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16. RIGHT OF PROPERTY

   


[1]

1. General overview

      The importance of property rights as one of the key human rights is defined in the Universal Declaration of Human Rights according to which everyone has the right to own property single-handed as well as in association with others. No one shall be arbitrarily deprived of his property.

      Unfortunately, Ukraine is very far from being able to guarantee the people's right to own, use and dispose of their property. Moreover, very often the state itself becomes the primary violator of property rights.

      The system of registration of estate in real property in Ukraine is one of the main problems in guaranteeing this right. The reforms in this area are carried out very slowly, and today the main elements of this reform are not introduced. In 2012, there still was no single body responsible for registration of rights to real property, the only clear procedure and a single register, which would be open to the public. All this contributes to the fact that up to now the ownership of real estate remains illusory.

      There are still problems with the investors’ possessory rights who have invested their money in construction, and heirs, who are trying to inherit unfinished project. Due to deficiencies in the legislation, thousands of people cannot protect their right to property.

      Also, there is the issue of limitation for appeals of invalid transactions, which reduces guarantees of the inviolability of property rights.

      Despite the adoption of the Law of Ukraine "On state guarantees of implementing adjudication" the situation with the implementation of the decisions of national courts protecting property remains extremely difficult. Despite the fact that this law comes into force early next year, many of its provisions cannot be applied, because there are no necessary amendments to other legislation covering this area. And in addition, up to now there have been no guarantees that the necessary funding for the measures specified by this law.

      It should be noted that there still exist problems with the use of the Law of Ukraine "On the alienation of land and other immovable property located thereon, which are private property, for public use or for reasons of public necessity." It is especially true in the context of sufficiently vague definitions of social need and social necessity in this law, which leads to many conflicts during the land buyout.

      There also remains an unresolved situation with the moratorium on sale of agricultural land. In 2012, they once again failed to adopt necessary legislation for the formation of a land market and, consequently, the moratorium would not be lifted.

      It is important to note that in 2012 there still existed significant problems concerning the violation of property rights by the agencies of internal affairs. In particular, the actions of the State Traffic Militia when seizing vehicles and then bringing them to paid parking place or illegally collecting money for the provision of compulsory service.

      So, despite certain attempts by the state to improve legislation intended to guarantee property rights, these actions of state bodies are still insufficient to make a real difference in this area.

     

2. Guarantees of ownership

The state registration of estate in real property

     The weak position of Ukraine in the ranking of Doing Business-2012 may be an evidence of problems in national registration of estate in real property. For the ease of registering the rights of property, our state occupies the infamous 166th place out of 183 countries (annual one point decline). According to experts, in order to register property in Ukraine one needs to spend 117 days, which is almost four times higher than in Europe and Central Asia (33 days)[2].

      Until now there have been serious problems with the system of registration of rights to real estate in Ukraine. The reform of this system has been underway for years without any positive results.

      In particular, there remains the problem of multiple agencies involved in this system. The registration of estate in real property may be performed by BTI, State Agency of Land Resources, which issues papers on land property, and the Ministry of Justice of Ukraine, which keeps records of ownership of real estate and mortgages.

      It would seem that the government decided to centralize registration at one agency. In 2010, the Verkhovna Rada passed the new redaction of the Law of Ukraine "On state registration of estate in real property and its encumbrances," and in 2011, the Cabinet adopted the decree "On the approval of state registration of estate in real property and encumbrances and procedure of issuing records from State register of real rights on real estate." The essence of these documents consisted in creation of the new agency under the Ministry of Justice of Ukraine, which acquires the exclusive right of registration of estate in real property––Ukrderzhreyestr."

     The "Ukrderzhreyestr" had to really get going on January 1, 2012. But something went wrong and a new date for inauguration was set for January 1, 2013. Nominally the administrivia were to blame (personnel issues and logistics). However, in practice not all top groups of interest were accounted for.

      In fact, the top administration failed to dot the i's and cross the t's in the field of property rights registration which resulted in the draft by deputies Yuri Miroshnychenko and A. Pinchuk no. 10140 "On amendments to some legislative acts of Ukraine on state registration of rights to real property." Its leitmotif: "elimination of duplication of functions among different departmental affiliations" concerning the registration of land rights. In actual fact, the lawmakers are eager to review the Law of Ukraine "On State Registration of Rights to Real Estate and Its Encumbrances", which specified the centralization of these functions only in the Ministry of Justice of Ukraine.

      However, despite these legislative initiatives, certain steps concerning the issue of a single government agency responsible for state registration of rights to real property were made. Thus, according to the Decree of the President of Ukraine no. 965/2011 of 5 October 2011, which becomes operative as of January 1, 2013, the authority of Derzhzemahenstvo concerning the state registration of ownership and other property rights to land expired. That is the Derzhzemagentstvo will keep the function of state registration of the land as the property in the state land cadastre. In its turn, the "Ukrderzhreyestr" will carry out the state registration of ownership and other real rights to land.

