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

It is hardly possible to agree with the last thesis from both the formal and the factual points of view. But the peculiarities of the application of methods of protection by administrative courts in the protection of the rights, freedoms, and interests of the individual obviously exist, which confirms the relevance of this and subsequent scientific developments.

Instead, regulations of paras.1 and 2 Art.5 of the CPC and paras.1 and 2 Art. 5 of the ComPC, which are similar in content, define:

in the administration of justice, the court protects the rights, freedoms and interests of individuals, the rights and interests of legal entities, state and public interests in the manner prescribed by law or contract.

If the law or the contract does not determine an effective way to protect the violated, unrecognized or disputed right, freedom or interest of the person who appealed to the court, the court in accordance with the claim of such person may determine in its decision such a method of protection that does not contradict the law.

Thus, civil and commercial litigation in determining the remedies mainly refers to the content of special legislation governing the disputed legal relationship and therefore determines the implementation of rights, freedoms, and interests of the individual and possible ways to restore them through coercive force. This approach is obviously more correct, given the substantive nature of the violated rights, freedoms, or interests and the consequent nature of the remedies that should be used to restore them.

For the current state of legal regulation, a non-exhaustive list of ways to protect land rights is contained in para. 3 Art.152 of the LC, para.2 Art.16 of the CC, and para.2 Art.20 of the Commercial Code of Ukraine (hereinafter - ComC).

Analysis of the content of methods of protection of land rights shows that their role and significance are different: each method of protection has its own characteristics, functions, purpose, and conditions of use.

As defined by the doctrine of land law, some of them are directly aimed at protecting the right of ownership of land or land use rights; others are aimed indirectly. All these methods of protection of land rights can be classified into separate, relatively independent groups: property law, contract law, and special methods of land rights protection. Property and legal methods of protection of land rights are directly aimed at protecting the subjective right of ownership of land or land use rights of persons who at the time of the violation of the right are not in a binding relationship with the infringer (claiming land from someone else's illegal possession [vindicative claim]; the requirement of the landowner or land user to eliminate violations in the exercise of their rights, which are not related to the deprivation of land ownership [negative claim]; and so on). Mandatory legal remedies are aimed at protecting the rights of the subject as a party to the binding relationship (compensation for damages caused by non-performance or improper performance of the contract; return to the owner of the land provided for use under the lease, etc.). Special methods of protection of land rights apply to special cases of violation of the rights of landowners and land users. They are due to a special circle of authorised or obligated persons and extraordinary circumstances (recognition of the land agreement as invalid; invalidation of decisions of executive authorities or local governments that violate the rights of landowners and land users, etc.). Land Code of Ukraine: comment (Odissey, 2002) 402; MV Shulha, HV Anisimov, NO Bahai, AP Hetman, Land Law Ukraine (Yurincom Inter, 2004) 143; ZV Yaremak, `The effectiveness of methods to protect land rights: problems of judicial practice' (2020) 4 Juridical Scientific and Electronic Journal <https://doi.org/10.32782/2524-0374/2020-4/27> accessed 21 March 2021.

It is noted in the literature that the definition of methods in the Land Code of Ukraine as legal guarantees of protection of land rights places a functional burden on them, which is to restore the rights that were violated, to remove obstacles to their implementation, and so on. Ibid. In fact, this is what any kind of litigation seeks, if we carefully examine their regulatory tasks.

However, the methods of protection used by administrative courts and in civil or commercial proceedings are significantly different, except for invalidation (which is identical to illegality, unlawfulness, invalidity) of decisions of public authorities and local governments, which suggests the existence of normative-formal difference of legal protection in the order of various types of legal proceedings. However, such a conclusion would force us to agree with the difference in the essential common principles of the functioning of the justice system, its goals, and objectives.

3.2.3 Assessment of the possibility of recourse to the court to achieve the purpose of administrative proceedings

Regarding the legal characteristics of jurisdictional (judicial) methods of protection in administrative proceedings, special attention should be paid to the definition of such methods in court proceedings in public law disputes, at the request of the subject of power in cases where the right to apply to the court for a public law dispute is granted to such a subject by law (clause 5 para. 1 Art. 19 of the CAP).

