Land rights disputes: towards the effective protection of rights, freedoms, and interest by the administrative courts of Ukraine

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Land rights disputes: towards the effective protection of rights, freedoms, and interest by the administrative courts of Ukraine

Ilnytslyi Oleh*

Boychenyk Ivan*2

ABSTRACT

Background: The choice of an effective and appropriate method of protection is one of the most important stages of legal proceedings because it determines the achievement of the proceedings' goal. Procedural legislation and the practice of its application to unresolved issues have limited methods of protection in cases of the rights and interests of persons to land by courts of different jurisdictions and the possibility of their cross-application.

Methods: To obtain reliable and substantiated conclusions, general and special research methods were used, which processed the results of theoretical research on the problems of justice in Ukraine, land law and administrative process, and materials of legal practice in the form of conclusions on international human rights institutions and Ukrainian courts.

Results and Conclusions: The study found that when choosing a method of protection for the infringed right, freedom, or interest, courts should consider the direct relationship between the claim for protection, the content of the right, and the nature of the offence. The jurisdictional component of the right to a fair trial presupposes the need for courts to consider the scope of their powers under the Constitution and laws of Ukraine. The concept of expanding the limits of permissible remedies allows administrative courts to use such remedies (general and special), which will ensure the real restoration of the violated rights, for the protection of which the plaintiff appealed to the court. When considering the requirement to protect the right to a certain object of ownership (including land) in an administrative case, the administrative court is authorised to apply substantive remedies, taking into account the material nature of the violated right, as well as whether the violation was committed by a decision, action, or inaction of the subject of power, which legalises the right of a person to the relevant object of property and is beyond the discretion of the authority in the management of public property.

INTRODUCTION

ONTOLOGICAL BASIS OF SCIENTIFIC INTEREST

The purpose of any type of proceedings, except constitutional and criminal, is revealed in the procedural codes as the effective protection of the rights, freedoms, and interests of individuals from violations. Administrative proceedings specify the range of subjects of such protective legal relations and indicate the need to ensure the protection of the rights, freedoms, and interests of the individual from the subjects of power (para. 1 Art. 2 of the Code of Administrative Procedure of Ukraine, hereinafter - CAP).

This goal determines the subordination of other procedural institutions to its achievement and directly affects the procedural activities of courts in considering relevant disputes. The primary importance of the right, freedom, or interest protected by the court requires an assessment of the outcome of the proceedings from the standpoint of achieving the status quo, which preceded the violation, or the creation of unimpeded conditions for further implementation. Accordingly, the result will depend on the application of such a method of protection, which would terminate the state of the offence and restore the status of the plaintiff in the disputed primary substantive legal relationship.

The issue of how to protect the rights of the individual in court is closely related to the definition of the powers of the court in considering and resolving the case. O. Khotynska- Nor attributes this to one of the two structural elements of the right to a fair trial, which is provided in Art. 6 of the European Convention on Human Rights (hereinafter - ECHR). She considers that this is a jurisdictional component of the guarantees of this right, to which she attributes the obligation of the court to act in the manner and in accordance with the powers provided by law, within its competence. This not only determines the principles of the organisation of a legitimate judiciary in the state but is also closely related to its procedural regime. O Hotynska-Nor, `The right to a `court established by law' as a structural product of the right to a fair court: the Ukrainian context' (2015) 1 Advokat 185. Courts that are part of the state apparatus are subject to the provisions of the constitutional system, as found in Art. 6 and para.2 Art. 19 of the Constitution of Ukraine on the obligation to act only on the basis, within the powers and in the manner prescribed by the Constitution and laws of Ukraine to comply with the principle of functional separation of powers.

Therefore, the purpose of the proceedings cannot be used to fully justify any methods, forms, or remedies of action used by the appropriate authority. Failure to comply with the statutory framework of authority and competence can destroy the foundations of the constitutional order.

The sphere of litigation over the rights and interests of a person to land is one of the largest in terms of both quantity and legal significance because it decides the fate of a specific (exhaustive, valuable, and natural) property resource - the basis of ownership and production.

Prior to the emergence of administrative courts, depending on the method of protection of the plaintiff's land rights, claims arising from land relations in the literature were divided into claims for recognition, awards, and conversion lawsuits, and they were considered in civil or commercial proceedings. O Snidevych, `Some issues of classification of civil lawsuits in cases arising from land relations' (2006) 2 PravoUkrainy 99-100. The ways of protecting rights and interests to land were determined in Art. 16 of the Civil Code of Ukraine (hereinafter - CC) and Art. 152 of the Land Code of Ukraine (hereinafter - LC).