Also adopted was the Law of Ukraine "On amendments to some legislative acts of Ukraine concerning the improvement and simplification of state registration of land and property rights to real estate," which is intended to improve and simplify the procedure of state registration of land and property rights to real estate. Specifically, the law provides for the possibility of application for state registration of rights in paper and in electronic form by introducing the mechanism of civil cadastral registrar, giving notaries powers of the state registrar of rights to real property arising from notarial acts, namely, implementation of notaries public ownership registration, the registration of which was conducted in accordance with the legislation in force at the time of their occurrence, in a notary act of real estate, suspended project, and state registration of rights in the commission of notarial acts with such objects. They have also defined the procedure of interaction of the agencies of state registration with the state executive service[3].

      But at the same time there remain risks of violations of the right to peaceful ownership during inventory-of-property reform. Therefore two bills “On technical inventory of real property” are registered at Verkhovna Rada today. The first one no. 10286 was authored by deputies Yu.Voropayev, S.Osyka, and O.Chernomorov; the second one no. 10286-1 by officials headed by M. Azarov[4]. These documents are fundamentally different. If legislators option captures the current status quo and fixes for BTI utilities exclusive right to provide services of technical inventory, the variant proposed by the Cabinet offers to admit to this market private institutions––legal entities and natural persons-entrepreneurs.

      "The adoption of regulatory act will do away with monopoly utilities in the area of ​​technical inventory of real estate creating a transparent and competitive environment in this field,” assured the government in the explanatory note to the bill.

      Logically, the market competition is expected to improve service and bring down consumer prices, or isn’t it? The BTI community draws prospects in dark colors: service prices will go up, system will plunge into chaos leading to mass destruction of buildings.

      "If parliamentary bill provides for approval of tariffs on technical inventory by local governments, the private enterprises under their charters will set the sky high prices. In addition, it means the decline in the quality of service due to lack of qualified personnel and training programs in their preparation,” predicts chairman of the BTI Association Ukrtekhinventaryzatsiya Leonid Chernenko. He believes the technical inventory prices will go up because proprietors will receive their licenses at the Minregionbud. "It builds risks of corruption into it. Perhaps the highest bidder will get a license. And then this money will be ripped off the customers of technical inventory," predicts Leonid Chernenko[5].

      According to Dmitry Pavlenko, director of the analytical center "Legal protection of BTI", by January 1, 2013 the BTI shall place all inventory records at the archive of "Ukrderzhreyestr" because, they say, private entities will work blindly: without the bases of comparison they will not be able to determine whether there were any changes in real estate. And this is a room for abuse. "More than 60% of real estate has a big percentage of wear. When buildings start crumbling on the heads of passers-by, it will be too late to justify oneself,” notes D.Pavlenko. “Taking away property accounting functions from local government shows the willingness of persons concerned to nullify data on real estate legitimizing existing unlicensed construction."

      The proponents of preservation of current positions of BTI do not exclude the possibility of resulting mounting fraud, including the loss of their property by owners. "The records digitalization may take years of time and millions of hryvnias. It will also pave the way for crooks who specialize in property misappropriation. It is envisaged that there may be ten-to-twenty such structures in each city. Will it be easier or harder to falsify documents? And the fact that today there are some cases and the BTI is not always to blame wouldn’t justify massive future rigging. The number of attacks against apartments of elderly population will increase significantly,” expects L. Chernenko[6].

      It should be noted that on June 5, 2012 the government bill was turned down by the Verkhovna Rada of Ukraine; instead they adopted the deputies’ bill no. 10286 "On the technical inventory of real property." However, in July the President of Ukraine vetoed this bill and it is now with appropriate amendments will be reconsidered by the Verkhovna Rada of Ukraine. And one of the main observations of the President was that the law retains existing utilities’ monopoly –– Bureau of Technical Inventory ––to carry out technical inventory of real property, while the law and the establishment of requirements for different business entities carrying out one type of activity and impossibility of such activities by individual entrepreneurs are actually creating benefits for the Bureau of Technical Inventory and public utility companies in doing this type of business.

Therefore, this important aspect of state registration of estate in real property remains problematic, including the fact that at the state level there is no consensus on reformation of the system of technical inventory of property.

      There also remains the problem of closedness of registers carrying information on property rights in Ukraine. Unlike many developed countries, where in order to reduce corruption, this register is open, in Ukraine such initiatives are unlikely to ever find support, because in this case the general public may learn who owns the former state-owned villas and elegant estates in Koncha Zaspa and Pushcha Vodica.

 

Legal regulation of joint ownership of condominiums

      The inefficient state registration of ownership of real property, as well as difficulties in exercising their rights of joint ownership of condominiums are major problems in the realization of the right to peaceful ownership. In 2012, the problem riveted special attention in connection with the efforts of the State to regulate legislation in this sector.

      Thus, on March 15 2012 the Verkhovna Rada of Ukraine adopted the Law of Ukraine "On amendments to some legislative acts of Ukraine about associations of co-owners of condominium," which was intended to improve conditions for the management of their buildings by association of co-owners of condominiums (ACOC).

      However, the law contains a number of problems that could hamper the implementation of their rights of ownership of condominiums. In particular, in the opinion of the Heads of associations of co-owners of condominiums of Ukraine, the law not only would have made it impossible to create new associations of co-owners of condominiums in Ukraine but would threaten the existing ACOCs with serious contradictions and inconsistencies in the text of the document[7].