In this category of disputes, the usual basic model of approaches to the characterisation of judicial activity is undergoing significant changes. This is evidenced by the fact that for a long time, any possibility of referring this category of cases to the jurisdiction of administrative courts was denied, justifying their inconsistency in the legal nature and purpose of administrative justice, the real punitive functions when it considers cases caused by the claim of the object of power to the person. V Averyanov, D Lukyanets, Yu Pedko, `Code of Administrative Procedure of Ukraine: the need and ways to eliminate conceptual and conceptual defects' (2006) 3 Law Ukraine 10-11; VM Bevzenko, SM Minko, `Features of determining the jurisdiction of public law disputes' (2007) 3 Bulletin of Commercial Justice 124-125.System analysis of Art. 55 of the Constitution of Ukraine and the provisions of the CAS of Ukraine indicates that administrative courts consider cases `person against the state' and are designed to protect people from the arbitrariness of the state (state bodies), not vice versa.

However, the experience of the institute of administrative justice has proved the unfoundedness of the last objections and their lack of motivation since the basis of their argument was superficial external attributes of proceedings initiated by the subjects of power. Instead, it should be agreed that a detailed study of the categories of cases and the grounds for their consideration in courts, on the contrary, allows us to speak more fully of administrative proceedings, due to the consideration of such disputes it should prevent human rights violations by judicial control over `interference' powers of the authorities. IB Koliushko, RO Kuibida, Administrative justice: European experience and proposals for Ukraine (Fakt, 2003) 33.

The basic instructions of the CAP, which outline the tasks and principles of this form of justice in Arts. 2 and 5 of the CAP, indicate the universal obligation of the court to use procedural possibilities and powers in order to effectively protect the rights, freedoms, and interests of individuals in the process of considering public law disputes of administrative jurisdiction. When appealing to the administrative court, when only the adoption of a judicial act allows them to exercise the powers granted, in cases established by law, the court checks the activities of the representative of the government. In such cases, the court actually grants permission to enforce the administrative act. This again raises the question of verifying the legitimacy of the document, which provides for the assessment of the behaviour not so much of the person subject to coercive measures but of the compliance by a representative of the authorities with the requirements relating to legal acts of management. Yu Bytyak, N Pysarenko, `Procedural form of administration of justice in disputes involving a subject of authority' (2006) 10 Law Ukraine 79-80.

The continental German model of administrative justice, received by Ukraine, has, over its long history, approved the approach to the expediency and jurisdiction of the relevant categories of cases within the competence of administrative courts. Siegfried F Franke, Allgemeines Verwaltungsrecht der Bundesrepublik Deutschland: Grundzьge, Erlдuterungen und Beispiele (R. v. Decker's Fachbьcherei: Recht und Wirtschaft 1999) 173-175.

In the same category of cases, it is objectively difficult to apply the traditional approach to determining the methods of protection used by administrative courts in other disputes `against a subject of power'. Therefore, it demonstrates the multifaceted discussion of the object and subject of this scientific article.

In decisions on appeals of subjects of power, the courts neither recognise the activity of the authority as illegal with the recognition of invalidity or cancellation of the act, nor require certain actions, nor refrain from committing them in the resolution. Instead, quite often, the decision to satisfy the appeals of the subject of power, on the contrary, can raise doubts on who is protected by the courts in a particular case when deciding to forcibly alienate land, other real estate located on it, for reasons of public necessity (Art. 267 of the CAP).

Even in such an extraordinary form, the internal content of judicial activity is primarily aimed at assessing the legality of decisions (acts), actions, or inactions of the subject of power, which potentially lead to interference in the rights, freedoms, and interests of the individual. Its result, establishing their legality or illegality, determines the satisfaction of the court with the relevant appeal or the refusal of such satisfaction, which authorises public administration activities.

From the description above of the methods of protection as actions of authorised state bodies, by remedies of which the prevention of violations of rights can be achieved, this judicial activity best corresponds to the given definition. It has the potential to provide effective protection in terms of preventing violations that will negatively affect the rights, freedoms, and interests of the individual, to prevent such from the negative impact of the actions of the subjects of power.

