Fixation of caused damage
Due to the armed aggression of the Russian Federation against Ukraine, not only military and infrastructural objects of the state and territorial communities but also private objects of Ukrainian and foreign business are being destroyed.
Although Ukraine has just started preparing mechanisms for compensation for damage caused by the armed aggression, businesses should already properly record the facts of damage to and destruction of their property yet now. The correct fixation of such facts will be a precondition for determining the amount of damage caused and, consequently, for obtaining compensation.
Relying on our experience, we suggest adhering to the following algorithmii:
1. Securing safety of documents
The first thing worth doing in order to ensure further compensation is to keep documents safe in a proper manner. Based on our experience, we recommend securing safety of the following documents in the first place:
incorporation documents of the company – owner of the property;
documents evidencing the ownership right in property as well as technical passports, design and estimate documentation, etc.;
documents evidencing the ownership of equipment and other items/goods located inside the property;
documents regarding the economic activity of the company, accounting documents, in particular, inventory documents.
The above-mentioned documents, together with other evidence, will subsequently be necessary for an objective assessment of damage caused to the company.
Therewith, if a company is located on the territory of active military actions, the documents should be relocated to a safer place that would guarantee their safety. In other cases, where a company has its registered office outside places of active military actions, we recommend making an audit of existing documents and, if possible, ensuring recovery of the missing documents.
Moreover, if possible, it is necessary to make electronic copies of documents and save them in cloud file storage (Google Drive, Dropbox, etc.).
2. Notifying law enforcement and other authorized bodies
We recommend contacting the police as soon as you become aware of the incident:
orally (by phone) asking law enforcement bodies to visit the place and draw up the on-site inspection report;
in writing (by e-mail or by filing a statement of criminal offence).
After recording the fact of the incident, law enforcement bodies must provide an excerpt from the Unified Registry of Pre-Trial Investigations.
In addition, if necessary, it is useful to apply to the bodies of the State Emergency Service. Based on the results of the visit to the incident site, the SES authorities draw up a document confirming the damage, for example, a fire report.
Importantly, obtaining copies of documents drawn up by authorized bodies on site and as well as in a result of case consideration is a crucial step in the procedure of recording damages caused to the company. Therefore, it is so important to keep such documents safe and, if possible, make electronic copies thereof.
3. Fixing condition of property
In order to properly show the condition of the company’s property, we recommend:
1) Making video and photo recordings of the property “before” and “after” the incident
One needs to make photo and video recordings outside and inside the damaged property, as well as of its certain parts and other valuables located therein. For the purpose of comparison, it will be especially useful to find photos and videos of the property before it was damaged.
The proper photo recording involves the following actions:
to take landscape photos, which intersect to form a complete picture around (if possible, you should fix markers pointing to the north and other details that can show the location of the incident site on ground (road signs, unique signs, etc.);
to take close-up photos of individual objects and details on the incident site (if available, you may use a ruler or objects to help display and subsequently determine the actual size of the object being recorded).
In the case of video recording, it is necessary to:
show your face, record your first and last name, patronymic, date of birth, place of residence and passport data (if possible), current date and time;
say out loud the date and time (if the information is available), as well as the place of the incident;
describe and display in the video file what you see around and describe in as much detail as possible the condition of the property and the character of the damage or destruction.
If a frame captures, in addition to the maker of the video recording, other people, it is necessary to make sure that all of them have given their consent to being recorded and understand the purpose for which it is made.
It is important to remember that before and during photo and video recording, the site of the incident should remain intact and unchanged.
If photo and video recording are performed using a device with a geolocation function, such as a smartphone, you should enable this feature in its settings before starting the recording.
It is also important to remember that photo and video files created as a result of fixing the damage must be stored unchanged and unprocessed on local media or cloud file storage (Google Drive, Dropbox, etc.). This will secure safety of metadata that might be lost when files are sent via messengers or email. It will be very useful to record the name of the device used to capture the incident and its serial number (including IMEI).