Instead, there were already ideas that an effective way for the courts to protect the land rights of individuals, which is the subject of dispute or presumption of a legal fact, the establishment of which is associated with the exercise of powers by the subjects of power, would be to transfer the power of parallel decision-making to those courts. In fact, it was a matter of transferring the powers of active management to the courts. O Snidevych, `Land management lawsuits in the civil process of Ukraine' (2006) 6 PravoUkrainy 72; O Ilnytskyy, Land disputes and the procedure for resolving them in Ukraine: administrative and legal approach (FOP Pyatakov 2011) 191.

The creation of administrative courts, the practice of their activities, and the specifics of the remedies, derived from the normative nature of disputes (defined in Art. 5 and Art. 245 of the CAP), only added to the question of how they can effectively protect the rights and interests of a person regarding disputed land and whether they have the opportunity to apply the traditional tools of protection of property rights to land, in connection with which the administrative lawsuits arise.

RESEARCH METHODOLOGY AND APPEARANCE OF ACADEMIC INTEREST

The reason for the detailed study of the stated issues were numerous materials of law enforcement practice, which testified to the existence of problems of effective protection of land rights. According to the plaintiffs, these problems arise when appealing against decisions, actions, or inactions of government officials in administrative proceedings in this area. It also leads to the appeal of judicial institutions with requests for scientific conclusions on the application of methods of protection of violated property rights and property interests in the consideration of public law disputes and the formation of appropriate uniform case law.

At the same time, the applied theoretical approaches and the scientific conclusions formulated by the authors were substantiated by the wide application of materials of legal practice through the conclusions of international human rights institutions and Ukrainian courts.

1. INITIAL PRINCIPLES OF ESTABLISHING JUDICIAL PROTECTION IN THE FIELD OF LAND RELATIONS

1.1 THE CONTENT OF THE LAWSUIT AS A BASIS FOR JUDICIAL PROTECTION

The question of how to protect the rights and legally protected interests of subjects is key in the context of legal regulation of a particular sphere of public life in a state-organised system. In the absence of the possibility of effective protection, any subjective right loses the necessary certainty for its owner in the unimpeded implementation of the opportunities provided or sanctioned by the state, which determine the content of this right.

The analysis of the institutions of protection of law is inextricably linked with the study of the impact on the sphere of rights, freedoms, and interests of the person after active, aggressive intervention by its violators. From a normative point of view, such interference is referred to as a violation, non-recognition, or challenge of a right.

Violation of the law should be considered a consequence of illegal behaviour of a person (offender) whose actions have harmed the subjective rights and interests of the entitled party in the legal relationship. TO Rodoman, `On the question of methods to protect civil rights and interests in the context of the provisions of Art.16 of the Civil Code of Ukraine' (2015) 4 (11) Sudovaapeliatsia 66. The nature of the damage in this case has no significant legal meaning but is considered from the standpoint of material losses and non-material negative consequences (physical damage, moral distress, negative feelings, including ignoring the certainty and stability of legitimate expectations) due to the violator's behaviour towards the sphere of existence of the right holder.

Non-recognition of civil rights and interests belonging to a person consists in both active and passive actions of a third party, which are aimed at full or partial denial of the subjective rights of a person. These actions create uncertainty for the holder of subjective rights in their legal status. A challenge is the existence of a dispute between the participants in a civil law relationship about the affiliation or absence of a right of one of the parties. Ibid.

These three forms of interference combine to create barriers to the use of opportunities that constitute the content of a person's rights. This requires the state to intervene to remove these obstacles and restore the `normal' order of satisfaction of a person's legitimate needs through permissible behaviour, the necessary influence on the violator in the primary legal relationship to a particular object and influence on their subject.

The established legal position of the Supreme Court affirms the direct relationship between the requirement of protection of the infringed right not only with the content of such right (which will be discussed in more detail below) but also with the nature of the offence. Case No 378/596/16-ц(Supreme Court [GC], 29 September 2020) <https://reyestr.court.gov.ua/ Review/93327297> accessed 22 July 2021; Case No 910/7164/19 (Supreme Court [ССС], 28 May 2020) <https://reyestr.court.gov.ua/Review/89485041> accessed 18 June 2020.

Therefore, the purpose of protection is to provide a person with the opportunity to meet their own legitimate needs in the primary dispute, in which unlawful interference (by violating, not recognising, or challenging these rights) makes it impossible or difficult to achieve the intended result in the form of material or other defined or expected benefit. The essence of the protection of the right is to eliminate the relevant barriers between the behaviour of the person and their expected (desired) result in the form of satisfaction of needs.

