Chapter 5. Observing rights and freedoms of persons who suffered temporary occupation and armed conflict Some of the claims are against the Russian Federation; the others are against the Cabinet of Ministers 113 of Ukraine in view of the provisions of Law of Ukraine 638-IV “On Combating Terrorism” of 20 March 2003, and the Code of Civil Protection (CCP) of Ukraine49. Only a few court decisions regarding destroyed housing have been finalized. Some were overturned after appeals to higher courts, while others are still pending before the courts of appeal or cassation. Important legal positions were expressed by the Grand Chamber of the Supreme Court of Ukraine in case 265/6582/16-ts, which concerned damage to/destruction of commercial property during the anti-terrorist operation as a result of a terrorist act (artillery shelling of a residential area in Mariupol on 24 January 2015). The court confirmed the State’s obligation to provide compensation for damaged and destroyed residential real estate50. Barriers to implementation of the procedures for compensation for destroyed housing provided by the CCP of Ukraine include the lack of a mechanism to assess property destroyed or damaged as a result of hostilities; the absence of a single register of such facilities; and the lack of a mechanism to restore such property and/or to pay compensation for damage or destruction. In July 2019, the Government adopted a new version of the Procedure for providing and determining financial assistance or compensation to victims of emergencies remaining at the previous place of residence, approved by Cabinet of Ministers of Ukraine Resolution 947 of 18 December 2013 (as amended), which is a positive step towards ensuring that the property rights of this group of people are protected. However, Resolution 947 only covers a small number of people (who remained at their previous places of residence) and does not take into account the interests of all persons affected by an armed conflict, in particular those who were forced to leave their place of residence. Following the analysis of the above-mentioned Procedure, in August 2019, the Commissioner sent proposals to the Ministry of Temporarily Occupied Territories for its finalization. The State should take a comprehensive approach to the legal regulation of the provision of compensation for property/material damage to affected citizens and introduce a transparent, accessible, out-of-court (arbitration) mechanism of restitution and compensation for material damage caused to property owners as a result of the armed conflict, including the development of a unified framework to assess damage, and exploration of alternative means of restoring violated rights for affected citizens. To the Cabinet of Ministers of Ukraine: 1. Develop and submit to the Verkhovna Rada of Ukraine a draft law on amendments to the Housing Code of the Ukrainian SSR to ensure observance of the constitutional right to housing for internally displaced citizens of Ukraine. It is necessary to take into account the position of the Venice Commission, which stated in its Opinion on the Law on Occupied Territories of Georgia (CDL-AD (2009) 015, 17 March 2009) that “… 37. Article 7 of the “Law on the occupied territories of Georgia” explicitly fixes the responsibility of the Russian Federation for human rights violations, moral and material damage and the destruction of cultural heritage in Abkhazia (Georgia) and South Ossetia (Georgia). As a rule, questions of international responsibility cannot be regulated on the basis of national law, but are solved on the basis of international law… 39. The reimbursement of “moral and material damages inflicted on the Occupied Territories” regulated in Article 7 para. 3 will also have to be fixed on the basis of international law. Georgian courts would not be competent to adjudicate on claims against the Russian Federation according to the principles of State immunity”. 49 Although the case concerns commercial real estate, the conclusions made in the case are also significant in the context of compensation for damaged and destroyed housing. In particular, the Supreme Court of Ukraine noted the difference in the social importance of residential real estate compared to non-residential real estate. However, in seeking compensation, the applicants should have pointed out that the State had failed to protect private property during the “terrorist act” rather than claim that it had not established a compensation mechanism for the damage caused by the “terrorist act”. 50 CHAPTER 5 RECOMMENDATIONS