You would achieve much more
with a kind word and revolver
than with just a kind word.
The Parliament of Ukraine approved the concept of judicial reform in 1992. Since then Ukraine has been looking for an optimal model of the judicial system and legal procedure. Its next step was marked by the adoption of the new Law of Ukraine On the Judicial System and the Status of Judges in 2010. A lot of responsible officials reported on the necessity to improve the judicial system, the mechanisms of its independence and transparency. The given task was to be decided by means of the legislative act.
Two years of the functioning of the new system is a sufficient period to determine its effectiveness. Public organization Ukrainian Association of Retired Persons does not lay claim to full and complete evaluation of this mechanism. Instead, we have got two years of experience of counteraction with state businessmen who aimed to destroy our public organization that dared to stand in their way of another outrage of the state property. We are aware of the necessity to generalize our own experience with governmental, law enforcement and judicial authorities to protect our rights and interests guaranteed by the legislation.
The desire to defend our legitimate interests in the respect of the rights for the leased premises cost us 16 commercial disputes of various degrees of complexity during the last 2 years. So we have become reluctantly practicing experts with regard to the operation of the national system of commercial proceedings. Today’s material is devoted only to one small dispute, the results of which, however, can have fatal consequences for our existence. The originators of the process understand this fact and therefore are forcing the desired result in a transparent and independent" court by all possible means. It would be appropriate to mention famous synonymic character from another country and historical period: using lawlessness and court you would achieve much more than only using lawlessness.
The prehistory issue
It was covered in the press and television that the state enterprise Ukrainian Forestry Center of Consulting and Logistics Ukrliskonsalting (which founder is the State Forest Resources Agency of Ukraine), occupied the property, documentation and personal belongings the employees of Ukrainian Association of Retired Persons and withheld our property and premises during eight months. The right to use the premises belonged to us under the current lease of the state-owned immovable property, concluded with the competent public authority, and namely the State Property Fund of Ukraine.
It is obvious that the state businessmen would avail themselves the opportunity to alienate the tidbit of the state property as they dispose of great experience of alienation of the state real estate for some "interest". The fact that public organization keeps getting in the way is the obstacle that can be removed simply in the modern conditions. Having receiving the unexpected resistance, law enforcement and judicial bodies were mobilized to fight us.
It was not enough to deprive us of the premises that we’ve renting for 11 years. In accordance with the principles of gangster logic the retired upstarts had to be demonstratively punished. Therefore, the judgment of an institution of the action No. 5011-51/9776-2012 was signed by a judge of the Commercial Court of Kyiv Alla Prygunova on the 20th of July 2012. The claim was sued by the state enterprise Ukrainian Forestry Center of Consulting and Logistics Ukrliskonsalting to Ukrainian public organization Ukrainian Association of Retired Persons to compensate 239 767, 45 UAH. According to the plaintiff, this amount includes debt of the association for rental property, paid utilities and penalties for the late payment of them. It is not possible to check the validity of this amount because both the claim and the calculation cannot be called a model of legal thought. But it does not stop the judges of the Commercial Court of Kyiv who are used to sanctify the thoughtlessness of numerous lawyers of Ukrliskonsalting (we have seen 6 different lawyers only in courts!) upon command from the “top”.
Factual aspects of a case
According to the lease agreement 2006 Ukrainian Association of Retired Persons was renting the premises from the 25th of July 2006. According to the lease agreement 2006 Ukrainian Association of Retired Persons was renting the premises from the 25th of July 2006. The certificate of acceptance and conveyance was signed on the 27th of January 2012, when our people were expelled from their workplaces into the freezing street people by the employees of security firm Perun-06, which was hired respectively by Ukrliskonsalting.
The information provided by Ukrliskonsalting as balance holder of the premises reports that the total area of four rooms makes up 111.2 square meters. Namely this area was the basis for calculation paid to the balance holder by association during five and a half years.
However, when we accidentally came across the technical passport of the premises, that was issued in April 2009, we noticed that the real space makes up rooms only 75,6 square meters. Being misled by the balance holder, our public organization was overpaying monthly for the mythical 35, 6 square meters (more than a third of amount!).
