FORCED ALIENATION OF PROPERTY
According to Article 41 of the Constitution of Ukraine, no one may be unlawfully deprived of property rights. At the same time, сompulsory alienation of such objects with the subsequent full reimbursement of their value is allowed during martial law.
According to the Law of Ukraine “On the Transfer, Forced Alienation or Seizure of Property under Legal Regime of Martial Law or State of Emergency”, compulsory alienation of private property during implementation of martial law is carried out by a decision of a military command agreed with regional, district, Kyiv or Sevastopol city state administration or the executive body of the relevant local council. In the territories where hostilities are taking place, сompulsory alienation of private property is carried out by a decision of a military command without a consent of mentioned authorities.
According to the part 1 of the Article 3 of the Law of Ukraine “On the Legal Regime of Martial Law”, Commander-in-Chief of the Armed Forces of Ukraine, Commander of the Joint Forces of the Armed Forces of Ukraine, commanders of certain types of troops (forces) of the Armed Forces of Ukraine, commanders (heads) of military administration, commanders of units, military units of the Armed Forces of Ukraine and other military formations are the military command, which has the right to introduce and implement measures of the legal regime of martial law.
Thus, given that the Decree of the President of Ukraine “On the Establishment of Military Administrations” dated 4 February 2022 No. 68/2022 established military administrations, the military command in coordination with military administrations has the right to introduce and implement сompulsory alienation of private property as a measure of martial law.
According to Article 7 of the Law of Ukraine “On the Transfer, Compulsory Alienation or Seizure of Property under Legal Regime of Martial Law or State of Emergency” an act is drawn up on сompulsory alienation or seizure of property. The act is signed by the owner of the property or his legal representative and authorized persons of the military command and the body that agreed on the decision on compulsory alienation of property, or the military command or body that made such a decision, and sealed by the military command and/or mentioned bodies.
Compulsory alienation of private property during martial law is carried out with prior full reimbursement of its value, and in case if it is impossible – full reimbursement is carried out later. The application for payment of full compensation for property (including an act of compulsory alienation of property and a conclusion on the value of such property) is accepted, accounted for and considered at the place of alienation of property by the military commissariat. Refusal to accept and consider the application is not allowed.
The application is considered within ten working days from the date of its submission. A conclusion is drawn up on payments for the full compensation for property during martial law.
The full compensation is made by the bodies that made the decision on compulsory alienation of property, in the order of drawing conclusions at the expense and within the funds provided in the state budget for the full compensation for property during martial law or state of emergency.
If, after the abolition of the legal regime of martial law or state of emergency, the property that was alienated is preserved, and the former owner or his authorized person insists on the return of the property, such return is carried out in court. The basis for the return of property is a court decision that has entered into force.
In case of return of property to the person, the right of ownership of this property is restored. At the same time, the person undertakes to return the amount of money received by him, less a reasonable fee for the use of this property. The former owner of the property that has been forcibly alienated may request another property in return, if possible.
Disputes related to the reimbursement of the value of compulsory alienated property are resolved in court.
The Verkhovna Rada of Ukraine adopted the Law of Ukraine No. 2561-IX “On Amendments to Certain Laws of Ukraine on Optimizing Certain Issues of Forced Alienation and Seizure of Property under Martial Law”.
The Law stipulates the following provisions:
1) amending the Law of Ukraine “On the Transfer, Forced Alienation or Seizure of Property under Legal Regime of Martial Law or State of Emergency” regarding optimization of the procedure for alienation and seizure of property, and implementation of appropriate compensation. In particular, the draft law clarifies that:
● forced alienation or seizure of equipment that is used or can be used for purposes of the defense-industrial complex and is under a risk of interruption of its functioning is carried out on the basis of a decision of the National Security and Defense Council;
● the right of state ownership of equipment that is used or can be used for purposes of the defense-industrial complex and is under a risk of interruption of its functioning, arises from the date of entry into force of the National Security and Defense Council decision on the forced alienation or seizure of such property;
● compensation for forcibly alienated property under martial law or a state of emergency with preliminary full reimbursement of its value before signing the act on forced alienation or seizure of property is carried out at the expense of the state budget within the next 5 budget periods, provided that the location of the property is not in the temporarily occupied territory, as of the date of such compensation.
2) amendments to Article 15 of the Law of Ukraine “On the Legal Regime of Martial Law” regarding the powers of military administrations. In particular, military administrations of settlements in the relevant territory will also exercise the authority to submit a proposal to the National Security and Defense Council, approved by the regional military administration, regarding introduction and implementation of forced alienation or removal of equipment that is used or can be used for purposes of the defense-industrial complex and are under a risk of interruption of its functioning;
4) amendments to the Law of Ukraine “On the National Security and Defense Council of Ukraine” regarding the competence of the National Security and Defense Council. It is clarified that it also makes decisions regarding: need for forced alienation or removal of equipment that is used or can be used for purposes of the defense industrial complex and is under a risk of interruption of its functioning.
This Law aims to optimize the forced alienation and confiscation of property under the conditions of the legal regime of martial law:
● the draft law allows to forcibly confiscate movable property that can be used in the defense-industrial complex and in respect of which there is a risk of interruption of its functioning due a threat of temporary occupation of the location and the boundaries of which are located at a distance of no more than 30 km from the area of operation military (combat) operations or temporarily occupied territory;
● alienation and confiscation of such property is carried out on the basis of a decision of the National Security and Defense Council of Ukraine put into effect by the decree of the President of Ukraine, which is sent to the Cabinet of Ministers of Ukraine no later than the next day. Forcely alienated or confiscated movable property is transferred by decision of the Cabinet of Ministers of Ukraine to the economic entity of the state sector of the economy not later than 5 calendar days from the date of receipt by the Cabinet of Ministers of Ukraine of the relevant decision of the National Security and Defense Council of Ukraine.