In June 2017, the Cabinet of Ministers of Ukraine adopted Resolution No. 413 “Some Issues of Improving Governance in the Sphere of Using and Protecting Agricultural Land for State Property and Disposal”. The statutory act defines a strategy for improving management in the sphere of use and protection of agricultural land for state property and their disposal. The essence of the decree is that the regional bodies of Djergeokadastru, when disposing of land plots of state property, must take into account the priority of their transfer to the participants in the antiterrorist operation, that is, to persons defined by the Law of Ukraine “On the Status of War Veterans, Guarantees for Their Social Protection”.
For the period from June 2017 to early 2018, ATO participants submitted more than 24,000 applications to the bodies of Dergejokadastra. Applications for obtaining land plots of which 6632 applications for the allocation of land plots with a total area of 8.32 thousand hectares were satisfied, which is 27% of the amount filed applications.
The participants of the ATO are: servicemen and employees of the Armed Forces of Ukraine, the National Guard of Ukraine, the Security Service of Ukraine, the Foreign Intelligence Service of Ukraine, the State Border Service of Ukraine, the State Special Transport Service, military prosecutors, officers and commanders of the operational support units for antiterrorist operations central executive body and other employees who participated in the implementation of bespechenii natsio continued safety and defense, repel and deter armed aggression of the Russian Federation in the Donetsk and Lugansk regions, ensuring their implementation, are directly in areas and during the period of implementation of these activities.
Participants are also recognized as individuals, as part of volunteer formations that were formed or self-organized to protect the independence, sovereignty and territorial integrity of Ukraine, took direct part in the antiterrorist operation, ensuring its conduct, being directly in the areas of the antiterrorist operation during the period of its conduct, that in the future such volunteer formations were included in the Armed Forces of Ukraine, the Ministry of Internal Affairs of Ukraine, National Guard of Ukraine and other military formations and law enforcement bodies created in accordance with the laws of Ukraine.
According to the Resolution of the Cabinet No. 413 of 07.06.2017. the decision on granting the status of a participant to the ATO is made by commissions on issues of consideration of materials on recognition of combatants formed by the Ministry of Defense, the Ministry of Internal Affairs, the Ministry of Justice, the National Police, the National Guard, the Security Service, the Foreign Intelligence Service, the Administration of the State Border Service, the Administration of the State Service of Transport, the Prosecutor General’s Office of Ukraine, State Protection, Administration of the State Service of Communications, DSNS, DFS.
The commissions shall inform the State Service for War Veterans Affairs and participants in the antiterrorist operation of persons who have been granted the status of a combatant in a month. The certificate of the participant in the fighting and the corresponding badge are issued by the Ministry of Justice, the bodies of the Ministry of Defense, the Ministry of Internal Affairs, the National Police, the National Guard, the Security Service, the Foreign Intelligence Service, the Administration of the State Border Service, the Administration of the State Service of Transport, the Prosecutor General’s Office of Ukraine, the State Security Administration, the State Communications Administration, the DSNS, the DFS.
Thus, a proper confirmation of the citizen’s receipt of the status of a participant in the ATU is the decision of the commission formed in the relevant law enforcement agencies and a corresponding certificate.
The essence of the strategy of free privatization of agricultural land is reduced to the fact that the regional Gegeokokadastry should publish a list of free land plots to provide citizens with 25% of the total area sold at auction in the previous quarter. However, this restriction on the number of vacant lots does not apply to the participants of the ATU wishing to exercise their right. The bodies of the Djergeocadastre should work in a mode of maximum assistance to ATU members and family members of dead soldiers in the implementation of their constitutional right to receive land. The allocation of land plots to participants in an antiterrorist operation is carried out on the basis of Art. 118 of the Land Code of Ukraine. However, it is not worth hoping for a legitimate, and most importantly operative, decision of administrative issues by the bodies of the Gegeghokadastra. Unfortunately, only in court it is possible to defend one’s rights. Consider the proper passage of the key stages of the procedure for obtaining a land plot for agricultural purposes, and the peculiarity of applying to a court in case of violation of the rights of a participant in the ATU.
On the official websites of the offices of the Gegeokokadastre, quarterly 10 days before the end of the current quarter, a list of sites is planned to be provided in the next quarter to citizens. Taking into account the Resolution of the Cabinet of 17.01.2018 No. 18, it was decided that the indicated list does not include land plots that are supposed to be provided to ATU participants. That is, the state, first of all, should provide all interested parties with ATP land with the land plots in the implementation of their guaranteed right.
So, first you need to decide on where exactly the land for agricultural purposes will be located. We pay attention to the fact that the place of residence (registration) of the participant does not matter for choosing the site location.
The management of the Djergeokadastra is the manager of the state-owned lands outside the populated areas, including agricultural purposes (for conducting personal subsidiary plots, farming, gardening), recreational purposes (for individual summer construction). The maximum area of land plots is established by the standard for a personal part-time farm of up to 2 hectares; gardening up to 0.12 ha; individual country construction up to 0,1 hectare .. The citizen can use his right to receive a land plot only once for each species.