      The President of Ukraine Viktor Yanukovych agreed with this and in April 2012 vetoed the law "On amendments to some legislative acts on associations of co-owners of condominiums.

      In particular, it was noted that under the law the said mechanisms would not contribute to solving urgent problems of setting-up and operation of associations of co-owners of condominiums, were conceptually flawed and unbalanced, failed to fully protect the rights of homeowners, namely:

      - Provisions of the bill create the risk of violations of constitutional property rights, may lead to uncontrolled alienation of land plots belonging to associations of co-owners of condominiums, on which there are residential buildings;

      - The law does not take into account the rules of civil and land legislation and narrows compared to the Civil Code of Ukraine and current Law of Ukraine "On associations of co-owners of condominiums" the scope of rights of owners of common property in the apartment building, which is a violation of Article 22 of the Constitution of Ukraine;

      - The law does not provide solutions to existing problems of creating condominiums in newly built homes, improving procedures of the organization of such associations in the homes of the old building, does not resolve the issue of further activity condominiums established prior to enactment other than that provided by this Act, the principles of which may adversely affect the rights of holders of residential and non-residential premises in these apartment buildings;

      - A number of provisions of the law can lead to an artificial increase in fees for utilities, which adversely affects the interests of the co-owners of condominium;

      - The bill contains internal inconsistencies, contradictions, gaps in legal regulation that will allow unfair officials to use the rules taking their choice in all matters concerning creation and activities of co-owners of condominiums, and also create risks of unequal application of the law.

      The Verkhovna Rada of Ukraine agreed with these remarks, and on May 25, 2012, removed this law from consideration[8].

 

Guarantees of protection of property rights on corporate rights

      Despite the fact that the Law of Ukraine "On Joint Stock Companies" greatly improved the safeguards for the protection of property rights to corporate rights, this year again, there emerged new significant corporate conflicts in this area.

      The practical application of the Law of Ukraine "On Joint Stock Companies" also detected many gaps in this legal act. In particular, the controversial law contains the requirement of binding definition in the company’s charter of consequences of default of shares redemption, because according to the provisions of the Civil Code of Ukraine the legal consequences of non-execution of one’s commitments may be imposed by law or contract only.

      There are also flaws in the Law on company’s legal actions which may stir up outside interest. Thus, if the supervisory board majority consists of linked-in persons, the supervisory board loses the right to make decisions about committing transactions by the stock company with these officials and their affiliates. The decision to commit such a deed can only be adopted by the stockholders’ meeting.

      These requirements of the Law of Ukraine "On Joint Stock Companies" may jeopardize the efficient operation of the corporation, because it is logical that closely associated shareholders controlling the stock company set up this corporate management and are interested in the effective direction of their property.

      In order to prevent violations of the rights of shareholders and to ensure transparent and efficient operation of the company the way out of this situation may consist in embodiment in the law of prior approval by the stockholders’ meeting in the course of year of certain legal acts which arouse interest.

      The analysis of judicial practice resulting from corporate disputes adjudication after the adoption of the Law of Ukraine "On Joint Stock Companies" suggests that the situation is improving, although there are still many problematic aspects.

      One of the controversial issues that have arisen since the adoption of the Law of Ukraine "On Joint Stock Companies" is the question of the grounds for the invalidation of a significant transaction committed in violation of the established procedure.

      Although the procedure for executing major deeds thoroughly was settled by the Law of Ukraine "On Joint Stock Companies", no provision of this Act or any other regulation specifies the legal consequences of the breach, including the possibility of recognition of such transaction invalid. In this case, the courts by analogy apply the provisions of Article 72 of the Law of Ukraine "On Joint Stock Companies", which provides for the recognition of the deed arousing interest invalid due to violation of the procedures for its conclusion. However, this raises the question of how to recognize the significant deed void, as contrary to the law (part 1 of Article 203 of the Civil Code of Ukraine), or as one transacted by a person with special disability (part 2 of Article 203 of the Civil Code of Ukraine) . Up to now there is no clear position on this issue, including judges[9].

It is important to note that the weakness of protection of property rights show the presence of extensive corporate conflicts in Ukraine in 2012, in particular, as an example, there is the corporate dispute of "Soyuz-Viktan" and the situation with Nemiroff[10].

      The case of "Soyuz-Viktan" is about the collection by Rodovidbank of assets of this bankrupt horilka company. The bank seeks a court order to recover from the company's property assets the total of UAH400mln. The Court has already seized one of the company’s flagship brands––Medoff™, now owned by British entrepreneur Nile Smith. The latter has called the actions of Rodovid Bank a raid and declared his readiness to assert his rights in international courts[11].

      The situation with the Nemiroff™ shows the weakness of property rights protection in Ukraine. In this case the problem of majority shareholders emerged in connection with long-term barriers hampering company’s management, which had been set up by minority shareholders. But only in September 2012, the Supreme Administrative Court of Ukraine made a decision confirming the illegality of actions of Nemiroff’s minority shareholders aimed at blocking corporate decisions of majority shareholders. Also on August 28, 2012 the District Court of Nicosia (Cyprus) lifted the prohibition imposed earlier on the basis of a claim of Nemiroff’s minority shareholders, which did not allow the Cypriot holding companies to make decisions and carry out actions aimed at changing the management of Ukrainian wholly owned subsidiaries of the group[12].

