UHHRU call for the Presidents veto on a law which could endanger property rights
The Ukrainian Helsinki Human Rights Union has called on the President to use his power of veto against the law “On comprehensive reconstruction of residential areas (micro-districts) from the obsolete housing fund” (Draft Law No. 0943), adopted by the Verkhovna Rada on 22 December 2006.
The Law which the President previously vetoed is better than its predecessor however it still seriously undermines the protection of Ukrainians property rights.
The human rights group is convinced that the law fails to provide sufficient guarantees for citizens rights to property and housing, and it also has a number of shortcomings which will make it difficult to apply.
It has been proposed as a framework law, without sufficient attention having been given to procedure and details which will need to be drawn up as subordinate legislation. On the one hand this can be justified by the huge volume of legal regulation, however the procedure in such a law is the foundation of any guarantees against arbitrary eviction of people from their homes or the forced removal of other possessions. A large number of norms of this law should be part of the Housing Code, and not of this separate normative act.
The law does not clearly set out the overall order of activities during reconstruction, it lacks, for example, a scheme of actions and conditions for the removal of property in connection with reconstruction and the relocation of owners and tenants.
However the main problem is that the law does not envisage mechanisms for overseeing the fulfilment of commitments by both investors and state authorities or bodies of local self-government. Nor does it set out liability for breaching these commitments, including cases where these breaches are by officials of the said bodies. Clearly these issues cannot be resolved at the level of subordinate legislation. Yet without the appropriate level of control, the given law could become a mechanism enabling large construction companies to deprive individuals not well-versed in legal questions of their property. .
While undoubtedly some efforts have been made, for example in Article 12, to regulate and guarantee the rights of those who are being re-housed in connection with major reconstruction, however the guarantees are not clear, and as mentioned there is no control mechanism nor punishment of those guilty of violations. Still less regulated are the rights of the owners (tenants) of non-residential premises, country residential buildings, land sites falling into reconstruction zones.
From the point of view of protection of the right to housing and to own, use and dispose of ones possessions as foreseen in the Constitution, as well as the right to peacefully enjoy ones possessions as set out in the First Protocol to the European Convention on Human Rights and Fundamental Freedoms, the following issues must be resolved when evicting people:
- A mechanism for eviction, expropriation of property and objects of other material rights;
- Defining the area and number of rooms which should be provided as compensation;
- The condition of the property provided as compensation;
- The location of this property;
- The legal regulation of the transfer and obtaining of rights to the new property;
- Valuation of the property in the case of pecuniary compensation, as well as the issue of payment of taxes and fees thereby arising;
- Forced eviction and the observance of the rights of owners (tenants) in the course of the eviction;
- Control mechanism over carrying out the compensation procedure;
- Liability for violation of the procedure for providing compensation and control over this.
We would stress that the introduction of a norm on eviction of owners or tenants of residential or non-residential premises under reconstruction which envisages that this process should be carried out on condition of these owners consent, in accordance with the conditions of the agreements, as well as the provision of the right to individuals on the housing list to receive housing effectively only resolves one of the questions with regard to this law, but leaves the others unregulated.
It must be emphasized that the state is effectively distancing itself from this area of relations, confining itself only to establishing a model contract between builder and owner of the flat. UHHRU considers that this is clearly not sufficient. The state must ensure effective control against abuse in this area since otherwise this runs the risk of becoming yet another method for cheating people.
The public necessity and social significance of the adoption of such a law cannot be doubted, especially in places like Kyiv where the deficit in land sites for construction is contributing to a substantial rise in prices of accommodation. However it is precisely for this reason that this law must regulate such an important and complicated area of public relations, and must be carefully prepared and as clear as possible to ensure that no opportunities remain for speculative interpretations in the interests of any particular party.