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RESOLUTION OF THE KIEV APPEAL ADMINISTRATIVE COURT OF UKRAINE

Name of Ukraine

of February 11, 2009

Case No. 22-a-4674/08

The chairman in the I instance is Balats S. V.

The judge-speaker - Glushchenko Ya. B.

On February 11, 2009 the Kiev Appeal administrative court in structure:

the chairman - the judge Glushchenko Ya. B.,

Baranenko I. I. judges.,

Short A.YU.,

in case of the secretary Tokar of M.G.,

having considered in proceeding in open court in Kiev case on the administrative claim of the Kiev city council to the State committee of Ukraine on land resources about recognition illegal and cancellation of Items of the instruction, according to the petition for appeal of the Kiev city council on the resolution of economic court of Kiev of July 5, 2007, 

established:

The Kiev city council took a legal action with the claim in which asked to recognize illegal and to cancel Item 1. 4, paragraphs 3, 5, 6th Item 1. 16, second offer of Item 2. 14, Items 3. 1, 3.2, 3.10,first and fourth offer of item 5.2 Instructions about procedure for creation, issue, registration and storage of the state acts for the property right to the parcel of land and the right of permanent use of the parcel of land and land lease agreements, Ukraine approved by the order of the State committee on land resources of 04.05.99 No. 43 (with changes and additions made by orders of the State committee of Ukraine on land resources of 29.02.2000 No. 27, of 23.08.2001 No. 144, of 19.02.2002 No. 17, of 02.07.2003 No. 174, of 29.12.2003 No. 322) (further - the Instruction).

The claim is left by the resolution of economic court of Kiev of July 5, 2007 without satisfaction in connection with the omission with the claimant of annual term for appeal to the court behind protection of the rights, freedoms and interests.

Without agreeing with the specified judgment, the Kiev city council made the petition for appeal in which it asks to cancel the court order of the first instance as it which is decided with violation of regulations of substantive and procedural law and to accept the new resolution which to satisfy claims.

Having heard the judge-speaker, explanations of participants of process which arrived to judicial session, having checked case papers and arguments of the petition for appeal, the board of judges considers that the petition for appeal is subject to leaving without satisfaction, however the court order should be changed on such bases.

According to the Art. of Art. 198 p.1 of the item 2, 201 p.1 of item 1 KAS of Ukraine, by results of consideration of the petition for appeal the Appeal Court has the right to change the court order to the court order of the first instance if the Trial Court correctly in essence solved case, but with wrong application of regulations of substantive or procedural law.

By board of judges it is determined that by the appealed item 1.4 of the Instruction it is determined that the State act on the property right to the parcel of land and the state act to the right of permanent use of the parcel of land is issued based on the decision of the Cabinet of Ministers of Ukraine, regional, district, Kiev and Sevastopol city, city, settlement, village council, Council of Ministers of the Autonomous Republic of Crimea, the regional, district Kiev and Sevastopol city public administrations.

According to the second offer of item 2.14 of the Instruction in case of alienation of the parcels of land from lands of private property the state act on the property right to the parcel of land signs the relevant state body of land resources based on the copy of the relevant agreement which fidelity is certified by the notary.

Item 3.1 of the Instruction provides that the state acts on the property right to the parcel of land, to the right of permanent use of the parcel of land are issued by structural divisions of the Center of the state land cadastre in case of Goskomzem of Ukraine.

State registration of the state acts on the property right to the parcel of land, to the right of permanent use of the parcel of land, land lease agreements is performed by structural divisions of the Center of the state land cadastre in case of Goskomzem of Ukraine (3.2 Instructions).

The first and fourth offer of item 5.2 of the Instruction provides that for receipt of the duplicate the owner of the lost (damaged) state act on the right of permanent use or to the property right to the parcel of land in writing addresses to relevant organ which issued the specified state act. If within a month from the date of the publication no messages to the owner arrived, then the relevant organ which issued the specified state act gives the assignment to local state body of land resources of Goskomzem of Ukraine to make the duplicate of the lost (damaged) mentioned state act.

Challenging the given Instruction provisions, the claimant notes that they violate the rights and the interests of the Kiev city council and its executive body concerning implementation of powers on issue and state registration of documents which certify the property right or right to use by the parcels of land, the order by which it is carried to competence of the Kiev city council.

However the board of judges cannot agree with such statements of the appellant, in view of the following.

As it was noted above, the challenged Instruction provisions, in particular, determine body to which powers implementation of state registration of the documents certifying the rights to the parcels of land, and issues of the state acts to the property right and the right of permanent use of the parcels of land belongs. This body is the relevant structural division of the Center of the state land cadastre.

According to Art. 19 of the Constitution of Ukraine public authorities and local government bodies, their officials shall act only on the basis of the, within powers and method which are provided by the Constitution and the laws of Ukraine.

In turn, according to Art. 140 of the Constitution of Ukraine, article 2 of the Law of Ukraine "About local self-government in Ukraine" local self-government is the right of territorial bulk - residents of the village or voluntary consolidation in agricultural community of residents of several villages, the settlement and city - to independently resolve issues of local value within the Constitution and the laws of Ukraine.

By judicial board it is considered that according to Art. 33 of the Law of Ukraine "About local self-government in Ukraine" to maintaining executive bodies of village, settlement, city councils, between another registration of persons of law of land ownership belongs; registration of right to use by the earth and contracts for lease of land; issue of documents which certify the property right and right to use by the earth.