According to O.V. Ilnytsky (2011), for land relations, this category of cases is one of the most important in terms of exercising the powers of administrative courts to monitor the observance of human rights, which is determined by the constitutional principle of inviolability of property and exclusion of grounds for compulsory alienation (Art. 41 of the Constitution of Ukraine). O Ilnytskyy, Land disputes and the procedure for resolving them in Ukraine: administrative and legal approach (FOP Pyatakov 2011) 207.

In this regard, for example, Art. 143 of the LC, when determining the grounds for compulsory termination of land rights, indicates as the imperative the provision of judicial procedure to assess the existence of factual and regulatory grounds for such interference in the field of land rights, freedoms, and interests of the person, some of which is at the request of the subject of power in administrative proceedings.

In the civil theory of protection of rights, freedoms, and interests, `other ways of protection' can also include judicial activity, namely prior judicial control. That is, when performing an action that may have legal consequences and affect the rights and legal interests of the authorised person, it is necessary to first go to court. Thus, in accordance with the provisions of the Constitution of Ukraine, no one may be forcibly deprived of housing other than on the basis of law by a court decision (Art. 47). 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.

4 ENSURING THE EFFECTIVENESS OF WAYS TO PROTECT THE RIGHTS AND INTERESTS OF THE PERSON REGARDING LAND IN ADMINISTRATIVE PROCEEDINGS

4.1 UNDERSTANDING OF EFFECTIVENESS AS A CRITERION FOR THE PURPOSE OF THE PROCEEDINGS

The purpose of legal proceedings, which is formulated through the sign of `effectiveness' of judicial protection, requires the establishment of a normative definition of this sign. Moreover, this feature is currently important in law enforcement, which borders on the guarantee of the right to judicial protection. Frequent cases in the practice of the Supreme Court are the refusal to satisfy the claim on the grounds of the ineffectiveness of the chosen method of protection of the rights of the person, which is defined by them in the claims, because it does not restore violated, disputed or unrecognised rights, freedoms, or interests of the plaintiff. Consequently, the task of judicial proceedings is not fulfilled. This leads to the courts' assessment of the question of to what extent such a dispute in this case is legal and belongs to the court jurisdiction according to Art. 124 of the Constitution of Ukraine.

The provision on ensuring the effectiveness of judicial protection also corresponds to the guarantees of the rights of the person set forth in Art. 13 of the ECHR. The ECtHR has repeatedly stated in its decisions, analysing national redress systems for compliance with the right to the effectiveness of internal safeguards mechanisms, that in order to be effective, the remedies must be independent of any action taken by the public authorities, be directly available to those concerned (see Gurepka v. Ukraine, application no. 61406/00, para. 59) and able to prevent the occurrence or continuation of the alleged infringement or to provide adequate compensation for any infringement that has already taken place (see Kudla v. Poland, judgment of 26 October 2000 in the case Kudla v. Poland, (<...>) [GC], application no. 30210/96, ECHR 2000-ХІ, para. 158) (para. 29). Case 20390/07 Garnaga v Ukraine [2013] OficiynyivisnykUkrainy1/203.

The remedies must be `effective' in the theory of law and in practice, in particular in the sense that its use cannot be unduly complicated by the actions or inactions of the respondent State authorities (decision of 18 December 1996 in Aksoy v. Turkey, para. 95).

In assessing effectiveness, it is necessary to take into account not only the formal remedies but also the general legal and political context in which they operate and the applicant's personal circumstances (decision of 24 July 2012 in Djordjevic v. Croatia, para. 101; decision of 6 November 1980 in Van Osterwijk v. Belgium, para. 36-40). Thus, the effectiveness of the remedies is assessed not in an abstract way but by taking into account the circumstances of a particular case and the situation in which the plaintiff found him/ herself after the violation.

The issue of the effectiveness of legal protection was analysed in the decisions of national courts. In particular, in the decision of 16 September 2015 in case no. 21-1465a15, the Supreme Court of Ukraine concluded that the court decision, in case of satisfaction of the claim, should be such that would guarantee the protection of the rights, freedoms, and interests of the plaintiff from violations by the defendant, ensure its implementation and prevent the need for further appeals to the court. The method of restoring the violated right must be effective and such that excludes further illegal decisions, actions, or inactions of the subject of power, and in case of non-execution or improper execution of the decision, there would be no need to go to court again, and enforcement of the decision would take place.

