In the «court» process of the VOSKHOD sports complex — the judge initiates a «scheme» of theft of state property

And again, these are my thoughts on the consequences of the judicial reform on the example of the case  regarding the «VOSKHOD» sports complex located on the Boryspilska street, 8.

Right now, the matter concerns the attitude towards the strange ruling of the Economic Court of Kyiv in  case No. 910/18090/173 dated 22.07.2020 by judge A. M. Ivchenko. We will not give a legal assessment  to this decision, but after reading it and other documents, comparing facts and conclusions, let’s  form our own attitude – shall we trust or not this ruling and the judge.

Briefly, on the essence of the matter: in the USSR there was a factory «Kyiv Radio Factory», which went bankrupt in 1996, and the procedure for liquidation and sale of the property of this factory began. In  2016, through an auction, the VOSKHOD sports complex was acquired by «Kyivenergocom» LLC, and the owner of the «Dnipro» PC (Palace of Culture) became «Olet Group» LLC.  For four years, both buyers have not been able to use their property – this was prevented by the old user  of SC VOSKHOD.

Now, reading the court’s ruling, let’s try to understand the grounds for the judge’s recognition of SC VOSKHOD and PC Dnipro as ownerless. Do not be surprised – he recognized this property as OWNERLESS (p. 31 of the decision).

For your information – according to Article 335 of the Civil Code of Ukraine – «An item without an owner or whose owner is unknown is a thing without an owner».

On page 30 of the ruling, it is written «However, as established by the rulings in cases Nos. 50/503, 4/440, 13/468, 30/438-2/344, that the owner of the property (in the city of Kyiv, Boryspilska Street, 8 , Boryspilska Street 10, Pryvokzalna Street 12-A), which is occupied by the GO SC Voskhod does not exist, as such property does not belong to the state, nor to the State Enterprise «VO «Kyiv Radio Factory», – nor to any other person.

Oh, this is news, the judge believes that the property does not belong to the state and this has been  established by four court rulings.

But at the same time, in the same ruling, on page 20, judge Ivchenko A.M. states: «… while making the ruling, the court of cassation came to the conclusion… and therefore the disputed objects are state  property (rulimg of 2007). Maybe the judge made a mistake? Whether it belongs to the state or not, but  on page 23 the judge again states "when making a ruling, the court of cassation came to the  conclusion…, and therefore the disputed objects are state property…».

It seems to me that the conclusions made by judge A. M. Ivchenko based on the rulings of the courts of  cassation regarding the recognition of state ownership of these objects are strange.

Next, let’s get acquainted with the ruling on the case 13/468 dated September 25, 2007.

SE VO «Kyivskyi Radiozavod» appealed to the Commercial Court with a claim to the State Enterprise  «Kyivskyi Radiozavod» for the return of the property located on the Boryspilska street, 9, in the city of  Kyiv, namely: building 2, with an area of 7,886 square meters and rooms in building 9 (page 2 of the  ruling). The decision of the Commercial Court was left unchanged by the resolution of the State  Administrative Court of Ukraine dated November 22, 2007.

It seems that these rulings were related to the other property than SC «Voskhod» and the address of this property is different.

And according to the case 30/438-2/344, the property rights for part of building 90, with an area of  4,338 square meters, were considered. m., located at the address: Kyiv, Boryspilska street, 9.

I remind you that judge A. M. Ivchenko is making a ruling regarding SC Voskhod on the Boryspilska street, 8.

Next, we read the third ruling on the case 50/503 dated January 28, 2011, according to which the judge  concludes that the property does not belong to the state…

On page 9 of the ruling, it is stated: «in the opinion of the court, these objects are state property,  but for a long time, state bodies have not managed to properly register them with the relevant relevant  ministries or enterprises».

Somehow I stopped understanding the logic of judge A.M. Ivchenko and his evidence that the property is  not state property and his ruling has already begun to arouse suspicion.

Further, on page 32, the judge draws attention to this statement: «it is seen that in 1970, a trade  union committee was created from the physical culture team of employees of the SE Kyiv Radio  Factory, which economically built a SC at the address: Boryspilska street, 8, Palace of Culture «Dnipro» at the address: Boryspilska street, 10…. «But we read the ruling of the Arbitration Court in case No. 15-435 dated 12.10.1999: «it is established by the case materials: the  construction of SC “Skhid” was carried out on the order and at the expense of the Kyiv Radio Plant VO… The defendant (the «Kyiv Radio Zavod» VO) was also provided to the court  documents confirming the construction of SC «Skhid» at its own expense».

