“Changes to the legislation allow the Ministry of Justice to cancel the ownership of real estate without a trial. What consequences can such a decision have?”, — write: epravda.com.ua
On December 20 of this year, Ukraine suffered the largest cyber attack on state registers in recent times. Key systems of the Ministry of Justice were suspended. Among them is the State register of rights to real estate and their encumbrances. The value of the Register is mega-important for business, economy, and citizens. All rights to real estate that are subject to state registration, in accordance with the law, arise from the date of such registration. This is not only the right to property, in particular state, communal property, property rights to unfinished construction, property encumbrances, for example, mortgages, land leases, etc. Without making an entry in the Register, all these rights do not arise. No record – no ownership. This is defined by special law No. 1952-IV. Inconsistency between the real legal status of the property and the entry in the Register can only be established by a court. This is a requirement of legal certainty, which the Constitutional Court and the Supreme Court insist on. It is what investors, businesses, and ultimately all of us, the citizens of Ukraine, seek. Advertising: Read also: New level of pressure: law enforcement officials were officially allowed to block businesses. property dispute That is, the court must say: who exactly has the right to the property? (Resolution of the Supreme Court of the Supreme Court of September 4, 2018 in case No. 823/2042/16). This decision changed the practice of challenging the state registration of real estate in administrative courts in parallel with the resolution of a civil dispute, for example, about the invalidity of a land lease agreement. After all, before that, the person who managed to be recognized as the legal lessee of the land found himself faced with the fact that the record of his right in the Register was removed by another decision of the administrative court. But that was only half the trouble.Advertisement: In parallel with the judicial appeal of state registration, Law No. 1952-IV (Article 37) establishes the administrative procedure for the appeal of state registration. Relevant decisions of the state registrar can be appealed to the Ministry of Justice. By order of the Ministry of Justice in 2020, special Boards were created to consider complaints against the decisions of the state registrar. It is in the order of the administrative procedure, without a court decision, that the Boards make decisions, for example, on the annulment of the state registrar’s decision. There is nothing wrong with the administrative procedure itself. On the contrary, if the violation is technical, it speeds up the correction, it relieves the courts, saves time and money for the applicants. But the Constitutional Court of Ukraine in 2022 was forced to point out the unconstitutionality of the provisions of Art. 37 of the Law regulating the procedure of appealing the state registration of rights to immovable property to the Ministry of Justice. (Decision of the Constitutional Court No. 9-r(II)/2022 dated 11/16/2022). This Decision of the Supreme Court of Ukraine is infinitely interesting for lawyers and businesses. The constitutional complaint was that in 2017, state registrars registered the ownership right of the applicant-legal entity to the object of unfinished construction. The Ministry of Justice, in departmental order, by order, on the complaint of another person (City Council Department), canceled this decision on state registration. The Constitutional Court indicated that the administrative procedure for appealing the decisions of state registrars is admissible. However, the contested prescription of Art. 37 of the Law contradicts legal certainty, is unconstitutional and indicates interference with property rights. You can read about all the motives of the Supreme Court and legal nuances in the Decision itself. It is interesting that the legislator at this time, even without the intention of avoiding constitutional review, changed the wording of the disputed norm, however, the Constitutional Court indicated that the content of the disputed prescription and the prescription of the law in the new version are identical, therefore, the subject of constitutional review in this case remains and recognized the prescription as unconstitutional. After the Decision of the Supreme Court, the legislator once again changed the wording of the disputed norm and instead of “revocation of the decision on state registration of rights” introduced the term “revocation of the decision”. Probably, this automatically guarantees its further constitutionality and is by no means the response of the Ministry of Justice to the Court’s Decision. Also, it is only a coincidence that while the Supreme Court was deciding the issue of the impossibility of appealing the state registrar’s decision to the Boards of the Ministry of Justice, if legal proceedings regarding disputed real estate are ongoing, the law “On Amendments to Certain Laws of Ukraine Regarding the Improvement of the Anti-Raiding Mechanism” from 12.05.2022, the relevant norm from Art. 37 of the law was excluded altogether. In the explanatory note to the draft law, it was stated that the current legislation establishes a number of excessive formal requirements for the content of the complaint, which is submitted to the Ministry, for example, regarding the mandatory indication in it of the legal norms that have been violated, information about the presence or absence of a legal dispute on the issue raised in the complaint issues, as well as requirements for certification of copies of documents attached to the complaint. That’s right! Legislators believe that real estate litigation is an excessive formality! The court is important, but for the purpose of countering raiding it is better without it. The fact that Art. 8 of the Constitution establishes the fundamental principle of the rule of law, guarantees the appeal to the court for the protection of rights, has not stopped anyone. It is probably not worth mentioning the constitutional separation of powers (Article 6 of the Constitution). Excessive formality. Why is it possible to interfere with the work of the Registry as a result of a hacker attack? It is not yet known what its consequences will be. It is also not known what will happen to the economy, the protection of property rights, its inviolability, changes made to the law that gave the Ministry of Justice incredibly broad, unconstitutional powers in the field of canceling state registration of rights to real estate. I wonder why investors and businesses always insist on the rule of law, a fair trial and seek protection in courts together with citizens? Everything can be resolved in special boards of the Ministry. The Constitutional Court should not be addressed either. Lawmakers know what to do with it. Instead of “cancellation” – “annulment” and the subject of constitutional control is exhausted. Rule of law as well.