1.2 LEGAL INTEREST - THE OBJECT OF PROTECTION IN THE FIELD OF LAND RELATIONS

According to the current legislation of Ukraine, not only is the subjective right of a person protected by law but so is the interest. The concept of `legally protected interest' was officially defined in the Decision of the Constitutional Court of Ukraine of 1 December 2004, Case No 18-рп/2004 (Constitutional Court of Ukraine, 1 December 2004) Uriadovyikurier 239. and a detailed and thorough development was defined in judicial practice in the Resolution of the Supreme Court of 20 February 2019. Case No 522/3665/17 (Supreme Court [ACC], 20 February 2019) <https://reyestr.court.gov.ua/ Review/80167902> accessed 22 July 2021.

The systematic application of the approaches of the current legislation indicates that the definition of `legal interest' reveals its following features:

1) it is a legitimate desire of a person (arising from the functioning of the system of objective law),

2) it meets the natural, socio-economic, cultural, and other needs of the person in accordance with the level of personal or social development,

3) it does not contradict legislative restrictions, public interests, justice, good faith, reasonableness, and other common law principles.

The normative concept of `legally protected interest' in legal relations concerning land as a type of public property is important from the point of view of expanding the scope of protection. The public law regime of the land is based on this resource as the main national wealth (para. 1 Art. 14 of the Constitution of Ukraine) and the object of property rights of the Ukrainian people (para. 1 Art. 13 of the Constitution of Ukraine). It combines the features of land use as a territorial basis and natural resource and the main remedies (para. `a' Art. 5 of the LC).

This significantly diversifies approaches to building an effective human rights system and obliges one to take into account not only the existence of direct property relations between entities and specific land plots but also the possibility of an unregistered (undocumented) relationship in the form of legal interest. This also needs proper (adequate) legal protection.

Based on this, in its decision, the Grand Chamber of the Supreme Court upheld the plaintiff's right to apply to the court (Representation of the American Association of Committees for Jews of the Former Soviet Union) on the grounds that the Zhytomyr City Council of Lviv Oblast had taken into communal ownership of the disputed garages located in the ancient Jewish cemetery in Zhydachiv in violation of the regime of lands of historical and cultural purpose of the land plot on which these garages were built. At the same time, the motivation for the need for protection was not based on the establishment of a property relationship with the disputed land plot as an object of the plaintiff's right. According to the Court, the defence needed an interest in the desire to use specific tangible and intangible goods due to the general content of objective and not directly mediated in subjective law of simple legitimate permission for the development of ethnic, cultural, linguistic, and religious identity as a national minority of Ukraine, preservation of monuments and other objects of cultural value, the development of national cultural traditions, the celebration of national holidays, the practice of their religion, and the preservation of the living environment in places of their historical and modern settlement in order to meet individual and collective needs. Case No 914/582/17 (Supreme Court [GC], 26 June 2018) <https://reyestr.court.gov.ua/ Review/75265992> accessed 22 July 2021

Autonomous interpretation of the concept of `possessions' as an object of conventional guarantees and protection in the ECHR system according to Art. 1 of the Protocol defines, inter alia: `legitimate (legal) expectations' or `lawful expectations' to take certain actions in accordance with a permit issued by public authorities (for example, legitimate expectations to be able to carry out the planned development of the territory, given the permit in force at the time (Pine Valley Developments Ltd and Others v. Ireland, application no. 12742/87, judgment of 23 October 1991); use of the land (decision on the admissibility of application no. 10741/84 `S. v. the United Kingdom' of 13 December 1984), private interests recognised under national law (Beyeler v. Italy), judgment [GC] of 05 January 2000, application no. 33202/96). TI Fulei, Application of the case law of the European Court of Human Rights in the administration of justice (2015) 129-130; N Blazhivska, `Interpretation of the concept of property in the case law of the European Court of Human Rights' (2018) 10 Entrepreneurship, Economy and Law 219-223.

To a large extent, legal interests in the field of land relations correspond to the conventional understanding of a person's legitimate (legal) expectations, including in relation to real estate.

1.3 'DISPUTE ABOUT THE LAW' IN ADMINISTRATIVE JURISDICTION

Before considering specific ways of protecting the rights and interests in administrative proceedings, it is also important to establish the characteristics of the object of protection.

The Grand Chamber of the Supreme Court drew attention to the fact that the application of a particular method of protection of civil law depends both on the content of the right or interest sought by the person and on the nature of its violation, non-recognition, or challenge. Such a right or interest must be protected by a court in a manner that is effective, that is, appropriate to the content of the right or interest concerned, the nature of the violation, nonrecognition, or challenge, and the consequences of those acts. Case No 378/596/16-ц(Supreme Court [GC], 29 September 2020) <https://reyestr.court.gov.ua/ Review/93327297> accessed 22 July 2021 If the content of the latter is disclosed in advance (para. 2.1), the content of the violated right or interest is one of the key issues that not only affects the method of protection but also is used to delimit judicial jurisdiction and is known in law enforcement practice as a widely used criterion `dispute about the civil law'.