For example, on the official websites of the departments of the Derzhgeokadastra, there are schematic plans for the available land plots within a particular area, mainly for individual summer construction. In some areas, the information is provided only in the form of a summary table, broken down by area. Neither schemas nor tables oblige the ATU participant to be attached to a particular site location or destination for use. A manipulation of the concept of “reserve”, is just used for formal notes.
In the event that a participant submits an application for a land plot for agricultural purposes to maintain a personal part-time farm, it should be noted that the form or form of such an application is not regulated. The text of the application must contain an indication of consent to the processing of personal data, indicating the date and signature of the applicant.
On the site of the public cadastral map map.land.gov.ua/kadastrova-karta or gisfile.com/map, choose a free site and order in the regional department of Gegeokokadastra (state cadastre registrar) a copy from the cadastral map. On the copy you make a schematic indication of the desired location.
To the application for the granting of a permit to develop a land management project for the allocation of a land plot to the ownership for a personal subsidiary farm with an approximate area of up to 2 hectares. In addition to copying, you provide copies of the passport of the citizen and identification number, the decision to grant the status of the ATO participant and the certificate.
The legislator set a specific time limit of one month, for the adoption of one of the decisions on granting consent to the development of the project or on refusal to grant consent. In the event of violation of the deadline by the Djergeocadastre, the applicant receives the right to order a land management project on the principle of “tacit consent”.
If the authorization for the development of the project is provided, the applicant applies to the land management organization for the development of land management documentation. We draw attention to the fact that such a land surveyor should be included in the open state register of certified land surveyor engineers. And the term of coordination at the conclusion of the contract for the development of the project should not exceed six months.
The next steps will be: the coordination of the land management project with the territorial body of Djergeokadastra, the state registration of the land plot in the State Land Cadastre, the approval of the land management project and the registration of the right to immovable property, but these actions do not need detailed legal attention. In most cases, the procedure is inhibited at the first stage. The actions of an ATO participant in the event of a refusal to grant a permit for the development of a land management project and the specifics of recourse to a court and the existing judicial practice are more important.
Refusal to grant a permit for the development of a project should be indicated with specific grounds, and the reasons for the refusal are exhaustive. The grounds for refusal (Part 7, Article 118 of the Criminal Code) in granting such a permit can only be a mismatch of the location of the facility requirements: 1) laws; 2) regulatory acts adopted in accordance with them; 3) general plans of settlements; 4) other town-planning documentation, 5) land management schemes, 6) feasibility studies for the use and protection of lands of administrative-territorial units, 7) land management projects for streamlining the territories of settlements, approved in accordance with the procedure established by law.
To apply for the protection of violated rights is necessary in the district administrative court in the order of administrative proceedings. A particular court is determined by the rule of alternative jurisdiction – either at the location of the management of the Djergeocadastre, or at the place of residence (registration) of the plaintiff.
Taking into account the provisions of cl. 5 of the Law of Ukraine “On judicial collection” from the payment of court fees are exempted participants in hostilities, and therefore, participants of the ATU.
Ambiguous judicial practice confirms that in such litigation the body authorized to dispose of the lands appeals to its special discretionary powers. After all, in their opinion, the court can not interfere in the discretion of the subject of power. By discretion, one should understand the powers that the administrative authority, when making a decision, can exercise with a certain discretion, that is, when such an authority can choose from several legally permissible decisions what it considers to be the best in the circumstances.
There are cases when the regional Gegegokadastry, contrary to the law, on the basis of submitted applications for granting permission for the development of documentation on land management with respect to agricultural land plots of state property, redirect them to local authorities at the location of the site, with requests for an expression of the position regarding the possibility of granting a permit. Such actions are a violation of the law and must be recognized in the courts as unlawful.
Given the specifics associated with the election of a specific method of protection of rights and the peculiarity of administrative proceedings, we advise you to use the services of a qualified lawyer. A professional legal approach as a result will help to save time and lead to the planned result.
In practice, both at the stage of obtaining a permit for the development of a land management project, so at the stage of project approval, officials violate the principles of unambiguity and exhaustibility in their responses. That is, for decision-making in the form of notification (conclusion), there are two alternative options – approval (consent) or refusal. And such a refusal should be exhaustive, unambiguous and justified.
Privatization itself, as a procedure for the allocation of a land plot in ownership, is free of charge. At the same time, it consists of certain stages for which a fee is established (project development, administrative fee). Our lawyers and lawyers are ready to help the state defenders free of charge in obtaining a land plot for agricultural purposes, and receive compensation for expenses incurred and pay for their services only after registering the title to the land. To do this, it is necessary to conclude a contract of commission and provide a power of attorney in which to provide for mutually beneficial terms of cooperation.