Anatolii Lovin has appealed to the Desk Offiser for relation with Ukraine on Economic issues Catharina Sørensen
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- Category: The Issues-eng
Ukraine Desk
EEAS III.B2: Eastern Partnership - bilateral
European External Action Service
Rue de la Loi 242 - Capital Building Loi-05/381
BE-1049 Brussels
August 20, 2013
Dear Mrs. Sørensen,
I address to you as a representative of the European External Action Service (EEAS) of the European Union responsible for bilateral relations with Ukraine on economic issues.
As EEAS has repeatedly noted, Ukraine is one of the EU largest and most important economic partner among 6 Eastern Partnership countries, as evidenced by adoption on May 15, 2013 by the EU Commission of decision on the possible signing of the Association Agreement between the EU and Ukraine in November 2013.
In this terms, it is not acceptable the systematic violations by Ukraine of the rule of law and protection of Human Rights and Fundamental Freedoms, selective justice, violation of rights and legitimate interests of investors, illegal economic and criminal prosecution, unlawful deprivation of property and other similar activities that are incompatible with the fundamental values and EU principles.
Despite the multiple declarative statements by Ukraine representatives in the international arena that in Ukraine there are no problems of the electoral law and selective justice, analysis of the situation regarding human rights in Ukraine shows a number of serious problems that exist in our country, as well as willful evasion of the state bodies of Ukraine of execution of their legal duties imposed by law to protect human rights.
Moreover, some representatives of the state bodies of Ukraine, acting in their criminal interests or interests of the third parties, intentionally violate the Constitution and laws of Ukraine and its international obligations themselves.
I'd like to bring to your knowledge that over a long period of time, a group of civil servants and officials with the purpose to prevent my active participation in the social and political life of Ukraine, possibility of normal business operations and management, as well as with the purpose of illegal redistribution of material assets, to which I'm involved as well as my immediate surroundings, unlawfully restrict my rights and freedoms guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 and legislation of Ukraine.
Currently, in the European Court of Human Rights there are under consideration a number of complaints filed against Ukraine by me personally, and on behalf of the companies, to which I have direct relevance, in connection with the illegal actions of state bodies of Ukraine regarding the property of these companies. The main ones are the following:
1) In the nearest future the European Court of Human Rights will decide on the Legal Statement No 19336/04 (EAST / WEST ALLIANCE LIMITED against Ukraine) [Annex No 1] on the illegal seizure by the state bodies of Ukraine of six An-28 and eight L-410 aircrafts and unsatisfied judgments on their return to the owner - Irish company «EAST / WEST ALLIANCE LIMITED». Communication in the present case is completed.
Only the material damage caused by such illegal actions of Ukraine and documented by the Applicant party is more than $ 154 million U.S. dollars.
2) In addition, at bar of the European Court of Human Rights there is a Legal Statement No 1006/07 (AVIACOMPANIYA A.T.I., CJSC against Ukraine) [Annex No 2].
The applicant party to the present case is CJSC “Aviacompaniya “A.T.I.”, 100% shares of which is owned by the Irish company “EAST / WEST ALLIANCE LIMITED”. The subject of this appeal is the adoption by the Supreme Court of Ukraine of illegal decision, which has violated the applicant's rights under paragraph 1 of Art. 6 of the European Convention on Human Rights and Art. 1 of Protocol 1 to the Convention.
As a result of rewarding illegal judgment by the Supreme Court of Ukraine the CJSC “Aviacompaniya “A.T.I.” and Irish Company “EAST / WEST ALLIANCE LIMITED” in accordance with the laws of Ukraine were deprived of the right to claim compensation for material damage in the amount of EUR 4 220 806, 68 despite the fact that such a right was granted to the Applicant party by the national legislation of Ukraine.
Currently, the communication process has started with regard to this legal statement.
3) In addition, the CJSC “Aviacompaniya “A.T.I.” and the Irish company «EAST/WEST ALLIANCE LIMITED» (which owns 100% of shares of the CJSC “Aviacompaniya “A.T.I.”) have appealed to the ECHR also regarding other unlawful acts of Ukraine concerning the property of these companies and exhaustion of all possibilities to protect their violated rights in national judicial institutions.