According to the opinion of the judges of the Grand Chamber of the Supreme Court, which is consistently used in court decisions with an element of jurisdictional dispute, the criteria for distinguishing cases of civil jurisdiction from others are, firstly, their `dispute about civil law', and secondly, the subjective composition of such a dispute (one of the parties to the dispute is, as a rule, an individual). Instead, the jurisdiction of administrative or commercial courts in the general sense can be defined as follows: the former has the power to resolve public law disputes, and the latter has the power to resolve disputes arising in the course of economic activity. O Kibenko, V Urkevych, Approaches of the Grand Chamber of the Supreme Court to determine the jurisdiction of disputes (Sudebno-yuridicheskayagaseta, 24 March 2020)<https://sud.ua/ru/ news/blog/164290-pidkhodi-velikoyi-palati-verkhovnogo-sudu-do-viznachennya-yurisdiktsiynosti- sporiv?fbclid=IwAR2FbIrsVFSL64rP4-xNA4JkNcYLPb-An5uojKhAGru4fWHkZS9zzF4upck> accessed 23 September 2021.

The justification for such a difference in approaches can be found in doctrinal attempts to explain the difference between disputes over land relations of public law and private law, which is reflected, respectively, in the methods used by courts of different jurisdictions.

Public interest as a criterion for belonging of some of the land disputes to administrative jurisdiction is characterised by the fact that:

1) it is objectively present in society, i.e., the prerequisite for its existence is the natural needs of society, which are most important, significant, vital, in particular, the need to own, use and exploit of land;

2) it is inseparable, or independent, and is based on the will of the whole society, i.e., it concerns society as a set (wide range) of subjects for whom it is equally important and valuable;

3) it is recognised by the state and enshrined in the norms of public law, primarily in the provisions of the Constitution as the Basic Law;

4) it lies in the existence of obligations of the state to the society, which seeks their proper implementation, and public administration - the only entity that has the competence to ensure their implementation.

The public interest in land disputes is objectively present in the vital and important aspirations of the whole society or a significant part of it to own, use, and exploit the land as a national good, as well as to preserve and protect its natural state from the effects of negative natural and artificial factors, which are recognised by the state and enshrined in public law, and the obligation to ensure and protect them rests with the competent subject of public administration.

The public nature of such property is evidenced by the ability of every citizen to use land, as well as the state's commitment to protecting such property. That is, the purpose of such property is to promote the daily realisation of the public interest. MV Udod, VS Pyrogov, `Public interest in determining the jurisdiction of land disputes' (2020) 4 Juridical Scientific and Electronic Journal 232 <https://doi.org/10.32782/2524-0374/2020-4/55> accessed 13 July 2020.

However, such a difference between the content and nature of the dominant interest is an external attribute that is important for the organisation of the judiciary rather than for the actual administration of justice as a form of justice to protect the rights, freedoms, and interests of the plaintiff. As we mentioned earlier, the purpose of any form of justice in Ukraine, including administrative, is the effective protection of the rights, freedoms, and interests of the person in respect of whom they apply to the court (para. 1 Art. 2 of the CAP).

The right to apply to the court (right to access court proceedings) is not abstract. It relates to the right of the individual in whose interests the trial is taking place and to whose conviction the state (represented by public authorities, local governments, officials, and officials) has unlawfully interfered with their rights or freedoms. A mandatory feature of a public law dispute is that a person believes that there is a violation of their rights and freedoms as a result of the performance or non-performance of government functions.

To apply to the court, the person (plaintiff) must have a substantive legal interest in resolving the dispute.

This precludes the existence in the Ukrainian court of a claim `in the interests of the rule of law', which is known in legal theory as `actiopopularis'. This form of complaint implies the right of everyone to file a complaint against a normative act after its promulgation, without the obligation to prove that the relevant norm directly affects their rights and freedoms. In this case, the citizen simply fulfils their duty to protect the Constitution, the law, and established order. V Kravchuk, `Is the right to defense in an administrative court unlimited?' (Sudebno-yuridicheskayagaseta, 4 March 2019)<https://sud.ua/ru/news/publication/136669-chi-ye-bezmezhnim-pravo-na- zakhist-v-administrativnomu-sudi> accessed 23 September 2021; Case No 522/3665/17 (Supreme Court [GC], 20 February 2019) <https://reyestr.court.gov.ua/Review/80167902> accessed 22 July 2021.

