Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Publicación cientíca en formato digital
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185
Depósito legal pp 197402ZU34
ppi 201502ZU4645
Vol.40 N° 75
2022
Recibido el 01/08/22 Aceptado el 15/10/22
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
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de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
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ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
ESTA PU BLI CA CIÓN APA RE CE RE SE ÑA DA, EN TRE OTROS ÍN DI CES, EN
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nes Cien tí fi cas y Tec no ló gi cas Ve ne zo la nas del FO NA CIT, La tin dex.
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Asis ten tes Ad mi nis tra ti vos
Joan López Urdaneta y Nil da Ma rín
Re vis ta Cues tio nes Po lí ti cas. Av. Gua ji ra. Uni ver si dad del Zu lia. Nú cleo Hu ma nís ti co. Fa-
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Vol. 40, Nº 75 (2022), 352-369
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Protection of property rights under
special legal regimes
DOI: https://doi.org/10.46398/cuestpol.4075.23
Nadiia Moskaliuk *
Valentyna Myronenko **
Lesia Shapoval ***
Vasyl Gopanchuk ****
Anzhela Kaliniuk *****
Abstract
In the scientic article, based on the analysis of scientic
sources, the provisions of the current legislation and the practice
of its application, with the help of general scientic and special
methods of knowledge, the essence of property rights is revealed,
and their characterization is carried out. It has been proven that
the conceptual principles and provisions of the legislation, which
should be relied upon when solving issues related to property
rights, along with the norms of private and public law, are also contained
in the provisions of international humanitarian law, which regulates the
relevant legal relations in conditions of war. Attention is focused on the
fact that in the event of a military conict, the state is obliged to introduce
appropriate legal mechanisms for compensation of the value of property,
housing, land, in case of failure to ensure the possibility of returning to
it or its destruction. It was concluded that it is necessary to develop and
introduce a comprehensive law that will take into account all aspects of legal
relations regarding ownership, use and disposal of property by individuals
and legal entities.
Keywords: protection of rights; private property; real estate; territorial
relations; special legal regimes.
* Doctor of Law, Associate Professor, Head of the Department of Security and Law Enforcement of West
Ukrainian National University, Ternopil, Ukraine. ORСID ID: https://orcid.org/0000-0003-2972-
3352
** Candidate of legal sciences, Associate Professor, Head of the departament of the civil and juridical
disciplines of National Academy of Internal Aairs, Kyiv, Ukraine. ORСID ID: https://orcid.org/0000-
0001-8841-8855
*** Candidate of legal sciences, Associate Professor, Associate Professor of the departament of the civil and
juridical disciplines of National Academy of Internal Aairs, Kyiv, Ukraine. ORСID ID: https://orcid.
org/0000-0003-4503-9075
**** Candidate of legal sciences, Professor, Professor of the departament of the civil and juridical disciplines
of National Academy of Internal Aairs, Kyiv, Ukraine. ORСID ID: https://orcid.org/0000-0002-
1563-8635
***** Doctor of Philosophy, Associate Professor, Senior lecturer of the departament of the civil and juridical
disciplines of National Academy of Internal Aairs, Kyiv, Ukraine. ORСID ID: https://orcid.org/0000-
0001-8032-3632
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CUESTIONES POLÍTICAS
Vol. 40 Nº 75 (2022): 352-369
Protección de los derechos de propiedad bajo
regímenes jurídicos especiales
Resumen
En el artículo cientíco, con base en el análisis de las fuentes cientícas,
las disposiciones de la legislación vigente y la práctica de su aplicación, con
la ayuda de métodos cientícos generales y especiales de conocimiento, se
revela la esencia de los derechos de propiedad y se caracteriza su llevado a
cabo. Se ha comprobado que los principios conceptuales y las disposiciones
de la legislación, en las que se debe conar para resolver cuestiones
relacionadas con los derechos de propiedad, junto con las normas de
derecho público y privado, también están contenidas en las disposiciones
del derecho internacional humanitario, que regula las relaciones jurídicas
pertinentes en condiciones de guerra. Se centra la atención en el hecho
de que, en caso de conicto militar, el Estado está obligado a introducir
mecanismos legales apropiados para la compensación del valor de la
propiedad, la vivienda, la tierra, en caso de que no se garantice la posibilidad
de regresar a ella o se destruya. Se concluyó que es necesario desarrollar
una ley integral que tenga en cuenta todos los aspectos de las relaciones
jurídicas en cuanto a la propiedad, uso y disposición de bienes por parte de
personas físicas y jurídicas.