Namely, on 06.12.2012 the CJSC “Aviacompaniya “A.T.I.” and Irish company “EAST / WEST ALLIANCE LIMITED” filed a legal statement with the ECHR in connection with illegal seizure by the state bodies of Ukraine of 63 auxiliary power units (aero-engines) APU TA-6A (Legal Statement No 24690/13 (AVIACOMPANIYA ATI, CJSC against Ukraine) [Annex No 3].
Material damage caused to the applicant party is $ 20 430 712 USD (cost of 63 APU). In addition, the damage was caused in the form of lost profits due to the failure to rent them, which amounted to $ 12 704 729,70 USD.
Unlawful and intentional actions of the national judicial agencies, the purpose of which was to prevent the compensation of damage to the CJSC “Aviacompaniya “A.T.I.” and Irish company “EAST / WEST ALLIANCE LIMITED” by the state were expressed in illegal court order and entailed a number of gross violations of the applicants' rights guaranteed by the Convention.
Despite the fact that the Legal Statement No 24690/13 met all the eligibility criteria stipulated in Art. 34 and 35 of the Convention, on 30.05.2013, the ECHR on the basis of decision of the Single Judge N. Tsotsoria has recognized the appeal as inadmissible [Annex No 4]. Inthisrelevantnoticedd. 06.06.2013, theCourtdidnotspecifythereasonwhytheappealwasconsideredinadmissible.
Since this decision is final and can not be appealed neither to the ECHR Grand Chamber, nor any other body, the Irish company “EAST / WEST ALLIANCE LIMITED” andCJSC “Aviacompaniya “A.T.I.” finally lost the opportunity of fair compensation of material damage caused by illegal actions of the state bodies of Ukraine and violation by Ukraine of its international obligations.
4) In addition to the above specified statements, which partly reflect the illegal actions of Ukraine in respect to the property of the companies to which I have a direct relationship (I am one of the directors of the “EAST / WEST ALLIANCE LIMITED” Company, and the Company’s owner is my family), on 11.04.2013 a collective statement was filed with ECHR on behalf of the British Company “AVICOM BRITANIA LIMITED” (director of which is my daughter - Anna Levina) and LLC “International airport “Kherson” [Annex No 5].
British company “AVICOM BRITANIA LIMITED” acted as an investor of the LLC “International Airport “Kherson” and on 12.05.2011 has acquired 100% of the authorized capital of the LLC “International airport “Kherson”.
By registration as of 12.05.2011 of the new edition of the Charter of the LLC “International airport “Kherson” the state of Ukraine has confirmed the legality of the purchase by “AVICOM BRITANIA LIMITED” Company of 100% of the authorized capital of the LLC “International airport “Kherson”, and confirmed the mandatory application of rules of the international law in case of property seizure in accordance with the Agreement “On promotion and mutual protection of investments”, signed by the Government of Ukraine and Government of the United Kingdom of Great Britain and Northern Ireland on 10.02.1993
Despite the international legal guarantees for the protection of property of the British company “AVICOM BRITANIA LIMITED” against expropriation, which in accordance with Art. 1 of the above Agreement “On promotion and mutual protection of investments”, signed by the Government of Ukraine and Government of the United Kingdom of Great Britain and Northern Ireland is a foreign investment, the state of Ukraine illegally seized (expropriated) the property of the “AVICOM BRITANIA LIMITED” Company.
At that, illegally seizing (expropriated) the property of the Company Ukraine failed to provide an immediate and effective compensation of its value in violation of its international obligations under Art. 6 of the Agreement between the Government of Ukraine and Government of the United Kingdom of Great Britain and Northern Ireland “On the promotion and mutual protection of investments”, according to which the expropriation of foreign investment is only possible in case of immediate and effective compensation.
Also, the illegal seizure (expropriation) by the state of Ukraine of property of the British Company “AVICOM BRITANIA LIMITED” and LLC “International airport “Kherson” is a violation of Art. 1 of Protocol No 1 of the European Convention on Human Rights. As a country party to the Convention, Ukraine shall “ensure the protection of property rights and prevent its deprivation not otherwise as just in public interest and subject to the conditions provided for by law and by the general principles of international law”, since adoption of the decision on seizure (expropriation) was carried out in violation of the national law and international treaty provisions.
The proof of actions illegality on the part of the state of Ukraine is the fact that while taking the decision on seizure (expropriation) of property of the British Company “AVICOM BRITANIA LIMITED” and “International airport “Kherson” the national courts, despite the availability of all supporting materials, deliberately ignored the fact that the property of the Company “AVICOM BRITANIA LIMITED” is a foreign investment in accordance with Art. 1 of the Agreement between the Government of Ukraine and Government of the United Kingdom of Great Britain and Northern Ireland “On the promotion and mutual protection of investments” dd. 10.02.1993.
