Prosecutor appeals to court on behalf of the state as an independent plaintiff with a claim to cancel city council's decision to change land designation - SC GC

The bodies of the StateGeoCadastre may apply to the court when it is necessary to exercise their powers of supervision (control) over the observance of land legislation, the use and protection of land of all categories and forms of ownership in cases expressly provided for by the relevant regulations (in particular, claims for compensation for loss of agricultural and forestry production, restitution of illegally occupied or temporarily occupied land whose term of use has expired).

The StateGeoCadastre does not have the authority to file a lawsuit to declare illegal and cancel the decision of a local government body to change the designated purpose of a land plot, the city council is the defendant, and therefore the prosecutor should be granted the status of a plaintiff.

This was stated by the Grand Chamber of the Supreme Court in the case of the public prosecutor's claim against the city council and a construction company to declare illegal and annul the decision of the city council and the amendments to the land lease agreement.

The prosecutor argued that the decision of the city council and the amendments to the land lease agreement made on its basis violated the interests of the state, which consists in the illegal change of the designated purpose of land plots from water fund land to residential and public development land.

The court of first instance dismissed the claim, stating, inter alia, that the public prosecutor was not a proper plaintiff in the disputed relations and had taken over the functions of the supervisory authority, the StateGeoCadastre. Instead, the court of appeal overturned the decision of the court of first instance and dismissed the claim, stating that the prosecutor had not provided any evidence that he had appealed to the defendant (the city council) in accordance with the procedure established by Article 23 of the Law of Ukraine "On the Prosecutor's Office".

The Supreme Court referred the case to the court of appeal for a new trial. Following the reconsideration, the court of appeal dismissed the prosecutor's claim, concluding that the prosecutor had failed to meet the requirements to provide the court with a justification for the existence of grounds to represent the state in court.

Having considered the prosecutor's cassation appeal, the Grand Chamber of the Supreme Court stated that the procedural status of the parties in disputes such as this case depends on both the presence or absence of the authorities' powers to protect the legitimate interests of the state in disputed legal relations and the prosecutor's justification of the grounds for representing the state's interests in a particular case.

In order to implement the constitutional function of representing the interests of the state, the prosecutor may file a lawsuit on behalf of the state in the event that a local self-government body changes the designated purpose of a land plot (from water fund land to residential and public development land). Given the alleged violation of the state's interests by the city council, the prosecutor correctly identified it as a defendant in this case.

In the legal relations that have developed in this case, the StateGeoCadastre should perform the functions of state control over the use and protection of land.

The bodies of the StateGeoCadastre may apply to the court if it is necessary to exercise their powers of supervision (control) over compliance with land legislation, use and protection of land of all categories and forms of ownership, in cases specified in the relevant regulations governing the powers of the StateGeoCadastre (in particular, with claims for compensation for losses of agricultural and forestry production, return of illegally occupied or temporarily occupied land plots, the term of use of which has expired).

In the circumstances of this case, as the SC GC found, the StateGeoCadastre bodies have no authority to file a lawsuit, so the prosecutor should be granted the status of a plaintiff. In addition, the prosecutor should not have notified the city council and/or the StateGeoCadastre before filing a lawsuit.

The challenged decision of the city council to change the designated purpose of the land plot is currently in force and has the relevant legal consequences.

If the prosecutor believes that the violation of the state's interests lies in the unlawful change of the category of the land plot by designated purpose, the application for recognition as unlawful and cancellation of the city council's decision (in terms of changing the designated purpose of the land plot) is appropriate and effective. The public prosecutor may file a claim for such a decision to be declared unlawful and annulled.

Thus, the prosecutor legitimately identified the city council as a defendant in this case and substantiated the grounds for representing the interests of the state by the absence of a body competent to protect the legitimate interests of the state in disputed legal relations.

Resolution of the Grand Chamber of the Supreme Court of 11 June 2024 in case No. 925/1133/18 (proceedings No. 12-60гс23) - https://reyestr.court.gov.ua/Review/120396091.

This and other legal opinions of the Supreme Court are available in the Database of Legal Positions of the Supreme Court - https://lpd.court.gov.ua.