We had prepared immediately and submitted the documents for conclusion of a new lease to the Regional Department of the State Property Fund of Ukraine in Kiev. According to the current legislation, the competition for the lease of the premises was conducted. This competition was announced on the 9th of July 2010 and was won respectively by the association.
However, Ukrliskonsalting ignored their prior consent to enter into the lease and therefore the terms of the competition and its results. Contrary to the current legislation Ukrliskonsalting turned to the regional office of the Fund of the State Property of Ukraine in Kyiv with an appeal to sign a new lease for one a half months till the 6th of September 2010 instead of 2 years and 11 months, which was stipulated by the terms of the competition. We had to appeal to the court.
According to the Resolution of Kiev Appellate Commercial Court, the decision of Kyiv Commercial Court was made on the 22th of November 2010 (disposition No. 35/492 filed by UARP) and enacted on the 22th of February 2011. The third party, the state enterprise Ukrainian forestry center consulting and logistics Ukrliskonsalting launched an incentive to enter into lease contract and the accuracy of which was confirmed by the Resolution of the Supreme Commercial Court of Ukraine on the 12th of April 2011.The association tried repeatedly to reconcile the certificate of retrieval of the leased property under the lease agreement 2006 in Ukrliskonsalting and also the acceptance certificate under the new lease agreement which was concluded on the 22th of February 2011 by virtue of the regulations part 2 of the article No.187 of the Commercial Code of Ukraine and part 2 of the article 12 of the Law of Ukraine On the Lease of the State and Municipal Property.
However our official appeal with the direction to the approval of the relevant acts were unacknowledged by Ukrliskonsalting, so we were compelled to keep on paying for the rent for the space, which we’ve never occupied.
It comes even easier with regard to the costs of the balance holder Ukrliskonslting. The issue of cost reimbursement for the leased property was settled by the agreement regarding the compensation costs for the leased property and public services on the 26th of July 2006.
Under this agreement, we had to share the costs of Ukrliskonsalting for the leased property or actually reimburse a part of the costs for the public utilities proportionally to the occupied area.
As you know, the amount of utility tariffs in Kiev was constantly changing. Especially memorable is the activity of the team of the mayor Chernovetsky, to which belonged the current Director of Ukrliskonsalting Sergiy Symonov.
"Space activity" was designated in particular by increase of public services for legal persons five times greater and what was subsequently canceled by the administrative court.
Ukrainian Association of Retired Persons as a law-abiding entity signed the appropriate supplemental agreement with Ukrliskonsalting for increase of the reimbursement of the utilities. After the judgment the accounts for reimbursement were reduced in fact by the balance holder.
Two years after Ukrliskonsalting takes the supplementary agreement and forms its request to compensate the reimbursement amount, which was never actually sustained? Imagine our surprise when we got two different acts of reconciliation differed by the amount of 98 665, 32 UAH during two and a half months.
Ukrliskonsalting decided to get the additional rent from the public organization retroactively by means of actual increase of the rent contrary to the legal nature of the contract and legal requirements of the lease of the state property, according to which only reimbursed expenses are the expenses sustained by the balance holder.
Moreover, we still do not know what are the actual costs sustained by the Ukrliskonsalting to maintain the premises, as our repeated requests for information about the actual size of tariffs and costs we had to compensate proportionally, remained traditionally unanswered.
It should be added that Ukrliskonsalting refused to maintain the public property and created artificial arrears of utilities. It was reported by Ukrliskonsalting on disuse of premises to supplying organizations. It was also requested to cut off the municipal services. So we were forced to work at the office for almost three months without water supply, provided by Kyivodokanal.
Legal aspects of a case
From a legal standpoint, the claim for reimbursement from Ukrliskonsalting looks generally ridiculous as the businesmmen are trying to conceal their criminal actions with regard to the occupation of our property in other commercial cases. But they are legally entrapped themselves.
Sergiy A. Goncharov found that the lease term 2006 was expired on the 25th of 2009 in the judgment of Kyiv Commercial Court given on the 30th of March 2012 (case No. 56/237 filed by the state enterprise Ukrainian Forestry Center of Consulting and Logistics Ukrliskonsalting against the public organization Ukrainian Association of Retired Persons).