Palabras clave: protección de derechos; propiedad privada; bienes
inmuebles; relaciones territoriales; regímenes jurídicos
especiales.
Introduction
In today’s conditions in Ukraine, the constitutional provision dened in
Art. 3 that the establishment and provision of human rights and freedoms
is the main duty of the state (Constitution of Ukraine, 1996).
The practical value of any individual right is the transformation of the
possibilities dened in the legal norms into reality. Property law is one of
the most important institutions for any legal system, legal regulation of
property relations determines the content and direction of legal regulation
of social relations as a whole. Such regulation is largely determined by the
properties and social importance of the property itself.
Important and relevant for Ukraine in today’s conditions is the issue of
the protection of rights in the eld of land legal relations, thanks to which
it is possible to observe the real level of eectiveness of land legal norms
and legislative guarantees for the protection of the subjective rights and
legitimate interests of land owners and land users, since any legal relations
constitute mechanism of action of legal norms.
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Protection of property rights under special legal regimes
The emergence of disputed land legal relations is primarily related
to the violation of the subject’s legal rights by other persons. Therefore,
persons who have had their rights violated have all the legal grounds and
opportunities to protect them in the manner provided for by the current
legislation of Ukraine (OPENING OF THE LAND MARKET: WHAT ARE
THE GUARANTEES OF THE PROTECTION OF LAND RIGHTS?).
Among the threats to the realization of property rights in Ukraine in the
conditions of the war period should be attributed: looting; high risks due to
distribution of weapons to civilians, damage to property owners; using the
situation for illegal actions regarding the re-registration of property; failure
to fulll the terms of the contract due to force majeure and much more.
All of these circumstances encourage not only scientic research, but
also the development of real mechanisms for solving these and other issues
related to the realization of property rights by individuals and legal entities.
1. Methodology of the study
In the process of analyzing the problems included in the subject of the
scientic article, in accordance with the purpose and tasks of the research,
taking into account its object and subject, general scientic and special
methods of scientic knowledge were used. The most important general
scientic method is the dialectical method of cognition, which made it
possible to trace the peculiarities of normative legal regulation of property
right relations in Ukraine and the practice of its implementation.
Using the method of systemic structural analysis, individual ways of
protecting property rights were studied as a component of the general
system of ways of protecting property rights, structural and substantive
features of protective property rights were analyzed. Comparatively,
the legal method was used to investigate dierent approaches to the
characterization and classication of ways to protect property rights from
infringement. The logico-legal method made it possible to identify the
shortcomings of the current legislation and its drafts and justify the need to
improve its prescriptions.
The results of the dogmatic (formally logical) analysis were used in
highlighting the content load of concepts and terms used by the legislator in
normative acts, as well as in the formulation of conclusions and proposals
taking into account the requirements for the consistency, reasonableness
and consistency of judgments within the framework of general theoretical
and civil law constructions using conceptual apparatus of relevant branches
of science.
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2. Analysis of recent research
Within the framework of civil science, the issues of the realization of
the right to property were highlighted in the works of many modern works
(Dzera et al., 2004; Zadorozhny, 1996; Shevchenko, 1996; Baranov et al.,
2020; Girlington et al., 2011), a thorough analysis of which makes it possible
to nd out and assess the state of the researched problem, to outline and
investigate the issues that have arisen at the current stage of reforming the
theory of civil law, to propose ways to solve them.
At the same time, the study of the latest literature gives reason to
conclude that there is an insucient number of studies on the content and
limits of the implementation of property rights under martial law, and the
existing scientic works are either devoted to a wider range of problems, or
highlight other aspects of property relations.
In addition, part of the works, the subject of which were the issues
of property rights, to some extent lost their relevance due to changes in
the legislation. Thus, the issue of the realization of property rights in the
conditions of emergency legal regimes, on the example of Ukraine, is
undoubtedly of scientic and practical interest.
The purpose of the article is to determine the content and modern
normative and legal mechanisms for the regulation of the protection of
property rights in the conditions of martial law in Ukraine.
3. Results and discussion
3.1. The content of the right of ownership and the limits of its
implementation
Regardless of the form of government and the dominant political
ideology, the Constitution of every democratic state contains provisions
that to some extent recognize the fundamental principles of the exercise
of the right to property in general and such a form as the right to private
property, as well as their protection. In the Constitution of Ukraine, the
issue of property is devoted to art. Art. 13, 14, 41, 85, 92, 116, 142 and 143
(Constitution Of Ukraine, 1996). Civil legislation should comprehensively
regulate relations of all forms of ownership.
