Lobbyists for developers in power propose to nullify claims against those who remove forests, coasts and parks...
A project has appeared in parliament that offers “amnesty to landowners” and carte blanche to officials to alienate forests, coastal and border strips, nature reserves, landscape parks, natural monuments, botanical gardens, etc. (11185). If parliament supports this initiative, the state and communities will be able to return their property through the courts only within five years from the date of allocation. The developers have already launched a massive media campaign, explaining why the claims against them should be “nullified.”
Moreover, in order to block the ability of the prosecutor's office to protect the interests of the state, the developers have already appealed to the Constitutional Court.
Forests, nature reserves, coastal strips and defense lands have always attracted developers and agribusiness. During the time of the traitorous President Yanukovych, both the parliament and the judicial branch of government were influenced by the then Deputy Head of the Presidential Administration, Andrei Portnov. And it was then that parliament adopted changes to the procedural codes, which limited the courts in the ability of the state and territorial communities to protect their interests in the courts. It was primarily unscrupulous developers who should benefit from this. But after the start of the judicial reform of 2016-2017, the Supreme Court found an opportunity to prevent the implementation of this scheme.
Why did Portnov's attempt fail?
Under Yanukovych, through parliament, people’s deputies from “Batkivshchyna” Valery Pysarenko and Vladimir Pylypenko introduced changes to laws that should have limited the ability of the prosecutor’s office to protect the interests of the state or community in such cases. The Center for Political and Legal Reforms noted in 2011 that parliament passed a law that “protects the rights of raiders” and quoted Portnov on this matter: “After this, every owner will understand that it is no longer possible to take this (property) from him.” .
That is, the key idea of the developer lobbyists was to limit the time limit for the prosecutor’s office to file a lawsuit and appeal court decisions, which the state and society as land owners did not know about. As a result of this, there are a lot of disarticulated lands for forestry, water, nature reserves, recreational purposes, defense, etc. it would become impossible to return through the courts.
The alliance with the “Batkivshchina” people’s deputies was not accidental for Portnov. Before joining the service of Yanukovych, he held one of the leading positions in the campaign headquarters of Yulia Tymoshenko. In those days, it was “Batkivshchyna” that was associated with a number of trash stories in the Kiev region. Land near the capital, where green areas and undeveloped coastlines have been preserved, is the most expensive. Residents of communities where green areas are given over to high-rise buildings are confronting the titushki of developers.
For several years, legal norms that contradicted the interests of the state and communities were applied by the courts. But after the reform of the Supreme Court, they began to protect the interests of the state and territorial communities.
The Grand Chamber of the Supreme Court hears each case with 21 judges. These are particularly difficult cases. This is how judicial practice is developed for the entire country. To protect the right of Ukrainians to water and forest resources, parks, and cultural heritage sites, the Grand Chamber began to apply Art. 391 of the Civil Code, which allows the owner to demand the removal of obstacles in the exercise of his right to use and dispose of his property. Thanks to this, it was possible to return lands in the Grigorievsky and Bugsky estuaries of the Black Sea, in the Koblevo resort, in the Yagorlitsky Bay, in the water protection zone along the Stugna River, and the like. We also managed to return the historical estate of Tereshchenko to the Kyiv community.
And now the authors of the bill are trying to destroy this norm and another one, which concerns the possibility of the owner reclaiming property from someone else’s illegal possession (Article 388 of the Civil Code). In this way, they are trying to bury the positive judicial practice of 2018-2024, because previous attempts to do this in individual cases of the Supreme Court failed in its Grand Chamber.
Who are these lobbyists?
So, at the end of April, a legislative initiative appeared in parliament that could surpass what they tried to legitimize during the time of Yanukovych.
The main author of the initiative (11185) is people’s deputy Stepan Chernyavsky (“Servant of the People”). Co-authors were also people's deputies who were elected as representatives of the party in power from the Kiev region: Sergei Bunin and Alexander Gorobets. The latter has repeatedly written parliamentary appeals, which can be interpreted in favor of the Belichansky forest rippers. By the way, in the ranks of “Batkivshchyna” at the last local elections, politicians associated with the deriban of the Belichansky forest were also found. It took activists 15 years to protect this forest from development in court.
