ECCD 2018), with the country experiencing particularly large-scale corruption in the HLP sector both within and outside of government (CU 2018; PoU 2020; RIEL 2021). Corruption in HLP transactions, fraud, ‘property raiding’ and mafia takeovers of property were extensive prior to the conflict (Markus Reference Markus2015; RIEL 2021). This begets a further socio-legal question: how will the dense tangle and purposeful obfuscation of who really owns what (due to this prewar corruption in the HLP sector) (Unruh Reference Unruh2023) intersect with attempts to get the various assessments done, given that the conduct of an assessment assumes that the correct owner is known and is the one applying for compensation?

Inheritance issues warrant further elaboration. The law asserts that claims involving inheritance must first be handled individually by an inheritance court (Article 10), as would occur in the stable setting of peacetime. However, inheritance claims for HLP are known to surge dramatically as a result of wars, as original owners become deceased or do not return and as the spouse, descendants and relatives (or all of these) pursue claims, often in an uncoordinated manner. In the Compensation Law, Article 3 requires—apparently in addition to an inheritance court determination—that an official document confirming the death of the owner be provided as part of the claim. This raises the question of how the war-degraded administrative and institutional capacity will provide such documentation in a timely way to interact with what will certainly be a large volume of requests. And how would refugees obtain such documents from outside the country? In addition, any competing inheritance claims would have to be adjudicated, which can be complicated and protracted even in peacetime. IOM (2008) details the difficulty and high frequency of such inheritance problems in war-affected HLP scenarios. The socio-legal impact of such inheritance difficulties would likely include significant delays in being able to complete claims applications or abandonment of the application process due to overly complicated and lengthy requirements and procedures.

International best practice for handling very large numbers of HLP claims in war-affected settings is to pursue a ‘mass claims–transitional justice’ approach whereby instead of claims being dealt with individually, they are grouped into categories according to a long a set of criteria and evaluated according to a set of legal precepts tailored to the problem, and then a single legal decision is made for the entire category. Ample literature and multiple examples of experience with this approach exist (e.g. Das Reference Das2006; Das and van Houtte Reference Das and Van Houtte2008; Holtzmann and Kristjansdottir Reference Holtzmann and Kristjansdottir2007; Leckie Reference Leckie and Leckie2009; Rowen and Snipe Reference Rowen and Snipe2021; Unruh and Abdul-Jalil Reference Unruh and Abdul-Jalil2021). The overall objective of this approach is to engage the social problem directly and with priority, using innovative law and legal techniques to attend to the exceptional nature of the problem, as opposed to attempting to get such a monumental problem to bend to the conveniences, rigours, details and functioning of normative law.

4.2 Administrative and institutional capacity

Administrative and institutional capacity weakness is common in war-affected countries. From the destruction, loss, looting and neglect of official records, registries, court files, property titles, buildings and equipment to the degradation of legal aid services and ministerial functioning and to the even more difficult-to-remedy deficit of human capacity, virtually all war-affected states suffer from capacity degradation (e.g. Rose-Ackerman Reference Rose-Ackerman2008; Sannerholm Reference Sannerholm2012). Thus, while there can exist a statutory framework that a legal system can operate within, the institutional and administrative infrastructures on which the framework depends often become so compromised in war-affected settings that laws have difficulty functioning (Sannerholm Reference Sannerholm2012). A war-affected population’s response to such weakened capacity adds to the problem, as it leads to decreased confidence and trust in state capacity and, hence, lowered respect for legal authority. This can then lead to a lack of motivation to adhere to the rule of law, particularly as the urgency of crises livelihoods prevails and a greater tendency for corruption and political instability emerges (e.g. Hay Reference Hay2017; Sannerholm Reference Sannerholm2012). At the same time, the creation (via law) of overly bureaucratic procedures and processes based on unrealistic expectations and assumptions regarding existing capacities in war-affected HLP settings is a known problem (e.g. GPC 2020; RW 2011).

In an HLP compensation context, the socio-legal instabilities created by this capacity degradation include long delays, poor (or non-existent) dispersement of compensation funds, chaotically and ineffectively organized and implemented procedures and enhanced corruption opportunities. The result is then loss of trust and confidence in the process, as bureaucracies become overwhelmed, corrupt and non-functional (e.g. ADB 2007; Hay Reference Hay2017). This encourages claimants to seek alternative approaches to solving their HLP problems (with some approaches being destabilizing) and creates space for criminality and certain political actors to take advantage of large numbers of disillusioned claimants. The following section examines the parts of the Ukrainian Compensation Law that will likely be particularly problematic because of this capacity deficit.