However from content of the called regulation it is seen that the specified powers are delegated, but not own powers of executive body of city council.

In turn, delegation is transfer of function, powers for a certain time with preserving at the delegating object of the right to return them to own execution.

According to article 1 of the Law of Ukraine "About local self-government in Ukraine" the delegated powers - the powers of executive bodies conferred to local government bodies by the law and also powers of local government bodies which are delegated to local public administrations according to the decision of regional, regional councils.

So far any regulatory legal act which at the legislative level would delegate to the relevant councils disputable powers, does not exist that does not exclude possibility of implementation of these powers by executive body which in this case the Center of the state land cadastre in case of Goskomzem is of Ukraine.

Specified does not contradict also requirements of part one of Article 204 of the Land code of Ukraine, paragraphs of first, third of part three, Item 11 parts four of the Regulations on the state committee of Ukraine on land resources approved by the Presidential decree of Ukraine No. 970 of 14.09.2000 which provide that state registration of the rights to the parcels of land and the documents certifying them which is part of the state land cadastre, belongs to Goskomzem's powers of Ukraine. Therefore, the executive committee of local government body cannot perform state registration of land rights and documents which certify them in this connection Items 3.1 and 3.2 of the Instruction answer the current legislation of Ukraine.

According to item 3.10 of the Instruction in case of the termination of the property right or use of the parcel of land the document which certifies this right returns to archive of state body of land resources where the second copy of this document is stored.

Board of judges is taken into account that specifying about return of the state act contains in forms of the state acts on the property right and to the right of permanent use of the parcels of land approved by the resolution of the Cabinet of Ministers of Ukraine of 02.04.2002 No. 449 "About approval of forms of the state act on the property right to the parcel of land and the state act on the right of permanent use of the parcel of land" and therefore the board of judges considers that Item 3.10 also does not violate the rights and the interests of the Kiev city council concerning storage of the second copy of the state act.

Besides, the legislation of Ukraine to powers of local government bodies does not refer issue of duplicates of the state acts, and also person to whose powers issue of duplicates because of what item 5.2 of the Instruction cannot violate the rights of the Kiev city council concerning implementation of the powers according to the order the corresponding parcels of land belongs is not determined.

As for item 2.14 of the Instruction which provides that in case of alienation of the parcels of land from lands of private property the state act on the property right to the parcel of land signs the relevant state body of land resources based on the copy of the relevant agreement which fidelity is certified by the notary, judicial board it is determined that it also does not contradict the resolution KMU of 02.04.2002 No. 449, as the approved form of the state act on the property right to the parcel of land provides the signature of the chief of the relevant department of land resources.

At the same time it should be noted that item 2.14 is not subject to application in case of change of target purpose / use of the parcel of land, change of purpose is not its alienation. Besides, item 2.14 of the Instruction cannot contradict legal acts of the highest legal force as such acts do not determine person who signs the state act in the mentioned case that testifies to groundlessness of claims of the Kiev city council and in this part.

The board of judges also considers that the disputed paragraphs of Item 1.16 of the Instruction which provide requirements to technical documentation on creation of the state act, answer article 56 of the Law of Ukraine "About land management" as they are components to parts of the list of restrictions of the rights to the parcels of land and the available land easements.

Under such circumstances, the board of judges came to conclusion that claims of the Kiev city council are unreasonable, and therefore it is necessary to refuse their satisfaction in connection with their groundlessness.

Meanwhile, as on the basis for refusal in the claim, the Trial Court referred to the fact that the claimant passes the term of limitation period.

However it is impossible to agree with such conclusions of court as provided by it in the solution of the basis on refusal in satisfaction of the claim do not satisfy to regulations of procedural law.

So, according to the p. 2 of Art. 99 of KAS of Ukraine aggregate term for protection of the right in the claim of person which right is violated (limitation period) is established in one year.

According to p.1 Art. 100 of KAS of Ukraine the omission of term of limitation period before presentation of the claim is the basis for refusal in the claim if one of the parties insists on it.

Considering content of the specified regulations of procedural law, their regulations on consequence in law of the expiration of limitation period can be applied only when existence of the most subjective right and the fact of its violation or contest is proved. If in case of trial of case it is determined that the claimant has no subjective right about which protection he asks, or it was not broken or not disputed, the court shall refuse the claim not because of the omission of term of limitation period, and on groundlessness of legal requirements.

Solving dispute, Trial Court the specified requirements of the law did not consider and refused satisfaction of the claim for the expiration of limitation period, without having established justification of the declared claims.

Under such circumstances, the board of judges considers that the resolution of the Trial Court is subject to change with refusal to the claimant in satisfaction of the claim for groundlessness of claims.

Being guided by the Art. of the Art. 160, of 195, of 196, of 198, of 201, of 205, of 207, of 212, 254 KAC Ukraine, the court DECIDED:

To leave the petition for appeal of the Kiev city council without satisfaction.

To change the resolution of economic court of Kiev of July 5, 2007.

To refuse satisfaction of the claim of the Kiev city council on groundlessness of claims.

The complete text of the resolution is made on February 16, 2009.

The resolution takes legal effect from the moment of declaration and can be appealed within one month from the date of creation in full, that is since February 17, 2009, by submission of the writ of appeal directly in the Supreme administrative court of Ukraine.

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