Forcible Alienation of Property Under Martial Law: The Nature And Peculiarities of Legal Regulation
The Art. 41 of the Constitution of Ukraine is guaranteeing to everyone the right for possessing, utilizing, and disposing of their property. However, such right is not absolute and could be restricted under certain circumstances. In the same article of the Constitution is provided the possibility of forcible alienation of private property that could be done “as an exception for the reasons of social necessity, on the grounds and in the manner established by law, and subject to prior and subsequent compensation of the value of such objects”. The forcible alienation of such objects with subsequent compensation is permitted only under martial law or a state of emergency.
The mechanism of such alienation under martial law or a state of emergency is regulated by the Law of Ukraine “On transfer, forcible alienation or seizure of property under conditions of martial law or a state of emergency” (Law)
The law is containing two main notions: “forcible alienation” and “seizure”. As mentioned at Art. 1 of the Law, the forcible alienation of property is a deprivation of ownership for the objects of private of communal property and transfer of ownership to the State for utilizing under conditions of martial law or a state of emergency under condition of prior or subsequent compensation. Unlikely, seizure is deprivation of ownership for the objects of property of state enterprises for governmental needs under conditions of martial law or a state of emergency.
In following, we are going to address specifically the issue of forcible alienation.
Based on abovementioned, the Law in fact provides the possibility of forcible alienation, that is applicable to any property in private of communal ownership. According to the Art.3 of the Law, forcible alienation under conditions of martial law or a state of emergency could be imposed only under condition of full prior or, in case of inability of that, subsequent compensation.
The procedure of forcible alienation of property.
The decision regarding the forcible alienation of the property under conditions of martial law is rendered by military command with the approval of local administrations (regional, district, the city of Kyiv or Sevastopol), its executive bodies or the Council of Ministers of Autonomous Republic of Crimea. However, it is significant to take into account that on the territories, where hostilities are going on, the Law allows to impose forcible alienation without such approval.
In case of imposition of forcible alienation, the act is being drawn up. The form of such act is approved by Resolution of the Cabinet of Ministers of Ukraine of October 31, 2012, No. 988.
Such act must contain following:
1) name of the military command and body, that approved the decision regarding forcible alienation of the property, or military command or body, that has rendered such decision;
2) information regarding the owner (owners) of the property:
For legal persons – full name, location, and identity number.
For natural persons – full name, place of temporary residence and Individual Tax Identification Number (ITIN), except of persons, that refused of having ITIN due to religious matters and have consequent note in their passport.
3) Information regarding the documents confirming the ownership (if any);
4) The description of property enough for its identification. Meanwhile, the following should be mentioned:
- For real estate – information about location (address).
- For movable property (vehicles, vessels, and aircrafts) – information regarding the identification number of a mean of transport, brand, model, VIN-code, year of manufacture and other registration information.
5) the amount of paid compensation (in case of full prior compensation).
The law prescribes that act should be signed by owner of the property or his representative and authorized person of the military command and body that approved the decision regarding forcible alienation, or military command or body that has rendered such decision. Such act must be sealed by abovementioned bodies.
Attention!!! The ownership right is being transferred to the State since the moment the act is signed.
It should be taken into account, that a bit different procedure of forcible alienation of the objects of property in communal ownership is established by the law.
According to the Art. 6, the military command shall be addressing the local self-government bodies concerning the initiative transferring communal ownership property to State for governmental needs under conditions of martial law.
Such transfer could be done upon decision of village, district, city councils or regional council depending to who it pertains.
However, in case of inability of the council to make such decision, the Law prescribes such decision to be made by head, deputy head or secretary of respective council with further approval of it.
In case of such transfer to be happened, the Delivery-Acceptance Act should be drawn up as well. It must contain the following:
- name of the local council and military command;
- full name, location and identification code of legal body that property pertains;
- Information regarding the documents confirming the ownership (if any);
- The description of property enough for its identification. Meanwhile, the following should be mentioned:
- For real estate – information about location (address).
- For movable property (vehicles, vessels, and aircrafts) – information regarding the identification number of means of transport, brand, model, VIN-code, year of manufacture and other registration information.
Such act shall be signed by the head, deputy head or secretary of respective council and authorized person of the military command and sealed.
However, it is important to highlight that in case of inability to make such decision by the head, deputy head or secretary of respective council or not approval of it by the respective council, such property shall be forcibly alienated for the military needs by the decision of military command.
Attention!!! The ownership right is also being transferred to the State since the moment the act is signed.
Important!!! In both cases the document on the evaluation is being attached to an act. Such evaluation is mandatory and is undertaken by persons providing such services and is ordinary business. In case of inability to involve such persons, it shall be carried out be governmental of local self-government bodies with the consent of the owner. If such consent was not given, or owner is absent, the evaluation is undertaken by respective bodies on their own.
The compensation procedure
In case of the forcible alienation, person, to whose property it was imposed, and heirs and successors have right for compensation. Such compensation shall be paid by military command or body that has rendered such decision at the expense of the state budget before the act signed (prior compensation) or during next five budget periods after the martial law to be abolished.
Prior compensation is being paid on the basis of the document on the evaluation of the property. Subsequent compensation - on the basis of the application by former owner (or his representative), to which the evaluation document is attached, to the Territorial Center for Recruitment and Social Support after the abolition of martial law.
Pay attention!!! The preparation of all the documents regarding the alienation of the property and evaluation are paid at the expense of the state budget.
However, the Law provides a possibility to return the property to its former owner in case of respective property being preserved. This could be done in course of judicial procedure. Moreover, the former owner could ask for the compensation through substitution of alienated property, if possible.
The legal basis for returning the property is court judgment.
In such case, the ownership right is being renewed.
Attention!!! At the same moment such person is obliged to return the amount of compensation with the deduction of reasonable cost for the utilizing of property.