Moreover, national courts have deliberately and illegally ignored the fact that the Charter of the LLC “International airport “Kherson” was officially registered with the state registrar of Pechersk District State Administration in Kiev and is an official document, according to which Ukraine assumed an obligation to protect investments (property) of “AVICOM BRITANIA LIMITED” Company.
The above proves the intentional unlawful and concerted actions by the state of Ukraine on unlawful deprivation of my property and company assets, to which I have the relevance, as well as my family members, and in which there is an interest of “third” parties represented in this case by Ukrainian authorities.
For this purpose, various illegal methods are used; there is interference in the work of the courts and pressure on them for making decisions known to be illegal.
Fearing that ECHR can adopt a decision in favor of the “EAST / WEST ALLIANCE LIMITED” Company, “AVICOM BRITANIA LIMITED” and other companies, to the management of which I have a direct relation, the Ukrainian authorities by way of my illegal criminal prosecution are trying to arrest me on false grounds and deprive me and my family of the possibility of effective action to protect my rights and freedoms.
The main purpose of these illegal actions is the need to make me give up “voluntarily” of any claim against the state authorities of Ukraine (both in present and in future), as well as against “third” parties, in whose interests there were illegally seized the material and intangible assets owned personally by me, my family, as well as legal entities, to which I have a relevance and can influence the decisions of their owners.
In addition, only by committing such illegal actions the representatives of state bodies of Ukraine will be able to avoid responsibility for the crimes committed against me and my surroundings.
To this end, by the Prosecution Service of Kherson region, actions of which are coordinated by the Chairman of the Kherson Regional State Administration Kostyak M.M. and Chairman of the Kherson Regional Council Pelikhov V.G, there were illegally commenced two criminal cases against me by way of substitution of civil legal relations to criminal law. Appellation of illegally made rulings on commencement of these criminal cases actually took more than a year and was accompanied by persistent violations of Ukrainian legislation and illegal restrictions of my rights and freedoms.
However, even after the judgment dd. 01.08.2012 upheld by the decision of the court of appeal dd. 14.08.2012 and upheld by the decision dd. 14.02.2013 of the High Specialized Court of Ukraine for Civil and Criminal Cases, which is the supreme court of cassation in criminal proceedings in Ukraine, the criminal prosecution against me was recognized in full as illegal, the court decisions have not been adopted. Currently, I unlawfully continue to be on the wanted list for already closed by court criminal cases, and therefore can not return to Ukraine and effectively protect in full my violated rights and freedoms!
Moreover, after the final recognition as illegal of decisions to commence the criminal cases against me and their closure by the national courts of Ukraine, these judgments have not been executed by the state authorities of Ukraine, despite the fact that p. 5 Art. 124 of the Constitution of Ukraine stipulate the mandatory enforcement of judgments within the territory of Ukraine!
As a result of such illegal actions, I was not only reinstated, but on the basis of the same charge two additional criminal cases were commenced against me, which is a flagrant violation not only of the law of Ukraine, but its international legal obligations to protect Human Rights and Fundamental Freedoms as well!
An attempt to restore own violated rights and oblige the officials of the Prosecution Service of Kherson region to implement the decisions of courts to cancel the rulings on commencement of criminal cases against me, reinstate me, remove me from the wanted list and cancel the illegally chosen measure of restraint (arrest) through recourse to national judicial authorities failed to restore the law and justice.
Judge of the Kherson City District Court, Skoryk S.A., who investigated my complaint on the above specified violations, in fact refused to comply with final judgments of courts and restore my violated rights. On 06.09.2012 he unreasonably and unlawfully made a ruling to dismiss the complaint on intentional failure to comply with law enforcement of court decisions and, accordingly, restore my rights, whereby completely deprived me of the right to judicial protection, contributed to further violations of my rights and freedoms and the impunity of government officials of Ukraine, who have committed these offenses and continue my illegal criminal prosecution up to date.
This illegal decision of the Judge Skoryk S.A. served as a basis for further discriminatory actions against me by the Prosecution Service and law enforcement agencies of Kherson region, including illegal commencement against me of additional criminal cases on the same grounds that were closed by the courts decisions, as well as restrictions of my rights and freedoms.
