SC Grand Chamber determines the procedure for protecting the violated right of the state to the land where archaeological monuments are located

By cancelling the decision of the authorized body, which continues to be the basis for the emergence and existence of the right of communal ownership, and making a corresponding entry in the State Register of Real Property Rights, the violation of the state's rights to particularly valuable archaeological heritage will be eliminated.

This conclusion was made by the Grand Chamber of the Supreme Court.

In a case pending before the Grand Chamber of the Supreme Court, the prosecutor on behalf of the state filed a lawsuit in which he sought, inter alia, to declare illegal and cancel the order of the State GeoCadastre on the transfer to municipal ownership of land on which are located cultural heritage monuments - the remains of the ancient settlement Rudka-2 (III-V centuries AD) and a group of mounds (II-I millennia BC).

The prosecutor argued that in accordance with the Land Code of Ukraine and the Law of Ukraine "On Protection of Cultural Heritage" the disputed land could not be withdrawn from state ownership.

The courts of first and appellate instances granted the claims in full.

The Grand Chamber of the Supreme Court, agreeing with the conclusions of the courts of previous instances, stated that there are archaeological monuments on the disputed land.

According to part 1 of Article 17 of the Law of Ukraine "On Protection of Cultural Heritage" all archaeological sites, including underwater ones, and movable objects connected with them, are state property. According to part 6 of this Article, the land on which archaeological monuments are located is in state ownership or is withdrawn (redeemed) into state ownership in accordance with the procedure established by law (except for land plots on which archaeological monuments - ancient battlefields - are located).

The Grand Chamber of the Supreme Court took into account the fact that archaeological monuments are usually located in the depths of the earth's surface and are therefore inseparable from the land on which they are located. The legal status of the land on which an archaeological site is located should not differ from the legal status of the site itself, which, according to the Law of Ukraine "On Protection of Cultural Heritage", cannot be privately or communally owned.

The alienation of the land on which the archaeological monuments are located from the state ownership makes it impossible for the state to exercise the right to use and dispose of these monuments due to the inseparability of the archaeological monument from the land on which it is located. Thus, the disputed land was illegally transferred from state ownership.

With regard to the claim for invalidation and cancellation of the relevant order of the State GeoCadastre, the Grand Chamber of the Supreme Court noted the following. Taking into account the peculiarities of legal regulation of land plots on which archaeological monuments are located and the impossibility of their transfer to municipal or private ownership, as well as the fact that the disputed land plots were transferred to the territorial community as agricultural land for farming, it can be stated that the claim for recognition as illegal and cancellation of the order of the State GeoCadastre under the specific circumstances of this case established by the courts eliminates the state of legal uncertainty regarding the intended purpose of the land plot and its owner.

The remedy chosen by the prosecutor is directly provided for in paragraph 10, part 2, Article 16 of the Civil Code of Ukraine and corresponds to the legal nature of the relations between the parties to the dispute.

Taking into account the circumstances with which the prosecutor associated the violation of the rights and interests of the state (the entry into the State Register of Real Property Rights and Encumbrances on the registration of the communal ownership of the disputed land plot), the cancellation of the decision of the authorized body, which continues to serve as the basis for the emergence and existence of the communal ownership, and the registration of the corresponding entry into the State Register of Real Property Rights, will eliminate the violation of the rights of the state to particularly valuable objects of archaeological heritage.

The Resolution of the Grand Chamber of the Supreme Court of March 12, 2024 in case No. 927/1206/21 (proceedings No. 12-31гс23) - https://reyestr.court.gov.ua/Review/117757951.

This and other legal positions of the Supreme Court can be found in the Database of Legal Positions of the Supreme Court - https://lpd.court.gov.ua.