There is an opinion among scientists that the content of the right of
ownership is completely exhausted by the powers of the owner to possess, use
and dispose of the property. In particular, Y.M. Shevchenko draws attention
to the fact that “the disclosure of the content of the right of ownership does
not end with the determination of the powers that belong to the owner. It
does not constitute the essence of property rights” (Shevchenko, 1996: 18).
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Protection of property rights under special legal regimes
The essence of the right of ownership, according to the correct opinion
of the scientist, lies in the state of appropriation, the attitude of a person
to a thing as his own. Only then the powers of possession, use and disposal
acquire a socially signicant expression, reveal what position the owner
occupies among other persons in relation to the thing. Only the owner of
the thing can transfer such powers to another person without losing the
attachment to the property (Shevchenko, 1996). These points are decisive
for identifying the legal and, therefore, the social nature of property rights
in every society.
Thus, the right of ownership should be understood as a system of legal
norms that regulate relations regarding the possession, use and disposal of
the property of its owner.
It is logical to assume that if Ukraine is on the path to creating the
conditions necessary for the next formation of a modern model of a
market-type economy, then understanding the modern content of private
property law and trends in its evolution becomes an auxiliary element in
reforming the property system as a whole. Of course, private property can
be considered as a material, property object appropriated (by law and in
fact) by an individual (not society, not the state).
If such appropriation, ownership extends to the objects of one’s own
work, to a share of income from collective production, then private property
becomes synonymous with the property of a citizen, an individual. In this
case, its origin and functioning are natural and socially just. Therefore,
private property by its nature is such that it cannot belong to everyone,
it is also individualized depending on the person to whom the object of
law belongs. Private property has been opposed to public, primarily state,
property since ancient times. Despite all its shortcomings, it plays one of
the key roles in human progress.
At the current stage of the development of legal relations, the situation is
changing quite quickly, the concept of ownership is changing, developing,
and today the scope of the institution of private property law in Ukraine
is approaching the standards used in the market economy of the most
developed countries.
In general, in civil law science, it is customary to distinguish the right of
ownership in an objective and subjective sense (Dzera et al., 2004). So, in
an objective sense, the right of private property of citizens is a set of legal
norms that establish and protect the ownership of property for consumer
and nancial and production purposes by citizens and ensure that the
owners-citizens exercise the right to own, use and dispose of this property
at their discretion, to use it for any purpose, unless otherwise provided by
law.
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The right of private property in the subjective sense is the right provided
and guaranteed by law of the owner-citizen to possess, use and dispose of
the property belonging to him at his discretion and for any purpose, unless
otherwise provided by law (Dzera et al., 2004).
Systemic transformational processes in Ukraine, caused in particular by
the state of war in Ukraine, make it necessary to fundamentally reform the
legislative framework and adapt it to today’s conditions.
If the Law of Ukraine «On Property» dened ownership as «law-
regulated social relations regarding the ownership, use, and disposal of
property» (On Property, Law of Ukraine, 1991), and this denition was
more than once subjected to fair criticism for the eorts of the authors of
the Law to give a universal interpretation of the concept of ownership in an
objective and subjective sense, the current Civil Code of Ukraine operates
on the principles of the primacy of private law and human rights, so that the
right of ownership is dened as «the most complete right that a person has
to property» (Civil Code Of Ukraine, 2003).
The content of the right of private property includes the rights to own,
use and dispose of one’s property. It should be noted that according to Art.
319 of the Civil Code of Ukraine “the owner has the right to take any actions
regarding his property that do not contradict the law.” There is every reason
to consider this interpretation of the right of private property successful
under the given conditions and at the given stage of development of the
Ukrainian legal system (Civil Code Of Ukraine, 2003).
Therefore, the content of the right of private property consists of the
following powers: possession, use and disposal of a thing (property) by the
owner. These powers are universal, as they cover all the actions that the
owner has the right to perform in relation to the property belonging to him,
that is, they characterize the statics of the right of ownership, and not its
dynamics.
The transformational processes in the economy of Ukraine, the
redistribution of property, which continues, spreading and gradually
covering more and more signicant objects, drawing into its orbit an ever-
growing circle of subjects, require a clear regulation of legal relations of
property, a clear regulatory denition of concepts and categories that can
be attributed to the institution of private property rights.