Any public interest is not dominant in determining the right to apply to the court for a particular person, as they have no right to apply `in the public interest', but only to protect their own rights, freedoms, or interests, which must be duly confirmed, activated, and legally formalised, potentially being `in opposition' to the public foundations of legal relations, formally represented in the activities of the subjects of power - the defendants. In disputes in the field of land relations, this is obviously objectified, first of all, due to the existence of direct (law) or indirect (interest) property-legal connection with the object, even if it is a dispute over the exercise of power regarding the management of the same object with the regime of public property.

Therefore, any disputes considered in administrative proceedings are also not disputes about the objective legality of decisions, actions, or inactions of the subjects of power - the defendants. It is wrong to try to distinguish them from land disputes that arise over the existence or absence of a dispute between the parties over the subjective rights to land, which should be considered under the concept of `dispute over the right' in civil proceedings.

The main difference between land disputes, which are subject to administrative courts, in contrast to other types of litigation, is that they arise from the need to protect and concern different groups of rights or interests (including property rights or non-property rights in land relations) of persons in relations with public authorities and local self-government bodies or other appropriate defendants in the exercise of public authority administrative functions or the provision of administrative services as a defining feature of the jurisdiction of administrative courts.

The establishment of unlawful interference with the rights or interests of a person in the field of land relations is a necessary condition for obtaining legal protection, and the content of protection is determined by the essence of such right or interest and form of interference (violation, challenge, or non-recognition) and is carried out through appropriate remedies and methods of protection.

In addition, we consider it necessary to cite the conclusion of researchers who were at the origins of administrative proceedings in Ukraine, I.B. Koliushka and R.O. Kuybida (2007):

The nature of the subj ective right that is violated does not matter at all for administrative jurisdiction - the Code of Administrative Procedure does not state anywhere that administrative courts protect only the public rights of a person.

It is important for the administrative court that the law (whether public or civil) is violated by the subject of power in public relations, i.e. in the exercise of their powers. IB Koliushko, RO Kyibida, `Administrative courts: to protect human rights or the interests of the state?' (2007) 3 Law Ukraine 6.

Accordingly, in judicial practice, the content of claims is understood as the plaintiff's proposed ways to protect their public rights, freedoms, or interests, and the circumstances in which the plaintiff substantiates their claims are specific legal facts with the occurrence of which the subjects of public law enter into physical or legal entities in disputed legal relations (para. 25 of the decision of the Grand Chamber of the Supreme Court of 19 May 2021 in the case no. 9901/29/21 [administrative proceedings no. 11-118zai21]). CaseNo9901/29/21(Supreme Court [GC], 19 May2021) <https://reyestr.court.gov.ua/Review/97286350> accessed 13 July 2021.

Thus, when applying to the administrative court, the material and legal interest of the plaintiff is not in the sphere of abstract wishes in the public law sphere to ensure control over the legality of the public administration in any matter, but in the rights, freedoms, and interests concerning a particular part of land resources, unimpeded possession, use, or exploitation of them, which is violated by the exercise of power by the subject of power.

And this emphasises the question of how effective will the protection of the rights and interests of the person be in the land sphere when using the powers of administrative courts, which are enshrined in Art. 245 of the CAP and whether administrative courts have the opportunity to apply methods of protection of property and personal non-property rights, defined by Art.16 of the CC and Art.152 of the LC, when considering cases arising from their violation by decisions, actions, or inactions of the subjects of power.

3.METHODS OF PROTECTION OF RIGHTS, FREEDOMS, AND INTERESTS IN THE ADMINISTRATION OF JUSTICE

3.1 THE RATIO OF REMEDIES AND METHODS OF PROTECTION OF RIGHTS, FREEDOMS, AND INTERESTS OF A PERSON

The study of the categories `remedy' and `method' in relation to the protection of rights and interests, as well as the formulation of general conclusions in this regard, was carried out within the doctrine of civil procedure, given that civil proceedings have long remained the only type of litigation in the Soviet legal system for the protection of the individual.

For a long time, the lexical similarity of the etymology of the words `remedy' and `method' led to their identification by legal scholars for the purpose of characterising the constituent elements of the legal protection system. However, the evolution of legal regulation and theoretical thought, as well as the need to ensure the unification of legal terminology, has led to a kind of materialisation of the concept of `remedies' of legal regulation. `Remedies' should be considered in law from the standpoint of a set of actions and/or objects of the material world that allow to achieve a certain goal or perform any task. When applying the above approach to legal relations, it is proposed to consider legal norms or various institutional subjects of their application as remedies. Its main content is to outline the objects that ensure the achievement of a particular goal or task, which makes its legal significance closer to the method to another category in law - `tools'. MM Lasarenko, `The ratio of remedies, methods and forms of protection of property rights of a foreign investor in private international law' (2017) 6 Comparative and Analytical Law 110-111; MA Rozhkova Remedies and methods of protection of the parties to a commercial dispute(Wolters Kluwer 2006) 64.

