Withdrawal of personal transport in favor of the Armed Forces: procedure and legal nuances (video)

On May 18, the law on strengthening mobilization will enter into force, according to which new rules for seizing cars from the population in favor of the Armed Forces will come into force. The Ministry of Defense explains that the TCC, SBU and other special services will seize personal transport for the needs of the army from Ukrainian residents. It was also emphasized that the return of vehicles will take place within 30 days of the announcement of demobilization.

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In connection with the introduction of new legislative requirements, the general public is concerned about the question of how exactly this process will be carried out. IA “FACT” asked the “Repeshko and Partners” bar association for a comment on this matter.

The new law provides for the seizure of vehicles if a person owns more than two of them, but there are some nuances. According to Article 41 of the Constitution of Ukraine, “no one can be unlawfully deprived of the right to property. The right to private property is inviolable”, in its other part it is emphasized: “Forcible alienation of objects of private property rights can be applied only as an exception for reasons of public necessity, on on the basis and in the manner established by law, and on the condition of prior and full compensation of their value. Compulsory alienation of such objects with subsequent full compensation of their value is allowed only in conditions of war or state of emergency.” That is, according to the mentioned norm, we are talking about forced alienation – deprivation of the right to property.

In the Law of Ukraine “On Mobilization Training and Mobilization”, a separate Article 6 “Military Transport Obligation” is devoted to the issue of vehicles. According to it, the military transport obligation is established in order to meet the needs of the Armed Forces of Ukraine and other military formations for a special period with means of transport (including water) and equipment (hereinafter referred to as means of transport) and extends to central and local bodies of executive power, other state bodies, local self-government bodies, enterprises, institutions and organizations, including railways, ports, wharves, airports, oil depots, road service gas stations and other enterprises, institutions and organizations that ensure the operation of vehicles, as well as citizens – owners of vehicles. As we can see, whether we like it or not, the effect of this norm extends to all spheres of economy and to ordinary citizens.

It should be noted that in accordance with the by-law approved by the Cabinet of Ministers of Ukraine Resolution “Regulations on Military Transport Duty”, this rule does not apply to diplomatic missions and consular institutions of foreign countries, missions of foreign and international organizations, foreigners and stateless persons.

Another limitation is established in the law itself – a vehicle owned by a citizen cannot be transferred to the Armed Forces of Ukraine or other military formations, if he does not have ownership rights to other vehicles. Thus, those who own only one vehicle should not worry. But, unfortunately, the law also does not contain exceptions regarding benefits (disabled, participant in hostilities, having many children, etc.) or the plight of a person (IDP, destroyed housing, etc.).

A significant problem exists for those who own two or more vehicles, and for those who at one time “sold” a car by power of attorney (received money for the car, but instead of re-registering the car to a new owner, issued a notarial power of attorney with the right of full disposal ). In the latter case, very often a “sold” car in the Ministry of Internal Affairs registry remains registered under the previous owner, which can create a big problem: if a car that is actually owned now is more suitable for military tasks, then it will be taken away, because there is another – “sold “, or if they take away the “sold”, then the person to whom you “sold” the car by proxy will come to you with claims and a demand for a refund for the purchased car.

With this in mind, we recommend that you pay close attention to all previously issued power of attorneys for vehicles, and to organize the issue of ownership of cars. In this case, the vehicle that best meets the needs and tasks performed at the front will be subject to involvement: between a sedan and an SUV, the SUV will be in favor of the Armed Forces. In turn, the officials insist that there will be no automatic removal of excess cars, this is only possible in an extremely difficult situation. In addition, specific cars that are really needed and will benefit the Armed Forces will be withdrawn, not all of them in a row.

The Law of Ukraine “On Mobilization Training and Mobilization” offers three options for actions regarding vehicles and equipment for the period of mobilization and during martial law:

• free engagement;
• withdrawal;
• forced alienation

It should be noted that neither the new law nor the “Regulations on Military Transport Duty” currently contain a clear definition of what exactly is considered “free recruitment” and “withdrawal”, as well as how they differ. If you read the law carefully, the state will guarantee compensation for the value of property or damages precisely for the seizure and forced alienation of vehicles. The analysis of the law allows us to conclude that the free involvement of vehicles concerns enterprises, institutions and organizations of all forms of ownership to meet the needs of the Armed Forces of Ukraine and other military formations on the condition that they are returned to their owners after the announcement of demobilization. If we talk about the vehicles of private individuals, then they are only subject to seizure and forced alienation. These concepts should be distinguished – forced alienation is the deprivation of a citizen’s property, the seizure is of a temporary nature, and in the future the owner will return his vehicle.

The Ministry of Internal Affairs of Ukraine, in accordance with the procedure established by the Cabinet of Ministers of Ukraine, ensures the submission to the territorial centers of manning and social support of information on registered vehicles that may be assigned to the additional manning of the Armed Forces of Ukraine and other military formations in a special period. At the same time, in the field of view of the Armed Forces, in addition to road transport, there are also tractors, self-propelled chassis, self-propelled agricultural and road construction machines, agricultural machinery, which can be assigned to supplement the Armed Forces of Ukraine and other military formations in a special period. The State Service of Ukraine for Food Safety and Consumer Protection determines the procedure and ensures the provision of information to TCCs and JVs about such equipment.

