Human rights defenders promulgated a mechanism to counter the illegal seizure of property, owned by the Ukrainian Crimeans

On 6 May a joint briefing was held by the Office of the President of Ukraine in ARK, the Prosecutor’s Office of ARK, the Regional Centre for Human Rights, the Ukrainian Helsinki Union for Human Rights and the civic organization CrimeaSOS. Speakers discussed the consequences of the illegal decision of the Russian Federation to include land in temporarily occupied Crimea on the list of prohibited foreign ownership and the mechanisms to protect land ownership under the occupation.

Prehistory

On 20 March, the President of the Russian Federation, by the decree, prohibited foreign citizens and stateless persons from owning land in virtually throughout the whole territory of the Crimean Peninsula. The lands were assigned to the category «border», which can be owned only by citizens of the Russian Federation. Eleven districts of the Crimea came under the Decree, namely, the Bakhchisaray, Jankoy, Kirov, Krasnoperepop, Lenin, Nizhny Gorsk, Zlolny, Sak, Simferopol, Soviet and Black Sea districts. Foreigners are also unable to own plots in urban districts such as Alushta, Armenian, Yevpatoria, Kerch, Saki, Sudak, Feodosiya and Yalta, as well as in 8 out of 10 districts in Sevastopolsky, Sovetsky and Chornomorsky regions. Foreigners are also unable to own plots in urban districts such as Alushta, Armenian, Yevpatoria, Kerch, Saki, Sudak, Feodosiya and Yalta, as well as in 8 out of 10 districts in Sevastopol. The ban does not apply to the 3 districts of Crimea – Pervomaysky, Krasnoguard and Belogorsk, as well as the Verkhovnesivsk and Ternovsky districts of Sevastopol, because they do not border on the mainland of Ukraine and have no access to the Black Sea

The problem is that the assignment of Crimean land in border areas entails an obligation for foreigners to foreclose land within a year from the beginning of ownership of property (art. 238, para. 1, of the Civil Code). According to the explanation, this period begins to run from the entry into force of Decree 201 to 20 March 2020. The final date for ownership of the land is March 20, 2021.

Position of Ukraine

The Mission of the President of Ukraine in the Autonomous Republic of Crimea immediately began to denounce the illegal actions of the occupation authorities of the Russian Federation. The Mission believes that this is yet another act of violation of the state sovereignty and territorial integrity of Ukraine and of the norms and principles of international law.

Today, the owners of land parcels, primarily Ukrainian citizens, should understand that Ukraine clearly indicates its position not to recognize the effect of the Decree, which we consider to be such that it does not create any legal consequences. From the point of view of Ukrainian legislation and international law, even in cases where such plots are seized, these citizens will remain the legal owners of their plots of land.

 “All persons whose property has been expropriated and seized in the temporarily occupied territory are victims of the armed conflict. Even today, Ukraine must establish effective procedures for the restoration of property rights, define principles for the return of property to its owners, and have been illegally expropriated during the occupation. And thirdly, it is clear that there is a need for accounting systems for what property has been damaged, destroyed, destroyed or illegally expropriated from the owners during the temporary occupation. The establishment of a system of compensation for the civilian population during the occupation is also a task for Ukraine, which is being carried out within the framework of the Ukrainian concept of transitional justice”, the First Deputy Permanent Representative of the President of Ukraine Darya Svyrydova said.

The national transitional justice model for the protection of human rights in the context of overcoming the consequences of the armed conflict in Ukraine is currently being refined in the working group on the reintegration of Tat under the Commission on Legal Reform of the Office of the President of Ukraine.

Illegality of the RF Presidential Decree

In practice in the Russian Federation, in such cases, the owner of the plot must dispose of it within a year. If he fails to do so, the plot will be compulsorily sold by court order, and the proceeds transferred to the former owner.

Under the general rules and regulations of the Constitution of the Russian Federation, the law has no retroactive effect in time (Constitution of the RF, art. 54). Therefore, this Decree should apply only to land which has become the property of foreign citizens after the entry into force. However, if the Constitution of the Russian Federation had been respected, human rights defenders would not have given this briefing. Everyone was probably aware of the widespread practice of expropriation of Crimean land by the occupying authority on the basis of the decisions of the courts, which had examined the legality of the allocation of such land under Russian law. In other words, the occupiers applied their laws to a relationship that had existed long before the occupation. Of course, this is a legal absurdity and an arbitrary exercise. It was also illegal to apply the legal consequences of article 238 to Crimeans who already owned plots of land in the Crimea.

Less than three strong arguments have been put forward by human rights defenders to support their position.

The alienation of parcels under article 238 of the Civil Code of the Russian Federation violates the fundamental legal principle of the effect of the law over time.