4.3 Evidence for claims: legality vs. availability

The legal evidence available to reconnect people with their property is a critical part of any HLP restitution and compensation process. However, a dilemma usually emerges whereby the evidence that is legal and the evidence that is available become separated. This occurs as evidence prescribed as legally acceptable in a restitution/compensation law isn’t possessed by enough claimants for it to be broadly available to reconnect significant portions of the population with their HLP. Often, the forms of evidence that are legally acceptable are the HLP titles or deeds or digital registrations that the law requires in peacetime. However, in mass forced displacement and HLP damage and destruction scenarios, people usually flee without taking these documents, or the documents are confiscated, lost or destroyed or become subject to coerced or under-duress sales while the owners are dislocated. At the same time, restitution/compensation processes can expose irregularities in HLP documents that render them useless. One of the more common of these irregularities results from a failure to update HLP documents with the name of the current owner, which sometimes occurs over the course of many generations, with the HLP in question being in the name of a long-deceased ancestor. In many cases, people who are dislocated never had such documents in the first place but instead held their HLP in customary, informal or traditional forms of tenure. Meanwhile, digital registration systems often do not contain the majority of claimants’ information, become poorly maintained or otherwise degraded during wartime or are subject to forms of cyberattacks, with the fear of such attacks leading government to restrict access to the registry by users, as is currently the case in Ukraine (Coumans Reference Coumans2022). On the other hand, the available evidence that people do have in such situations that is able to reconnect them with their HLP is often excluded from the relevant laws. International best practice involving the ‘mass claims and transitional justice’ approach to restitution/compensation focuses on making this available evidence temporarily legal—thus positioning the law to attend to the exceptional nature of the problem, as opposed to doing the reverse (e.g. Gonzalez et al Reference Gonzalez2021; Haersolte-van Reference Haersolte-van2006; Holtzmann and Kristjansdottir Reference Holtzmann and Kristjansdottir2007 ).

Available evidence from this best practice approach often includes a variety of ‘non party evidence’ (evidence held by a party other than the claimant) that is able to corroborate assertions of ownership. This includes water, electricity and school records; membership in civil society organizations; and of course the vast Internet holdings of data regarding identity and home location. Also valuable and available are forms of attestation from relatives, neighbours and friends; intimate knowledge of specific aspects of one’s HLP; photos and other media held on mobile devices or cloud services; and customary and informal law and associated evidence. These forms of evidence are what displaced populations usually do have or can get and are able to verify their assertions of claim, particularly when corroborated with each other. Yet restitution/compensation laws derived for use in war-affected scenarios often do not regard these forms of evidence as legal – and will be regarded as such until these laws become so unworkable that they must be changed. Ukraine’s Compensation Law (and the government’s legal establishment) struggle with this dilemma. This section discusses this problem in the Compensation Law and the possible opportunities that the law itself may present to resolve it.

Part of the situation in Ukraine regarding HLP documentation is that numerous archives have been destroyed and looted, with Russian and proxy forces purposefully targeting them, even in Kyiv. And with the digitization of HLP records varying across the country prior to the war (and occurring particularly slowly in rural areas), most villages and towns have only paper HLP documents; the result is that destruction of these archives means that property owners may have the only copy. But the loss of personal HLP documents has been especially significant during the war (Nizalov Reference Nizalov2022), as they are left behind while people are fleeing, are purposefully discarded or destroyed prior to crossing Russian checkpoints or are destroyed as residential areas are targeted. Municipalities in Ukraine have reported that the lack of proof of HLP ownership is going to be a large problem in the implementation of the law.

Articles 3 and 13 of the law are the most descriptive of the types of evidence legally allowed. Article 3 indicates that ‘a document confirming the ownership’ of the HLP in question is to be submitted with one’s claims, unless the HLP in question is already registered in the State Register of Real Property Rights. However, Nizalov (Reference Nizalov2022) notes that the state registration system for HLP was only 40 percent complete at the onset of the war (and was lower in the occupied eastern areas), with the majority of property rights obtained prior to 2013 not included in the registry. Meanwhile, the electronic version of the State Register includes only information about HLP whose inclusion was initiated by the owner as of 1 January 2013 (Ben Reference Ben2021). But, importantly, the exact nature of ‘a document’ (noted above) is left undefined in the law. This ambiguity may constitute an important opportunity to match what is legal with what affected populations do have in terms of evidence; but it can also be interpreted to be overly restrictive and unrealistic or highly variable with regard to acceptable evidence, if left to the local commissions, as it seems it currently is. Article 1 (which includes the definition of terms) may also allow some flexibility in terms of evidence, as it states that additional terms may be defined by ‘other legislative acts of Ukraine’. If such ‘other acts’ are to include the Land Code, Article 160 of that law (on land disputes) indicates that a claimant may ‘submit documents and other evidence, file motions, give oral and written explanations…’ (VRU 2000). In this regard there may exist the opportunity to expand on the forms of legally acceptable evidence to more closely match what is available.