    

Failure to comply with the decisions of judges protecting property  

      In March 2012, the European Court of Human Rights has once again underlined the seriousness of the problem of non-enforcement of national court decisions in Ukraine. It added that even after the pilot judgment on Yuri Ivanov’s case had been implemented, the Ukrainian government took no measures to eliminate this problem. It was also noted that in 2,500 similar cases are currently pending before the court. In addition, the European Court has decided to resume consideration of similar applications, which has become an important assessment of the state concerning the problem of non-implementation of judicial decisions.

      It was only after the European Court of Human Rights had revived the case of Ukraine for non-implementation of judicial decisions by the state the steps were taken to solve this problem. For example, the draft law "On state guarantees for the implementation of court decisions" was finalized and articles limiting socio-economic rights were dropped. It should be noted that this was done not to lend an ear to the comments of civil society, but because these legal provisions were already contained in other laws. And on June 5, 2012 this law was passed by the Verkhovna Rada of Ukraine and signed by the President of Ukraine.

      The positive aspect of the law is the implementation of procedures intended for recourse recovering of compensation for sums paid by the budget program. So, in accordance with Part 1 of Art. 6 of the Law, the paid judgment shall be deemed the budget losses now. The reimbursement of the aggrieved party is carried out now by a respective official or employee, through whose fault the payment of compensation took place. However, given that the relevant law provides the charge-off of funds from the accounts of individuals and the payment of compensation at the expense of fiscal program there remains an uncertain issue of deciding in which case the right of recourse will be exercised: in the case of recovery from the accounts of individual subjects or in the case of implementation of compensation. There are other questions about the practical aspects of the application of the law on subrogation reimbursement, particularly relating to the formulation of the objective offense of an officer or official[13].

      Although the provisions of law on the introduction of a mechanism to respond to prolonged non-enforcement of legal judgment determine the possibility of compensation for non-enforcement of domestic judgment, the amount of the compensation is set at the lowest level possible (3% per annum). And it may significantly impede the effective use of this mechanism. Even if you compare the size of liability with inflation (in the state budget for 2012 the Ministry of Finance of Ukraine's inflation forecast amounted to 7.9%.), it becomes clear that this responsibility will not be a stimulating factor for the timely execution of court decisions. Moreover, the state will rather benefit from paying this minimum amount of compensation than execute the judgment.

      In addition, the state failed to tackle the basic problem of non-enforcement of decisions protecting the property, namely financing the implementation of the decisions of national courts where the state is the party to be charged, as well as future decisions of domestic courts concerning current trials. The matter covers thousands of decisions that due to their non-enforcement will sooner or later be filed with the European Court of Human Rights, which will entail an unconditional obligation of the state to pay these costs. Although the law defines the possibility of monetary compensation at the expense of the special budget program, in fact, it only means only an obligatory budgeting of such expenses. But, unfortunately, the law fails to determine the amount of public financing.

      Another significant problem of the said law is that it contains a provision under which the Cabinet of Ministers of Ukraine determines the list of documents required for submission to the Treasury to get adjudicated funds. This will adversely affect the rights of beneficiaries. According to the former First Deputy Minister of Labor and Social Policy Pavlo Rozenko, it is unclear what will the list of documents be and whether the person entitled to a benefit will have to prove that s/he will be "fit for space mission." He also expressed the opinion that this law helps "the state to legalize the right not to carry out the decisions of the courts"[14].

      But the most important is the fact that becoming operative as of January 1, 2013 the law will actually be effective only since 2014. The final provisions of the law stipulate that the Cabinet of Ministers of Ukraine shall prepare and submit to the Verkhovna Rada of Ukraine before January 1, 2014 suggestions for amending the laws of Ukraine resulting from this very law. This means that by adopting this law, the government postponed the solution of this systemic problem at least for a year, since its provisions cannot operate without corresponding amendments to other laws and regulations. At the same time it may take the Verkhovna Rada more than one year to considerer the bill be considered by; therefore it is equally unknown when the mechanisms implied in law will become operative. So, it is still unclear when and how the decision of national courts where the defendant is the state will be carried out.

One evidence that the government is not ready for the enactment of the Law "On state guarantees of execution of judgments" is contained in the answer of the State Treasury Service of Ukraine to the request of the NGO "War veterans–– Chornobyl invalids" which states that for September 2012 this public body has no explanations concerning the application of the above law.

      A number of pressing systemic issues relates to the fulfillment of court decisions by the enforcement service. In particular, the improvement of the State Executive Service requires taking the following measures: the need for stimulating the executors to ensure effective enforcement of court decisions, expand guarantees of executors’ independence from external interference, ensure security of state agents in the performance of official duties; develop effective mechanisms for enforcement of judgments both of national courts, particularly in cases against the state, and the decisions of the European Court of Human Rights; improve recruitment to the State Executive Service[15].