Sharing in general the opinion of H. Zadorozhny that at the moment the
legal regime of property in its various forms and types is not suciently
regulated by national legislation (Zadorozhny, 1996, p. 106), we can state
that at present the categorical conceptual apparatus and scientic toolkit
for fully ensuring the regulation of property rights relations.
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Protection of property rights under special legal regimes
The powers of possession, use and disposal dened by the Civil Code
of Ukraine only legally establish the right of the owner to perform certain
actions, and therefore they should be distinguished from the specic actions
by means of which they are realized.
Taking this into account, the dierence between the content of the
subjective right and its implementation lies primarily in the fact that the
rst includes only the possible behavior of the authorized person, while the
implementation of the right is the content of real, concrete actions related
to the transformation of this possibility into reality.
Part three of Art. 319 of the Civil Code guarantees all owners
equal conditions for the realization of their rights, which is one of the
manifestations of the principle of equality of all subjects of property rights
before the law (Civil Code of Ukraine, 2003). It is the duty of the state to
provide all subjects with equal conditions for the realization of the right to
property, which consists in the fact that no subject can be granted benets,
preferences or create more favorable conditions compared to others.
An important criterion for delineating the boundaries of the right of
ownership is the obligation, formulated briey - ownership obliges (Part 4
of Article 319 of the Civil Code of Ukraine) (Civil Code of Ukraine, 2003).
The essence of this principle is that the realization of a separate private
interest in order to prevent an arbitrary and unproductive attitude of the
owner to the property belonging to him must be subordinated to the general
public good, and all forms of ownership must be oriented, including, to the
satisfaction of public needs.
Therefore, the right of ownership combines for the owner the pleasant
benet of owning property with an aggravating obligation - careful
treatment of property, payment of taxes, fees, other mandatory payments
that ensure the development of the state and society.
Part ve of Art. 319 of the Civil Code prohibits the owner from using
the right of ownership to the detriment of the rights, freedoms and dignity
of citizens, public interests, worsening the ecological situation and natural
qualities of the land. Therefore, the observance of the rights and legally
protected interests of other persons - citizens, legal entities and the state -
is the next criterion for determining the limits of subjective property rights,
which corresponds to Part 2 of Art. 13 of the Civil Code of Ukraine (Civil
Code of Ukraine, 2003).
The presence of the specied provision is dictated by the social
interdependence of subjective rights, therefore the process of realizing
property opportunities should take place taking into account the fact that
other persons are the bearers of similar or similar rights, and therefore,
when using the property, the owner should not cause material or moral
harm to others, their rights, freedoms, dignity, life and health.
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The fundamental basis of the need to apply legal restrictions is the
general norms of international law - Part 2 of Art. 29 of the 1948 UN
General Declaration Of Human Rights (General Declaration Of Human
Rights, 1948), Art. 4 of the UN “International Covenant on Economic,
Social and Cultural Rights” of 1966 (International Covenant On Economic,
Social And Cultural Rights, 1966), “Convention for the Protection of
Human Rights and Fundamental Freedoms” of 1950 (Convention On The
Protection Of Human Rights And Fundamental Freedoms Human Liberty,
1950), according to which the state can impose only such restrictions on
rights as are determined by law, and only insofar as this is compatible with
their nature, solely for the purpose of promoting the general welfare in a
democratic society.
In order to comply with the obligations accepted before the international
community, the prescriptions of the above documents were implemented
into the domestic legislation - Art. 64 of the Constitution of Ukraine allows
restriction of basic rights and freedoms only in cases regulated by it, for
example, in conditions of war or emergency (Constitution of Ukraine, 1994).
From the extended interpretation of the general principles of limitation
of the right (Articles 13 and 41 of the Constitution of Ukraine, Part 7 of
Article 319, Part 1 and Part 2 of Article 321 of the Civil Code of Ukraine)
(Constitution of Ukraine, 1994; Civil Code of Ukraine, 2003) it follows that
their foundation is based on the principle of combining private and public
interests, with the latter clearly taking precedence.
The basis of the rights-limiting mechanism is the need to ensure national
security, maintain public order, protect health, morals of the population, and
protect the rights and legitimate interests of society. However, the public
interest is not considered better than a private one, therefore, economically
eective protection mechanisms have been introduced to protect the rights
of the owner when using his property for public benet. They are applied in
the case of expropriation of a plot of land, a house, things of special cultural
and historical value, or any other property for a socially useful purpose.