Article 3 may also provide some opportunity for flexibility in acceptable evidence by noting that if the claimant is lacking the ‘confirming documents’ (currently left undefined), then the claimant can still apply for compensation, with the application being held until the needed documents can be supplied. The ambiguity regarding which types of documents are to be acceptable in these cases possibly allows for a variety of available evidence to be used, but this ambiguity also could be used in a more narrow and rigid way or for corruption. In any case, it does appear to allow for some discretion on the part of local commissions to define what evidence is to be legally acceptable. This discretion can be positive if the local commission knows what evidence most of the local population does have and is interested in acting on the population’s behalf, as opposed to viewing it as a financial opportunity. And finally, Article 13, regarding the ‘Register of Damaged and Destroyed Property’, also may present the possibility of flexibility in acceptable evidence, as it states that ‘the scope of information to be entered into the Register of Damaged and Destroyed Property is determined by the Cabinet of Ministers….’ This register is different from the ‘Register of Damage Caused by the Aggression of the Russian Federation against Ukraine’, which was established by the Council of Europe in 2023 for the purpose of constructing a ‘compensation mechanism’ (COE 2023). However, the registers are connected. While the types of ‘damage’ to be included in the European register is wider than that pertaining only to HLP, the Ukrainian-based register is to submit claims to the European register – ostensibly for the purpose of claiming damages from Russia at a later date (EUKN 2024). At the time of this writing, however, the European register was still developing the evidentiary rules for categories of claims; for this reason, it is unknown whether there will be compatibility between the two registries with regard to HLP evidence as well as what the repercussions will be if there is not.

4.4 The claims submission timeframe and awareness raising

An important socio-legal instability in the law is the very short timeframe allowed for filing claims. While the law (Article 3) initially indicated that applications for compensation must take place during martial law or within ninety calendar days from when martial law is terminated in the area where the damaged/destroyed HLP is located, this timeframe was subsequently amended to one year (DRC 2023a, 2023b). While this allows for claims submission during the war – a much-needed improvement in best practice for restitution/compensation processes – the one-year timeframe after the end of martial law is a problem. Postwar HLP mass claims processes in other countries usually allow claims submission to take place several years after the end of a war (e.g. Das and van Houtte Reference Das and Van Houtte2008; Erdem and Greer Reference Erdem and Greer2018; Holtzman and Kristjansdottir Reference Holtzmann and Kristjansdottir2007).

The crises livelihoods and pressing personal concerns of much of the war-affected population will preclude their being able to comply with such a short timeframe. Particularly disadvantaged will be the millions of displaced Ukrainians who are residing in or moving across a variety of countries and internal locations and who will be experiencing a large number of variations in personal situations; livelihood priorities; and forms of hardship, desperation and financial difficulties that will be consuming their time and attention. This short timeframe, combined with the lack of a mandate in the law for awareness raising regarding the timeframe and other requirements, will produce an additional socio-legal instability. In HLP compensation/restitution programmes, if potential claimants are unaware of the details of the programme (particularly the cutoff dates for claims submission), then their engagement will be severely compromised (Hay Reference Hay2017) and grievances over being excluded will be many. A review of the earlier HLP compensation efforts in the eastern occupied regions revealed a very limited understanding, among both local government and civil society, of the procedures and their timing (NRC 2016). The resulting exclusion of a large segment of the claimant population led to a wave of claims applications directed to the European Court of Human rights (Kuznetsova et al Reference Kuznetsova2018).

It will take much longer than one year for the millions of refugees, IDPs and even those who stayed, to learn about and then to arrange for and complete all the time-consuming assessments and other requirements that are needed to file a claim, all while managing very time-consuming crises livelihoods. The exclusion of large numbers of potential claimants is all but guaranteed with such a short filing timeframe, thus creating the prospect of grievance-based socio-political repercussions. At the same time, such a timeframe can worsen a capability deficit problem, as those who are aware of the timeframe will act quickly to submit claims, likely overwhelming degraded administrative structures. International best practice argues strongly for an adequate timeframe for submissions of claims, including the prevention of inflexibility with regard to compliance with a deadline that can be seen as unfair. Instead, it is advised that an orderly method by which deadlines can be extended be used (e.g. Holtzman and Kristjansdottir Reference Holtzmann and Kristjansdottir2007).

4.5 Excluded segments of civil society

In focusing exclusively on ownership of residential property in Ukrainian-occupied lands, the law excludes important segments of civil society and their property rights. Renters, as well as owners of farmlands, small businesses and all other forms of property in the Russian- and proxy-occupied eastern regions, are excluded from the law.

