Region: Ukraine, Ivano-Frankivsk region, Goloshino village
The essence of the case: the protection of EPL’s interest in preservation of the river Bilyj Cheremosh.
The court case: invalidation of the land lease agreement concluded on 16.08.10 between the Goloshinsky village council and the private limited company Mironyuk V.V. and invalidation of the contract of sublease of the land plot with the area of 0.6324 hectares, concluded on 15.10.10 between the private limited company Mironyuk V.V. and the Hydropower Ltd., the obligation of the private limited company Myronyuk V.V. to bring the land plot to its original condition and return it to Goloshyno village council.
Parties: Plaintiff – Prosecutor’s Office of the Verkhovyna district, Respondent 1 – Goloshynsky Village Council, Plaintiff 2 – private limited company Mironyuk VV, Plaintiff 3 – Hydropower Ltd., third party to a dispute on the plaintiff’s side – ICO “Enviroment-Реорle-Law”.
The essence of the problem: as a result of the construction of the small HPP the routes of migration of fish (primarily included in the Red Book of Ukraine Danube salmon) will be blocked, upstream the dam of HPP Cheremosh river will become a misty pond, and downstream the river will remain dry for a significant period of time. In addition, the river Bilyy Cheremosh has the status of a protected area and the construction of hydroelectric power plants violates nature protection legislation of Ukraine.
On November 07, 2014, the Prosecutor’s Office of the Verkhovyna District of Ivano-Frankivsk Oblast appealed to the Commercial Court of Ivano-Frankivsk Oblast with a lawsuit, asking the court to invalidate the land lease agreement dated 16.08.10 concluded between the Holoshynsky Village Council and private limited company Mironyuk VV., the contract of sublease of the land plot of 0.6324 hectares from 10.10.10, concluded between private limited company Mironyuk V.V. and the “Hydropower” Ltd, to order the private limited company Myronyuk V.V. to bring the land plot to its original condition and return it to the Goloshynsky village council.
On November 11, 2014, EPL filed a petition for involvement in the case as a third party on the side of the prosecutor’s office, as we realised that the construction of the hydroelectric power plant would lead to the destruction of the Bilyy Cheremosh river. On November 27, 2014, the court upheld EPL’s petition and allowed EPL’s participation in litigation.
The plaintiff challenges the land lease agreement for two reasons:
1. Lack of voting of the local deputies during decision-making concerning the transfer of land for lease to private limited company Mironyuk V.V.
2. The allocation of the land plot lies outside of the competence of the Goloshynska village council.
On December 11, 2014, the Economic Court of Ivano-Frankivsk Oblast ruled for the plaintiff.
On January 19, 2015, the Lviv Economic Court of Appeal opened an appeal proceedings on the basis of appelate complaint filed by private limited company Mironyuk V.V.
This means that the decision of the court of first instance has not came into force and depends on the results of the appeal proceedings. However, the litigation was delayed. From April 25, 2015 to April 12, 2018, at the request of the same private limited company Mironyuk V.V. the court suspended the proceedings in Verkhovyna District Court on criminal case, in which the head of the Goloshsky Village Council was charged with falsifying those decisions, on the basis of which the controversial agreements were concluded.
On January 30, 2018, the Kosiv District Court ruled to dismiss the village chairman of the Goloshsky Village Council from criminal liability on the basis of Part 1 of Article 367 of the Criminal Code of Ukraine due to the expiration of the limitation period.
The court found that Fedorchak O.M., being on the position of village chairman of Goloshyno village, Verkhovyna district, Ivano-Frankivsk oblast, violated the decision-making procedure, which served as the basis for concluding disputed land lease agreements (concluded on 16.08.2010 and sublease of the land plot concluded on 15.10.10), choosing his method of voting: reading the applications, reporting the nature of the applications and listening the speeches of the deputies present, after which, in the absence of any objections, he took positive decisions on the satisfaction of the applications, this violated Art. 59 of the Law of Ukraine “On Local Self-Government”. On the basis of this decision, on May 30, 2018, the Lviv Economic Court of Appeals quashed the decision of the court of first instance and upheld the disputed agreements, and therefore the right to build a hydroelectric station.
Disagreeing with the decision of the court of appellate instance, ICO “Environment-People-Law” filed a cassation appeal, asking the court to quash the appeal court decision and leave in force the decision of the court of first instance. The prosecutor’s office also filed a cassation appeal with similar claims
On September 26, 2018, the Economic Court of Cassation, part of the Supreme Court, satisfied two cassation complaints, namely, canceled the appelate court decision and referred the case to the court of appeals for new reconsideration.
On May 02, 2019, after re-examining the appeal and explanation of other parties, as well as taking into account the decision of the cassation court, the appellate court made a decision on partial satisfaction of the claims. The decision has now come into force.
The court decisions can be found at:
decision of the first instance – http://reyestr.court.gov.ua/Review/41972371
appeal court decision – http://reyestr.court.gov.ua/Review/74411363
decision of the cassation court – http://reyestr.court.gov.ua/Review/76755668
the decision of the appellate court on the results of the re-examination – http://reyestr.court.gov.ua/Review/81502809