In this context, remedies are classified according to their institutional nature into two groups - jurisdictional and non-jurisdictional.

The former includes the activities of state-authorised bodies and officials to protect violated, unrecognised, or disputed rights (court, prosecutor's office, executive authorities, local governments, or other public entities, etc.), as well as the protection of subjective rights from possible encroachments (notary). Among the jurisdictional remedies, there are general (judicial) and special (administrative and notarial) remedies. The protection of the rights of the subjects of legal relations in court is the main among the jurisdictional remedies, has a universal character, is guaranteed by the Constitution of Ukraine, and is the most suitable for resolving disputes.

At the same time, the second group of remedies of protection of rights and interests of a person are non-jurisdictional remedies: it is the activity of individuals and legal entities to protect the rights and interests protected by law, which they carry out independently, without seeking help from competent authorities. OO Karmasa, `Remedies and methods of protection of the rights of the subjects of housing relations' (2012) 2 Journal of Kyiv University of Law 155.

We believe that today, the current regulations and the procedure for its application allow us to fully agree with and support this approach to the delimitation and establishment of the definition of relevant concepts.

For example, the Grand Chamber of the Supreme Court drew attention to the fact that the current CC divides the methods of protection of civil rights and interests into two groups - judicial (Art. 16) and extrajudicial (Art. 17-19) (para. 15 of the Grand Chamber of the Supreme Court from 29 May 2019). Case No 310/11024/15-ц(Supreme Court [GC], 29 May 2019) <https://reyestr.court.gov.ua/ Review/82703516> accessed 13 July 2021.Based on the analysis of the regulations cited in the decision, it can be noted that they clearly distinguish the concept of `ways to protect rights and interests' depending on the competence of institutions to influence disputed legal relations - the President of Ukraine, public authorities, authorities of the Autonomous Republic of Crimea local government in accordance with Art. 17 of the CC, notaries on the basis of Art.18 of the CPC, or the person him/herself, as a victim of violations and unlawful encroachments, in accordance with Art.19 of the CC.

Each of the listed options of intervention by the relevant entity in order to protect the rights, freedoms, or interests is limited to its own tools and the procedure for its implementation, as emphasised by law. Thus, the procedure for applying these tools (by exercising competence or application of rights) from the standpoint of influencing the content of the disputed legal relationship (rights, interests, and responsibilities of the parties) to eliminate violations of rights or interests should be defined as ways to protect each subject legal protection systems. At the same time, the functioning of judicial institutions or other opportunities to protect the rights and interests in the state should be considered as separate remedies of protection of rights with unique methods.

Confirmation of this can be found in the provisions of the ECHR on the analysis of the rules of admissibility of appeals to the European Court of Human Rights. Art. 35 of the ECHRs condition of admissibility is the exhaustion of all domestic remedies of protection of rights, in accordance with generally accepted principles of international law. Similarly, Art. 55 of the Constitution of Ukraine establishes the right of every person, after using all national remedies, to apply for protection of their rights and freedoms to the relevant international judicial institutions or to the relevant bodies of international organisations of which Ukraine is a member or a participant.

From the content of the autonomous interpretation in the application of these provisions, the assessment of the use of rights protection remedies provides a priority to establish the use of national institutional systems of human rights, among which the judiciary is in a leading position. Thus, states are relieved of the need to be accountable to an international body until they take the opportunity to remedy the situation through their own legal system. The rule is based on the assumption reflected in Art. 13 of the ECHR, according to which there is an effective remedy capable of essentially resolving a `non-groundless complaint' under the Convention and securing adequate redress (para. 44 of the ECtHR decision of 4 July 2019). Case No 6433/18 Sokolovskyy v Ukraine [2019] OficiynyivisnykUkrainy87/34.

Further examination of the admissibility of a person's complaint about breaches of the Convention's obligations involves an analysis of the potential and actual ability of these systems to provide such protection through the definition of competence and its application (appropriate methods and their effectiveness).

The ECtHR holds a well-established position that:

in deciding on admissibility, it draws attention to the fact that applicants should exhaust only those available domestic remedies to which they have direct access and which at the time of the event were effective both theoretically and practically, i.e. which were available and capable of reimbursing the damages and which provided prospects for successful consideration of the case. Sejdovic v Italy App no 56581/00 (ECtHR, 1 March 2006) <http://hudoc.echr.coe.int/eng?i=001-72629> accessed 11 March 2021; Paksas v Lithuania App no 34932/04 (ECtHR, 6 January 2011) <http://hudoc. echr.coe.int/eng?i=001-102617> accessed 11 March 2021.