3.2. Procedural procedure for forced alienation and
conscation of property under martial law in Ukraine
Article 41 of the Constitution of Ukraine denes that «no one can be
unlawfully deprived of the right to property. The right to private property
is inviolable. Forced expropriation of objects of private property rights may
be applied only as an exception for reasons of public necessity, on the basis
and in the manner established by law, and on the condition of prior and
full reimbursement of their value. Forced expropriation of such objects
with subsequent full compensation of their value is allowed only in the
conditions of war or emergency» (Constitution Of Ukraine, 1994).
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Protection of property rights under special legal regimes
As a general rule, ownership is exercised freely, but under certain
conditions, the owner’s activities may be limited or terminated, or he may
be obliged to allow other persons to use his property, but only in the cases
and in the manner established by law.
In particular, according to the Law of Ukraine «On the Legal Regime of
Martial Law», martial law is a special legal regime introduced in Ukraine
or in some of its localities in the event of armed aggression or threat of
attack, danger to the state independence of Ukraine, its territorial integrity,
and provides for the provision of appropriate to state authorities, military
command, military administrations and local self-government bodies, the
powers necessary to avert the threat, repulse armed aggression and ensure
national security, eliminate the threat of danger to the state independence
of Ukraine, its territorial integrity, as well as the temporary, threat-induced,
restriction of constitutional rights and human and citizen freedoms and the
rights and legal interests of legal entities with an indication of the period of
validity of these restrictions (On The Legal Regime Of Martial State, Law of
Ukraine, 2015).
During martial law, the Ukrainian legislation provides for the possibility
of: 1) forced alienation of property with preliminary full compensation of its
value or with subsequent full compensation of its value; 2) conscation of
property without reimbursement of its value.
At the same time, it is worth distinguishing between the concepts of
alienation and seizure of property. Thus, according to the Law of Ukraine
«On Transfer, Forced Expropriation or Expropriation of Property in
the Conditions of the Legal Regime of War or State of Emergency»:
forced expropriation of property is the deprivation of the owner of the
right of ownership of individually determined property that is in private
or communal ownership and which is transferred to property of the
state for use under the conditions of the legal regime of war or state of
emergency, subject to the previous or subsequent full reimbursement of
its value; conscation of property – deprivation of state enterprises, state
economic associations of the right of economic management or operational
management of individually determined state property with the aim of
transferring it for the needs of the state under the conditions of the legal
regime of war or state of emergency (On The Transfer, Forced Alienation
Or Seizure Of Property In The Conditions Of The Legal Regime Of Martial
Or State Of Emergency, 2012).
Also, it should be noted that forced alienation or conscation of property
in connection with the introduction and implementation of measures
of the legal regime of martial law is carried out by the decision of the
military command, agreed, respectively, with the Council of Ministers of
the Autonomous Republic of Crimea, regional, district, Kyiv or Sevastopol
city state administration or by the executive body of the relevant local
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council (On The Transfer, Forced Alienation Or Seizure Of Property In The
Conditions Of The Legal Regime Of Martial Or State Of Emergency, 2012).
Compensation for forcibly expropriated property in the conditions of the
legal regime of martial law is carried out: by the military command or the
body that made the decision on such expropriation, at the expense of the
state budget before the signing of the act by preliminary full reimbursement
of its cost; during ve subsequent budget periods, the legal regime of
emergency - during one subsequent budget period after the cancellation of
the legal regime of martial law or state of emergency at the expense of the
state budget, with subsequent full reimbursement of its cost.
Part 2 of Art. 353 of the Civil Code of Ukraine establishes that in conditions
of war or a state of emergency, property can be forcibly expropriated from
the owner with subsequent full compensation of its value, and in the event
of the return of the property to a person, the right to ownership of this
property is restored, and at the same time, he undertakes to return the sum
of money or a thing received by it in connection with the requisition, less a
reasonable fee for the use of this property (Civil Code Of Ukraine, 2003).
3.3. Normative legal regulation of property rights in Ukraine
under martial law
The military aggression of the Russian Federation against Ukraine, which
began on February 24, 2022, opened a new angle of civil and legal problems
faced by the state of Ukraine in general and each individual citizen. The
reasons for the introduction of martial law are related to the violation of
individual rights, including the restriction of property rights (destruction of
property, damage, depreciation, unavailability of property for use, having
to bear additional expenses for emigration, including internal, for housing
rent etc).
This, in turn, leads to the emergence of new civil legal relations, because
property suers, individuals or legal entities cannot meet their obligations,
etc. The provisions of the Central Committee of Ukraine provide that the
rights and freedoms of a person are an integral part of his existence, and
therefore require appropriate protection in case of encroachment on them.