Analyst of the NGO “Ukrainian Environmental Group” Petr Testov notes: if the project is voted for, then planners will simply have to wait until the five-year period has expired from the date of receiving the site: “Local councils and the State GeoCadastre regularly “do not notice” environmental areas and forests. They say they are not included in the cadastre. These are tens of thousands of plots. In recent years, the prosecutor's office has been systematically and successfully working to cancel such land allotments, because the legislation protects such territories regardless of the availability of cadastral documentation. It is not surprising that this initiative comes from members of the agricultural committee. We have repeatedly recorded illegal plowing of coastal strips or protected areas, including from large agricultural holdings.”
Simultaneously with this legislative activity, a powerful information campaign was launched in April. “Business,” which appears in the latest high-profile corruption investigations, directly proposes to “nullify” claims against it in land schemes. That is, in fact, those who are now under suspicion are demanding to do the same thing that Portnov wanted to do 12 years ago - “it’s no longer possible to take it away.”
The flagship of the media campaign here is the scandalous developer Igor Mazepa, whom the State Bureau of Investigation accuses of fraud with land. The entrepreneur is now saying that the Council of Entrepreneurs proposes to nullify claims against people like him.
Mazepa explains the need to change the legislation by saying that the law supposedly has “gray areas” for unscrupulous “cops.”
Mazepa is a business partner of the developer and ex-mayor of Irpen, a person involved in journalistic anti-corruption investigations Vladimir Karplyuk, with whose team the people's deputy-majoritarian of this district and... one of the co-authors of the project, deputy Gorobets, closely communicates.
Nikolai Malukha, a representative of the “Price of the State” project, responded to such an information campaign and calls to “nullify” claims against developers.
He noted that some businessmen do not want fundamental changes, but require only certain “goodies” for their activities.
What is the practice of the Supreme Court?
A small bill of several pages could destroy the high-quality judicial practice of the Grand Chamber, which began to be formed at the end of 2018. We are talking about the cases of the Grigorievsky estuary in the Odessa region, the Novomoskovsky and Nikolaevsky forestry enterprises of the Dnepropetrovsk region and the Nikolaev region, respectively. The reporting judge in these cases was Dmitry Gudyma, who, after six years in the Grand Chamber, is now a judge of the Civil Court of Cassation within the Supreme Court.
“The right of private property cannot arise for objects that cannot be transferred into private ownership. Even if a council or other body has decided to allocate land on the banks of a river or sea to a certain person as private property for the construction of housing, and this person has registered the right of private ownership, then, according to the findings of the Supreme Court, the owner of such land remains the community or the state. And the one who registered this right for himself had to realize that, according to the law, he could not acquire it. Therefore, the court does not claim such an object under Art. 387-388 of the Civil Code, and returns them to the community or the state in order to remove obstacles under Art. 391 of this law. Bill 11185 is actually intended to destroy such judicial practice,” noted Judge Gudyma.
The Grand Chamber of the Supreme Court “cemented” the practice of applying the rules of law on the return of forest and water funds to the state and communities in 2021 in the case of the Boryspil forestry enterprise (the resolution was written by the then Chairman of the Supreme Court Valentina Danishevskaya).
By the way, the European Court of Human Rights also has examples of such disputes. And this body took the side of the state. Thus, in the case “Depal v. France” we were talking about a Frenchman who, back in 1960, purchased a house partly located on the sea coast, which is state property. Until 1992, the applicant had permission to use the land under which he was not entitled to compensation for the cost of what was built there.
In 1986, French legislation stopped the renewal of permits for the occupation of state-owned marine lands, the applicant lost the right to this land. The authorities ruled that Depal must demolish his house without receiving compensation because, according to the permits he had obtained, he knew he could not claim such compensation. The European Court supported this position of the state.
The Grand Chamber of the Supreme Court, in a ruling issued by Judge Gudyma, drew attention to the fact that, unlike the Depal case, in Ukraine, unscrupulous purchasers of land plots of coastal protective strips receive them free of charge and illegally for the construction and maintenance of housing and economic structures according to decisions of the authorities authorities and resell them further. Moreover, in Ukraine such construction on these lands is prohibited; they cannot be privately owned, and the right to lease on them can be issued for limited purposes not related to the construction of housing.
In the case of the return to the community of Poltava of a land plot on the territory of a monument of landscape gardening art, judge rapporteur Oleg Tkachuk emphasized that, according to the Constitution of Ukraine, land, its subsoil, atmospheric air, water and other natural resources are objects of property rights of the Ukrainian people, and to ensure this right must laws.