Of the more than 14 million dislocated persons, a significant proportion was certainly made up of renters of apartments, houses and lands. Residential renting in Ukraine is in many cases a fraught enterprise, involving problems of corruption, informality, lack of documentation and tenure insecurity (Mamo Reference Mamo2021; Prindex 2022; RIEL 2021). While these would be challenges in deriving compensation modalities anywhere, unless this segment of society is addressed in terms of loss of shelter, the affected population will not likely recover from their dislocation, thus constituting an ongoing burden on the countries and communities that currently host them, along with the development of grievances at being excluded. Secondary repercussions that will occur because of deficits in labor, technological and administrative expertise and rental incomes and that will affect economic recovery are also likely with the exclusion of renters. Under international human rights law, renters who have been forcibly dislocated are due redress (UN Habitat 2014). The EU, which Ukraine certainly aspires to join, takes human rights transgressions seriously, including those of renters (e.g. HRW 2022), and is likely to react aggressively to the exclusion of renters from the Compensation Law when non-return of dislocated persons and grievances begin to emerge.

The exclusion of agricultural and business properties is also a significant problem, given their very large roles in food production and employment. Agricultural damages and losses due to the war are estimated to be $127 billon, with vast areas emptied of occupants and damaged by ordinance and military vehicle traffic (Martyshev et al Reference Martyshev2023). The social repercussions of the non-compensation of damaged agricultural lands will have both national and international repercussions, as delays in recovery will mean ongoing food insecurity for Ukraine as well as for countries that depend on produce from Ukraine. Along similar lines, excluding compensation for small business properties will impact the returns of dislocated people and sectors of economic recovery that depend on jobs, services, distribution networks, investments and circulation of money. While there is some discussion in Ukraine that agriculture and businesses will be dealt with by separate laws, to date these laws have yet to be in development. Concerning agriculture, the government has recently made funds available for compensation for demining (MEU 2024), even though damage to agricultural lands extends well beyond removing these remnants of war (Deininger et al Reference Deininger, Ali, Kussul, Shelestov, Lemoine and Yailimova2022). The thinking behind the current Compensation Law’s focus on residences is that urgency is most needed regarding people’s homes, with attention given to other forms of property to come later.

The law is explicit about excluding all properties in the eastern occupied areas by stating that only properties damaged/destroyed after February 2022 will be covered. This may be because a separate, earlier compensation scheme was applied to the area; however, as noted earlier, this scheme was broadly seen as dysfunctional (DRC 2015; NRC 2018). While it may be that the eastern areas will not see the conditions needed for HLP reconstruction for some time, it can be argued that it is important to register claims now so that Russia will incur a debt related to this HLP. But it will also be important for those who lost HLP to damage, destruction and secondary occupation to be included in national recovery, thus minimizing the emergence of detrimental grievances from a fairly large population.

4.6 Prohibitions on selling compensated HLP

The law imposes two prohibitions on the sale of HLP by owners who benefit from compensation via the law: Article 6, as noted earlier, prohibits for three years the sale of HLP provided as alternative housing. And Article 8 stipulates that the recipient of monetary compensation does not have the right to alienate their HLP for five years. While such prohibitions go against the Constitution and the Civil Code (AVRU 2023), they are also a significant socio-legal problem in that they prevent claimants from using their HLP for recovery remedies tailored to their specific circumstances – which best practice for war-affected HLP restitution supports (e.g. Van Houtte et al Reference Van Houtte2008).

Transactions in violation of this prohibition are virtually guaranteed to occur as certain postwar segments of the population make difficult livelihood decisions involving their HLP and as enforcement will be weak. This will result in informal, illegal and undocumented transactions, creating subsequent problems when such HLP attempts to enter the legal market and finds it difficult to be brought back into the law – or continues to exist outside the law. This then creates the prospect of a parallel informal and illegal HLP market and rule set. Holders of such transacted property would then not have access to other property-related benefits that require legality of holding, such as the legal property market, collateral and forms of service provision. At the same time, it would cause problems for governance, rule of law and political alignment and, importantly, allow for the illegally transacted HLP to be used by organized crime in money laundering, forced takings of HLP and forms of HLP trafficking (e.g. Unruh Reference Unruh2022). This would constitute a significant instability. Such illegality in HLP transactions in the face of prohibitions was present throughout the country during the moratorium on the sale of agricultural land in Ukraine (Amosov Reference Amosov2019; Kostyashkin et al Reference Kostyashkin2020; Nizalov Reference Nizalov2019) and created a legacy of corruption, non-transparency, confusion and ongoing informality in land documentation (Yuliia et al Reference Yuliia2022). In addition, such a prohibition may discourage some citizens from entering the compensation process altogether, further contributing to difficulty in recovering livelihoods. Although the reasoning of such a prohibition may be to prevent claimants from selling their compensated HLP and then becoming homeless or claiming again, the possibility of such occurrences and their repercussions must be weighed against the much broader and longer-term problem of creating an illegal HLP sector.