In its case law, the Supreme Court has repeatedly stated that an `effective remedies' within the meaning of Art. 13 of the ECHR must ensure that the violated right is restored and that the person obtains the desired result. Making decisions that do not directly lead to changes in the scope of rights and ensuring their enforcement does not comply with this provision of the Convention (Resolution of the Grand Chamber of the Supreme Court of 28 March 2018 in case no. 705/552/15-a, decisions of the Supreme Court of 18 April 2018 in case no. 826/14016/16, of 11 February 2019 in case no. 2a-204/12).

The method of protection chosen by the plaintiff should be aimed at restoring the violated rights, protection of legal interests and, if the court satisfies his/her claims, the decision should result in the actual restoration of those rights for which the plaintiff went to court (para. 27-31). Case No 340/2074/19 (Supreme Court [ACC], 4 August 2020 <https://reyestr.court.gov.ua/ Review/90755073> accessed 13 July 2021.

The effectiveness of the protection of rights, freedoms, and interests as a result of application to the courts is a complex collective concept, which in the most general terms, can be described as the ability to ensure the real impact of the court decision on the legal status of the person in dispute by restoring or recognisingun recognised rights, freedoms, or interests of the person, for which he/she appealed to the court.

V. Kravchuk (2020) distinguishes the reality of protection of rights, speed, and accessibility (in the context of monetary costs) by the criteria of efficiency of judicial protection. The reality depends on the quality multiplied by the immediate implementation of the decision. In turn, the quality of the decision, in his opinion, is clarity, effectiveness, `enforceability', and its independence from the plaintiff. In addition, the decision should include safeguards against the recurrence of violations and the formation of new disputes. V Kravchuk, `Principles of administrative proceedings' (UBA.ua, 19 June 2020) <https://uba.ua/ ukr/news/7657/> accessed 26 June 2021.

Thus, an effective remedy (method) should be understood as one that leads to the desired results, consequences, or has the greatest effect. Therefore, an effective method of protection must ensure the restoration of the violated right and be adequate to the existing circumstances.

Therefore, the administrative court, having received the statement of claim, must establish the existence of the fact of violation of the right and apply a specific way to protect the violated right. The method used depends on the content of the subjective right for the protection of which the person applied and the nature of the violation.

All this inevitably leads to the use of methods of protection by the court in resolving the case that would ensure the set goal and perform the tasks that follow from it in the specified context.

When choosing between general methods of protection of law (provided by law) or special methods, administrative courts must prevent abuse of the right to protection and violation of the rights of defendants, repeated proceedings on essentially identical but formally different requirements, as well as not complicate enforcement decisions. That is, having established the violated right of the applicant, the court must protect his/her right and must not allow chaos in law enforcement.

It follows that for the effective restoration of the infringed right, it is necessary that there be a clear link between the offence and the method of protection of the right. In other words, the purpose of the stated claims should be to eliminate obstacles to the exercise of the right, and its achievement is a certain way to protect the right, which would exhaust itself. `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 2О2О.

4.2 THE LEVEL OF EFFECTIVENESS OF GENERAL METHODS OF PROTECTING THE RIGHTS OF FREEDOMS AND INTERESTS OF ADMINISTRATIVE COURTS IN DISPUTES OVER LAND RIGHTS

The right to property is an indisputable object of protection by the parties in cases of appeal against decisions, actions, or inactions of subjects of power in the usage of public property (including land property).

The range of tools used by the substantive and legal powers of administrative courts is aimed at resolving issues of restoring the legitimacy of public administration in compliance with the guarantees of the constitutional system (for example, in terms of the concept of the functional distribution of branches of government). In deciding the issue of the proper exercise of competence, the result of its implementation is also one of the criteria for judicial evaluation. However, for the party, this algorithm has the opposite effect: they protect their own rights, freedoms, or interests, which must be provided by public authorities or local governments.

