With whom and over what do disputes over subsoil use mostly arise?
In relations related to the use of subsoil, disputes usually arise between individuals or legal entities and a public authority to challenge its decisions (regulations or individual acts), actions or inactions.
In most cases, the State Service of Geology and Mineral Resources of Ukraine (Derzhgeonadra) is the authority.
Disputes typically arise over the granting of special permits for subsoil use, extension, re-issuance, renewal, suspension or cancellation of permits and amendments to them.
Which court usually considers disputes over the right to use subsoil?
Given that in most cases these are public law disputes, they are subject to the jurisdiction of administrative courts.
According to the Article 2 of the Code of Administrative Procedure of Ukraine, “the task of administrative proceedings is to resolve disputes in the field of public law relations in a fair, impartial and timely manner in order to effectively protect the rights, freedoms and interests of individuals, as well as the rights and interests of legal entities from violations by public authorities”.
In some cases, commercial courts hear cases.
When you need to protect your rights and interests in court?
Before going to court, you should use all other available tools, as litigation in Ukraine is a long and complicated process.
Only a detailed study of each specific case allows to determine whether the right has been violated at all. And even if the right has been violated, in some cases going to court may be an irrational use of resources and time, because the person whose right has been violated is not interested in the process, but in the result, which in many cases can be achieved in an alternative way without going to court. Moreover, it saves resources and time.
If going to court is the only tool to restore the violated right, then it is necessary to identify the strengths and weaknesses of the legal position and, if necessary, take certain preparatory actions.
Please note that the time limit for applying to court is limited. After all, in accordance with the provisions of Article 122 of the Code of Administrative Procedure of Ukraine, “a six-month period is established for applying to an administrative court for the protection of the rights, freedoms and interests of a person, which, unless otherwise provided, is calculated from the day when the person learned or should have learned of the violation of his or her rights, freedoms or interests”.
It is not uncommon for a court to dismiss a claim due to the failure to meet the deadline for filing a lawsuit, even if the claimant has a strong legal position.
Particular attention should be paid to the formulation of claims, as they determine the likelihood of satisfying the claim and the possibility of achieving the desired result. That is why they should be well thought out, balanced and take into account current case law.
How long does a trial usually take in a particular case?
This period depends on the complexity of the case and, accordingly, on the form of administrative proceedings (general or simplified action proceedings).
This period usually lasts from 1 to 5 years.
Is the violated right restored automatically when the court decision enters into force?
Actually, not. A court decision that has entered into force is considered only the first stage. More often in these types of court cases, court decisions are of a special nature. By its decision, the court does not restore the violation of the right, but only states the fact of its violation and obliges the authority to restore it. Sometimes, a new application to the court is required to encourage the public authority to comply with the court decision.
Therefore, it is very important to correctly formulate claims based on current case law. This is to ensure that, if the claim is satisfied, it can be enforced.
Incorrectly formulated claims may result in the court’s dissatisfaction with them or inability to enforce a court decision.
Therefore, claims are the most important aspect in such cases, as the proceedings can last for years, and even if the claim is satisfied, the applicant will not get the desired result due to the vagueness of the claims.
How to determine the prospects of going to court to protect rights and interests?
It is impossible to determine the prospects of going to court without the help of specialised experts.
To determine a violation, it is necessary to have knowledge of the substantive law governing subsoil use, and in some cases, geological knowledge, as the opponent in the litigation will be lawyers and geologists of the State Service of Geology and Mineral Resources.
Without knowledge of the relevant legislation and understanding of the specifics of its enforcement by the State Service of Geology and Subsoil of Ukraine, it is very difficult to achieve the desired result, as a positive court decision is not the desired outcome. For lawyers who specialise exclusively in litigation, this is probably a victory, but for a person whose right has been violated, a positive court decision that does not allow them to obtain the desired result is probably not.
We are a team of lawyers and geologists with many years of experience in the field of subsoil use. We know how and what needs to be done to ensure that our clients get the desired result.
