REPRESENTATION OF THE UNION OF COUNCILS FOR JEWS IN THE FORMER SOVIET UNION AND UNION OF JEWISH RELIGIOUS ORGANISATIONS OF UKRAINE v. UKRAINE
Inadmissible
Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano
1. The applicants are the Representation of the Union of Councils for Jews in the Former Soviet Union (“the first applicant organisation”) and the Union of Jewish Religious Organisations of Ukraine (“the second applicant organisation”). According to the applicants, the first applicant was established in 2000 "with the purpose of representation of the interest of the Union of American Councils for Jews in the Former Soviet Union and for monitoring the situation regarding observance of human rights, facilitation of harmonisation of interethnic and inter-religious relations". The second applicant "is a religious organisation" aimed at "assistance to Jewish religious organisations in the protection of religious and other human rights". They were represented before the Court by Mr M. Sheykhet. 2. 3. The applicant organisations alleged that several ancient Jewish cemeteries on the territory of Ukraine were in a state of neglect, in breach of a bilateral agreement of 4 March 1997 between the United States of America and Ukraine “on the protection and preservation of cultural heritage” and of the Ukrainian laws on cultural heritage. The applicant organisations instituted numerous proceedings requesting the courts to reestablish the boundaries of those cemeteries and to ban all construction on the land concerned. 4. By a letter of 16 November 1998 the Volyn Region Natural History Museum informed the Head of the Volodymyr-Volynskyy Town Council that in October 1997 the foundations of an ancient building near the Kosmos cinema had been examined. It was established that these were the vestiges of an 18th-19th century construction over the tomb of a prominent rabbi. 5. In May 1999 the first applicant organisation asked the Head of the Volodymyr-Volynskyy Town Council to prohibit any common use of the land on which the former Jewish cemetery was situated and to forbid the privatisation of any buildings that already existed on that territory. It proposed that the Jewish community would maintain the land and would not carry out any new burials on the site. 6. In reply, the town council informed the Chief Rabbi of Ukraine that it was favourable to the above proposal. It noted, however, that there were buildings on the territory of the former Jewish cemetery, as well as some unfinished constructions. It was also noted that the council had informed the first applicant organisation’s representative about the existing problems and proposals, but that no compromise had been reached. 7. The photographs and maps submitted to the Court by the applicant organisations show that there is a park and some constructions on the land in question (garages, a block of flats, an unfinished multi-storey construction, a cinema, a playground, a sports ground and a school). 8. According to the information submitted by the applicant organisations, the last burial at the cemetery took place in 1939. There are around twenty tombstones within the cemetery; the majority of them are not in their original places. The tombstones, however, are not visible on the photographs submitted. 9. On 8 April 2002 the Volyn Regional Commercial Court allowed the applicant organisations’ claim against the Volodymyr-Volynskyy Town Council to have the historic boundaries of the Jewish cemetery reestablished as they existed before the Second World War in the town of Volodymyr-Volynskyy. 10. On 5 June 2002 the Lviv Commercial Court of Appeal amended that decision. The court held that the applicant organisations had requested only the establishment of the cemetery’s historical boundaries and therefore the boundaries of the cemetery that existed at the time of the German occupation during the Second World War should be determined in accordance with the relevant technical documentation. There is no information about the enforcement of that decision. 11. Following a complaint lodged by the applicant organisations against the Volodymyr-Volynskyy Town Council, on 17 December 2002 the Lviv Commercial Court of Appeal banned all construction within the historic boundaries of the ancient Jewish cemetery. 12. On 13 February 2003 the bailiffs’ service terminated the enforcement proceedings in this case, since the town council had informed it that there was no construction on the site. On 29 October 2003 the Lviv Commercial Court of Appeal quashed that decision. On 10 January 2004 the same court informed the bailiffs’ service that the decision of 17 December 2002 should be understood as banning all construction works by the council. The council was also not allowed to issue any construction permits. It appears that in 2004 the enforcement proceedings were again terminated. The applicant organisations challenged the termination decision in the court. This Court has not been given any further information about the developments in these proceedings, despite an explicit request to that effect, 13. The applicant organisations also challenged in the courts a decision of 1974 to adopt a general construction plan for Volodymyr-Volynskyy and a decision taken in 1986 to construct an administrative building for the communist party on a certain plot of land. The courts rejected those claims as time-barred. 