In the scheme of evaluating the activities of the subject of power, the courts face numerous problems of competence, discretion, and public succession as a result of the reorganisation of the mechanism of the state. The court decision, through the `general' means of protection of administrative proceedings (Arts. 5 and 245 of CAP), provides an assessment of the exercise of powers, directing the defendant (subject of power) in the legal direction of activity. Only relatively recently have administrative courts taken a proactive stance, according to which the mere finding of illegal actions in person-friendly proceedings does not restore the rights of such a plaintiff. To this end, the administrative court is endowed with appropriate powers, in particular, Part 4 of Art. 245 of the CAP of Ukraine stipulates that in the case specified in para. 4 of Part 2 of this article, the court may oblige the defendant, who is the subject of power, to decide in favour of the plaintiff, if such a decision meets all the conditions prescribed by law and acceptance of such a decision does not provide for the right of the subject of power to act at its own discretion. Therefore, the long inaction of the defendant in violation of regulatory requirements for the exercise of their competence and the need to ensure effective protection, which excludes further illegal decisions, actions, or inaction of the subject of power, determine the need to oblige the defendant to authorise (those which grant (certify) the relevant right) decisions (paras. 58-60). Case No 813/5074/17 (Supreme Court [ACC], 2 April 2021) <https://reyestr.court.gov.ua/ Review/95982464> accessed 13 July 2021.

This is especially important in cases where the previous dishonest behaviour of the subject of power indicates the absence of their intent to make a reasonable and lawful decision in the form prescribed by applicable law, taking into account the position of the court. As the process of refusing the plaintiff to grant permission to develop a land management project on formal grounds without making an appropriate government decision (according to Art. 118 of the LC) can be quite long, as indicated by the wrongful conduct of the defendant, who repeatedly enforces similar violations rights of the plaintiff, in this case, the proper way to protect the violated right is the obligation of the land management authority to grant permission to develop a land management project (para. 55). Case No 812/1313/18 (Supreme Court [ACC], 30 April 2020) <https://reyestr.court.gov.ua/ Review/89035537> accessed 13 July 2021.

From the practice of law enforcement, even the satisfaction of such claims is not a guarantee of restoration of violated rights, as the court decision will not be a direct basis for technical activities in the field of land management. O. Snidevych (2006) notes that it is quite reasonable to see the possibility of violation of human rights to effective judicial protection, guaranteed by Art. 13 of the ECHR. The adoption of such acts by the relevant body is only a delay in the development of the land management process. The acts of these bodies do not bring anything new to the regulation of land relations. They are just an extra part of this process. In addition, such decisions can be enforced only by the executive or local selfgovernment bodies themselves. O Snidevych, `Land management lawsuits in the civil process of Ukraine' (2006) 6 PravoUkrainy 72. And this contradicts the existing positions of guarantees for the effectiveness of judicial protection.

Thus, having chosen the procedure for exercising competence by the subject of power as the main `goal', administrative-procedural methods of protection come into formal conflict with the normative task of the judiciary on the priority of rights, freedoms or interests of a person violated by such public authority.

This conclusion is indirectly confirmed in the legal positions of the Grand Chamber of the Supreme Court. For example, in a study of the use of land rights common to civil and administrative litigation, declaring as illegal and challenging decisions of public authorities and local governments, the Court considered this method of protection ineffective because it could not protect or restore the infringed property right of the plaintiff (if there is any), in particular, the return to their possession or use of the disputed land, compensation of damages.

The methods of protection of property rights are defined in the Civil Code. Judicial protection must be complete and comply with the principle of procedural economy, i.e., ensure that there is no need to go to court to seek additional remedies. Satisfying the claims for illegality and challenging the disputed decision to lease the land to a third party, which has already been sold and expired, will not restore the plaintiff's rights, restore possession, use, or disposal of the property, and it will require additional protection. Based on the circumstances of this case, the proper way to protect the plaintiff will be to apply to the court to recover property from someoneelses illegal possession, if the plaintiff was deprived of land ownership, or remove obstacles to the exercise of property use and disposal, if the plaintiff is denied their right. The Grand Chamber of the Supreme Court also draws attention to the fact that according to the method of protection chosen by the plaintiff, the proper defendant, in addition to the subject of power, may be an individual to whom the land was transferred. The plaintiff's choice of an inappropriate way to protect his/her rights is a separate ground for dismissing the claim (para. 47-54). Case No 945/642/19 (Supreme Court [GC], 02 February 2021) <https://reyestr.court.gov.ua/ Review/95439652> accessed 13 July 2021.