 

Problems in the implementation of guarantees of property rights in the field of construction

      There is an important issue of ensuring property rights of investors in frozen construction projects. To date, only in Kyiv for various reasons they have stopped the construction of more than 50 residential buildings with a total area of ​​more than 1 million square meters (about 12 000 apartments)[16].

      According to chairman of KSCA Olexandr Popov, often the complicated legislative mechanism impedes the restart of construction works. "The law prohibits local governments to intervene in the investment activities of business entities. In this behalf we officially appealed to the government to change the law so that we can help people to solve their problems."

      As an example, we can show the problems faced by investors of the residential building on the 4-A Simya Sosninykh St. in Kyiv. In particular, in this case 650 families who have invested in the housing project on Simya Sosninykh St. and 250 families, the investors of the same on the Staronavodnytska St. cannot get their apartments because for five years now the issue of the completion of the house remains unsolved. It should be noted that this condominium was to be commissioned in 2006.

      The complexity of the situation shows that even the Kyiv City State Administration on 12.09.2012 was forced to give the order, which made the Main Department of Housing of the Kyiv City Rada (Kyiv City State Administration) and utility enterprise for construction of apartment houses "Zhytloinvestbud- UCB" to take steps to complete the construction of residential buildings on 4-A Simya Sosninykh St. in Svyatoshynsky District of Kyiv and pipelines and networks to these buildings.

      According to executive director of the All-Ukrainian Public Organization "Relief Association for the Aggrieved Investors" Tetiana Yakovenko, the most common problems faced by investors who have invested in housing construction include fraud and poor performance by developers, clonal real estate developers, raiding, preferential treatment by developers of construction projects, developer’s rebranding intended to hide a bad reputation, bankruptcy of developers, dual income on mortgages, misuse of funds, as well as a "family business" developers.

      "Practice shows that the developer’s bankruptcy is a disaster for people who committed their capital. If the developer is adjudged to be a bankrupt and is excluded from the Unified State Register, the investors at worst remain with their suspended project, with which nothing can be done. They have some property rights, but in order to restart the construction works, they need land rights, building permits, and some facilities," explained T.Yakovenko[17].

      In order to protect the right of ownership of such people, their investments should be legally protected and the person’s proprietary right to the object under construction should be recognized, so that in the event of adverse developments the owners of these property rights could retain the ownership of the unfinished project, and go on interacting with the state in addressing these issues.

      Another problem consists in embarrassing registration of property descent rights to objects which failed to be commissioned in their lifetime or arrange ownership to their dwellings built or other buildings. The judicial practice is also a real hassle in this case. So, today the notaries still refuse to issue a certificate of inheritance for such projects as an inherited real estate due to the absence of relevant legal documents establishing rights. In some cases, the courts of original jurisdiction for various reasons (absence of conflict and, consequently, lack of potential appeal decision, wish to help people get out of "stalemate" situation etc.) satisfy these claims of heirs and thus recognize the right of ownership to this property as an inherited immovable property. There is a large majority of such cases. But if the defendant or any interested person not involved in the case, whose rights relate to the decision, lodge a complaint, and the decision of the court of original jurisdiction will be canceled.

      In other cases, courts refuse to satisfy such claims. Often these common law actions are not taken notice of and then they are returned without any consideration (decision YEDRSR: no. 15793542 from 24.05.2011, no. 16780204 from 22.02.2011)[18].

      This situation needs to be addressed urgently because the property rights of these people remain unprotected.

      Invalid legal actions: limitation for appeals

      In late 2011, the rules on a longer statute of limitations applicable to the claim for annulment of the legal action (e.g., contract) committed under the influence of violence or deception (was 5 years old), requirements of the application of insignificant effects of the legal action (e.g., contract which is void by operation of law, limitation of action of 10 years) were repealed.

      The important thing is that the guarantees canceled as larger period of limitation were established by the legislator in connection with the need to protect against violations of constitutional rights and freedoms of man and citizen, destruction and damage of property or misappropriation of it, i.e. an offense which contains elements of a crime. It is advisable to pay attention to the fact that these norms was not about worthless legal action itself, but the consequences of the vile deed, which may be hidden for a long time, in connection with which the legislator specified the ten-year deadline for filing a claim with the above-mentioned reasons. Now there are no such additional guarantees for the owner.

      Moreover, they overturned the norm, whereby limitation of action did not cover the request of the owner or other person to recognize illegal legal act of public authority, authority of the Autonomous Republic of Crimea or local governments, which violated his property rights or other proprietary right.

      It should be noted that this legal provision was a means of regulations of part 5 art. 13 of the Constitution of Ukraine, which obliged the state to ensure the protection of all subjects of property rights. Having withdrawn the above provision the state made weaker the safeguards for private owner.

      According to lawyers, including Leonid Tarasenko (Law Holding): "If earlier the owner could go to court to protect her/his violated rights of property at any time (if it was a quashal of the illegal decision of the government or local authority which violated ownership), now will have three years only (general limitation of action) for this." "Besides, once again there is this burdensome adoption of legislative resolution at the Verkhovna Rada of Ukraine, which on the quiet amends procedural law and without any justification (in a memorandum to the bill nothing is said about it) cancels several provisions relating to limitation. Obviously, this provision is aimed at legitimizing those long-standing decisions of the authorities that violate the right of ownership. The ownership becomes less strict, as one of the guarantees of its inviolability is revoked."

