To «nullify» claims against those who are plundering forests, coasts, and parks. Who lobbies for developers in the Verkhovna Rada?

A draft law in the parliament offers «amnesty to land grabbers» and a carte blanche to the authorities to alienate forests, coastal and border strips, nature reserves, landscape parks, natural monuments, botanical gardens, etc. (11185). If the parliament supports this, the state and communities can reclaim their property through the courts only within 5 years of the allocation. Developers have already launched a campaign in the media to explain why claims against them should be «nullified».

Moreover, lobbyists have appealed to the Constitutional Court to block the prosecutor’s office’s ability to protect the state’s interests.

Forests, nature reserves, coastal strips, and defense lands have always attracted developers and farmers. During the time of the traitor Yanukovych, the then Deputy Head of the Presidential Administration Andriy Portnov influenced the lawmaking and judicial branch of power. It was then that the Parliament adopted amendments to the procedural codes that limited the ability of the courts to protect the interests of the state and territorial communities in courts. This was supposed to benefit primarily unscrupulous developers. However, after the start of the judicial reform in 2016-2017, the Supreme Court found a way to prevent the implementation of this scheme.

Why did attempt by Yanukovich's and Portnov's times fail?

Under Yanukovych, through the parliament, «Batkivshchyna» MPs Pysarenko and Pylypenko introduced changes to the laws that were supposed to limit the ability of the prosecutor’s office to protect the interests of the state or the community in such cases. The Center of Policy and Legal Reform emphasized in 2011 that the parliament had passed a law that «protects the rights of raiders » and quoted Portnov on this point: «After that, every owner will realize that it is impossible to take it away from him (property)».

Who lobbies for developers in the Parliament?

In other words, the key idea of the developers’ lobbyists was to limit the time for the prosecutor’s office to file a lawsuit and appeal court decisions that the state and the community as landowners did not know about. As a result, many of the dismantled lands of forests, water, nature reserves, recreational, defense, etc. became impossible to return through the courts.

Portnov’s association with Batkivshchyna MPs was not accidental. Before joining Yanukovych’s service, he held a senior position in Yulia Tymoshenko‘s campaign headquarters. At that time, it was Batkivshchyna that was associated with a number of land-grabbing stories in the Kyiv region. Land near the capital, where green areas and undeveloped coasts have been preserved, is the most expensive. Residents of communities where green areas are being given away for high-rises are confronting developers’ thugs.

For several years, new legislative norms that contradicted the interests of the state and communities were applied by the courts. However, after the reform of the Supreme Court, they began to defend the interests of the state and territorial communities.

The Supreme Court has a Grand Chamber, which considers each case with 21 judges. It considers particularly complex cases and develops judicial practice for the whole country. To protect the right of Ukrainians to water and forest resources, parks, and cultural heritage sites, the Grand Chamber began applying Article 391 of the Civil Code, which allows an owner to demand the removal of obstacles to the exercise of his or her right to use and dispose of his or her property. As a result, the land in the Hryhoriv and the Buh estuaries of the Black Sea, in the Kobleve resort, in the Yahorlytskyi Bay, in the water protection zone along the Stuhna River, etc. was returned to the community. We also managed to return the historic Tereshchenko estate to the Kyiv community.

Now the authors of the draft law are trying to destroy this article 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, as previous attempts to do so in certain cases of the Supreme Court failed in its Grand Chamber.

Who are the lobbyists?

At the end of April, a legislative initiative appeared in the parliament that could surpass what they tried to legalize in the days of Yanukovych.

The main author of the initiative (11185) is MP Stepan Cherniavsky (Servant of the People). Among the co-authors were MPs who were elected as representatives of the ruling party from Kyiv region – Serhiy Bunin and Oleksandr Horobets. The latter has repeatedly written deputy appeals that were in favor of the carvers of the Bilychansky forest. By the way, in the last local elections, the Batkivshchyna party also had politicians associated with the carve-up of the Bilychansky forest. It took activists 15 years to protect this forest from development in court.

