At the IX International Legal Counsels Forum, held on October 6, 2021 in Kyiv, Benchers Law Firm partner, attorney and Honored Lawyer of Ukraine Myroslav Hnatiuk delivered a report on the key legislative changes in the sphere of property protection.
In his report to the legal community, Myroslav raised the issues of judicial and extrajudicial restrictions of property rights, arrest of property in criminal investigations, and contesting of sanction application, the latter being a particularly relevant topic today. He also assessed the prospects of de-oligarchization in Ukraine from the legal standpoint. “The existing legal framework in the field of property protection is imperfect and requires, in turn, improved judicial practices, which also leave a lot of be desired,” the speaker opined.
Among the key issues encountered by lawyers and their clients is restriction on the exercise of property rights without seizure of property. Myroslav mentioned judicial restrictions, such as satisfaction of claims or arrest of property in the course of criminal proceedings, as well as extrajudicial restrictions, such as application of sanctions and restrictions under the law on oligarchs. The attorney voiced his concern about the lack of significant improvement in the judicial protection of property rights, and pointed out certain inconsistencies and accusatory trends in the practices of the Supreme Anti-Corruption Court. He pointed out that in substantiating their rulings, investigative judges frequently defer to the ECHR Convention for the Protection of Human Rights and Fundamental Freedoms – while at the same time, Myroslav believes, they should be, firstly and foremost, protecting the individual from the state, and not the state from the individual.
Among the positive aspects that enable attorneys to successfully contest application of sanctions, Myroslav Hnatiuk named the requirement for the court to assess the legal grounds for the application of restrictions. However, there are also some negative considerations, related to the discrediting of the President and executive government agencies during the application of sanctions, the lack of substantiation of sanctions in the ruling on their application, and the overly broad interpretation of the subject and grounds for sanction application.
The speaker also analyzed the “law on oligarchs” and pointed out a number of issues that need addressing. These include the vague criteria, based on which a circle of influential individuals can be classified as oligarchs; the President’s lack of constitutional authority to make an appropriate decision; the lack of a detailed procedure and a timeline for determining whether an individual is classified as an oligarch; and finally, the possibilities for abuse of relevant authority and, respectively, the risk of “manual” regulation of access to property privatization.
Furthermore, drawing on the successful experience of Benchers Law Firm attorneys in defending clients in cases related to arrest of property in the course of criminal proceedings and contesting of sanctions, Myroslav Hnatiuk shared his expert recommendations on the above with the Forum Attendees.