 

3 Activities of authorities limiting ownership

           Purchase of private land allotments for public use

           In 2012, the government attempted to improve the legal regulation of purchase of private land allotments for public use which had been mentioned in the reports of human rights organizations[19]. In particular, as of Sept. 5, 2012 the Law of Ukraine "On amendments to some legislative acts of Ukraine regarding termination of land use at them for public use" came into force.

      The Parliament has enacted that the size of the redemption price of the land is set by the decision of executive authority or local self-government that exercises its redemption, or set by the court.

      In addition, the Parliament decided that the land plots for public purposes might be redeemed not only at the expense of state and local budgets, but also of funding entities that had initiated the alienation of such land for public use. The deputies determined that the amount of the redemption price of land should be fixed by the decision of the executive authority or local self-government that exercises its redemption, or set by the court.

      Also, since the entry of this law into force, the lease agreement on the state or municipal land property may be terminated in the event of a decision to allocate the area for public use. Until then, the rule covered only the repurchase for public use of privately owned land.

      However, these changes did not resolve one of the major concerns of the Law of Ukraine "On alienation of land and other immovable property located thereon, which are in private ownership for public use or social necessity" because of fuzzy definitions of social needs and social necessity, and actual duplication of listed objects.

      In particular, Volodymyr Lapa, CEO of Ukrainian Agribusiness Club (UABC) remarks that there is a risk that local authorities will act in the interests of the initiator of land parcel redemption. Therefore it will interfere with interests of farming entities. "For example, a farmer took on lease the parcel of land for 10 years, bought under recognizance of agricultural production machinery, fertilizers, and farm premises. And then there emerges a third person who initiates the alienation of leased land for public use. The list of motives for social needs is rather long: from recreation centers and sites of environmental significance to the creation of a zoo," said the head of UABC[20].

      The severity of the problem is corroborated by the presence of conflict in the application of legislation on redemption of land plots for reasons of social necessity.

      So, there is an ongoing conflict with the redemption of land in the Lviv Oblast for social necessities for road interchange under construction for Euro 2012.

      The battle of land at the newly built stadium has been going on for about two years now. For construction of the girdle road near the new stadium the Lviv Oblast State Administration decided to redeem land parcels. They bought land at the price of UAH625 per one hundred square meters, which is 40 times less than the market price. The local press maintains that this was a "voluntary-compulsory" process. In this way all in all they redeemed 15 hectares of land.

      Several residents waged a battle of ownership: nobody offered them a swap and the price was too low. Then the Oblast State Administration decided to carry out judicial alienation giving reasons of public necessity. Later, under pressure from the community the local authorities went back on their word and withdrew the petition. Lviv prepared for Euro-2012 without the conflict girdle road.

      However, this wasn’t an end of it. As it turned out, in 2012, almost six months after the court had dismissed the action on compulsory alienation of land the "Directorate for preparation for Euro-2012" appealed to the Supreme Administrative Court for action dismissal. As a result, the case was sent for retrial to the Lviv Administrative Court of Appeal. As Andriy Petryshyn, the landowners’ representative, noted that the landowners hadn’t a slightest idea about hearing in Kyiv. "This is a kind of nonsense,” outraged Petryshyn. “Nobody has built any roads, there is no public need, the championship is coming to an end, but they still want to expropriate land." He does not rule out that the land as a "tasty morsel" near the stadium riveted interest of certain influential individuals, and not the state."[21]

      On May 15, 2012 even the Lviv Oblast Rada appealed to the Cabinet of Ministers of Ukraine and the Prosecutor General of Ukraine for protection of landowners near the football stadium on the Stryiska-Kiltseva Doroha St. in Lviv from encroachment on private property[22].

      There is one more example of problems in this area concerning the redemption for public use of land parcels in Brovary intended to improve traffic safety, which triggered conflict between the owners of land and Brovary City Rada. Thus, the owners of these land plots were not informed of this need and the decision to redeem these land plots, and in this case there is a very real possibility of improvement in traffic safety on the stretch of road without redemption of land plots. This situation also clearly shows that the vagueness of legal definitions leads to different interpretations of these concepts in practice[23].

      The questions about the adequacy of redemption of land plots was brought up in the case of redemption of the downtown building on 1, Shevchenko St., which the city rada plans to bring down in order to lay down streetcar tracks[24].

     

      Moratorium on sale of agricultural land

     

      As has been stated many times in the reports of human rights organizations, the establishment of a fully functioning market for agricultural land (one of the most important elements of which is freedom of trade) is one of the topical problems of land reform in Ukraine, which affects the interests of society and its future. This problem also applies the protection of the right to peaceful enjoyment of possessions of many people living in our country.

      Today in Ukraine there is a moratorium on the sale of agricultural land, which expires on January 1, 2013.

      In early October 2012, the deputies defeated the proposal to extend the moratorium for another year, and also approved in first reading the bill on the land market and the law on creating the State Land Bank. The latter was signed by the President of Ukraine. The observers interpreted this as preparation for the implementation of full-scale privatization of agricultural land in Ukraine[25].