Petro Tiestov, an analyst at the Ukrainian Environmental Protection Group, emphasizes that if this is voted for, it will be enough to just wait until the five years from the date of receipt of the land plot expires: «Local councils and the State Geocadastre regularly «overlook» protected 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 allocations, because the law protects such areas regardless of the availability of cadastral documentation. It is not surprising that this initiative comes from members of the Agrarian Committee. We have repeatedly recorded illegal plowing of coastal strips or protected areas, including by large agricultural holdings».

Along with this legislative activity, an information campaign was launched in April: «business» offers to «zero out» claims against it in land schemes. In other words, they are offering to do what Portnov wanted to do 12 years ago: «There is no way to take it back».

The flagship here is the scandalous developer Ihor Mazepa, who is accused of land fraud. He says that the Council of Entrepreneurs offers to «nullify» the claims.

Mazepa explains the need to change the legislation by saying that the law allegedly has «gray areas» for dishonest «cops».

Mazepa is a business partner of the developer and former mayor of Irpin, a subject of journalistic anti-corruption investigations, Volodymyr Karpliuk, whose team is closely communicated with by the majoritarian MP of this constituency and… one of the co-authors of the project, Horobets.

Mykola Malukha, a representative of the Price of the State project, has already responded to this information campaign and calls to «zero out» claims against developers.

He noted that some businessmen do not want fundamental changes, but only require certain «perks» for their activities.

What is the practice of the Supreme Court?

A small draft law of a few pages can 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 Hryhorivskyi Estuary in Odesa region, Novomoskovskyi, and Mykolaivskyi forestries in Dnipropetrovska and Mykolaivska oblasts, respectively. In these cases, the reporting judge was Dmytro Gudyma, who, after six years of work in the Grand Chamber, is now a judge of the Civil Court of Cassation within the Supreme Court: «Private property rights cannot arise over objects that cannot be transferred to private ownership. Even if a council or other body has decided to allocate land on the bank of a river or sea to a person as private property for housing construction, and that person has registered his or her private property right, according to the Supreme Court, the community or the state remains the owner of such a plot. The person who registered the right must have realized that he or she could not acquire it by law. Therefore, the court does not reclaim such an object under Articles 387-388 of the Civil Code but returns them to the community or the state in order to remove obstacles under Article 391 of this law. Draft Law 11185 is intended to destroy this court practice».

The Grand Chamber of the Supreme Court «cemented» the practice of applying the law on the return of forest and water lands to the state and communities in 2021 in the case of Boryspil Forestry (the decision was written by the then Chief Justice of the Supreme Court Valentyna Danishevska).

By the way, the European Court of Human Rights also has examples of cases, in which this body sided with the state. Thus, the case of Depal v. France was about a Frenchman who, back in 1960, purchased a house partially located on the sea coast, which is state property. Until 1992, the applicant had permits to use this land, under which he was not entitled to compensation for the value of what was built there.

In 1986, French legislation stopped the renewal of permits for the occupation of state-owned marine land, and the applicant lost the right to this land. The authorities ruled that Depal should demolish his house without receiving compensation, because, according to the permits he had received, he knew that he could not claim such compensation. The European Court upheld this position of the state.

The Grand Chamber of the Supreme Court in its ruling, which was issued by Judge Hudyma, drew attention to the fact that, unlike the Depal case, in Ukraine, unscrupulous acquirers of land plots of coastal protection zones receive them free of charge, and illegally for the construction and maintenance of housing and outbuildings by decisions of the authorities and resell them further. Moreover, in Ukraine, such construction on these lands is prohibited, they cannot be privately owned, and leasehold rights can be issued for limited purposes not related to housing construction.