Thus, in addressing the admissibility of complaints to the ECtHR, both the systems of remedies (institutions) and the ways (defined by their competence) of the protections they apply are examined.

Also, in another of its decisions, the ECtHR reiterates:

the mentioned provision of Art. 13 of the ECHR guarantees effective remedies for the exercise of the rights and freedoms provided for in the Convention at the national level, regardless of how they are expressed in the legal system of a country.

The essence of this article is to provide a person with such remedies at the national level that would allow the competent public authority to deal with substantive complaints of violations of the provisions of the Convention and provide appropriate judicial protection, although the states under the Convention have some discretion as to how they ensure the fulfilment of their obligations.

In some circumstances, the requirements of Art. 13 of the ECHR may be provided by the full range of remedies provided for under national law. Chahal v United Kingdom App no 22414/93 (ECtHR, 15 November 1996) <http://hudoc.echr.coe.int/ fre?i=001-58004> accessed 11 March 2021.

The analysis of the above gives grounds to conclude that the legislative restrictions on the substantive legal remedies of civil law or interest are to be applied in compliance with the provisions of Arts. 55 and 124 of the Constitution of Ukraine and Art.13 of the ECHR, according to which every person has the right to an effective remedy not prohibited by law. Case No 910/7164/19 (Supreme Court [ССС], 28 May 2020) <https://reyestr.court.gov.ua/ Review/89485041> accessed 18 June 2020.

3.2 METHODS OFPROTECTION OF RIGHTS AND INTERESTS OFA PERSON IN LAND DISPUTES

3.2.1 General definition of protection of rights, freedoms, and interests

The resolution of a land dispute is a legal guarantee of protection of land rights, which is provided (implemented) with the help of public authorities within the powers defined by law to make a decision that will restore the violated, unrecognised, or disputed right YaZYaremak `The importance of the institution of land dispute resolution in the land law system' (2019) 51 Current Issues of Improving the Current Legislation of Ukraine: A Collection of Scientific Papers 101-102, 106..

In this article, we will focus only on the current state of judicial (jurisdictional) protection of rights and appropriate methods of protection of rights and interests in land relations, which are used within its functioning.

The theory formulates various approaches to understanding the meaning of the concept of how to protect rights or interests. They mainly concern the civil law aspect, which is determined by the duration of scientific research in this area. At the same time, the general results and approaches of such research can be applied to the field of disputes in the public sphere, as it is about the only basic principles of the state apparatus and the mechanism of legal regulation in protecting the rights and interests of the individual.

The general conceptual definition of the method of protection is provided by Z. Romovska (2005), who understands this concept as: A concentrated expression of the content (essence) of the measure of state coercion by remedies of which the desired result is achieved'. Z Romovska, Ukrainian civil law (Atika, 2005) 494. Thus, the method of protection is most clearly tied to the mechanisms of state provision of law and order as the desired result of the functioning of the state-organised system of public relations.

This approach has found significant support in the special scientific literature and is supplemented by researchers' own additional features. O. Karmaz (2012) defines the method of protection from its linguistic interpretation, complements the legal features of certainty in law, substantive and coercive nature of the impact on the behaviour of the offender, whose purpose is to restore (recognise) of violated (disputed or unrecognised) rights. OO Karmasa, `Remedies and methods of protection of the rights of the subjects of housing relations' (2012) 2 Journal of Kyiv University of Law 156.

A systematic study of the current legal regulation and law enforcement practice indicates that non-jurisdictional remedies are gaining more and more recognition and importance. Accordingly, it is possible to distinguish a group of methods of land rights and interests that restore them by exercising the competence of a notary (for example, in case of satisfaction of the creditor's claims by foreclosure on the subject of the mortgage, which is land, under Art. 33 of the Law of Ukraine `On mortgage' of 5 June 2003), contractual forms of settlement of disputes (for example, the establishment of an easement and a contractual change in the legal relationship in this regard) or through self-protection (for example, unilateral termination of the contract due to breach of obligations' contracting or cutting off the roots and branches of trees in case of moving from one land site to another, if such movement is an obstacle to the use of land for its intended purpose or liquidation of trees at the common border, in order to implement the principles of good neighbourliness under Chapter 17 of the LC).

In this case, the definition of coercion is broad and includes both the force and effect of state influence as a result of the positive effect of legal regulation on a person's behaviour (so- called positive legal responsibility), including by both persuasion and real coercion to act against the will of the person concerned under the threat of legal sanctions.