That is, documents were submitted to the court that these objects were built by the plant itself, but judge  A. M. Ivchenko decided for himself that they were built by the trade union committee and wrote  about this in his decision.

Court regarding the case of SC “Skhid”.

Let’s move on and read on page 31: «…since court rulings (and this is about the four rulings of  2004, 2007 and 2011) established that the objects of immovable property (addresses are specified) do  not belong to anyone … state registrations (in 2015 and 2016) carried out in the absence of a legal  document on the basis of powers of attorney issued by the liquidator… the court comes to the conclusion that the ruling, recording and registration of the right of economic transfer to the specified objects of
immovable property are illegal and therefore subject to cancellation».

So is the registration subject to cancellation or canceled and how does it not belong to anyone if there is a registration?

This judge was completely confused: at the beginning of the sentence he writes – they do not belong to  anyone, then he notes that the right of ownership has been registered, and then he decided for himself about the cancellation.

Continuing his profound opinion, the judge further writes: the fact of the absence of the owner of the  property at the addresses: Boryspilska street, 8, Boryspilska street, 10, Pryvoksalna street, 12-A is  confirmed by … certificates of Kyiv BTI dated 12.23.2010 and 01.12.2011.

You see, the courts have established that this is state property and that it was registered in 2015 and  2016, but today, according to the 2010 and 2011 certificates, the judge ruled that there is no owner of the property.

And here is the main conclusion of this judge: «under such circumstances, the Commercial Court  of Kyiv comes to the conclusion that the immovable property at the address of Boryspilska street, 8,  Boryspilska street 10, Pryvokzalna street,12-A in the city of Kyiv IS OWNERLESS».

Let’s go back to the registration in 2015 and 2016.

We read the ruling on state registration of rights dated 11.01.2016 No. 27787949: «considered the  application for state registration submitted by P.I.B…, acting on the basis of a power of attorney, series  and number, issued on 16.12.2015, publisher: Ministry of Industrial Policy of Ukraine SE «Kyiv radio factory» and documents submitted for state registration. And where is the liquidator’s power of attorney?

Ruling “Voskhod”

The Certificate of Ownership states: OWNER – THE STATE OF UKRAINE represented by the Ministry  of Economic Development and Trade of Ukraine under the right of economic authorization of SE  VO Kyivskyi Radiozavod.

“Voskhod” certificate

A simple thing is clear, well, if you have a reason to cancel the right of economic registration, but the State of Ukraine in the form of the Ministry remains ahead.

But this is not for our judge, he did not see the owner and could not find out the owner, and he  recognizes this property as OWNERLESS.

And then, by his ruling, he cancels all sales contracts at the auction and registration and transfers  ownership to the State? NO – To the public organization, which illegally, without paying a penny to the  State for the use of this property for 20 years, transfers ownership.

Well, let there be SC Voskhod, according to which the NGO had a contract from 1996, which was later  recognized as illegal, and what does PC «Dnipro» have to do with this NGO? And probably a  lot, as they say, «everything is paid for».

Judge A. M. Ivchenko accepts the Resolution, not the Ruling and the question why? And because it is  written in it – the Resolution enters into force immediately after its announcement and can be appealed  to the appellate court.

Now it is clear why – if the ruling was, then it would not enter into force in the event of an appeal and  until the issue is resolved in the appellate court. Therefore, what is my attitude towards this ruling – there is no sense of justice and fairness!

The situation is worse because this ruling can now be used in a «scheme» to steal public property with the help of such judges.

Now we have approximately more than 500,000 objects of state real estate. Almost 40 percent currently  do not have state registration due to lack of funds for registration actions. But third parties use many  objects quietly and without rent. And now they will come and «motivate» the judge and he  will also recognize the property as ownerless and hand it over to the «dealers».

I hope that the judges of the appellate court will deal with this case professionally and that at the very  least they will return this property to the ownership of the state.

More extensive comments on these facts are presented in our video story.

For myself, I can answer the question: do I need such a reform and whether the judiciary has improved  as a result of such a judicial reform. My unequivocal answer is NO.

But, despite all these troubles, one should try to control the actions of the authorities, not to give them  the opportunity to violate the law and fight for their constitutional rights.

Whether a citizen will become a source of power depends on each of us. There is no need to wait for five  years, but there is an effective opportunity to do it every day. And start small – leave comments, thoughts and your impressions of what you read.

D. M. Kachur – a member of the Public Council at the Federal State University, an expert on privatization  issues, the chairman of the board of the NGO «OFFICERS. CITIZENS. FREE UKRAINE»