Thus, the Deputy Prosecutor of Kherson region, A. Terno, in a letter dated 01.08.2013, notifying on purportedly conducted audit on my appeal on violation of my rights and freedoms, directly points out the fact that by the judgment dd. 06.09.2012 the Kherson City Komsomolsky District Court on a legal basis refused to cancel a preventive measure and restore my rights in respect of which the restrictions were imposed, on closed criminal cases.
The fact that violation of my rights and freedoms have a systemic nature and are the result of deliberate joint illegal actions of the state bodies of Ukraine and national courts committed deliberately to deprive me of the possibility to carry out business in Ukraine, property and assets of the companies, to which I and my family have relevance, forcing me to give up all claims against the state bodies of Ukraine and their individual representatives involved in the above-mentioned violations, has a plenty of documentary evidence.
The adoption by the court of obviously illegal decision has enabled the officials of the Prosecution Service of Kherson region, without removing me from the wanted list under already closed criminal cases without canceling a preventive measure, thus making it impossible to return to Ukraine and independently defend own rights, to re-initiate the criminal case against me on the same grounds in violation of international obligations of Ukraine under Art. 4 Protocol No 7 to the Convention on Human Rights.
Due to the changes to the criminal procedure legislation of Ukraine and entry into force as of 20.11.2012 of the new Code of Criminal Procedure of Ukraine, by which the prosecution agencies were eliminated from the number of investigative bodies engaged in pre-trial investigation, in the fourth time the criminal proceedings were commenced against me on the same grounds, but in this case by SU MIA of Ukraine in Kherson region.
Thus, the next illegally commenced criminal cases against me and putting into the wanted list is an argument for the state bodies of Ukraine, which they use for my further unlawful criminal prosecution even when the courts of first, appeal and cassation instances have assessed my actions and recognized as legitimate and such that belong to the sphere of economic but not criminal legal relations.
Illegal intentional creation of the situation on the part of the investigating bodies of Ukraine of putting me into the wanted list is significantly breaches and limits my rights and freedoms. The absurdity of this situation is confirmed by the fact that I have never evaded from carrying out the measures of investigation and investigative bodies of Ukraine have always known and currently know my current place of stay. Lastofficialstatementaboutmyplace of stay, contactphonenumbersandothercontactinformationIsentto investigatorof the SUMIA of Ukraine in Kherson region, OlefirenkoV.I. on July 15, 2013.
However, until now, the law enforcement bodies of Ukraine took no actions to contact me or my lawyers, have carried out no measures of investigation and, accordingly, have not removed me from the wanted list, thus I am in condition of continual anticipation of arrest for a non-existent cause, i.e. the need for my arrest on the basis of my unknown place of stay.
Due to the multiple refuses of the prosecution authorities of Ukraine, Security Service, Ministry of Internal Affairs of Ukraine, courts of various instances, Commissioner of the Verkhovna Rada of Ukraine on Human Rights, Lutkovskaya V.V. to consider essentially the complaints and statements on violation of my rights as a result of illegal commencement against me and my surrounding of criminal cases, their illegal investigation, selective non-application in my regard of the Constitution regulations and laws of Ukraine, adoption of illegal court decisions, etc., I was forced to appeal to the European Court of Human Rights.
The court accepted my legal statement by assigning it a registration No 69071/12, and in future will provide an objective assessment of the above mentioned unlawful actions of the civil servants and state authorities of Ukraine.
Currently, I have exhausted all possibilities provided to me by law to protect my violated rights and freedoms in Ukraine, but I failed to restore the violated due course of law and justice and compel the restoration of my violated rights. All officials and state bodies of Ukraine, which I have addressed, actually refused to consider my appeal on the merits.
I have addressed twice (28.02.2013 and 02.04.2013) to the President of Ukraine - Viktor Yanukovych - and sent him two volumes of materials where outlined the facts of violations of law committed against me, pointing out that the cause of such violations is my political and civil position, as well as prestige in business circles. Until now, my appeals are left without consideration, and I have not received any response.
