The Supreme Court clarified under what conditions a prosecutor can represent the interests of the state in court

The Supreme Court, composed of a panel of judges of the First Judicial Chamber of the Cassation Civil Court, considered case No. 509/4257/18 regarding the cancellation of the decision of the state registrar on the state registration of ownership rights to a real estate object and the entry in the State Register of Property Rights. The court also provided a legal assessment of the prosecutor's compliance with the legislation requirements when representing the interests of the state in court.

Essence of the case

The prosecutor, acting in the interests of the state represented by the Ministry of Justice of Ukraine and the Department of the State Architectural and Construction Inspectorate in the Odessa region, filed a lawsuit to cancel the decision of the state registrar and the entry of ownership rights to the real estate object.

The lawsuit was justified by the fact that the state registrar, contrary to the requirements of the Law of Ukraine "On State Registration of Property Rights to Real Estate and Their Encumbrances" and the Procedure for State Registration of Property Rights to Real Estate and Their Encumbrances, did not verify the compliance of the declared rights with the requirements of the legislation and carried out state registration of ownership rights to objects that are actually temporary structures. According to the prosecutor, such objects should not have been subject to state registration as real estate since they were not commissioned in the manner prescribed by law.

The lawsuit stated that as a result of such actions, the legally established procedure for state registration of property rights to real estate was violated. Therefore, the prosecutor requested to cancel the decision of the state registrar on the state registration of ownership rights and the corresponding entry in the State Register of Property Rights to Real Estate.

Decisions of previous courts

The court of first instance denied the claim. It proceeded from the fact that the decision of the state registrar complied with the requirements of the legislation, which defines the list of documents necessary for the state registration of the allocation of a separate real estate object from the real estate consisting of two or more objects. Moreover, the court concluded that the state registration of temporary structures was not carried out.

The appellate court overturned the decision of the local court and made a new decision to satisfy the claim. The appellate court noted that the state registrar registered ownership rights to temporary structures in the absence of a document certifying ownership of the real estate object. Therefore, the appellate court recognized the decision of the state registrar as illegal, canceled it, and also canceled the corresponding entry in the State Register of Property Rights to Real Estate.

Position and conclusions of the Supreme Court

The Supreme Court drew attention to the fact that according to Article 131-1 of the Constitution of Ukraine, the prosecutor's office represents the interests of the state in court only in exceptional cases and in the manner prescribed by law.

The court emphasized that the provisions of Article 23 of the Law of Ukraine "On the Prosecutor's Office" provide only two grounds for a prosecutor to represent the interests of the state in court: if the competent authority does not protect or improperly protects such interests, or if such an authority is completely absent.

The Supreme Court stated that a prosecutor, when applying to court in the interests of the state, is obliged to justify the grounds for such representation and to comply with the procedure established by Article 23 of the Law of Ukraine "On the Prosecutor's Office." In particular, before filing a lawsuit, the prosecutor must contact the competent authority, inform it of the detected violations, and provide an opportunity to independently take measures to protect the interests of the state.

The court stressed that the inaction of the competent authority means that such an authority knew or should have known about the possible violation of the state's interests, had the appropriate powers, but within a reasonable time did not apply to the court for their protection. It is the prosecutor who must prove the existence of such inaction.

The Supreme Court noted that the courts of previous instances did not verify whether the prosecutor had contacted the Ministry of Justice of Ukraine and the Department of the State Architectural and Construction Inspectorate in the Odessa region before filing the lawsuit and whether they were informed of the violations that the prosecutor considered to have been committed. The courts also did not provide a proper legal assessment of the prosecutor's compliance with the procedure for representing the interests of the state.

The panel of judges emphasized that the law does not grant the prosecutor the right to represent the interests of society as a whole in court. Representation is possible only if the procedure established by law is followed and the grounds for such an appeal are properly justified.

The Supreme Court concluded that during the consideration of the case, the courts did not verify the prosecutor's compliance with the requirements of Article 23 of the Law of Ukraine "On the Prosecutor's Office," although the prosecutor did not contact the state authorities in whose interests the lawsuit was filed.

In view of this, the Supreme Court partially satisfied the cassation appeal, canceled the decisions of the courts of first and appellate instances, and left the prosecutor's claim without consideration.

The ruling of the cassation court enters into legal force from the moment of its adoption, is final, and is not subject to appeal.

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