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, Compulsory 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.
In accordance with Article 3 (1) 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” as of 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 form of the act on compulsory alienation or seizure of property is made according to the uniform sample approved by the Cabinet of Ministers of Ukraine. 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. If there is a need to verify facts set out in the application and clarify additional circumstances, the application is considered within one month. 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 compulsory 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.