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Publication date: 20.05.2024
lawyer, 23 years of experience in enforcement.
Forcible seizure or alienation of property in the conditions of the legal regime of martial law, general concept and grounds.
The procedure for forced alienation and seizure of property under martial law is regulated by the laws of Ukraine "On mobilization training and mobilization" dated October 21, 1993 No. 3543-XII, "On transfer, forced alienation or seizure of property under the legal regime of martial law or state of emergency" dated 17 No. 4765-VI of May 2012 and the Procedure for considering applications and making payments for the next full compensation for property forcibly alienated under the legal regime of martial law or a state of emergency, approved by Resolution No. 998 of the Cabinet of Ministers of Ukraine dated October 31, 2012.
According to Art. 1 of Law No. 4765-VI:
1) forced alienation of property - depriving the owner of the right of ownership of individually determined property that is in private or communal ownership and which is transferred to the state for use under the legal regime of martial law or a state of emergency, subject to prior or subsequent full reimbursement of its value;
2) confiscation of property - deprivation of state enterprises, state economic associations of the right of economic administration or operational management of individually determined state property with the aim of transferring it for the needs of the state in the conditions of the legal regime of martial law or state of emergency.
In accordance with the provisions of Art. 3 of the Law of Ukraine "On the Transfer, Compulsory Expropriation or Expropriation of Property under the Legal Regime of Martial Law or State of Emergency", forced alienation of property under the legal regime of martial law may be carried out with prior full reimbursement of its value.
In case of impossibility of prior full compensation for compulsorily expropriated property, such property is compulsorily expropriated with subsequent full compensation of its value.
Seizure of property in the conditions of the legal regime of martial law is carried out without compensation for the value of such property.
According to Art. 4 of the Law, the forced alienation or confiscation 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, the regional, district, Kyiv or Sevastopol city state administration or the executive body of the relevant local Council
In areas where hostilities are taking place, forced alienation or confiscation of property is carried out by decision of the military command without the consent of the specified authorities.
The peculiarities of the transfer and forced alienation of communal property in the conditions of the legal regime of martial law are established by Article 6 of the Law.
Also, the involvement of vehicles during mobilization is regulated by the Regulation on military transport duty, approved by Resolution No. 1921 of the Cabinet of Ministers of Ukraine dated December 28, 2000.
In accordance with Clause 10 of the mentioned Regulation, the tasks of preparation for the transfer and transfer of vehicles and equipment to military formations are established by orders of local state administrations at the request of territorial centers of procurement and social support and are brought to the attention of:
- managers of enterprises, institutions and organizations in peacetime - through territorial centers of staffing and social support by handing over the relevant consolidated orders;
- heads of enterprises, institutions, and organizations during mobilization - through territorial recruitment and social support centers by handing over appropriate partial orders;
- citizens - owners of vehicles during mobilization in the event of the introduction of a legal regime of martial law - through territorial centers of recruitment and social support by handing out partial orders.
An act on forced alienation or confiscation of property is drawn up in the form established by Resolution No. 998 of the Cabinet of Ministers of Ukraine dated October 31, 2012.
According to Art. 7 of the Law of Ukraine "On the Transfer, Compulsory Expropriation or Expropriation of Property under the Legal Regime of Martial Law or State of Emergency", the act states:
- the name of the military command and body that approved the decision on forced alienation or seizure of property, or the military command or body that made such a decision;
- information about the owner (owners) of the property;
- information about the document establishing ownership of the property (if available);
- a description of the property sufficient for its identification. For immovable property - information about the location (address), for movable property (land, water and air vehicles) - information about the vehicle registration number, make, model, chassis number, year of manufacture and other registration data;
- amount of paid funds (in case of previous full reimbursement of property value).
In the case of forced alienation of property, a document is attached to the act containing a conclusion on the value of the property as of the date of its assessment, which was carried out in connection with the adoption of a decision on its forced alienation. Property valuation is carried out in accordance with the procedure established by legislation on property valuation, property rights and professional valuation activities. In the case of impossibility to involve subjects of appraisal activity - business entities - in the assessment of property, such assessment is carried out by subjects of appraisal activity - state authorities or local self-government bodies in agreement with the owner of the property. In case of refusal or absence of the owner of the property, these bodies have the right to conduct such an assessment independently.
At the same time, in the case of military transport duty, Regulation No. 1921 establishes that the involvement during the mobilization of vehicles and equipment is formalized by a corresponding act of acceptance and transfer in the form according to Annexes 4 and 5.
In accordance with clause 27 of the Regulation, the act of acceptance and transfer is drawn up in triplicate and signed by the head of the enterprise, institution and organization or his authorized representative, the head of the territorial center of procurement and social support or his authorized representative and the commander (chief) of the military unit (unit), institutions and organizations of the military formation or its authorized representative, to whom the vehicle or equipment is transferred, and sealed.
In the act of acceptance and transfer of vehicles and equipment, the residual (balance sheet) value of the vehicle or equipment, determined in accordance with the data of the balance sheet of the enterprise, institution and organization compiled on the last reporting date (the last day of the quarter (year). At the owner's own initiative and an independent evaluation of the vehicle or equipment can be carried out at the expense of its funds by involving the subject of evaluation activities.
The provisions of Art. 7 of Law No. 4765-VI establishes that the right of state ownership of property arises from the date of signing the act. In case of forced expropriation of property, a document containing a conclusion on the value of the property as of the date of its assessment, which was carried out in connection with the decision on its forced expropriation, is attached to the act.
In the absence of the person from whom the property is alienated or seized, or his legal representative, during the drawing up of the act of forced alienation or seizure of property, such act is drawn up without his participation.
Therefore, when mobilizing property for military purposes, it will be advisable to get a legal services. A lawyer services a legal analysis of the situation and help avoid loss of property and funds. In such a situation, the services of a lawyer consultation be not only useful but also necessary.
