Losses or damages? Application in the practice of forensic expertise

Abstract

Taking into account the calling of the institute of "forensic examination," as well as the essence of land management, the expert assessment on land management should also address the issue of calculating the amount of losses (damage) caused to land owners and land users.

In order to carry out a full, substantiated, and objective study on the calculation of the amount of losses (damage) caused to land owners and land users, the development of appropriate methodological recommendations has been initiated by the Kyiv Scientific Research Institute of Forensic Expertise (KFI).

At the same time, according to the norms of current legislation, losses and damages are interpreted as different categories with different algorithms for their calculation, the authority for which belongs to different state bodies. In turn, the lack of a single normative and methodological framework—or even a unified understanding of the interpretation of losses and damages—can create preconditions for abuse in this area.

The withdrawal of land is a legally regulated way of transferring land from one form of ownership to another, during which it is possible to change both the target purpose and the configuration of the land plot. Given that the characteristics of other elements of land movement within categories, forms of ownership, etc., are examined by forensic expertise on land management issues, the land withdrawal process is also among them.

Land under forest cover constitutes the national wealth of Ukraine and is under the special protection of the state. However, forest areas are steadily decreasing. Often, this is due to a violation or disregard of the procedure for the withdrawal of land. Land that is in the permanent use of State Forestry Enterprises can be transferred to a person or entity for ownership or use only after its formal withdrawal from the use of such an enterprise. Too often, forestry land, including forest plots, is illegally transferred to the ownership of citizens as reserve lands not designated for ownership and use, or as agricultural land. As a result of these illegal transactions, a significant amount of forest land simply disappears.

The author concludes that the forensic study of procedures for land withdrawal is appropriate, relevant, legally enabled, and a natural process within forensic science. It is established that during the execution of this kind of expertise, it is necessary to research:

• The location of the studied land relative to the boundaries of settlements;

• The types of land plots located within the studied territory;

• The date of the land withdrawal;

• The types of designated use for which the land is being withdrawn.

Therefore, the author considers that there should not be two different normative legal acts individually defining the powers of authorities and ways of determining the size of losses and damages, as is currently the case. These are:

1. The Procedure for Determining and Compensating Losses to Land Owners and Land Users, approved by the Resolution of the Cabinet of Ministers of Ukraine dated April 19, 1993, № 284;

2. The Methodology for Determining the Amount of Damage Caused as a Result of Unauthorized Occupation of Land, Use of Land Not for Its Designated Purpose, or Removal of Soil (the Fertile Soil Layer) Without a Special Permit, approved by the Resolution of the Cabinet of Ministers of Ukraine dated July 25, 2007, № 963.

Ultimately, it is concluded that the calculation of the losses (damage) caused is an essential element of the regulation of land relations, making it a key potential task for expertise in land management. Determining the size of such losses (damage) should be carried out taking into account the established approaches to the expert monetary valuation of land.