In turn, the new law did not bypass the water vehicles that can be assigned to supplement the Armed Forces of Ukraine and other military formations in a special period. Regarding them, data will also be transferred to the TCC and SP from the relevant registers.

As for the specific mechanism of seizure and forced alienation of a vehicle from a natural person, the Cabinet of Ministers of Ukraine has not yet developed the relevant procedure. The Decree No. 1921 dated December 28, 2000 approved by the Cabinet of Ministers of Ukraine “Regulations on Military Transport Duty” is currently in force, but it concerns more enterprises than individuals

and does not fully comply with the norms of the new law, although it stipulates that the military transport duty is fulfilled: in a special period – by transferring vehicles and equipment by enterprises, institutions and organizations, as well as citizens to meet the needs of military formations in accordance with the specified tasks It is this, in accordance with the currently valid provisions, that the task of preparing for the transfer and the actual transfer of vehicles and equipment to military formations are established by orders of local state administrations at the request of the TCC and SP, and are also brought to the attention of citizens – owners of vehicles during mobilization in the event of the introduction of a legal regime martial law – through TCC and SP.

Acceptance and transfer of vehicles involved during mobilization and their return after the announcement of demobilization are carried out on the basis of the corresponding act of acceptance and transfer. It is drawn up in three copies and signed by the head of the TCC and SP or his authorized representative and the commander (chief) of the military unit (unit), institution and organization of the military formation or his authorized representative to whom the vehicle or equipment is transferred, and sealed.

The procedure for compensation by the state of the value of property or damages suffered by citizens as a result of seizure or forced alienation of vehicles in a special period is determined by law. Currently, these issues are regulated by the Law of Ukraine “On transfer, forced alienation or seizure of property under the legal regime of martial law or state of emergency”. According to it, forced alienation of property under the legal regime of martial law or state of emergency can be carried out in two ways:

• with a preliminary full refund of its cost
• followed by a full refund of its cost.

Full reimbursement of the value of forcibly expropriated property is carried out on the basis of a document containing a conclusion on the value of the property on the date of its assessment, which was carried out in connection with the adoption of a decision on its forced expropriation. Thus, the state guarantees the citizen to receive market value for seized property.

The right of state ownership of property arises from the date of signing the act. Therefore, it is extremely important to independently evaluate the vehicle or equipment by involving the subject of evaluation activity, because the actual market value of the vehicle, which is determined by the results of their independent evaluation, is indicated in the act of acceptance and transfer of the vehicle and equipment. The owner will receive exactly the amount specified in the appraiser’s report as compensation for his car in the event of forced alienation. It is this amount that will be deducted in the event that the seized car is returned to the owner, but it will be damaged and the appropriate compensation will be paid for it.

A legal provision may come as a surprise to vehicle owners, according to which, in the absence of the person from whom the property is alienated or seized, or his legal representative during the drawing up of an act of forced alienation or seizure of property, such an act is drawn up without his participation. In this case, the owner of the property or his legal representative has the right to review the act of forced alienation or seizure of the property.

In this nuance lies another insidious point – in case of refusal or absence of the owner of the property, these bodies have the right to evaluate the market value of the vehicle independently. Thus, an independent assessment of a vehicle or equipment can be carried out in the absence of the owner, and the vehicle can be seized for the needs of the Armed Forces also in the absence of the owner or his representative, which, unfortunately, opens a wide field for abuse. We hope that these are only our fears.

The return of vehicles to the owner is carried out within 30 calendar days from the moment of the announcement of demobilization as well.

Regarding liability for violation of military transport duty. Currently, two types of liability are provided for such actions: administrative and criminal.

According to Art. 2101 of the Code of Ukraine on administrative offenses, violation of defense legislation, mobilization training and mobilization – entails the imposition of a fine on citizens from UAH 1,700 to UAH 3,400. Repeated committing of such a violation within a year, for which a person has already been subject to an administrative fine, as well as committing such a violation during a special period, entails the imposition of a fine on citizens from UAH 3,400 to UAH 5,100.

In turn, there is Article 1141 of the Criminal Code of Ukraine, under which obstruction of the lawful activities of the Armed Forces of Ukraine and other military formations during a special period is punishable by imprisonment for a term of five to eight years. The same act, which led to the death of people or other serious consequences, is punishable by imprisonment for a term of eight to fifteen years.

As for administrative fines, here, as in other laws on mobilization issues, there is a tendency to increase responsibility. Currently, the Verkhovna Rada of Ukraine is considering a draft law, according to which fines for citizens for violating the legislation on defense and mobilization in wartime will amount to about UAH 17–25,000.

Time will tell how the described mechanisms will work in real time.