At the same time, it is necessary to remember that people who are witnesses to the incident may also have photo and video files related thereto. This also applies to CCTV files and any other recorders in the neighbourhood. Immediate obtainment of copies of these files will secure safety of such electronic evidence and may be used as additional proof of the incident details.
2) Drawing up a protocol/ report of inspection of the property condition
The protocol/ report is drawn up by a commission (representatives of the company-owner of the property and independent persons) in free form and must include:
date and time of the report;
list of individuals present at the moment of drawing up the report (first and last names, patronymics, positions of persons, their passport data and registration addresses, telephone numbers, and other means of communication);
name and identification data of the owner of the damaged or destroyed property;
name, description, and location of the property (if possible, we recommend using the information contained in state registries);
character of damage to or destruction of the property;
reasons for damage to or destruction of the property (if available).
We also recommend, if possible, drawing up a plan or a scheme to locate damage to or destruction of the property and its parts. For this purpose, one may use, for example, the plan of premises from the technical passport.
Furthermore, if the inspection reveals any property belonging to another person, we recommend that you notify that person of any damage to or destruction of its property and coordinate your actions with that person for further fixation of the damage.
4. Recording witnesses’ testimony
First of all, it is necessary to make a list of witnesses to the incident and establish their contact details, in particular, first and last name, patronymic, address of registration and residence, telephone number, and other means of communication.
Further, it will be efficient to obtain a notarized statement of each witness (if possible in the existing circumstances). The statement must contain the following information about the witness:
first and last name, patronymic,
place of residence (stay) and place of work, postal code,
registration number of the taxpayer's account card (if any) or passport number and series,
telephone numbers and e-mail addresses (if available),
circumstances known to the witness, the sources of information from which the witness learnt about the circumstances,
confirmation of being aware of the content of the law on criminal liability for giving false testimony and of being ready to appear in court upon subpoena to testify.
In the absence of a notary, the authenticity of the witness's signature on the statement may be certified by an official of the appropriate local self-government body (in a rural area) or consular office (abroad).
5. Fixing evidence showing that damage to or destruction of property resulted from armed aggression of Russian Federation.
If you have information about the individual directly involved in the destruction of property, it is necessary, if safe and possible, to record first and last name, patronymic of such person, date and place of birth, military rank, and other details.
If the property was destroyed as a result of detonation of munition and its remains are present at the site, it is necessary, if safe and possible only, to make a detailed photo and video recording of these remains with identification data (serial number, markings, etc.).
6. Fixing online
To provide authorized bodies with information on the fact of damage to or destruction of property, such information and the collected evidence can be sent to the following official online resources:
warcrimes.gov.ua (established by the Prosecutor’s General Office with Ukrainian and international partners for proper documentation of war crimes and crimes against humanity committed by the Russian army in Ukraine);
damaged.in.ua (founded by the KSE Institute together with the Office of the President of Ukraine and the Ministry of Economy to create the most complete list of property destroyed as a result of the war that Russia has waged against Ukraine).
Recording damage on these resources will provide information on damage to and destruction of the property to authorized bodies to exercise their powers, rather than additionally record the damage caused to the company. According to the provided information, these sites are intended to help assess the damage suffered by Ukraine as a result of Russian aggression and prepare lawsuits against Russia to international courts for compensation.
7. Saving materials and publications
In addition to all the steps described above, we recommend keeping safe:
any materials of online and offline media;
documents, notifications and publications of state and local self-government bodies, military command, other authorized bodies on the facts of shelling, bombing, existing prohibitions, obstacles or restrictions on economic activity carried out by the company, etc.;
publications on social networks about events related to damage to or destruction of the company’s property (individual posts, screenshots).
All these materials and publications will additionally confirm the time, circumstances and, maybe, the true reasons for the damage caused to the company.
Partner, International Arbitration, Cross-Border Litigation