Vinnitsa Human Rights Group filed an objection to the statement of claim

To Judge A.Y. Zaitsev of the Leninsky District Court of Vinnitsa
in the civil jurisdiction case No. 4711/08

Objection to the Statement of Claim of the Stryzhavka Penal Colony
of the State Department of Ukraine for the Execution
of Criminal Punishments in Vinnitsa Oblast (No. 81) (hereinafter - CLAIMANT) to the Vinnitsa Municipal Public Organisation 'Vinnitsa Human Rights Group' (DEFENDANT) regarding the protection of honour, dignity,
and business reputation of a legal entity

In accordance with the provisions of Art. 128 of the Civil Procedure Code of Ukraine, I am submitting an objection to the civil claim to the court.
The Defendant – the legal entity Vinnitsa Municipal Public Organisation 'Vinnitsa Human Rights Group', EDRPOU code 26011780, has reviewed the text of the statement of claim. The Defendant does not recognise the civil claim in its entirety, as it is groundless, far-fetched, drafted in violation of the norms of the current civil procedure law, and the claims are not only not based on the norms of substantive law but directly contradict them. Furthermore, as is apparent from the text of the statement of claim and the documents attached thereto sent by the court to the address of the DEFENDANT, it was filed in violation of the rules of jurisdiction; therefore, the statement should be returned to the claimant in accordance with the provisions of Clause 4, Part 3 of Art. 121 of the Civil Procedure Code of Ukraine. Additionally, there are other obstacles to the commencement of proceedings in the case, in particular, the court fee has not been paid in the amount and in the manner determined by law.
1. Justification of the procedural inadmissibility of the statement of claim.
The statement of claim is not within the jurisdiction of a court of general jurisdiction, as it essentially represents a dispute between one legal entity and another legal entity.
As is apparent from the text of the statement of claim, the 'DEFENDANT' field states the following: 'Municipal Public Organisation Vinnitsa Human Rights Group, leader Dmytro Leonidovych Hroisman, Stakhurskoho St., 72, apt. 57, Vinnitsa, postal code 21050'. No other defendants are indicated in the statement. Also attached to the claim is a Certificate from the Main Directorate of Statistics in Vinnitsa Oblast No. 13/4-1429 dated 24.06.2008, from which it is clearly seen that the Defendant – Vinnitsa Municipal Public Organisation Vinnitsa Human Rights Group, EDRPOU code 26011780, is a legal entity. Thus, the statement of claim was filed by a legal entity against a legal entity, which excludes the jurisdiction of this statement to the Leninsky District Court of Vinnitsa as a court of general jurisdiction. This statement of claim should be considered in the commercial court in accordance with the provisions of Clause 1, Art. 12 of the Commercial Procedure Code of Ukraine. According to the provisions of Art. 115 of the Civil Procedure Code of Ukraine, 'If a judge, when deciding the issue of opening proceedings in a case, determines that the case is not within the jurisdiction of that court, the statement is returned to the claimant for filing with the appropriate court, for which a ruling is issued'. However, for unclear reasons, the judge mistakenly opened proceedings on the claim of one legal entity (Claimant) against another legal entity (Defendant).
1.2. The statement of claim, in the form in which it was filed with the court and sent to the DEFENDANT for objections, was subject to being left without movement in the order provided for by Art. 121 of the Civil Procedure Code of Ukraine, as the court fee was not paid in the amount and in the manner determined by law.
1.2.1. Justification of non-payment of the court fee in the AMOUNT determined by law
a) As is apparent from the content of the claims contained on p. 5 of the statement of claim, they consist of non-property claims (imposing on the leader of the Vinnitsa Human Rights Group, Dmytro Leonidovych Hroisman, the obligation to publish a refutation of certain information) and property claims – 'collection from the author of the articles, Dmytro Leonidovych Hroisman, of 100,000 (one hundred) thousand [UAH] in moral damages'.
b) In accordance with the provisions of Clause 5, Art. 119 of the Civil Procedure Code of Ukraine: 'documents confirming the payment of the court fee and payment of expenses for information and technical support for the consideration of the case are attached to the statement of claim'. As is apparent from the materials sent by the court to the defendant, among them are two payment orders confirming the payment of the court fee and 'expenses for information and technical support for the consideration of civil cases of a non-property nature'. The court fee was paid in the amount of 5% of the claim value – 5,000 UAH 00 kop., and the expenses for information and technical support were paid in the amount of 30 UAH 00 kop.
