GAYVORONSKIY v. UKRAINE
Inadmissible
Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Volodymyr Butkevych
The applicant, Mr Nikolay Sergeyevich Gayvoronskiy, is a Ukrainian national who was born in 1949 and lives in Dzhankoy. The Ukrainian Government (“the Government”) were represented by their Agents, Mrs Z. Bortnovska, succeeded by Mrs V. Lutkovska and Mr Y. Zaytsev. Pursuant a contract concluded in June 1992, the applicant advanced 40,000 karbovantsi to the State-owned “Zarichny” Farm (Радгосп «Зарічний») for construction of a residential house for his family. According to the text of the contract, the remainder of the funds were to be borrowed from the U.S.S.R. State bank. The contract did not specify whose responsibility it was to apply for the loan. Neither party secured the loan or otherwise financed the remainder of the construction costs. The plot of land located at the address specified in the construction contract was never formally assigned to the applicant. In 1993 the municipality allocated the applicant a plot for the construction of a house at a different address. He used this plot for growing vegetables. In 1993 the unfinished house, located at the address specified in the construction contract, was allocated to the R. family, who had advanced funding for the construction of a house in 1991. Having invested their personal funds, the R. family continued the construction and moved into the house. By 1999 the Zarichny Farm was privatized, its shares having been distributed between employees and other private persons, and transformed into a collective agricultural enterprise (Колективне сільськогосподарське підприємство). In June 1994 the applicant instituted civil proceedings in the Dzhankoy Court (Джанкойський міський суд Автономної республіки Крим), seeking to oblige the Zarichny Farm to fulfil the contract, namely, to finish the construction of the house located at the address specified in it. The R. family were summoned to the proceedings as a third party. The Zarichny Farm lodged a counterclaim, seeking to have the contract with the applicant annulled. On 10 June 1997 the court awarded the house, allocated to the R. family, to the applicant and dismissed the Zarichny Farm’s counterclaim. This judgment was not appealed against, became final and the enforcement proceedings were instituted to effect the house transfer to the applicant. The R. family refused to leave the house, referring to the lack of any decision in respect of their rights, particularly, on reimbursement of their investments and provision of an alternative residence. The applicant instituted separate eviction proceedings against the R. family. On 20 March 1998, while the eviction proceedings were still pending, the Presidium of the Supreme Court of the Autonomous Republic of the Crimea (“the Supreme Court of the ARC”; Верховний Суд Автономної Республіки Крим) quashed the judgment of 10 June 1997, following a supervisory protest lodged by the Deputy Prosecutor of the Autonomous Republic of Crimea and remitted the case for a fresh consideration. The court instructed the first-instance court to explore further whether the applicant could claim entitlement to the house at the address in question, particularly, in view of the unclear contractual language concerning an obligation to obtain a bank loan for construction and considering that the applicant had also been allocated a plot of land for construction under a different address. Between 12 May and 19 August 1998 the proceedings were suspended at the applicant’s request in view of his business trip. In February 1999 the applicant amended his claims, seeking punitive damages from the Zarichny Farm in addition to the house transfer and joining his eviction claims to the main proceedings. On 25 February 1999 the court dismissed the applicant’s claims and the Farm’s counterclaim. It found that the R. family had lawfully obtained the house in issue and that the applicant’s house was due to be located at another address. The court also dismissed the Farm’s counterclaim. The applicant appealed in cassation. On 19 May 1999 the Supreme Court of the ARC quashed this judgment, having found the first-instance court’s analysis insufficient, particularly as regards the legal nature of the construction contract and the parties’ obligations to secure a bank loan, and assumed jurisdiction over the case, referring to its complexity and delay in resolution. On 21 December 1999 the Supreme Court of the ARC found that an expert assessment was necessary to establish the value of the disputed house and the applicant’s contribution in the new hryvnya currency and according to the current prices. The court obliged the defendant to pay for the assessment. In 2000 the Zarichny Farm was reorganized, two entities, the Agricultural Cooperative “Zarichny” (“the Zaricnhy Cooperative”; Сільськогосподарський виробничий кооператив «Зарічний») and the “K.P.A” CJSC (ЗАТ «Селянська промислова артіль») having subsequently emerged on its basis. As the fee for the expert assessment commissioned by the court remained unpaid owing to the defendant’s reorganization and financial difficulties of the emerging entities (i.e., the Zarichny Cooperative’s bank account had been blocked by the authorities), on 23 October 2000 the Supreme Court of the ARC ordered to advance the respective payment from its own budget. In April 2001 the expert assessment was completed and the proceedings were resumed. The Supreme Court of the ARC determined that the Zarichny Cooperative was the Zarichny Farm’s successor in respect of the obligations vis-à-vis the applicant and summoned it into the proceedings. In May 2001 the applicant altered his claim. He informed the court that, having obtained other lodging, he was no longer interested in the construction of a house and demanded termination of the contract and compensation of damage. The defendant amended its counterclaim, advancing new justifications for the annulment of the contract. On 21 May 2001 the Supreme Court of the ARC annulled the contract, having found that its provisions did not comply with the law applicable at the material time. Based on the findings of the expert assessment, it awarded the applicant against the Zarichny Cooperative 36,523.24 hryvnyas (UAH) as the equivalent to his investment into the construction and UAH 365.23 in court fees. The applicant appealed in cassation to the Supreme Court of Ukraine, seeking a higher payment. On 24 October 2001 the Supreme Court heard the case on the merits and upheld the judgment of 21 May 2001. On an unspecified date the enforcement proceedings were instituted to collect the debt due to the applicant pursuant the judgment of 21 May 2001. On 9 August 2005 the State bailiffs forwarded the enforcement writ to the trustee in bankruptcy, owing to the fact that the debtor had been declared bankrupt and subject to liquidation. The applicant did not inform the Court whether and to what extent the judgment had been eventually enforced. In 1995 the four members of the applicant’s family obtained privatization certificates entitling them to privatize a share of the State property. The applicant alleges that they were unable to invest these certificates in a satisfactory manner on account of the unlawful conduct of the authorities. In 2002 the applicant had several arguments with post-office employees concerning the procedure of sealing and stamping his correspondence to the Court. In addition, a delivery slip concerning one of his registered letters to the Court was lost. In 2005 the Zarichny Cooperative allegedly failed to produce at the applicant’s request a document certifying that he had been formerly employed by the Zarichny Farm.