In the case of the return of a land plot on the territory of a monument of landscape art to the Poltava community, the judge-rapporteur Oleg Tkachuk emphasized that according to the Constitution of Ukraine, land, its subsoil, atmospheric air, water, and other natural resources are the objects of property rights of the Ukrainian people, and the laws must ensure this right: «There must be judicial control over compliance with this rule. Otherwise, the law will be like a slogan – on paper. The Supreme Court has formed a clear legal position: claims for the return of historical monuments, lands of nature reserves and other environmental protection purposes, water resources, parks, and valuable cultural heritage objects to the ownership of the people cannot be limited by time. The Supreme Court has sufficient powers to ensure that the interests of the state and the individual are commensurate and that state interference with private interests is proportionate. Draft Law 11185 has internal contradictions. If it is submitted to the Supreme Court, we will study it and make proposals. I think it is inappropriate to limit the right to go to court to return property to its rightful owner».

At the end of last year, the head of the Servant of the People party, Olena Shulyak, lobbied for another initiative of developers concerning coastal strips (9664). This draft law, which is still under consideration by the parliament, could also break high-quality judicial practice.

What is happening in the Constitution Court?

Developers can act not only through individual members of the Verkhovna Rada. The Constitutional Court of Ukraine received a complaint from Reinir Business Group LLC. At the end of April, the second senate of the Constitutional Court (judges: Serhiy Holovaty, Viktor Horodovenko, Vasyl Lemak, Volodymyr Moisyk, Oleh Pervomaiskyi, Halyna Yurovska).

The developers dispute 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 developers tried to prove their ownership of the 17-hectare water fund land plots. The Supreme Court upheld the prosecutor’s claim and returned the land to the community. It considered that the disputed plots were water fund lands and could not be acquired by the company, and the community did not lose possession of them.

If the rules 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 pose a threat of unjustified withdrawal of protected lands, subsoil, and natural resources from state/community ownership, including as a result of the introduction of a statute of limitations to satisfy claims for reclamation of property from a bona fide purchaser: «In addition, its provisions may adversely affect the effectiveness of protecting the state’s interests in court, destroying the stable and effective judicial practice regarding legal regimes of land and remedies. There is a threat that the existing case law, including that of the Supreme Court, on environmental protection and the protection of environmental rights may be leveled, as 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».

The prosecutor’s office adds that this draft is still being worked on and that suggestions and comments will be provided.

The Verkhovna Rada of the previous convocation tried to change the provisions of the Civil Code of Ukraine and return the norms that were removed from it during Portnov’s tenure. Such an initiative (4521) was submitted in 2016 by MPs Ihor Lutsenko, Ostap Yednak, who went to defend the country, and some other parliamentarians. Yet, it was never considered.

Lutsenko, who is now serving in the Armed Forces of Ukraine, has read the legislative initiative of the current MPs who are trying to change the Civil Code and notes: «This looks like an attempt to grant amnesty for land and other crimes committed by unscrupulous businesses in league with corrupt officials. The message is that let’s deal with the officials and leave the business alone. In 100% of such situations, the business is an accomplice to the crime, acquiring ownership of the stolen goods. The few companies that try to work in accordance with the law will suffer from this rule, as they will lose out to fraudsters in the competition for land and other assets».

If the legislation stops protecting green areas and coastal strips, active community members will again come out and tear down fences. But lynching is definitely not something that will bring us closer to joining the EU.

The new draft law (11185) will be considered by the Committee on Legal Policy, headed by Denys Maslov (Servant of the People). The Holka civic initiative will monitor the MPs’ voting.

This legislative initiative is not the only one promoted by developers’ lobbyists during the war.

As a reminder, the Royal Chatham House Institute (UK) has reviewed the government’s clone of the scandalous urban planning «reform» 5655, which is being attempted to be passed through the Cabinet of Ministers. Chatham House believes that such imperfect regulation may result in construction cartels. Cartel collusion occurs when large players from the same sector unite and do everything to create favorable conditions for themselves.

Over the past few years, the Ukrainian parliament has registered a number of laws in the interests of developers. Some of them have been blocked, but at the beginning of the year, one of them was adopted and will come into force at the end of May (9627). This law provides for a rapid change of the designated purpose of agricultural land for industry. And in this case, anti-corruption barriers did not work.

This text is in Ukrainian