“Public necessity” could deprive any of us of our private property
In an article in “Dzerkalo tyzhnya” [“Weekly Mirror”], Dmytro Khylyuk warns his readers against assuming that all documents confirming property rights and the like mean that nobody can take such property away from them entirely legally. He says that since 17 November no lawyer would be prepared to provide such guarantees. As reported already, on that day the Verkhovna Rada managed to override the President’s veto on the on the Law on expropriation of private land for public needs.
The draft law had been initiated by Prime Minister Tymoshenko and tabled in parliament on 30 January, being adopted in full on 25 June. The President had, on 24 July, proposed rejecting the law as not enjoying real protection of the rights of the private owner and observance of the constitutional guarantees of property rights.
The author does not dispute that public needs and necessity must take precedence over an individual’s requirements, however believes that the law raises important questions like whether it is not confusing the precedence of public need over private need with the dominance of private interests over somebody’s property rights.
For example, the Law defines public necessity as that “dictated by general State interests or the interests of a territorial community. Exceptional necessity for which forcible expropriation of a landsite or other elements of real estate situated on it is permitted...” While public need is “a need, dictated by general State interests or the interests of a territorial community, for land sites, including those which have items of real estate situated on them, where their purchase is carried out according to legally established procedure.
The difference is that in the case of public necessity your property can be forcibly expropriated by court order, whereas a public need or requirement envisages the consent of the owner to their property being bought up.
A public need is seen by the Law as being the need for a site to build roads, oil or gas pipes, transmission cables, transport structures, city parks, kindergartens, sports areas, stadiums etc. In a word, this list does not contain a specific number of types of structures, etc, for which land may be expropriated. The list of items which constitute public necessity are to a large extent the same as those for public need, although items linked with national security and defence are mentioned, as are those linked to the natural reserve fund.
Dmytro Khylyuk asks us to imagine that we own property in a rural area close to a good road or in a picturesque location. Some individual or legal entity with money and clout wants to get their hands on it without such niceties as selling at market value or the consent of the owner. They can use certain levers of influence with members of the Village Council which will oblige with a decision regarding the public necessity for the land in question. The chances of any owner getting the market value are next to nil, and the author notes that there is nothing in the Law about market principles regarding compensation.
The local authorities then become the owners, after which it’s easy to change the designated purpose of the land.
Nor does the Law clearly differentiate between public necessity and need. If, say, the authorities have not agreed the price of the property being taken for a public need, the law on the one hand says that the property remains with the owner, while on the other it gives the authorities the right to prove the public necessity in court after which there will be a compulsory purchase.
The author also points out that the Law gives fairly broad powers to the courts (the administrative branch of the judiciary) in apportioning property rights to a site, determining its value, as well as to municipalities in initiating compulsory expropriation of property. He suggests a scenario involving abuse of the law and various manoeuvres.
“The law is clearly badly-formulated and not because its initiators and authors have been unprofessional. The ambiguity of its terminology and provisions provides wide scope for various legal manoeuvres and equivocal interpretation. It is unlikely that those who drew it up and the over 300 National Deputies who voted for it were unaware of this
Valeria Lutkovska, Deputy Minister of Justice
I think that there will be a submission to the Constitutional Court over this law and we’ll then see the position of the body which can determine whether what will take place with land in the case of public necessity is constitutional (If there is no such submission we will get applications to the European Court of Human Rights). I agree that there is at present no definition in legislation of public necessity. In view of this the law will remain empty noise until such an explanation appears. It should be extremely limited and unique in order to not violate human rights.
Volodymyr Yavorsky, Executive Director of the Ukrainian Helsinki Human Rights Union
This law is already working. Even without it up till now buildings have been expropriated for public needs although such needs are nowhere defined. We have dozens of cases where the local authorities have taken away people’s flats, passed them to commercial enterprises after which entertainment centres have been built. The community gained no benefit, yet all the courts, including the Supreme Court, treated this as public interests. We will continue to see the same thing. Effectively any local body can pass any land site for development to another owner without any particular justification provided. Another problem with the law its that of adequate compensation for property rights. This is not there. I doubt very much that anybody will turn to the Constitutional Court asking whether the law is constitutional since all business structures have an interest in this, and they are the people who control the authorities, who have the right to submit applications to the Constitutional Court.
A much abridged account of the article by Dmytro Khylyuk at http://www.dt.ua/2000/2675/68014/