“There must be judicial control over compliance with this norm. Otherwise, law will be like a slogan - on paper. The Supreme Court has formed a clear legal position: demands for the return of historical monuments, natural reserve and other environmental lands, water resources, parks, and valuable cultural heritage sites to the people’s ownership cannot be limited in time. The Supreme Court has sufficient powers to ensure the proportionality of the interests of the state and the individual, and the proportionality of state interference with private interests. Project 11185 has internal contradictions. If it comes to the Supreme Court, we will study it and make suggestions. Limiting the right to go to court in order to return property to the rightful owner, I think, is inappropriate,” said Judge Tkachuk.
At the end of last year, the head of the Servant of the People party, Elena Shulyak, lobbied for another initiative of developers, which concerns coastal strips (9664). This bill, which is still under consideration by parliament, can also break the quality of judicial practice.
What happens in the Constitutional Court?
Developers act not only through individual deputies of the Verkhovna Rada. The Constitutional Court of Ukraine received a complaint from Rainier Business Group LLC. At the end of April, it was already accepted for consideration by the second Senate of the Constitutional Court (judges: Sergei Golovaty, Viktor Gorodovenko, Vasily Lemak, Vladimir Moisik, Oleg Pervomaisky, Galina Yurovskaya).
The plaintiffs challenge the right of prosecutors to act in the interests of the state in cases related to the protection of the interests of the state and communities (Article 23 of the Law of Ukraine “On the Prosecutor’s Office”).
The said complaining company was the defendant in the case brought by the prosecutor's office to protect the lands of the water fund, which were distributed by the Kozinsky village council (in Kozin, Koncha Zaspa - some of the most expensive land plots near the capital).
The developers tried to prove their ownership of land plots of the water fund with an area of 17 hectares. The Supreme Court agreed to satisfy the prosecutor's claim and returned these lands to the community. He believed that the disputed areas were lands of the water fund and could not be acquired by the community as property, and the community was not deprived of ownership of them.
If the standards currently proposed by the authors of the bill were in effect, it would be impossible to protect this water fund. The prosecutor's office notes that certain provisions create a threat of groundless disposal of protected lands, its subsoil, and natural resources from state/municipal property, including as a result of the introduction of a statute of limitations to satisfy requirements for the recovery of property from a bona fide purchaser.
“In addition, the provisions of the bill (11185) may negatively affect the effectiveness of protecting the interests of the state in court, destroying constant and effective judicial practice regarding the legal regimes of the land and methods of protection. There is a threat that the existing judicial practice, including the Supreme Court, on the protection of the natural environment and the protection of environmental rights may be neutralized, since the courts have developed a position that cases of this category (for example, on the illegal disposal of protected areas) have no statute of limitations,” - noted the head of the specialized environmental prosecutor's office Boris Indichenko.
The prosecutor's office adds that project 11185 is still being worked on and proposals and comments will be provided on it.
The Verkhovna Rada of the previous convocation tried to change the provisions of the Civil Code of Ukraine and return those norms that were removed from it during the time of Portnov. Such an initiative (4521) was submitted in 2016 by people’s deputies Igor Lutsenko, Ostap Yednak, who went to defend the country, and a number of other parliamentarians. But it was never considered.
Lutsenko, who now serves in the Armed Forces of Ukraine, got acquainted with the legislative initiative of the current people's deputies who are trying to change the Civil Code, and notes: “This looks like an attempt to amnesty land and other crimes committed by unscrupulous businesses in collaboration with corrupt officials. With the message that let's deal with the officials and leave the business alone. In 100% of such situations, the business acts as an accomplice to the crime, acquiring ownership of stolen goods. Those few companies that try to operate in accordance with the law will suffer from such a norm, because in the competition for land and other assets they lose to scammers.”
If legislation stops protecting green areas and coastal strips, active members of society will again go out and tear down fences. But lynching is definitely not what will bring us closer to joining the EU.
The new project (11185) will be considered by the Committee on Legal Policy, which is headed by Denis Maslov (“Servant of the People”). This legislative initiative is far from the only one promoted by real estate lobbyists during the war.
Let us remind you that the Royal Institute of Chatham House (Great Britain) has familiarized itself with the government decree, a clone of the scandalous urban planning “reform” 5655, which they are trying to pass through the Cabinet of Ministers. Chatham House believes that construction cartels may arise as a result of such poor regulation. A cartel occurs when large players from one sector unite and do everything to create favorable conditions for themselves.
Over the past few years, a number of laws in the interests of developers have been registered in the Ukrainian Parliament. Some of them can be blocked, but at the beginning of the year one of them was accepted, and at the end of May it will come into force (9627). This law provides for a rapid change in the purpose of agricultural land for industry. And for such a case, anti-corruption barriers did not work.
