On The Lack Of Procedural Capacity Of Territorial Communities To Independently Protect Their Interests In Courts From Illegal Construction Activities

Abstract

The article examines the problem of the lack of procedural capacity of territorial communities to apply to court for protection of their interests in the context of illegal construction activities and urban development.
Territorial communities, as primary subjects of local self-government, have the right to protect their interests in urban planning, particularly regarding the rational use of land, preservation of recreational and environmental areas, the comprehensive restoration of territories affected by armed aggression against Ukraine, and the sustainable development of their territories. However, current procedural legislation does not provide territorial communities with explicit rights to initiate lawsuits for the protection of their interests, unlike legal entities or the state itself. While local government bodies, such as municipal councils, have the authority to represent the interests of communities in court, a gap exists when these same bodies themselves violate the interests of the communities they represent.
The article examines the legal norms that confirm the problem, examines the judicial practice about who in practice applies to the court with claims to protect the interests of the territorial community, analyzes the issue of whether the prosecutor and public associations have the authority to apply to the court in the interests of territorial communities. Particularly, the author explores the legal grounds for prosecutors and civil organizations to represent community interests in court. The article discusses the Supreme Court’s decisions that have shaped the legal practice regarding the protection of the interests of territorial communities, noting the complexity of distinguishing between state and community interests. The author draws attention to the fact that currently the judicial practice is proceeding in such a way that the interests of the territorial community are a component of the interests of the state, and therefore the prosecutor has the right to file a lawsuit in the interests of the council (community), despite the fact that the Law "On the Prosecutor's Office" does not directly provide for this, and the state and territorial. At the same time, it is emphasized that the interests of the state and the interests of the territorial community are not identical; they differ in their subject, content (nature) and essence, and level of regulation, and that the interests of the state and the community may conflict, and therefore they cannot be identified or substituted.
The article proposes amendments to the procedural legislation, the Laws on the Prosecutor's Office, and on public associations (regarding the interests of the right of prosecutors and public associations to apply to the court with claims in the interests of territorial communities).