In this aspect, we cannot agree with the identification in the literature of the remedies and measures of responsibility on the basis of the formula of `coercion'. Instead, the remedies may include appropriate sanctions for violations of the rights, freedoms, or interests of the person, if the purpose of protection is to meet the needs of the person in dispute by restoring, recognising, and creating conditions for the unimpeded realisation of rights and interests.

Accordingly, we consider it appropriate to agree with the provided definition of ways to protect the violated, disputed, or unrecognised right or legal interest provided by V.V. Petrunya, as a set of actions provided by law, contract, or those that do not contradict the principle of the rule of law of authorised state bodies or relevant persons, which can be used to achieve termination, prevention, elimination of violations, restoration (recognition) of violated (disputed) rights, or compensation of damages and influence on the offender. VV Petrunya, `The concept and system of methods to protect the rights of economic entities' (PhD (Law)thesis, National University `Odesa Law Academy' 2019) 4.

A similar approach to determining the method of protection is accepted in law enforcement practice. Clause 14 of the decision of the Grand Chamber of the Supreme Court of 29 May 2019 defines the method of protection of civil rights or interests as: `Actions aimed at preventing the violation or at restoring a violated, unrecognised, contested civil right or interest. The remedies of protecting a civil right or interest must be accessible and effective. Case No 310/11024/15-ц(Supreme Court [GC], 29 May 2019) <https://reyestr.court.gov.ua/ Review/82703516> accessed 13 July 2021.

Scholars define ways of protecting a right as actions provided by law that are directly aimed at protecting the relevant right. Such actions are final acts of protection in the form of substantive legal actions or jurisdictional actions to remove obstacles to the exercise of their rights or the cessation of offences, the restoration of the situation that existed before the violation. The application of a specific method of protection of the violated or denied right is the result of protection activities. `On methods to protect the law in public law relations' (Yurydychnagazeta Online, 19 November 2019) <https://yur-gazeta.com/publications/practice/sudova-praktika/pro-sposobi-zahistu-prava-u- publichnopravovih-vidnosinah.html> accessed 23 September 2020.

In its relationship with the subj ect of research of this scientific intelligence in the jurisdictional judicial remedies of protection of rights or interests of land rights, speaking of the relevant acts (actions or inactions), it should be about the competence of relevant jurisdictions to influence the dispute and the disputed legal relationship from which it arose.

3.2.2 Different ways to protect the rights and interests of persons in land relations for individual jurisdictions

In procedural codes, there is a significant difference between the methods of protection used by administrative courts and courts when considering disputes arising from civil, labour, family, housing, economic, and other legal relations, including land - in the sense of para. 1 Art.19 of the CPC and cases in disputes concerning the right of ownership or other real rights to property (movable and immovable, including land) for para.6 para.1 Art. 20 of Commercial Procedural Code (hereinafter - ComPC) - which fall under the jurisdiction of civil and commercial courts.

1) recognition of a normative legal act or its separate provisions as illegal and invalid;

2) recognition as illegal and cancellation of the individual act or its separate provisions;

3) recognition of the actions of the subject of power as illegal and the obligation to refrain from certain actions;

4) recognition of the inaction of the subject of power as illegal and the obligation to take certain actions;

5) establishing the presence or absence of competence (powers) of the subject of power;

6) adoption by the court of one of the decisions specified in paragraphs 1-4 of this part and recovery of funds from the defendant-subject of power to compensate for the damage caused by his illegal decisions, actions, or inactions.

Protection of violated rights, freedoms, or interests of a person who appealed to the court may be carried out by the court in another way that does not contradict the law and provides effective protection of the rights, freedoms, and interests of man and citizen, or other entities in the field of public relations, from violations by the subjects of power.

The remedies listed in para. 1 Art.5 and para.2 Art. 245 of the CAP are based on the nature and forms of activity of subjects of power, indicate coercive measures that can be applied in court, ways to counteract the illegal exercise of competence by public authorities or local governments as the main defendants in administrative proceedings. We believe that the basis of this approach is that after the court corrects the violations of the procedure for exercising their powers, the authorities, within the framework of the special permit principle, will refrain from repeating these violations in the future, with minimal actual interference in the problem of distribution of authorities and competencies between branches of government.

However, even when correcting an error in the activities of the public administration in such ways or equally effectively, the court will take care of the restoration of violated, disputed, or unrecognised rights and interests of the person. In part, it may seem that under the existing system of judicial protection by administrative courts, the main focus of their activities is on the problems of the apparatus rather than the rights and interests of the person violated by it. This gives researchers and practitioners of justice the opportunity to even support the discussion and substantiate their own theses about the doubts for the `ontological purity' of administrative justice as a form of administration of justice.