In addition, I have sent a statement to the Secretary of the National Security and Defense, Klyuyev A.P., Chairman of VRU, Rybak V.V., Prime Minister of Ukraine, Azarov N.Y., Commissioner of the Verkhovna Rada of Ukraine, Lutkovskaya V.V., Prosecutor General of Ukraine, Pshonka V.P., Chairman of the SBU, Yakimenko O.G., Minister of Internal Affairs of Ukraine, Zaharchenko V.Y., Minister of Foreign Affairs of Ukraine, Kozhara L.O., Minister of Justice, Lavrynovych O.V., members of the Supreme Council of Justice of Ukraine, Committees of Verkhovna Rada of Ukraine, the competence of which includes the monitoring over compliance with the due course of law; also with the same statements I have addressed to the deputies' factions and people's deputies of the Verkhovna Rada of Ukraine (there was filed about 500 statements).
As for today, there are no any real effective decisions adopted for the purpose to constraint the violations, restore the rule of law and justice and restore my violated rights. Most of my appeals were simply ignored or rejected in consideration for formal reasons, or referred for consideration and decision making to those bodies that committed the corresponding violations themselves, which is contrary to the legislation of Ukraine.
I also would like to inform you that the Ministry of Foreign Affairs of Ukraine, as well as the Committee of the Verkhovna Rada of Ukraine on Foreign Affairs actually refused to consider my appeals, stating that they do not relate to their competence. At that, the representatives of these authorities in their public statements do not cease to point out the absence in Ukraine of problems with human rights violations and electoral justice, ignoring the reports on such violations and failing to take any actions to comply with international obligations of Ukraine in the field of human rights.
In connection with a cynical disregard for the rules of law, failure to fulfill the decisions of courts that have entered into legal force, illegal commencement of criminal cases against me, putting me into the wanted list and election of the arrest as a preventive measure on the basis of vain charges, fearing reasonably for my life and health, I was forced to travel outside Ukraine and ask for protection in Greece, which is one of the countries - members of the EU.
I have submitted to the state authorities of Greece all the documents evidencing the gross violations by Ukraine of my rights and freedoms and my discrimination on economic and political grounds, which have been carefully studied by the Greek government and confirmed.
In connection with the foregoing, on July 2, 2013 the Government of Greece granted to me an international protection under the Geneva Convention “On the Status of Refugees” of 1951, the Law of the Republic of Greece “On immigrants” and Presidential Decrees No 141/210 and 98 / 2008 [Annex No 6].
To confirm the set forth herein multiple violations of human rights and freedoms, selective application of law and justice in Ukraine, I present to you the document “The selective application of law and justice in Ukraine. Facts and Comments (Parts 3 and 4)” [Annex No 7, 9] and annexes thereto [Annex No 8, 10].
I ask you to give an objective assessment of the outlined herein facts of violations by Ukraine of its international obligations in the sphere of respect for and protection of human rights, protection of rights and legitimate interests of foreign investors, as well as the facts pointing out the conducted by the state authorities of Ukraine illegal economic and criminal prosecuting, lawless deprivation of property and other actions that violate its international legal obligations.
Also, I ask to render every assistance and help in the restoration of law and justice as to the above specified issues in accordance with European law principles and international treaties provisions, the agreement to binding nature of which was given by Ukraine.
I ask you to inform me on the decision taken. I appreciate any feedback you may have.
Annexes:
1) Certificate on Statement № 19336/04 (EAST/WESTALLIANCELIMITEDagainstUkraine), being under consideration of the European Court of Human Rights;
2) CertificateonStatement№ 1006/07 (AVIACOMPANIYAA.T.I., CJSCagainstUkraine),being under consideration of the European Court of Human Rights;
3) Copy of the Legal Statement to the European Court of Human Rights from the “EAST/WESTALLIANCELIMITED” Company and CJSC “Aviacompaniya “A.T.I.” dated06.12.2012;
4) Copy of a letter to ECHR dd. 06.06.2013;
5) Copy of the application of 11.04.2013 was submitted to the ECHR by British company «AVICOM BRITANIA LIMITED and LLC “International airport “Kherson”;
6) Copy of the document for international protection in Grees to Mr. Anatolii Lovin;
7) Selective use of legislation and selective justice in Ukraine. Facts and Comments (Part 3);
8) Annex to the document “Selective use of legislation and selective justice in Ukraine. Facts and Comments (Part 3)”;
9) Selective use of legislation and selective justice in Ukraine. Facts and Comments (Part 4);
10) Annex to the document “Selective use of legislation and selective justice in Ukraine. Facts and Comments (Part 4)”.
Yours faithfully,
People’s Deputy of Ukraine of IV convening,
President of “Titan”concern
Anatolii Lovin