      It should be noted that the problems of establishing a full-fledged land market are rather complicated and complex. On the one hand, the landowners who are not involved in tillage and do not live in the village, find themselves in a position where they have property but are unable to dispose of it. “This new form of serfdom or linking people to the property, which they are not able to use,” said Deputy Chairman of the State Agency of Land Resources of Ukraine Artem Kadomsky during a roundtable[26]. Also, many experts emphasized that in Ukraine the shadow privatization of land was underway.

      Meanwhile, on the other hand, the legislation in this area remains underdeveloped. Adopted in first reading, the Law of Ukraine "On Land Market" does not bear scrutiny, and there is no mutual opinion on many key areas of the law. Furthermore, due to shortcomings in the legislation there exist very significant risks concerning the land buy-up by oligarchs and foreigners, land speculation, and corruption.

      The case studies conducted by Razumkov Center clearly demonstrated that the majority of citizens of Ukraine now are against the land market. They also showed that an average Ukrainian is not well-informed about the land issues[27].

      It is important to say that the Verkhovna Rada of Ukraine decided to revert to the moratorium in the bill no. 11315 "Amendments to the Land Code of Ukraine", which was submitted for consideration after voting for the moratorium had not taken place. This bill prolongs the moratorium on sale of agricultural land up to the enactment of the law on agricultural land, and there is a high probability that it will be adopted and signed by the end of 2012.

     

      Introducing temporary administrations in banks

     

      In April 2012, the National Bank of Ukraine, after a long break, resumed the practice of introducing temporary administrations. The Kharkiv Bank "Basis" co-owned by persecuted oppositionist and former governor of Kharkiv Oblast Arsen Avakov became the first to fall under the steerage of such administration. There was no pleasing news this past May as well. Thus, on May 17, the Fund of Deposit Guarantee for Physical Entities (FDGPE) announced the relegation to a category of temporary members (except for the bank "Basis") two more financial institutions: Interbank (Kyiv) and UNICOMBANK (Donetsk).

      Many depositors were unable to recover their deposits, although the term of the contract had expired. Typically, the bank clerks explained that the temporary administrator imposed a moratorium on the return of deposits, i.e. introduced respite of payments on debt obligations of the bank to depositors.

      It should be noted that the imposition by the interim administration of a moratorium on granting creditors’ (depositors’) demands does not entitle the bank to stop returning deposits.

      The Law of Ukraine "On the System of Deposit Guarantee for Physical Entities" specifies that restrictions on bank performance of its duties shall not apply to deposit payments under expired contracts and bank account agreements. These payments are made to the amount of compensation guaranteed by the Fund.

      It should be noted that until now certain troubled banks do not allow deposited money after the period of the deposit had expired, others establishing draw-out limits, transfer the deposit to the card account explaining the lack of funds, and, in fact, misappropriate property.

     

      Violation of property rights by militia

 

      The militia’s schemes of illegal dispossession of citizens and setting complications in the use of property are very diverse and depend on position and rank. The units of State Traffic Militia are in the van in this field, which is a result of legalized permission to ensure their activities by non-state funding sources, inconsistencies of the legal framework governing the activities of this body.

      The topicality of this problem highlights the lack of effective mechanisms for public control of violations of property rights by the militia.

According to the study conducted by the Association of monitors of human rights abuse by law enforcers the most common violations of property rights in the militia include as follows:

      - Acquisition of property of citizens by militiamen through theft, robbery, plunder, extortion, murder and other general crimes;

      - Illegal seizure of transport vehicles (hereinafter - TV) and taking them to special paid areas or parking and illegal collection of payments for the provision of coercive services related to the transportation and storage of unlawfully seized TVs;

      - Illegal collection of payments for the provision of coercive services related to the transportation and storage of seized transport vehicles;

      - Forcing citizens to re-register property and funds to militiamen as a result of fraud;

      - Illegal exaction of money during administrative and licensing procedures (technical inspection, registration of TV, taking state exams for a driving license, endorsement of architectural projects, giving permits to use transport vehicles, issuing blank certificates-accounts, TV acceptance certificates, license plates, etc.);

      - Illegal collection of money under the pretext of providing information services (presence or absence of arrears for fines, etc.);

      - Illegal fines for regulations that are not enforceable;

      - Creating conditions for depriving citizens of property in the form of soliciting and receiving bribes;

      - Cooking up materials of wrong acts with subsequent occupancy of property of citizens through fraud or extortion of bribes;

      - Cooking up materials due to which the citizens are dispossessed of property in the form of unlawful fines;

      - The unlawful seizure of property by the implementation of criminal and administrative procedures and failure to return property seized as a result of misappropriation or loss;

      - The unlawful organization of private businesses on militia’s premises aimed at the ungrounded seizure of citizens’ property (business units of the enterprises of MIA of Ukraine "Inform Resources" and "Document Resources", etc.).

      - Forcing physical and legal entities to make contributions to the accounts of charities promoting militia and other militia charities[28] [29].

     

      Recommendations

     

      1) Create a transparent and efficient system of state registration of rights to real estate.

      2) Improve the protection of rights of land owners, create mechanisms for combating forced seizure of land, and adopt legislation regulating the fundamental aspects of the functioning of the land market.