The conceptual principles and provisions of the legislation, which should
be relied upon when solving the above-mentioned issues, are contained not
only in the norms of private, but also of public law, and in some places also
in the norms of humanitarian law, since in the period of war, humanitarian
law applies alongside «peaceful» law (as norms special and general).
It should be noted that the Civil Code of Ukraine does not contain
the specics of restitution under martial law, which may raise questions
about this method of protection. Draft Law No. 5177 (Draft Law No. 5177,
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Protection of property rights under special legal regimes
2022) does not resolve this issue. In particular, it is indisputable that the
implementation of this law will require spending from the state budget of
Ukraine.
In our opinion, the complex of these costs should include not only
funds intended for compensation to owners whose property rights have
been violated, but also funds for maintaining commissions, registers,
property valuations, etc. From the above, we can see the imperfection of
the provisions relating to restitution as a result of armed aggression.
At present, the prospects for restoring the violated rights of owners
who suered losses from military operations look rather bleak. There is a
situation when the methods of protection in peaceful life, vindication and
negative lawsuits, etc. have given way to other problems that are more
relevant now and need to be discussed (Zheltukhin, 2002).
We believe that in the context of the subject of the impact on private
property rights of circumstances related to martial law, in order to study
the specics of the protection of this right, attention should be paid to such
aspects as: types of violations of property rights observed during the period
of military operations; the grounds for protecting the right of ownership
and liability in case of its violation; methods of protection and analysis
of draft laws; conditions of liability, the amount of compensation and
the procedure for determining it; sources of compensation; requisition of
property; recognition of the fact of a person’s death (many issues depend on
this, including property rights, inheritance rights, etc.).
No less debatable is the issue of compensation for damage to owners in
the post-war period, when calculating the amount of which damage to the
life and health of natural persons in connection with destruction, damage,
loss by other means, in particular, kidnapping, looting, forced displacement
within the borders of Ukraine, should be taken into account or abroad.
Along with the above-mentioned direct losses, it should also be noted the
moral damage caused to individuals by the various consequences of armed
aggression, as well as the indirect losses of business entities caused by the
war, for lost prots. These are other losses from downtime, a signicant
drop in the value of surviving, but signicantly depreciated property assets
(Zheltukhin, 2022).
In this case, the answer is obvious, because it is the aggressor state that
must bear all the negative consequences of the war it started, including
compensation for property and non-property losses to individuals and legal
entities. Actually, this is the ocial position of the authorities. In particular,
Part 4 of Art. 2 of the Law of Ukraine «On Peculiarities of State Policy
and Ensuring State Sovereignty of Ukraine in the Temporarily Occupied
Territories of Donetsk and Luhansk Oblasts» imposes responsibility for
material or non-material damage caused as a result of military aggression
against the Russian Federation.
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The provisions of the latest legislative acts should be formulated in the
same vein, in particular the Law of Ukraine «On the Organization of Labor
Relations in the Conditions of Martial Law», the Law of Ukraine «On the
Basic Principles of Forcible Expropriation in Ukraine of Objects of Property
Rights of the Russian Federation and its Residents», the Civil Code of
Ukraine, etc.
It should be noted that there are many signicant gaps in the draft
law on compensation for damage and destruction of certain categories of
real estate objects as a result of hostilities, acts of terrorism, and sabotage
caused by the military aggression of the Russian Federation (Draft Law No.
7198, 2022). The said draft law is aimed exclusively at the settlement of
issues related to the compensation of the value of destroyed or damaged
property, which is too narrowly interpreted by the draft. The document
does not refer to damages as such. That is, the terms used in the draft law
refer to «compensation».
Considering all the norms of the draft law as a whole, it can be considered
only as part of a certain mechanism of compensation for damage caused by
the destruction or damage of property as a result of the armed aggression of
the Russian Federation. The document has neither the direct establishment
of the guilty person, nor the direct establishment of any composition of the
oense, the determination of a specic guilty person, nor any connection
with the judicial mechanism of protection.
The negative points of the draft law include the fact that it deals
exclusively with immovable property, priority is given to compensation
for lost or destroyed real estate of the housing stock. Also in Art. 2 of the
draft law states that only natural persons are directly entitled to receive
compensation. On the other hand, neither legal entities nor natural persons
– entrepreneurs are mentioned as recipients of compensation.
At the same time, in separate articles of the document, the executive
bodies of village, settlement, and city councils, which are the customers
of nancing the construction of new facilities instead of those that were
destroyed, are still recognized as recipients of compensation.