T.O. Tretyak's (2016) study of the recognition of the legality or illegality of a legal act gives reason to believe that it is not a separate method of protection and has no independent significance. The resolution of this issue during the protection of the right to land is necessary to determine the rights and obligations of the plaintiff and the defendant after the decision of the executive authorities or local governments. The protection of these rights may, without any harm to the plaintiff and society, be carried out by other means of protection. TO Tretyak, `Recognition of illegal decisions, actions or inactions of executive authorities or local governments as a way to protect property rights or land use rights' (2016) 1-2 Ecology Law of Ukraine 75.

In these examples, we can see that for civil and commercial litigation, the criterion for the effectiveness of protection is the shortest path for a person to obtain or restore his/her rights. Obviously, this is also relevant for administrative proceedings. However, the application of the remedies defined in the CAP (powers of administrative courts) is not always able to perform this task, given the denial of the substantive nature of violated rights, freedoms, and interests on the basis of public law in the exercise of administrative functions.

4.3 PROBLEMS OF EXPANDING THE METHODS OF PROTECTION OF LAND RIGHTS USED BY ADMINISTRATIVE COURTS

As stated in this article, within the framework of certain principles of the constitutional order, the question of the methods of protection used by the court, in addition to assessing their effectiveness, is based on the principles of determination of legal competence.

Therefore, when resolving disputes by administrative courts, the list of methods of protection and powers of administrative courts, which are defined in Arts. 5 and 245 of the CAP,are applied as an imperative.

At the same time, for example, para. 2 Art. 5 of the CAP provides that the protection of violated rights, freedoms, or interests of the 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 people, citizens, and other entities of public relations from violations by the subjects of power. This provision allows the court to act with a significant degree of freedom within law, choosing a method of protection that is not directly provided by procedural law but follows from the nature of the law, the protection of which is sought by the person in a public dispute within the jurisdiction of administrative courts and its legal regulation, taking into account the requirements of the effectiveness of protection.

The issue of legislative restrictions on the use of remedies in civil and commercial proceedings, instead of expanding them to ensure the completeness and effectiveness of judicial protection, was explained by the underdevelopment of the independence of the judiciary and distrust of judicial discretion, which should determine the content of remedies.

However, expert research on this issue has substantiated the opposite trend. D Luspenyk, `Those, who play with procedural laws, can easily break the logic of the CPC with one failed innovation' (2012) 6 Law and Business 1, 4. This trend was substantiated by the fact that the legislative restriction of the remedies does not guarantee the correct application of law but becomes an obstacle to the real protection of a person's property rights. The latter may be dismissed by the court for non-compliance with statutory remedies. The list of methods of protection is considerable, but even in this case, it is almost impossible to prescribe in the law the grounds and procedure for the application of each of them. The court is forced to adapt the provisions of the law to real social relations, for example, the way to restore the violated right to the content of the violation. In this case, there are as many ways to restore the violated right as ways to violate it. Resolving issues of protection on the basis of formal provisions of the law, instead of the rule of law, leads to negative phenomena: covert denial of justice, protection of the interests of the state (rather a person authorised to make decisions on its behalf), instead of rights and legal interests of a person from the realisation of power competence. OP Podzerkovnyi, `About problems of application of method of protection of the broken right (on an example of recognition of the property right in mortgage relations)' (2012) Scientific Works of the National University of Odessa Law Academy 190-191.

The protection of property rights in the field of land relations has always been and remains one of the main areas of scientific and practical discussion on the effectiveness of protection. For example, O. Podtserkovny (2009) noted that:

Judicial bodies refuse to satisfy claims of land users to local governments for recognition of land ownership, given that this method of protection is not provided by the Land Code, and the solution of these issues is the exclusive competence of local governments. It turns out that the right to property in relations with individuals can be protected in practice, in particular, by recognizing the right, and in relations with public authorities one should expect `mercy' of these authorities. It is clear that this upsets the balance between public and private interests, undermines confidence in the domestic legal system. OP Podzerkovnyi, `Methods of protection in land relations' (2009) 9 Law of Ukraine 190-191.

