KYIV. July 31 (Interfax-Ukraine) – Head of Odesa Regional State Administration Mikheil Saakashvili had no authority to demolish the fence of the Zeleny Bereh recreation center without a relevant court ruling, having only the instruction of the municipal security department of Odesa City Council, according to lawyers polled by Interfax-Ukraine.
“Under the current law, the representatives of Odesa Regional State Administration had no authority to demolish the fence,” Partner of the Shevchuk&Partners law firm Darya Koziy considers.
In particular, she said the decision of the Constitutional Court of Ukraine dated April 16, 2009 (the case on the abolition of acts of local self-governance authorities) establishes that local authorities cannot revoke their previous decisions, or amend them, if in accordance with these decisions legal relations related to implementation of certain subjective rights and interests protected by law appeared, and the subjects of these legal relations oppose their adjustment or termination.
“Even if we assume that the land plot was leased in violation of the law, to demolish the fence and return the land plot it is necessary to contest the lease contract in court to restore the situation that existed before the signing of the lease contract through the demolition of the fence. If the court would have satisfied such a claim, then after the entry into force of the court decision the demolition of the fence should had been carried out by the executive service but not the representatives of Odesa Regional State Administration,” the lawyer said.
Commenting on the validity of prescriptions used by the head of Odesa Regional State Administration, Koziy said that “if Odesa Regional State Administration for its request within 15 days would not have received the requested documentation, the further resolution of this issue in accordance with the legislation of Ukraine would have to be carried out judicially”.
“The document, which was referred to during the demolition of the fence, cannot be the ground for the fence demolition, therefore the demolition was carried out in excess of authority,” the expert said.
Partner of the Volkov&Partners law firm Roman Drozhansky noted that the instruction of the municipal department includes violations of the law. In particular, it does not indicate violations of the rules of urban development in Odesa, as well as the name of the legal entity or the individual who committed the offense.
The Zeleny Bereh recreation center is not the name of a legal entity, but only the name of an object owned by the person, the lawyer said.
In addition, he pointed out that the instruction followed by the head of Odesa Regional State Administration includes a reference to an invalid local regulation – the rules of urban development in Odesa dated 2008, which expired in accordance with the decision of Odesa City Council of December 23, 2011.
“The valid rules of urban development in Odesa (as well as the text of the instruction) state that the elements of landscaping set (placed) in violation of the requirements established by the regulations are to be dismantled for the money of the person who installed them within the term specified in the order of the authorized executive body of Odesa City Council. At the same time, the demolition of the fence of the Zeleny Bereh recreation center was made before the deadline specified in the instruction,” Drozhansky said.
He also stressed that “the conclusion of the legality of installing the fence and blocking access to the beach can be done after studying the contract on land lease and other permits and registration documents related to the recreation center and the beach.”
Partner of the GORO law firm Dmytro Ovsiy said in turn that “the regional state administration is part of executive power headed by the Cabinet of Ministers, therefore the actions of its head do not refer to the powers of the governor, and thus there was an abuse of authority.”
“Only the courts can determine guilt. The duty of the executive service is to implement court rulings. Saakashvili independently determined the guilt of the fence owner, replacing court, and executed the decision, replacing the executive service. Such actions can be qualified as abuse of authority,” the lawyer said.
According to Ovsiy, the instruction composed does not constitute grounds for the demolition of the fence.
“The order fixes violations of municipal improvements. This article does not provide for other sanctions except for a fine of up to UAH 1,700,” he said.
“Another difficulty of the situation is that the violation of fence installation took place in the territory of the city beach. The order was issued by the municipal security department of Odesa City Council. According to information announced by the recreation center owner, the land is leased. The leasing party is the city council. Formally, legally the city authorities should protect the rights violation,” Ovsiy said.
The lawyer noted that a legitimate way of “demolishing the fence is possible only by court order.”
“If a facility is illegally built on municipal land, the owner (the city council) has the right to go to court with the demand to dismantle the unauthorized building and compensation for damages. In addition, if the construction of the fence was not agreed with the city authorities and is contrary to the lease contract, the latter have the right to demand the cancellation of the rent contract,” he said.
Ovsiy believes that at present “the owner of the fence has every ground to apply to court to recognize the actions of the authorities illegal and require compensation for damages.”
Lawyer of the Asters law firm Volha Sheiko has forecast that the resolution to the situation will be found in court.
“In fact, there was the instruction, but, apparently, no documents were provided in response. I think there will be several lawsuits, we will follow them,” she said.
In her estimation, “it is possible to write a dissertation on the legality or illegality of such fences.”
“It is possible to find loopholes in legislation and get around laws. In fact, land plots, according to the Land Code of Ukraine, are allocated for ownership, leasing on the basis of decisions of the local council, i.e. the territorial community. The community, in turn, must make decisions on the basis of existing regulations. It can be concluded that Odesa City Council adopted a number of local regulations, on the basis of which such land plots were allocated. However, if to work out the regulatory framework in the form of a number of laws, including those such as the Water and Land Codes, it can be concluded that the beach is a public space,” the lawyer said.
As reported, on July 20 Saakashvili, accompanied by the head of the Odesa police, the Emergencies Service and a bulldozer, arrived at the Zeleny Bereh recreation center. Threatening to use force, they entered the center and organized the demolition of the wall, blocking access to the beach. Saakashvili demanded that the police open a criminal case against the owners.
Businessman Vasyl Khmelnytsky, associated with the object, in turn, described Saakashvili’s actions as “populism and the invasion of private property” and said the negative consequences of this incident would affect the country’s investment attractiveness. He stressed that “the unfinished Zeleny Bereh recreation center” is privately owned and located on a legally rented land plot. In his words, “access to the beach was closed during the Soviet era.” Khmelnytsky said that the local authorities made the order to remove the fence or provide permissive documents on July 20, 2015 and gave ten days for this to take place.