14. It appears from the documents submitted by the applicant organisations that they also instituted other court proceedings. However, it is impossible to establish, on the basis of the materials in the file, the subject matter of those proceedings. For example, the applicant organisations challenged a decision of the executive committee of the Volodymyr-Volynskyy Town Council of 17 August 2001. It appears from the decision of 1 December 2003 of the Lviv Commercial Court of Appeal that by a decision of 7 August 2003, the Volyn Regional Commercial Court had left the applicant organisations’ claim unexamined. The applicant organisations did not provide any further details about those proceedings (the subject matter of the council’s decision, the reasons for leaving the claim without consideration, and whether they appealed against the decision of 1 December 2003). 15. It follows from a letter of 13 December 2004 submitted by the applicant organisations to the Minister of Justice, the Supreme Court of Ukraine and to other State bodies that at least eight sets of court proceedings were instituted by the applicant organisations in respect of the cemetery in Volodymyr-Volynskyy. The applicant organisations stated that at the end of 2004, six of those sets of proceedings were still pending. 16. In particular, on 25 May 2005 the Volyn Regional Commercial Court terminated the proceedings in which the applicant organisations were seeking the cancellation of the Volodymyr-Volynskyy Town Council’s decision on the reconstruction of a certain building. The court held that the building had already been reconstructed and that fifty-two people had bought apartments in it. The court further held that it was not competent to examine such claims. There is no information as to whether that decision was appealed against. 17. On 24 May 2006 the Higher Commercial Court of Ukraine upheld the lower courts’ decisions that the applicant organisations’ claim, by which they had challenged the contract between the town council and a private party for the sale of an unfinished building, was not within the jurisdiction of the commercial courts. 18. By a final decision of 24 January 2007 the Higher Administrative Court of Ukraine upheld the lower courts’ decisions to reject the applicant organisations’ claim to have the historic boundaries of the Jewish part of Yanovskyy cemetery in Lviv re-established. The courts held that the documents submitted by the applicant organisations (including 19th century land-sale contracts and archive maps) could not serve as a legal basis for establishing the historic boundaries of the cemetery with a view to its further preservation, since streets and buildings were now situated on part of the land. 19. The applicant organisations did not submit a copy of their claim, copies of the appeals lodged by them or a copy of the first-instance court decision taken in those proceedings. 20. By a final decision of 6 March 2007 the Higher Administrative Court of Ukraine upheld the lower courts’ decisions rejecting a request lodged by the applicant organisations to re-establish the historic boundaries of the ancient Jewish cemetery in Lviv. The applicant organisations claimed that before the 1950s there had been a cemetery on a plot of land indicated by them. The court held that there were no tombstones on the land indicated by the applicant organisations. 21. The applicant organisations did not submit copies of their claims or of the appeals lodged by them within those proceedings. 22. By a final decision of 14 February 2007 the Higher Administrative Court of Ukraine refused to consider the applicant organisations’ appeal in cassation against the lower courts’ refusals to re-establish the historic boundaries of the Jewish cemetery in the town of Drogobych. The court held that as the case had been considered by the lower courts under the commercial-law procedure, the Higher Administrative Court had no jurisdiction to examine the applicant organisations’ appeal in cassation. 23. Apart from a copy of that decision, the applicant organisations submitted only a copy of a decision of the Lviv Commercial Court of Appeal. Copies of all other documents (claims, appeal, and court decisions) are missing. 24. By a final decision of 11 May 2010 the Higher Commercial Court of Ukraine upheld the lower courts’ decisions rejecting as unsubstantiated the applicant organisations’ claim against the failure of Kolomyya Town Council and two companies to ban any construction and to order the land boundary survey to re-establish the historic boundaries of the Jewish cemetery in the town of Kolomyya. In particular, the applicant organisations had complained that a petrol filling station had been constructed on land on which a cemetery had been situated. 25. The courts found that in 1997 the executive committee of a local council had issued permission for a mobile gas station to be installed on the land in question. An expert examination held in 2005 established that it was impossible to conclude whether the land in question was part of an ancient Jewish cemetery. In 2007 the same body allowed a private company, B., to build a permanent gas station on that plot, which the company did. The applicant organisations did not ask to be given the land in question. 26. The Higher Commercial Court noted that the applicant organisations had failed to substantiate in which way their rights had been breached and the legal basis for their claims. Moreover, it noted that the court decisions could not be based on “religious norms of Judaism”. 27. The applicant organisations did not submit copies of the claims and appeals which they had lodged in that case.