We also consider the provision of this draft law to be quite specic, which
refers to the termination of ownership of destroyed or damaged property.
In particular, it is noted that the state registration of the relevant fact of
termination of ownership of the real estate object will be carried out only
after receiving compensation.
At the same time, no terms have been dened when exactly this will
happen after the termination, and why is it tied to compensation, if in
this situation the fact of destruction of property is already clearly stated
as the basis? In addition, if the procedure of the termination of the right
of ownership will be made after receiving compensation, the deadline for
applying to the state registrar and other facts are equally unclear.
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Protection of property rights under special legal regimes
The shortcomings of the draft law should also include: avoidance of
such a method of protecting property rights as restitution; the absence of
any provision regarding compensation that can be settled under insurance
contracts; limitation of the limitation period of three years is not justied
by anything.
The above shows that the specied draft law requires a signicant and
comprehensive revision of the mechanisms for securing and restoring the
violated ownership right to destroyed or damaged property.
We also consider it important for the realization of the right of ownership
in Ukraine to regulate the issue of termination/restoration of the right of
ownership, its dispute under the legislation of the aggressor state, in the
territory where there was property of private individuals who de facto are
not considered owners, but are legally considered to be them. There are also
problems related to corruption risks, for example, transferring the issue
of property rights protection to commissions as certain administrative
entities, the creation of which in wartime conditions seems dangerous.
Legal mechanisms for the protection of lost, destroyed, destroyed
property, including property located in uncontrolled territory, are the
subject of discussions in scientic circles.
In recent years, land reform based on the principles of openness,
deregulation and competition has been actively implemented in Ukraine.
However, the wartime makes adjustments to all spheres of the country’s
life, and, therefore, the regulation of land relations also shifts to «wartime
rails» (Hruba, 2022).
It should be noted that land ownership is a complex and multifaceted
phenomenon, which is interpreted in both broad and narrow terms. In a
broad interpretation, the right to own land involves a set of legal norms that
establish the ownership of land to certain physical and legal entities, the
state, determine the scope and content of the rights of land owners, as well
as the methods and limits of the realization of such rights (Shemshuchenko,
1996); in the second, it is the right to own, use and manage land plots (Part
1 of Article 78 of the Land Code of Ukraine) (Land Code Of Ukraine, 2001).
All lands located within the territory of Ukraine constitute a single land
fund of the country. Chapter VII (Land Code of Ukraine, 2001) is devoted
to substantive management in the eld of land use and protection in the
Civil Code of Ukraine. Management of land resources (land fund) is also an
important aspect of land relations, which determines the system of political,
socio-economic, legal and administrative measures aimed at organizing the
use of land.
The rules for regulating land relations in peacetime, when the procedures
for granting land plots last for months, in the conditions of martial law
prove their inability and unadaptability to new realities.
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Solving many tasks of the functioning of the economy of Ukraine
during the war period, ensuring man-made security, protecting the
internally displaced population, etc. directly depend on the speed of
making administrative decisions regarding the formation and provision of
land plots for the appropriate purpose, carrying out land management and
registration of land rights (Explanatory note to draft law No. 7289, n/d).
The issue of eliminating the negative consequences of hostilities for the
transport infrastructure also requires an immediate solution. About 85% of
Ukraine’s foreign trade in peacetime passed through seaports, the activities
of which were blocked at the beginning of the war, and the infrastructure of
which is at risk of damage due to the attacks of the aggressor. Thus, there is
an urgent need for the urgent development of new logistics routes that will
allow meeting the transport needs of producers of agricultural products,
metallurgical enterprises, enterprises of the fuel and energy sector and
other sectors of the economy.
This requires, among other things, the ultimate simplication of
procedures for granting land plots and permitting procedures in construction
for the placement of new river ports (terminals), railway logistics centers
(production and transshipment complexes) (Explanatory note to the draft
law No. 7289, n/d).
During the period of martial law introduced in Ukraine, the legislation
regulating land relations underwent repeated changes. The legislator has
already managed to loosen certain restrictions introduced at the beginning
of the martial law, and for certain legal relations caused or changed by the
war - provided for new regulation.
In particular, the possibility of indemnifying the owners/users of land
plots caused by the war is determined by the Resolution of the Cabinet of
Ministers of Ukraine “On approval of the Procedure for determining the
damage and losses caused to Ukraine as a result of the armed aggression
of the Russian Federation” No. 326 dated 20.03.2022 (Resolution of the
cabinet of ministers of ukraine No. 326, 2022).
