The Administrative Cassation Court Within the Supreme Court Clarified How to Assess the Adequacy and Proportionality of Interim Remedies Application

The Kyiv City Council filed a lawsuit in which it appealed against the decision of the Bucha District Council, which increased the area of the village of Kotsiubynske of the Kyiv region at the expense of 3,000 hectares of the territory of the city of Kyiv. Along with this application, the Kyiv City Council filed an application to secure the claim by stopping the action of the disputed decision and prohibiting any persons, enterprises, institutions, organizations, regardless of their form of ownership and management, from making changes to the State Service of Ukraine for Geodesy, Cartography and Cadastre (StateGeoCadastre) on the basis of a land management project to establish the boundaries of the village of Kotsiubynske. The plaintiff requested to apply these measures to the consideration of the case on the merits.

The court of first instance upheld the claim in full. However, the court of appeal overturned the decision of the first instance court in the part related to the prohibition of making changes to the StateGeoCadastre.

The parties to the case appealed in the cassation procedure the decisions of the courts of the previous instances on securing the claim.

The Bucha District Council and the Kotsiubynske Village Council asked to cancel the decision of the courts of previous instances and to adopt a new one, which would completely refuse to grant the application for securing the claim.

The Kyiv City Council insisted on upholding the decision of the court of first instance, which, in its opinion, was substantiated, proportionate and provided protection against possible harm to its legal rights and interests.

The Supreme Court composed of a panel of judges of the Administrative Cassation Court upheld the judgments of the courts of previous instances. Referring to the case law of the Supreme Court, the panel pointed out the following.

When deciding whether to secure a claim, the court must evaluate:

- the applicant's arguments about the need to take appropriate measures, taking into account the reasonableness, validity and adequacy of his claims to secure the claim;

- the balance of the interests of the parties, other participants in the legal process;

- a connection between a specific interim remedy and the subject of the claim.

In the ruling on securing the claim, the court must state the grounds on which it concluded that there was an obvious risk of harm to the rights, freedoms and interests of the plaintiff before making a decision on the case. The court must also indicate what the actions aimed at restoring the rights of the plaintiff will consist of, assess the complexity of these actions, establish that the costs associated with the restoration of rights will be significant.

Considering this, the panel of judges of the Supreme Court agreed with the findings of the courts of previous instances regarding the existence of grounds for satisfying the plaintiff's application for securing the claim in terms of the suspension of the disputed decision, since the indicated land management project, which the Kyiv City Council did not approve, increased the area of the village of Kotsiubynske at the expense of the territory of Kyiv by almost 3,000 hectares. That is, contrary to the current legislation, the borders of the capital of Ukraine, the city of Kyiv, have actually been unilaterally changed. This gives reason to believe that the disputed decision has obvious signs of wrongfulness beyond a reasonable doubt.

In addition, according to Art. 85 of the Constitution of Ukraine, the formation and liquidation of districts, the establishment and change of the boundaries of districts and cities, the assignment of settlements to the category of cities, the naming and renaming of settlements and districts belong to the powers of the Verkhovna Rada of Ukraine.

Hence, the panel of judges recognized as convincing the arguments of the plaintiff's statement regarding the securing of the claim that the purpose of the interim remedies is to avoid a possible violation of the rights and legally protected interests of the plaintiff in the future, as well as the possibility of real execution of the court decision and avoiding any difficulties in execution if the claim is satisfied, since when transferring land plots to third parties, the return of such plots to the communal property of the territorial community of the city will be complicated and will lead to new litigation.

The court agreed with the position of the court of appeal due to the fact that the suspension of the disputed decision is an appropriate and sufficient interim remedy in this dispute, since it makes it impossible to take any actions aimed at entering information (changes) into the StateGeoCadastre before resolving the dispute on the merits and entering into force of the decision in this case.

At the same time, the Supreme Court pointed out that the presence of obvious signs of the wrongfulness of the district council decision did not mean that such a decision was really unlawful, since this can be established only by the results of the consideration of the case on the merits.

The Resolution of the Supreme Court of August 16, 2022, in case No. 640/35685/21 (administrative proceedings No. К/990/17274/22, К/990/17755/22, К/990/17757/22) – https://reyestr.court.gov.ua/Review/105759088.

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