The opening of land market is expected to expand the forms of disposal of land rights. Along with ownership and use, the implementation of land market will also enable landowners to sell, pledge, and use their land in financial mechanisms and otherwise according to the principles of freedom of contract and the freedom to dispose of one’s property – as provided by the Constitution of Ukraine, the human rights, and international legal norms.
At the same time, new opportunities inevitably generate new risks, which should be prevented before the land market is opened.
Today, the Ukrainian legislation provides for a number of legal mechanisms for protecting the citizens’ rights in land governance sphere: appeals to the authorities to demand resolution of issues within their competence, the judicial system, the system of extrajudicial consideration of disputes, the Ukrainian Parliament Commissioner for Human Rights [Ombudsman], the Business Ombudsman Council in Ukraine, etc. However, the lack of citizens’ trust in state bodies prompts to seek new ways.
The Land Ombudsman could be an institution whose functions are to protect the rights of the individual and citizen in land governance sphere (other possible titles may include the Commissioner for Protection of Human Rights in Land Governance or another name, hereinafter referred to as the Land Ombudsman). However, it would be inappropriate (and unrealistic) to put all the responsibility for settling all conflicts in land governance sphere upon the newly created institution – in particular, taking into account that its activity will refer to about 7 million owners of land parcels. Therefore, such position should be implemented within a system of measures aimed at improving the citizens’ legal security in land governance sphere. These measures should improve the authorities’ practices and the existing conflict settlement tools. The Land Ombudsman should not duplicate them, but promote trust in the legal system – in particular, by resolving conflicts that may arise when implementing the land reform and amending the land legislation; it would be an institution to appeal to in cases of systematic inaction or systematic improper performance by public authorities.
The analytical note (see: http://www.kse.org.ua/uk/research-policy/land/analytical/?newsid=2047) does not offer a political, budgetary or another type of analysis, but a legal examination of the issue raised. It aims to analyze the legislation – both norms and their application – related to protection of land governance rights so as to evaluate the rationale for such a position and define the duties and responsibilities for such an official.
The paper analyzes the current legislation of Ukraine concerning institutions with similar functions, examines the international experience, and formulates proposals regarding the appointment, subordination, and powers of the Land Ombudsman.
Based on the analysis, the following recommendations are proposed:
1) The implementation of the Land Ombudsman position is not a way to overcome all land governance issues, but it can become an institution which will restore public trust in state authorities and confirm the ability to protect the rights of landowners and land users in cases where other institutions do not provide sufficient support or become ineffective;
2) Among all the possible ways to establish such an institution, creating the position of a Land Rights Representative of the Ukrainian Parliament Commissioner for Human Rights could be the most efficient way;
3) If established, the Land Ombudsman position should include the following powers:
o publish reports on observation of human and civil rights in land governance sphere;
o analyze the land legislation and submit recommendations on land issues to state authorities;
o participate in law-making activities;
o the right to sue and to participate in litigation processes as a lawsuit party for high-profile judicial cases (where the lawsuit parties are a citizen and government authorities);
o the right to apply to state authorities and law enforcement bodies in order to initiate criminal, administrative, or disciplinary proceedings (possible only after making relevant amendments to the laws of Ukraine);
o submit binding requests and applications demanding consideration of citizens’ appeals if the official deadline for consideration has expired or citizens and organizations have exhausted all possible ways to protect their rights.
4) We recommend that the Government of Ukraine submit the draft Law of Ukraine “On the Turnover of Agricultural Land” for consideration to the Ukrainian Parliament Commissioner for Human Rights in order to assess the level of securing the constitutional rights of landowners and land users, which is envisaged by this law, as well as to seek recommendations for improving the level of protection of land governance rights in Ukraine;
5) It is advisable to provide special “land law” training programs for judges, defense attorneys, and lawyers and create a profile of judges specializing in “consideration of land disputes” in courts.
Full text is available at: http://www.kse.org.ua/uk/research-policy/land/analytical/?newsid=2047