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14.07.2006 | Viacheslav Epstein, Kharkiv

My legal wrangle with the municipal enterprise “Kharkiv Heating Network”

   

Court deliberation over the conflict between the municipal enterprise “Kharkiv Heating Network” (KHN) and my family has ended. I can make no claim to the collision’s originality: the enterprise KHN was demanding payment for its services, while the consumers contended that they were not obliged to pay given the lack of such services. There are scores of such cases: the court office is inundated with files involving KHN. However a number of specific features may be of interest to the public, the main one being the fact that the municipal enterprise actually lost the case!

The proceedings began with the first hearing of the Oktyabrsky District Court in Kharkiv (presided over by Judge N.V. Fedyushin) on 13 September 2004, with its finale being the ruling of the Kharkiv Regional Appeal Court on 25 April 2006.

Over this period (19 months) there were 16 (!!) district court hearings and 2 hearings of the appeal court.

Another distinguishing feature of the case was that formally our family lives in a communal flat, part of which belongs to my wife (A.M.  Polonchuk) and the other to her husband (yours truly – V.G. Epstein).  We have different accounts, and therefore the claims of non-payment were presented separately. The court was therefore effectively forced to consider the same case twice.  Armed with power of attorney from members of my family, I represented the interests of all resident of our flat in court.

At the very first hearing (13.09.04, Judge Fedyushin), I presented numerous complaints (with a signature confirming receipt), signed by the flat residents and sent to various bodies (including the KHN) about the lack of heating or of any response to the previous complaints. Neither at that first hearing nor on subsequent occasions did the KHN even attempt to refute my arguments. Their only counterargument was that the KHN is not directly responsible for heating the buildings (this being the responsibility of the housing office) whereas KHN’s responsibility lies in bringing the heating to the building itself.

At that first hearing I made the following statement (later presented in writing): if KHN denies responsibility for providing services to the residents, then it is not the provider of such services and therefore is not entitled to demand any payment for heating.  

Thus, on the basis of common sense (and current legislation), the discussion could unfold in the following ways:

KHN takes responsibility for providing services to the residents and proves that the services were provided;

KHN does not take responsibility or fails to prove that the services were provided;

The court accepts (or does not accept) the evidence of the residents (regarding the lack of services).

Unfortunately events unfolded in a way that had only a tenuous link to common sense.

At the third hearing Fedyushin issued a resolution “to not consider the case” on the grounds that the claimant (a KHN representative) had not appeared. This was an infringement of current legislation (the law does not allow for such a ruling on the basis of one non-appearance without a good reason). The KHN did not appeal against this decision, but, some time later, lodged the same claim with the Oktyabrsky District Court (29.03.05,Jjudge Starostin).

It took Judge V.V. Starostin 5 hearings to establish that the claimant (KHN) had no arguments to back their claim. On 30 June 2005 the court ruled to reject  KHN’s claim. No appeal was lodged with the appeal court. However, on 20 September 2005 I received a summons to the Oktyabrsky District Court with regard to a claim against me personally by KHN.

At the first hearing (20.09.05), Judge Kamysheva) I emphasized that the case had already been considered by the Oktyabrsky District Court, and that the claim concerned the same heating appliances and the same period of time. At the second hearing I brought a counter-claim against KHN demanding compensation of 4,500 UH for moral and material damages due to the lack of heating.  . Judge Kamysheva needed 7 (!) to ascertain the fact which had already been established by Judges Fedyushin and Starostin, i.e. that the KHN had nothing to back their case. At last the court passed its ruling, rejecting KHN’s claim, and partially allowing my counter-claim, with the enterprise ordered to pay me 1,000 UH in moral compensation.

As allowed for by law, the enterprise KHN contested the ruling of the Oktyabrsky District Court in the Regional Appeal Court. After two hearings, on 25 April 2006, the Appeal Court ruled to partially satisfy KHN’s claim and reduced the amount of compensation to 300 UH. All else was upheld. I would stress that the case involved lack of heating for at least 3 years.  The Appeal Court deemed it fair to compensate this damage at the rate of 100 UH a year, or assuming 4 months of heating, 25 UH per month. Incidentally, the amount for heating our flat collected by KHN is around 1,000 UH per year!  Good logic? If the court thinks that I have a source of heating much more efficient than KHB’s, then why does the enterprise use its sources? It also seems strange that the court regards the mentioned “gigantic” sum as the compensation of moral, but not material damage.

All the above-mentioned makes it possible to draw certain conclusions.

1.  According to Resolution of the Cabinet of Ministers of Ukraine No. 572 of 8 October 1992, the sphere of responsibility of “Heating network” enterprises is indeed confined to providing for the building. Yet, then, on the basis of the law on protecting consumers’ rights, this enterprise has no right to demand payment for their services. When the court acknowledged my arguments (or, to be more precise, did not accept the arguments of the KHN represented), it recognized the illegality of “heating networks” collecting payments. The precedent has been set.  It would now, I think, be advisable to implement one of the following options: either the ruling should be revoked, or heating consumers can stop paying for their heating.

The only reason (applying common sense) for such a drawn-out consideration of the case was the lack of interest of the judges in a fast decision. Every hearing was concluded with my protest against a repeated postponement of the case. Unfortunately, it is impossible to make a claim against our judges, there is no article  “deliberately dragging out proceedings”  in our legislation. Incidentally, Russian legislation has such an article!  It has become standard to bemoan judges’ overload. The presented material reveals one cause for this. An efficient solution to this problem would be to pass a law imposing judges’ liability for deliberately dragging out a case. In my case, the violation of this norm was flagrant.

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