c) In accordance with the provisions of Clause 5, Section XI 'Final and Transitional Provisions' of the Civil Procedure Code of Ukraine: 'Until the entry into force of the law regulating the procedure for payment and the amounts of the court fee, the court fee upon application to the court is paid in the order and amounts established by legislation for state duty'. Therefore, in determining the amount of the court fee due, the claimant and the court should have applied the provisions of the Decree of the Cabinet of Ministers of Ukraine 'On State Duty' of 21 January 1993 with subsequent amendments and additions. In turn, the provisions of the aforementioned Decree established that, in accordance with its sub-clause 'zh', Clause 1, Art. 3, the rate of state duty for filing statements of claim of a non-property nature with the court is set at 1 non-taxable minimum income of citizens – 17 UAH 00 kop. The said amount is subject to payment regardless of the payment by the claimant of 5,000 UAH for the declared property claims. However, the court was not provided with confirmation of the payment of the court fee for the declared non-property claims. The necessity for separate payment of the court fee in the amount of 17 UAH 00 kop is also confirmed by the provisions of the Resolution of the Plenum of the Supreme Court of Ukraine No. 9 dated 21.12.1990 'On the practice of application by courts of procedural legislation when considering civil cases in the first instance'. Thus, Clause 15 of the said resolution determines that: 'When determining the amount of state duty, courts should keep in mind that statements in which the issue of simultaneous resolution of property and non-property disputes is raised are paid with state duty at the rates established for claims of a property nature and rates for non-property claims'.
d) In accordance with the provisions of Clause 1, Art. 121 of the Civil Procedure Code of Ukraine: 'a judge, having determined that the statement of claim was filed without compliance with the requirements set forth in Articles 119 and 120 of this Code, or the court fee has not been paid, or the expenses for information and technical support for the consideration of the case have not been paid, issues a ruling in which the grounds for leaving the statement without movement are indicated, which is reported to the claimant, and provides them with a term for remedying the deficiencies'. The judge mistakenly opened proceedings in the case, failing to notice significant deficiencies in the statement of claim that precluded the opening of proceedings. The said deficiencies have not been remedied at the time of the preliminary court hearing.
1.2.2. Justification of the violation of the procedure for payment of the court fee and expenses for information and technical support.
a) As stated above, the procedure for payment of the court fee – it must be paid in the order determined for state duty.
b) In accordance with the provisions of Art. 1 of the Decree of the Cabinet of Ministers of Ukraine 'On State Duty': 'Payers of state duty on the territory of Ukraine are natural and legal persons for the performance of actions in their interests...'. According to Art. 2 of the said Decree, the filing of statements of claim, which are an object of state duty collection, refers to the aforementioned actions. Therefore, it is obvious that the subject of state duty payment for the claim of the Stryzhavka Penal Colony of the State Department of Ukraine for the Execution of Criminal Punishments in Vinnitsa Oblast (No. 81), EDRPOU code 08562588, must be this very institution. However, as can be verified from the documents provided to the court, this is not the case. As follows from payment order No. 1041 dated 25 June 2008, the payer of the 5,000 UAH 00 kop court fee 'for the hearing of the case in the Leninsky District Court of Vinnitsa on the claim against the leader of the municipal public organisation Vinnitsa Human Rights Group, Dmytro Leonidovych Hroisman' is another legal entity, namely 'Enterprise SVK No. 81', EDRPOU code 08679600. The above is also confirmed by certificates provided upon the request of the Vinnitsa Human Rights Group by the Main Directorate of Statistics in Vinnitsa Oblast (attached). As follows from the said documents, Enterprise SVK No. 81, EDRPOU code 08679600, is a legal entity, whereas, as is apparent from the statement of claim, Enterprise SVK No. 81 is not the claimant in the case, did not file a claim against the legal entity – Vinnitsa Human Rights Group, and did not indicate which rights and legal interests of this enterprise were violated by the defendant. Considering the above, it should be recognised that by demanding the collection of 100,000 UAH 00 kop, the CLAIMANT – Stryzhavka Penal Colony of the State Department of Ukraine for the Execution of Criminal Punishments in Vinnitsa Oblast (No. 81), EDRPOU code 08562588, did not pay the court fee at all, and the court fee paid by another legal entity cannot be recognised as having been paid in the manner established by law.
c) Regarding the expenses for information and technical support for the consideration of the Claimant's statement of claim, it should be noted that the Claimant did not pay these expenses; therefore, this is a circumstance that excludes proceedings in the case. The procedure for payment of expenses for information and technical support for judicial processes related to the consideration of civil and commercial cases, and their amounts, was approved by the Resolution of the Cabinet of Ministers of Ukraine No. 1258 dated 21 December 2005. In particular, Clause 2 of the said resolution establishes: 'expenses are paid by natural and legal persons who apply to the court with statements of claim'. As stated above, the legal entity 'Enterprise SVK 81', EDRPOU code 08679600, did not apply to the court with a statement of claim, and the Claimant – legal entity Stryzhavka Penal Colony of the State Department of Ukraine for the Execution of Criminal Punishments in Vinnitsa Oblast (No. 81), EDRPOU code 08562588, did not provide the court with confirmation of his payment of expenses for information and technical support for the consideration of the case. This is a ground for leaving the claim without movement for the remediation of deficiencies, since non-payment of expenses for information and technical support for the claim excludes consideration of the claim.
