Numerous activists who periodically visited this area in Zakarpattia, cleaned up garbage, and at the same time repeatedly recorded violations by the non-governmental organization “Life of Trees” of the terms of the agreement with the state enterprise “Khust Forestry Experimental Enterprise“.
The activists observed littering of the territory, removal of the top layer of soil, work of heavy construction equipment, water pipes laying, streambeds changes, and tree logging.
Such actions of “Life of Trees” NGO constituted a violation of the “Rules for the use of beneficial properties of forests” that were approved by the Order of the Ministry of Agrarian Policy of Ukraine.
Local activists constantly observed results of the management of “Life of Trees” NGO on the leased forest areas, which demonstrated lack of intentions to comply with the requirements of Article 20 of the Forest Code.
Moreover, the land plots on which “Life of Trees” NGO carries out construction works border on the territory of the Synevyr National Nature Park (NNP), and the plots around the Tereblia-Rika water reservoir, which are in permanent use by the State Enterprise “Khust Forestry Experimental Enterprise“, have the same nature conservation value as the territories of the Synevyr NNP.
As we can see on the example of this situation, some issues require immediate response and thus joint efforts are needed to ensure justice. Therefore, the State Enterprise “Khust Forestry Experimental Enterprise” appealed to the Commercial Court of Zakarpattia Oblast with a lawsuit against “Life of Trees” NGO for termination of the agreement No. 150 for the right of long-term temporary use of forests dated 30.06.2022, referring to the defendant’s violation of the terms of the agreement and Article 20 of the Forest Code of Ukraine.
By the decision of the Commercial Court of Zakarpattia Oblast dated 29.11.2022, the lawsuit was accepted for consideration in the order of general litigation proceedings.
Later, by another court decision dated 20.12.2022, a third party – ICO “Environment-People-Law“ – was involved into the case as the party that does not make independent claims regarding the subject of the dispute on the side of the State Enterprise “Khust Forestry Experimental Enterprise” for the following reasons:
Article 1.4 of the Statute of ICO “Environment-People-Law” indicates that the Organization’s mission is: “The rule of law for environmental protection“, and Article 2.1 states that the purpose of the Organization’s creation and functioning is to carry out charitable activities that consists in protecting their environmental rights, protecting the environment in the interests of society;
The Grand Chamber of the Supreme Court in case 910/8122/17 of December 11, 2018, unquestionably recognized the right of a non-governmental organization operating in accordance with the provisions of the Aarhus Convention and the Laws of Ukraine “On Environmental Protection”, “On Public Associations”, ” On Charitable Activities and Charitable Organizations”, as well as, in accordance with its statute, to represent in court environmental interests of society and its individual members in order to protect and eliminate violations of environmental rights of citizens;
Guided by Articles 50, 51 of the Commercial Procedural Code, namely: third parties who do not make independent claims regarding the subject of the dispute, may enter on the side of the plaintiff or defendant before the end of the preparatory proceedings in the case or before the start of the first court session;
In addition, the Commercial Court of Zakarpattia Region is currently processing the case No. 907/921/22 on the claim of the State Enterprise “Khust Forestry Experimental Enterprise” against “Life of Trees” LtD. In the same case, ICO “Environment-People-Law” is a third party that do not claim independent claims on the subject of the dispute on the side of the plaintiff regarding termination of Agreement No. 149 dated 30.06.2022 on the right to long-term temporary use of forests;
The decision in this case may affect the rights and obligations, and that is why ICO “Environment-People-Law” was involved in the case on the side of the plaintiff.
In the court session on August 16, 2023, the court announced the introductory and final parts of the decision in accordance with Article 240 of the Economic Procedural Code of Ukraine.
Having reviewed the materials submitted by the parties, having heard authorized representatives of the parties, having comprehensively and fully clarified all the factual circumstances on which the claims and their objections are based, and having objectively assessed the evidence that has legal significance for consideration of the case and resolution of the dispute on the merits, the court, –
has ruled the following:
According to the provisions of Article 651 of the Civil Code of Ukraine, the agreement can be changed or terminated by a court decision at the request of one of the parties in the event of a significant breach of the agreement by the other party and in other cases established by the agreement or the law, i.e. it is a breach of the agreement by one of the parties, which leads to the impossibility of achieving the goals of the agreement for the other party.
Assessment of the violation of the agreement as significant is carried out by the court in accordance with the criteria established by the specified norm. The evaluative concept of the materiality of an agreement breach is disclosed by the legislator with the help of another evaluative concept – “significant extent” of depriving the party of what it was counting on when concluding the agreement.
The law recognizes the amount of damage caused by the violation as another criterion for a significant breach of an agreement, which prevents the injured party from receiving what was expected when the agreement was concluded. At the same time, it is not only about the monetary expression of the damage caused, direct losses, but also about cases when the injured party will not be able to use results of the agreementt.
Materials of the case, in particular, the Act of in-person inspection of the forest area dated August 5, 2022, demonstrate that garbage in bags was left in block 31 of section 17, and the garbage was not removed from the territory. There is also a parking for cars in this area in block 31, section 17. For its arrangement, earthworks were carried out, the top layer of soil was removed, leveled and covered with gravel. In addition, the case materials established that the forest area, in accordance with the Order No. 296 of June 28, 2022 of the Regional Military Administration and the terms of the disputed Agreement, was provided to “Life of Trees” NGO for recreational purposes (setting up a seasonal camp for children from the war zone). Also, “Life of Trees” NGO carried out works to arrange a campsite on the allocated land plot.
Taking into account the above, the court came to the conclusion that the circumstances have been proven regarding the fact that the forest area in block 31 of section 17 on the territory of the Dragovo Territorial Community of the Khust District of Zakarpattia Oblast was allocated to the NGO “Life of Trees” for long-term temporary use in order to use the beneficial properties of forests for cultural and recreational purposes,but in fact it is not used for its intended purpose, and “Life of Trees” NGO caused deterioration of the condition of the forest area.
Therefore:
The court considers the above-mentioned violations of forest legislation committed by the defendant to be a significant violation of the terms of the Agreement No. 150 dated June 30, 2022 on the right to long-term temporary use of forests.
Under such circumstances, the agreement for long-term temporary use of forests is subject to termination.
Therefore, based on the stated claims, results of a systematic analysis of provisions of the current legislation of Ukraine and the case materials, the court decided to satisfy the claims of the State Enterprise “Khust Forestry Experimental Enterprise“ and the city of Khust against “Life of Trees” NGO in Uzhhorod on termination of the agreement for the right of long-term temporary use of forests.
So, in today’s environmental conditions, everyone is responsible for our future. As we can see on the example of this court decision, only united will we be able to change the situation and oppose the use of beneficial forest properties for other purposes.