According to the part 2 of the article 35 of the Commercial Code of Ukraine, the facts established by the decision of the Commercial Court during legal investigation are not taken into consideration while solving other disputes with the same parties.
And reimbursement contract specifies that it was concluded for the term of the lease. And thus, Ukrainian Association for Retired Persons should not perform duties with regard to the maintenance of the state real estate after the 25th of April 2009.
Legal dancing with tambourine
Despite the obvious fact of legally unfounded and unsubstantiated claims and the established Commercial Procedure Code, which stipulates two months of proceedings, the lawsuit continues up to this day at Kyiv Commercial Court.
And the strangeness has taken place ever since the first decision on infringement proceedings. According to established procedures, the claim cannot be accepted by the court for consideration in case when a copy of the claim is not directed from plaintiff to the defendant.
Despite the fact that the copy of the claim of Ukrliskonsalting against Ukrainian Association of Retired Persons has been never remitted and that the case file contain evidence that the claim was directed entirely to another person, the legal proceedings were instituted. As we have mentioned above, the first case was heard by judge Prygunova.
The regular meeting designated for the 17th of September 2012 was not held. The announcement on courtroom room reserved for judge Prygunova reported that due to the judge's mission it will be transferred to another judge of what both parties will be notified. No information about the transfer of the case to another judge was picked up at the information center.
The approval that we received on the 23th of September informed that the case was transferred to judge Goncharov. It should be noted that this judge hears already the third case regarding the lease relations of Ukrliskonsalting during the last six months. This judge made reference in the approval that our representative was not present at the hearing on the 17th of September. The next hearing was scheduled to the 3rd of October.
On this day our representative familiarized himself with another announcement on the courtroom door assigned for Goncharov. It contained information that the cases of judge Goncharov are scheduled for an additional automatic distribution. However, the information center supplied us with information, that our case is still recorded by Goncharov.
We were surprised by the fact that the cases that had to be heard by Goncharov later, were passed to other judges as their names were called at the information center. There was no information with regard to the case No. 5011-51/9776-2012 in the information center, public reception or by his assistant.
Another judge to receive our case was judge Mytrohina. Do we have to mention that at the very date of the hearing we’ve noticed the relevant announcement on the courtroom door?
This time our case was transferred to judge Vashchenko. It is already the fourth judge to hear our case during five months. The legal term of our case can be evaluated actually within five minutes! Thus it is quite possible that the judge who had to make the right decision for the requester was to be judge Goncharov. But apparently, it was "high court result" that promoted Sergiy A. Goncharov for the position of a judge of Kyiv Appellate Commercial Court without spending even a year in the status of the judge of Kyiv Commercial Court after the transfer from of the Commercial Court of Donetsk region. Perhaps this is the reason that he did not have enough time to deal with our case "properly" well.
The consultations with known practicing lawyers with respect to this case accompanied by the ignorance of automatic distribution of cases, strange reassignment of judges, specific treatment of specific judges to the current legislation and issue of their decisions that cause Homeric laughter of specialists, led us to sum up that the cases of public organization Ukrainian Association of Retired Persons are considered by someone very powerful. Moreover, this "someone" disposes of top positions at the Highest Commercial Court of Ukraine. And his words mean so much in the commercial judicial system that they overbalance all possible negative consequences of making blatantly illegal decisions for specific judges in the future.
Thanks to the law of Ukraine On the Judicial System, the current judicial system allows the judiciary to solve judicial questions of any complexity without sustaining significant financial cost or by using administrative levers. This can be expropriation of the stall from the enterpriser or ruination of Ukrainian public organization.
This is the main result of the so-called "judicial reform" 2010 for us.
But we can comfort ourselves by the only thing: honest judges still remain in the judicial system. However they cannot make decisions based on the law and according to the objective of the proceedings in the case when there is a "high order". The maximum they can afford themselves in the current judicial system is to pull out of the case. And fourth judge in our case is not nothing but the confirmation of our innocence.