      3) Take measures to address the non-satisfying judgments of national courts protecting property, including better judicial control over the execution of court decisions, as well as lift the moratorium on the forced sale of state enterprises. Moreover, to ensure prompt implementation of the Law "On state guarantee of satisfying judgments" and allocation of sufficient financial resources for its implementation.

      4) Promote transparency and simplification of procedures for construction of housing, and to ensure the rights of investors in this area.

      5) Ensure effective legal regulation of the rights of association of owners of condominiums.

      6) Improve the legal regulation of joint stock companies in order to prevent the illegal seizure of enterprises and organizations in Ukraine, as well as the emergence of corporate conflicts.

      7) Regulate appropriation of land and housing on the grounds of social necessity in strict accordance with the Constitution of Ukraine and international obligations of Ukraine.

      8) Ensure an effective mechanism to protect the rights of owners of "problem" banks managed by temporary administration.

      9) Take measures to prevent violations of property rights by the militia.

 

[1] Prepared by M. Shcherbatiuk, UHHRU

[2] The BTI reform: the further you get the harder the going, Vasyl Pasochnyk "Dzerkalo tyzhnia. Ukraine", no. 21, June 8, 2012 http://dt.ua/ECONOMICS/reforma_bti_scho_dali_v_lis-103489.html

[3] Anatoly Leshchenko: the seller and buyer of real estate deals only with a notary http://www.epravda.com.ua/publications/2012/06/11/326006/

[4] Cabinet proposes to abolish the monopoly of the BTI as of 2013; Dzerkalo Tyzhnia, April 11, 2012 http://news.dt.ua/

[5] The BTI reform: the further you get the harder the going, Vasyl Pasochnyk "Dzerkalo tyzhnia. Ukraine", no. 21, June 8, 2012 http://dt.ua/ECONOMICS/reforma_bti_scho_dali_v_lis-103489.html

[6] The BTI reform: the further you get the harder the going, Vasyl Pasochnyk "Dzerkalo tyzhnia. Ukraine", no. 21, June 8, 2012 http://dt.ua/ECONOMICS/reforma_bti_scho_dali_v_lis-103489.html

[7] Head of the associations of co-owners of condominiums asked Yanukovych to veto the crazy bill http://blogs.pravda.com.ua/authors/montyan/4f7312d2275c2/

[8] The Rada turned down a bill on ACOCs http://news.finance.ua/ua/ ~ / 1/0/all/2012/05/25/280050

[9] Court rulings: activated direction http://jurist.ua/?article/112

[10] Foreign investors are deterred from Ukraine due to the impunity of unscrupulous borrowers http://news.dt.ua/

[11] Rodovid Bank shoots the works http://www.kommersant.ua/doc/1996894

[12] Once more the majority shareholders of Nemiroff control "Alco Invest" http://community.hiblogger.net/vse_o_reiderstv/1356829.html

[13] State guarantees of adjudication implementation http://soter.Kyiv.ua/publications/state_guarantees_execution_court_decisions

[14] Former Deputy Minister of Labor and Social Policy Paul Rozenko http://economics.unian.net/ukr/detail/130130

[15] 5th Session of WG: "Implementation of court judgments as a component of the right to a fair trial" http://www.niss.gov.ua/articles/781/

[16] The construction of 50 apartment houses has been frozen in the capital   http://news.liga.net/

[17] Who's the owner of the unfinished apartment? http://www.unian.ua/

[18] Serhiy Kostiukovych Ownership of inherited property: current problems and solutions http://www.yurincom.com/ua/consultation/faq/?id=8830

[19] Report on human rights in Ukraine 2011 http://helsinki.org.ua/index.php?id=1332325240

[20] The new norm of "land" law unlocks land purchase  for public use - expert http://www.ukrinform.ua/

[21] Land conflicts: "Under Cover of Euro-2012” http://myland.org.ua/index.php?id=3454&lang=uk

[22] The conflict of the road junction near the "Arena Lviv" continues in court http://zik.ua/ua/news/2012/05/16/348699

[23] For whose "public use" do they forcibly alienate private land of Brovary residents? http://pravo-znaty.org.ua/

[24] Lviv authorities want to bring down the building for interchange without offering decent replacement http://zik.ua/ua/photoreport/2012/09/19/369214

[25] The Council came close to extending the moratorium on land sales http://www.bbc.co.uk/ukrainian/business/2012/10/121016_agricultural_lands_ban_ko.shtml

[26] Dmitry Kalynchuk: Ukrainians are accustomed to a moratorium on land sales http://tyzhden.ua/Economics/48336

[27] Dmitry Kalynchuk: Ukrainians are accustomed to a moratorium on land sales http://tyzhden.ua/Economics/48336

[28] The issue of property rights abuse by militia in Ukraine: status and challenges. The Association of monitors of human rights in law enforcement area. http://umdpl.info/http://khpg.org/files/docs/1330624392.pdf

[29] Monitoring of ownership in the activities of traffic inspection of MIA of Ukraine: analysis of violations and finding ways to tackle the problem. The Association of monitors of human rights in law enforcement area. http://umdpl.info/http://khpg.org/files/docs/1330624468.pdf

 

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