The procedure provides for the possibility of determining damage and
losses caused to Ukraine as a result of the armed aggression of the Russian
Federation. In particular, the Order establishes the main indicators for
assessing losses of the land fund, namely: actual costs for the reclamation of
lands that were disturbed as a result of hostilities, construction, arrangement
and maintenance of engineering and technical and fortication structures,
fences, border signs, border crossings, communications for arrangement of
the state border; damages caused to the owners and others.
Regional and Kyiv city state administrations (during the period of martial
law – military administrations) will be responsible for determining damage
and losses, which will be carried out on the basis of the methodology. The
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Protection of property rights under special legal regimes
relevant methodology must be approved by order of the Ministry of Agrarian
Policy, in agreement with the Ministry of Reintegration of the Temporarily
Occupied Territories of Ukraine, within six months from the date of entry
into force of the Order (Resolution of the Cabinet of Ministers of Ukraine
No. 326, 2022).
In general, the Verkhovna Rada of Ukraine adopted the Law of Ukraine
“On Amendments to Certain Legislative Acts of Ukraine Regarding the
Peculiarities of Regulating Land Relations in Martial Law” (Project Law
No. 7289, 2022). This draft law is designed in a special way to liberalize
land relations, to adapt them to wartime conditions, and its purpose is to
establish special rules for the ownership and use of land that will provide
for the most urgent needs in wartime conditions. According to the authors,
the draft law will contribute to speeding up management decision-making
and solve a number of important issues for farmers, metallurgists, etc.
As we can see, the legislator systematically approached the settlement
of land relations under martial law, foreseeing both many simplications
to ensure the functioning of the agrarian sector of the economy and the
accelerated restoration of Ukraine’s infrastructure, as well as signicant
restrictions. Such restrictions serve the purpose of minimizing the number
of abuses, the probability of which, in the absence of proper control, is
greater in the conditions of martial law.
Summing up, we note that the number of adopted laws is not capable of
regulating all the issues outlined by us in the scientic article, but one law
is needed that will take into account all aspects of legal relations regarding
property rights and determine an eective legal mechanism for regulating
such relations.
It should be emphasized that the practice of the European Court of
Human Rights contains many decisions according to which even if a certain
state does not control part of its territories, it is not released from fullling
its obligations under the Convention and its protocols. The right of a victim
of an armed conict to compensation for destroyed or damaged property
stems from the protection of property rights.
That is, the private aspect means that the compensatory principle is
involved, which means that not a part should be restored, but everything
that was lost by a person. In the event of a military conict, the state is
obliged to implement appropriate legal mechanisms for compensation
of the value of property, housing, land, in case of failure to ensure the
possibility of returning to it or its destruction.
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Conclusions
The following conclusions can be drawn on the basis of the conducted
research.
The content of the right of private property consists of the following
universal powers - possession, use and disposal of a thing (property) by
the owner, which cover all actions that the owner has the right to perform
in relation to the property belonging to him, that is, they characterize the
statics of the right of ownership, and not its dynamics.
The basis of the rights-restrictive mechanism of ownership, use and
disposal of a thing (property) is the need to ensure national security,
maintain public order, health protection, morals of the population,
protection of the rights and legitimate interests of society. At the same
time, the public interest is not considered a priority over individual private
interest, therefore, to protect the rights of the owner, economically eective
protection mechanisms must be introduced when using his property for
public benet.
The conceptual principles and provisions of the legislation, which should
be relied upon when solving issues related to property rights, are contained
not only in the norms of private and public law, but also in the prescriptions
of international humanitarian law, which regulates the relevant legal
relations in conditions of war.
In the conditions of the extraordinary legal regime, generated by
military actions on the territory of Ukraine, it is necessary to develop and
introduce one comprehensive law that will take into account all aspects of
legal relations regarding the ownership, use and disposal of property by
individuals and legal entities, in particular, will determine eective legal
mechanisms for compensation of the cost of property, housing , land, in
case of failure to ensure the possibility of returning to it or its destruction.
The right of a person aected by an armed conict to compensation
for destroyed or damaged property stems from the protection of property
rights, that is, the application of the compensatory principle, according to
which all that was lost by the person must be restored, not a part. In the
event of a military conict, the state is obliged to implement appropriate
legal mechanisms for compensation of the value of property, housing, land,
in case of failure to ensure the possibility of returning to it or its destruction.
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Esta revista fue editada en formato digital y publicada
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Vol.40 Nº 75