1.3. Furthermore, the statement of claim did not comply with the requirements of Art. 119 of the Civil Procedure Code of Ukraine regarding the indication of the value of the claim in relation to property claims. The claim states that '100,000 (one hundred) thousand' is demanded from the claimant, but the currency in which the reimbursement is required is not specified.
2. Justification of the far-fetched and illegal nature of the claim demands.
2.1. Regarding the alleged fact of harm caused by the Vinnitsa Human Rights Group to the honour (!) and dignity (!) of the legal entity claimant, namely – Stryzhavka Penal Colony of the State Department of Ukraine for the Execution of Criminal Punishments in Vinnitsa Oblast (No. 81). The claimant, named above, is not endowed with honour and dignity. It is not endowed with these qualities not only because, according to the findings of Ukrainian human rights organisations, human rights are being massively and brutally violated in the institutions of the penal service of Ukraine; it is not endowed with them not only because the leaders of the penal service of Ukraine, Vasyl Koshchynets and Mykola Iltyai, were 'awarded' the anti-prize 'Budyak of the Year' twice in 2006 and 2007 for the most disgraceful act against human rights in Ukraine, with which their contribution to human rights violations was marked by the legal entity – All-Ukrainian Public Organisation 'Ukrainian Helsinki Human Rights Union'; the defendant is not endowed with honour and dignity even not because human rights violations in the penal system of Ukraine have been repeatedly recognised by the European Court of Human Rights (see decisions in the cases 'Nazarenko v. Ukraine', 'Dankevych v. Ukraine', 'Khokhlich v. Ukraine', 'Poltoratsky v. Ukraine', 'Kuznetsov v. Ukraine', 'Yakovenko v. Ukraine', etc.). The claimant has no honour and dignity because they are qualities inherent exclusively to human beings – members of the biological species homo sapiens – natural persons, to whom the claimant Stryzhavka Penal Colony of the State Department of Ukraine for the Execution of Criminal Punishments in Vinnitsa Oblast (No. 81) does not belong, and not only for the reasons stated above, but also because it is a legal entity, which is confirmed by Certificate No. 13/4/1595 dated 17/07/2008, issued by the Main Directorate of Statistics in Vinnitsa Oblast (attached). Therefore, in connection with the absence of honour and dignity in the Claimant, damage to them could not have been caused.
2.2. Regarding the alleged harm caused to the 'business reputation of the Claimant', in order to determine the possibility of such harm, the court will need to determine the organisational-legal status of the Claimant – Stryzhavka Penal Colony of the State Department of Ukraine for the Execution of Criminal Punishments in Vinnitsa Oblast (No. 81). This organisational-legal status is determined by the provisions of the Law of Ukraine 'On the State Penal Service of Ukraine' dated 23/06/2005, namely by the provisions of Art. 6 of the said law, which determines that 'the State Penal Service of Ukraine, in accordance with the law, carries out law enforcement and crime-fighting functions and consists of a central executive body for the execution of punishments with special status, its territorial management bodies, the penal inspectorate, institutions for the execution of punishments, pre-trial detention centres, paramilitary formations, educational institutions, healthcare institutions, enterprises of institutions for the execution of punishments, other enterprises, institutions, and organisations created to ensure the fulfilment of the tasks of the State Penal Service of Ukraine'. Thus, it is obvious that the Claimant is an institution, a state authority. Business reputation is not inherent to state authorities and their institutions. To know that state institutions are not endowed with business reputation, one only needs to read the content of the Information Letter of the High Commercial Court of Ukraine dated 28.03.2007 No. 01-8/184 'On some issues of practice of application by commercial courts of legislation on information'. Clause 5 of this letter states the following: 'The business reputation of a legal entity consists of the prestige of its brand (commercial) name, trademarks, and other intangible assets belonging to it among the circle of consumers of its goods and services'. Since the claimant did not indicate in the statement of claim how the defendant's activities influenced the reduction of the prestige of the brand (commercial) name, trademarks, and other intangible assets belonging to the Stryzhavka Penal Colony No. 81 among the circle of consumers of its goods and services, the Defendant is deprived of the opportunity to object to this.