The annual period referred to in this article begins to run “from the date of acquisition of ownership”. That is, this article is not intended to deal with long-term ownership of land. It is not possible to establish a period of one year from the date of acquisition of the right to property if a person has already owned a certain plot of land for more than 10 years.

Even assuming that the occupying authority finds a way to seize land from Ukrainian citizens, such action would not be in accordance with international humanitarian law (which not only obliges the occupier to respect the law of the occupied State, but also prohibits the expropriation of private property without military necessity). Such actions by the occupier also violate the right to peaceful possession of property guaranteed by article 1 of Protocol 1 to the European Convention on Human Rights. Such cases therefore had a good prospect of protection before the European Court of Human Rights.

Risks that the Decree may carry for Ukrainian citizens and foreigners (non-citizens of the Russian Federatio). Given the consistent illegal practice of the Russian Federation’s State bodies, the application of the Decree to Crimean citizens will have several negative consequences and additional risks:

The occupation authorities could forcibly expropriate land that had been acquired by Ukrainian citizens prior to the beginning of the occupation of Crimea if those citizens had not subsequently obtained the “Crimean passport of the Russian Federation”. First of all, these are persons registered outside the peninsula who had houses with private plots in the Crimea. First of all, these are persons registered outside the peninsula who had houses with private plots in the Crimea. It is likely that persons who continue to live in Crimea on the basis of a residence permit (i.e., foreigners, as understood by the occupier) will also be forced to sell land.

In the early years of the occupation, there were many cases in which the “citizenship of the Russian Federation” was subsequently declared invalid by the Federal Migration Service. The formal basis is “unreliability of information” provided by a citizen. It was therefore possible that such practices would be used by the occupation authorities to seize “needed” land.

Land plots on which information is available in “Russian registers” are subject to alienation
Consequently, no one is immune from the illegal actions of the occupier, so we recommend that people who own land in Crimea constantly monitor the situation of their property on the territory of the peninsula.

“It is estimated that more than 10,000 people will be subject to such expropriation, indicating the magnitude of the problem and the need to respond to it. We believe that the Ordinance violates a person’s right to property. The Prosecutor’s Office, assessing the above-mentioned actions, considers that the land decree is nothing more than a step towards the systematic harassment by the Russian Federation of Ukrainian citizens who did not agree with the occupation of Crimea”, the Deputy Prosecutor of the AR of Crimea Vitaliy Secretar stressed.

Mechanisms to prevent land seizure

The most likely instrument for the seizure of land parcels from Ukrainian citizens and foreigners in Crimea under the implementation of the Decree will be the mechanism for the occupation authorities to address the occupation courts on the basis of the Constitution. 238 Civil Code of the Russian Federation, in order to protect their rights, in particular at the international level. The following steps are therefore appropriate for persons whose land is covered by the Ordinance:

Trial, appeal and cassation before the occupation courts. This action must be taken in order to file an individual complaint against the Russian Federation later with the European Court of Human Rights. Otherwise, there is a risk that the complaint will be declared inadmissible.

In practice, landowners may find themselves in two situations. In the first case, the authorities of the occupation would sue them for the seizure of the land and the owner would be sued.In the second case, the owner may obtain an administrative documen Such acts, decisions and orders of the occupation authorities must then be appealed in court and the owner of the land must be the plaintiff in such cases. Such acts, decisions and orders of the occupation authorities must then be appealed in court and the owner of the land must be the plaintiff in such cases. It should beremembered, however, that in the event of land confiscation, the European Court of Human Rights could be seized within six months of the entry into force of the decision of the court of cassation.

“Enforcement can take place in two ways. Or court orders for forced sale when the land is auctioned. Or the second option – the court decides to transfer the plot to the occupation authorities, but the owner is compensated for a certain amount of money. But in both cases the market value is not at stake. Therefore, we already recommend that citizens collect documentation, determine the value of the land as of today, inform us of such cases so that we can assist in the trials”,  the lawyer of the UHHRU Maksym Tymochko called on during the briefing.

Report the seizure of the land parcel to the Procurator’s Office of the Republic of Crimea for the purpose of registering criminal proceedings for the commission of international crimes in the territory of occupied Crimea and adhering to the material already available.

The law enforcement agencies of Ukraine collect evidence of the commission of such crimes in order to bring the perpetrators to justice at the national level and to transmit the relevant information to the Office of the Prosecutor of the International Criminal Court (The Hague, Kingdom of the Netherlands). As part of a potential investigation into the situation in Ukraine, ISS will analyse information received from the Crimea Prosecutor’s Office and Ukrainian non-governmental organizations.