Judicial protection of the right of ownership and the right to use land must take into account both the legitimate interests of private persons and public interests: SAC Working Group meets at Supreme Court

Judicial protection of the right of ownership and the right to use land must take into account both the legitimate interests of private persons and public interests: SAC Working Group meets at Supreme Court

Opening the meeting of the working group of the Scientific Advisory Council (SAC) at the Supreme Court, the Scientific Secretary of the SAC at the Supreme Court and Judge of the Grand Chamber of the Supreme Court Oleh Tkachuk informed participants that several cases currently pending before various cassation courts within the Supreme Court are of particular relevance to judicial practice. These cases concern legal relations relating to the protection of the right of ownership and the right to use a land plot, as well as the allocation or expropriation of land.

The disputes in these cases have arisen between landowners and land users, other persons, local self-government bodies and state authorities responsible for managing land resources. A number of cases in this category relate to land within the railway exclusion zones beneath railway tracks, stations with buildings and other structures necessary for the operation of rail transport. For this reason, the Working Group proposed to discuss, among other issues, the casuistic and doctrinal interpretation of the concepts used in Articles 83 and 84 of the Land Code of Ukraine, as well as the relationship between these concepts and the notion of “land of railway transport”. In addition, an important issue is the search for effective judicial remedies for the protection of infringed rights over land of railway transport. Oleh Tkachuk suggested that the discussion should address whether such remedies include declaring invalid decisions of a local self-government body and the state act issued on its basis (cancellation of the decision on state registration), or the return (recovery) of the land plot.

Land disputes continue to remain highly relevant and are constantly under consideration by the Grand Chamber of the Supreme Court. At the same time, holding a discussion on different approaches to resolving legal issues – in particular those relating to land of railway transport – is important for the entire state, as the development of judicial practice in the land sphere depends on the decisions of the Grand Chamber of the Supreme Court. This point was emphasised during the meeting of the working group by the Secretary of the Grand Chamber of the Supreme Court Vitalii Urkevych.

At the outset of the event, judges of the Grand Chamber of the Supreme Court outlined their vision of appropriate and effective judicial remedies in cases of this category. These remedies may be considered suitable where a land plot allocated to one entity is already in use by that entity, but the plot is subsequently allocated into the ownership of another entity, resulting in an overlap between parts of the two land plots.

Head of the Department of Land and Agrarian Law at the Yaroslav Mudryi National Law University Tetiana Kurman noted that the main problem in such cases lies in determining the size (width) of the land plot adjacent to the railway. Under Article 11 of the Law of Ukraine “On Transport”, the dimensions of a land plot (land for transport purposes) allocated for the performance of tasks related to the operation, repair, improvement and development of transport facilities are determined in accordance with norms approved in the established procedure or project and technical documentation.

The speaker also emphasised that the presence or absence of documents certifying the right to use a land plot allocated for railway transport does not alter its legal status as land for transport purposes.

Regarding effective remedies for the protection of infringed rights over land of railway transport (land under railways), Tetiana Kurman indicated that, in her view, it is advisable in such cases to first address the lawfulness of the decision by the local self-government body to allocate the relevant land plot into private ownership. A claim for the recovery (return) of the land plot as one of the remedies may be justified either as a standalone claim or in combination with other claims, depending on the circumstances of the case.

In the opinion of the Head of the Department of Land and Agrarian Law at the Educational and Scientific Institute of Law of Taras Shevchenko National University of Kyiv Volodymyr Nosik, in order to answer the questions raised, it is first necessary to examine what constitutes railway land. In doing so, one must be guided by the literal interpretation of the provisions of the Land Code of Ukraine and the Laws of Ukraine “On Transport” and “On Railway Transport”. When determining effective judicial remedies in cases of infringement of rights over land of railway transport, he stated, the rules on the establishment of protection zones must be taken into account.

In the context of the relationship between the concept used in Articles 83 and 84 of the Land Code of Ukraine (“land under railways”) and the concept of “land of railway transport” applied in Article 68 of the Code, Leading Research Fellow at the V.M. Koretsky Institute of State and Law Pavlo Kulynych noted that these two concepts are identical, as they cover the same set of objects. He further observed that railway transport land plots may be identified in accordance with the provisions set out in the Land Code of Ukraine and the Laws of Ukraine “On Transport” and “On Railway Transport”. When determining the boundaries of railway transport land, project documentation may also be taken into account.

As remarked by the Head of the Department of Agrarian, Land and Environmental Law named after Academician V. Z. Yanchuk at the National University of Life and Environmental Sciences of Ukraine Volodymyr Yermolenko, the state must ensure the function of protecting environmental rights, including by establishing exclusion zones (sanitary protection zones) for railway land. He expressed the view that in such cases there is no competition between negatory and vindicatory remedies for the protection of rights, since both remedies are aimed at protecting the right of the owner (eliminating obstacles to the use and possession of the land plot or recovering property from unlawful possession by another) – namely, the person who has privatised the land plot. However, it is not private individuals who have raised the issue of protecting their rights, but rather the railway.

Deputy Head of the Department for Representation of State Interests in Court at the Office of the Prosecutor General Nataliia Vasylenko spoke about certain aspects of how prosecutors and state authorities determine judicial remedies aimed at ensuring the enforcement of court decisions in cases involving the resolution of land disputes. According to her, the judicial practice of the Grand Chamber of the Supreme Court enables the proper protection of the rights of all parties and forms legal positions that take into account both the legitimate interests of individuals and societal and state interests.

The meeting of the Working Group of the Scientific Advisory Council at the Supreme Court was also actively attended by judges of the Grand Chamber of the Supreme Court Iryna Vorobiova, Ihor Tkach, Olha Stupak, Serhii Pohribnyi, Serhii Martiev, Oleksandr Banasko, judges of the Supreme Court in the Commercial Cassation Court Vitalii Zuiev and Yurii Chumak, judge of the Supreme Court in the Civil Cassation Court Vasyl Krat, as well as Director of the Legal Department of the State Service of Ukraine for Geodesy, Cartography and Cadastre Valerii Dauhul and Head of the Division for Regulatory and Legal Support of Service Administration at the State Enterprise “State Land Cadastre Centre” Lesia Zhukova.