Para. 4 of the Letter of the Supreme Court of Ukraine dated 29 October 2008 no. 19-3767/0/808 `On the consideration of land disputes' denied the possibility of acquiring ownership of the land by a court decision by establishing a fact of legal significance, thus asserting the inadmissibility of equating the court decision and the relevant decision of the competent subject of management as a legal fact of the emergence of land rights in non-litigation proceedings. This virtually remedies that a court decision assesses legal relations only in a disputed situation regarding the existence of land rights and cannot be a self-sufficient act to establish such rights, bypassing executive or local self-government bodies. However, in the case when a person applies for protection of the right to land, the court may not limit itself to assessing the general legality of decisions, actions, or inactions that violate this right, but also take measures to protect it - even if the violator is a subject of authority.

The reason for restricting the entry of administrative courts beyond the limits of Arts. 5 and 245 of the CAP are not only formal requirements of the law but also the systematic assertion of the lack of independent legal significance of property claims in cases of administrative jurisdiction, as well as a high level of discretion of management entities in cases involving public property and inadmissibility of court intervention in this area.

However, in this case, taking into account the content of the disputed legal relationship, it is necessary to consider which protection of the right or interest of the person is in question.

Property claims with appropriate substantive remedies may be considered and satisfied by administrative courts in the event that the subject matter of the case, which meets the characteristics of administrative, was the right of the person to the individual property, and not just the right to receive it in the sense of `Lawful (legitimate) expectation' in the context of protection Art. 1 of the Protocol of the ECHR.

On the basis of a detailed scientific study of the application of land rights protection methods, Y. Myahkohod (2014) came to the conclusion that

The use of the recognition of a right as a means of its protection will be quite effective when a person acquired the right to land in accordance with the land law, but due to various circumstances this right was not officially formalized and is disputed. YV Miahkohod, `Ways to protect land rights' (PhD (Law)thesis, Taras Shevchenko National University of Kyiv 2014) 32.

It is clear that this conclusion is relevant in the case of obstacles to the legalisation of the right to land due to improper exercise of power and public authority management functions by the subjects of power.

Thus, the application of recognition of the right by the administrative court is possible, but only in respect of established property, when the decision of the subject of power is only a fact that legalizes the right of the person to the property and is beyond the discretion of the authority management of public property at this stage of the right of the person (for example, in the final stages of the transfer of the formed land plots from the state or municipal property to private property by way of privatisation). This will comply with the principles of effective judicial protection of property rights violated by the subject of power, instead of making the plaintiff's right dependent on additional procedures to enforce the court's decision by the defendant, obliging the latter to reconsider and decide on legalisation of the person's right.

The nature of the claim due to the circumstances of the case, which allows for the differentiation of the dispute over the right to property (land) or the right to a particular property (land), must be taken into account by the court as to the procedure, including determining the subject and procedure evidence in court and in assessing the permissible effective ways to protect the rights of the individual.

CONCLUSIONS

In choosing the method of protection of the infringed right, freedom, or interest, the courts must take into account the direct relationship between the claim for protection and the content of such right and the nature of the offence. Accordingly, the requirement of complete protection of rights, freedoms, and interests in administrative proceedings does not limit the categories of cases they consider on the basis of violated rights, freedoms, or interests, and jurisdiction is determined solely on the basis of the subject composition and nature of the disputed relationship due to the implementation of public authority management functions.

The jurisdictional component of the right to a fair trial presupposes the need for courts to take into account the scope of their powers under the Constitution and laws of Ukraine. At the same time, the concept of expanding the limits of permissible remedies, which are not limited to formal legal instructions but are determined only by the requirements of the need to ensure effective protection of rights, freedoms, and interests, allows administrative courts to use means (general and special) that will ensure the real restoration of the violated rights, which are adequate to the existing circumstances. In the future, rights will not depend on the will or other additional actions of the defendant, and if necessary, will be restored by enforcement.

The administrative court is authorised to apply substantive remedies when considering the claim for the protection of the right to a certain object of property rights (including land) in an administrative case, taking into account the material nature of the violated right, as well as if the violation is committed by decision, action or inaction of the subject of power and is only a fact that 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.

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