Furthermore, the provisions of Part 2 of Art. 49 of the Law of Ukraine 'On Information', which is a special legal norm, do not determine the possibility for state authorities to demand through the court compensation for damage caused to their business reputation, which excludes the possibility of consideration of this issue by the court.
2.3. Regarding the amount of the allegedly caused damage to the honour (!), dignity (!), and business reputation of the Stryzhavka Penal Colony No. 81, since the said virtues do not exist in the Claimant, therefore no damage was caused, and consequently the amount of compensation cannot be determined in natural numbers. Therefore, the Defendant refuses to discuss the appropriate amount of compensation, as he does not recognise that he has caused any damage.
2.4. Regarding the demands for refutation of inaccurate information. The Vinnitsa Municipal Public Organisation 'Vinnitsa Human Rights Group' (EDRPOU code 26011780) informs the court and the Claimant with deep sorrow that it is by charter a public, non-governmental, non-profit, non-political organisation formed and registered in accordance with the provisions of the Law of Ukraine 'On Associations of Citizens'; the said legal entity is not a body or means of mass information, nor is it an information agency or a body of television or radio broadcasting. Therefore, unfortunately, the Vinnitsa Human Rights Group is not a proper defendant regarding the refutation of any allegedly inaccurate information about the Claimant. Therefore, until the Claimant or the court involves representatives of media outlets in the court proceedings, the Vinnitsa Human Rights Group cannot be viewed as a proper subject for refutation, since, with all the will in the world, it does not have jurisdiction over any media outlet either in Ukraine or in the world.
2.5. Regarding the fact of the Defendant spreading any inaccurate information about the Claimant, the Vinnitsa Human Rights Group denies such facts. Any information spread in the official press releases of the Vinnitsa Human Rights Group was only a reproduction of appeals that came to the Vinnitsa Human Rights Group in connection with the performance of our statutory activities. The press releases were in their essence notifications about possible crimes, made public through the media, which, in accordance with the provisions of the Criminal Procedure Code, can also be formalised in the form of public reports. The above is confirmed by written evidence – authentic texts of the spread press releases and statements certified by the VPH seal: from 20/06/2008 (on 3 pages), from 10/06/08 (on 1 page), from 28/03/2008 (on 2 pages), as well as a copy of a letter that was sent by registered mail to the Prosecutor of the Department of the Prosecutor's Office of Vinnitsa Oblast, Kobyliansky, on 26/06/2008 (on 4 pages), as well as a letter to the chief editor of the '33 Channel' newspaper, which was published in the paper version of the newspaper (on 2 pages). The said documents are handed over to the court in the form of certified copies as written evidence. The Vinnitsa Human Rights Group is not a subject that carries out the verification of reports of crimes; therefore, all press releases contained calls for verification to be conducted, and not assertions that the negative facts actually took place. Simultaneously, we inform you that the Vinnitsa Human Rights Group knows nothing about the possible initiation of criminal cases against any of its members for knowingly false reporting of a crime (Art. 383 of the Criminal Code of Ukraine). Thus, the Defendant did not spread any inaccurate information about the Claimant; the Claimant did not provide evidence to the contrary.

Under the indicated conditions, taking into account the absence of grounds for the consideration of the case by a court of general jurisdiction, on the basis of Clause 1, Part 1 of Art. 205 of the Civil Procedure Code of Ukraine, the Vinnitsa Municipal Public Organisation Vinnitsa Human Rights Group
requests,
that the statement of claim of the Stryzhavka Penal Colony of the State Department of Ukraine for the Execution of Criminal Punishments in Vinnitsa Oblast (No. 81) to the Vinnitsa Municipal Public Organisation 'Vinnitsa Human Rights Group' regarding the protection of honour, dignity, and business reputation of a legal entity be left without consideration.
Coordinator of the VPH
Hroisman D.L.
Appendix:
1. Certificates from the Main Directorate of Statistics in Vinnitsa Oblast No. 13/4/1595 and No. 13/4/1596 dated 17/07/2008 (2 pages).
2. Authentic text of the spread press releases and statements, certified by the VPH seal: from 20/06/2008 (on 3 pages), from 10/06/08 (on 1 page), from 28/03/2008 (on 2 pages), the letter that was sent by registered mail to the Prosecutor of the Department of the Prosecutor's Office of Vinnitsa Oblast, Kobyliansky, from 26/06/2008 (on 4 pages), the letter to the chief editor of the '33 Channel' newspaper, which was published in the paper version of the newspaper (on 2 pages).