Published on 11 December 2023
FIFTH SECTION
Application no. 78121/16
BASARI, TOV
against Ukraine
lodged on 29 November 2016
communicated on 24 November 2023
SUBJECT MATTER OF THE CASE
The application concerns two sets of proceedings interfering with the applicant company’s title to real estate and commercial activities.
First set of proceedings
In 2001 the Odesa City Council leased a land plot downtown Odessa to company K. to rehabilitate it and build an underground parking. Afterwards the authorities issued and/or approved various documents attesting company K.’s permission to carry out the construction of this parking.
By a final court judgment of 30 May 2007, the company K. was granted a right of servitude to an adjacent land plot in relation to the ongoing construction (right of trespass, right to store construction materials, etc.).
In February 2014, after the completion of the works, the authorities issued a declaration attesting that the newly constructed premises were ready for use. These premises included also some on-surface buildings (e.g. elevators to access the parking).
Later in 2014 company K. transferred the premises first to two individuals, C. and D., who were the investors of the construction project, and who in their turn, transferred the premises to the applicant company as their contributions to its statutory capital. On 4 September 2014 the applicant company was issued ownership certificates for the entirety of the premises constituting the underground parking.
In the meanwhile, in several different sets of proceedings initiated by different parties, the courts were called to decide on the lawfulness of the declaration of February 2014. Eventually, three opposing judgements on that matter were adopted: judgments dated 30 July 2014 and 24 March 2015 were favourable to the applicant company, but a judgment of 23 December 2014 invalidated the declaration on the grounds that the right of servitude had not been duly registered and the developer had overstepped the conditions of that servitude.
Finally, on 19 January 2016 the Odesa Commercial Court of Appeal, upon the claims of the Odesa City Council, invalidated the applicant company’s title to the parking. In ruling so it referred to the judgment of 23 December 2014 invalidating the declaration and to the fact that the applicant company’s right of servitude over the land plot had not been properly formalised, thus essentially finding that the premises at issue were unauthorised construction. On 31 May 2016 the High Commercial Court of Ukraine upheld that judgment.
Second set of proceedings
While the last-mentioned title annulment proceedings were still pending, the applicant company “reconstructed” the premises at issue converting them into an underground shopping mall. It obtained a new declaration attesting that these “reconstructed” premises were ready for use. The applicant company rented them out as separate shops.
The local authorities’ attempts to have that new declaration invalidated by the courts were futile (their claims were rejected by a final court decision of 10 April 2019).
In April 2016 the local authorities initiated commercial proceedings seeking to invalidate the applicant company’s new title to the premises of the parking. They relied on the same grounds as in the first set of proceedings.
In the framework of those commercial proceedings, on 17 January 2019 the local authorities submitted a motion seeking, by way of interim relief, to prohibit any use of the premises at stake by the applicant company or any other persons. This motion was granted the next day, 18 January 2019, in the absence of the parties. The court’s ruling was final and subject to immediate execution, so the applicant company was forced to terminate all its rent contracts with the shops’ tenants.
Upon the applicant company’s appeal, the above ruling was quashed by the appellate court on 2 October 2019. The court found that the requested interim relief measure was, firstly, unrelated to the subject matter of the claim and, secondly, essentially led to the cessation of commercial activities of the applicant company and other persons. On 17 February 2020 the High Commercial Court rejected the local authorities’ cassation appeal and upheld the judgment of the appellate court. The applicant company received the latter judgment on 4 March 2020.
The main commercial proceedings are still pending.
As regards the first set of proceedings the applicant company complains under Article 1 Protocol No. 1 as to an unlawful and disproportionate deprivation of property on account of the annulment of its title to the premises of the parking.
As to the second set of proceedings, the applicant company complains under Article 1 Protocol No. 1 on account of the interim relief measure which essentially led to the immediate cessation of its commercial activities and loss of profit. It further complains under Article 6 of the Convention that that measure was applied unfairly and in breach of the principle of equality of arms because it was not present in the court hearing in which that matter was decided, for not having been called to the hearing. Under the same provision it complains as to the length of the main commercial proceedings, which have been pending for more than 4 years before the first-instance court.
QUESTIONS TO THE PARTIES
1. Has there been an interference with the applicant company’s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1 in the context of the first set of proceedings and considering the developments in the second one?
2. Was that interference in the public interest and in accordance with the conditions provided for by law, within the meaning of Article 1 of Protocol No. 1, in particular as regards the interpretation and application of the legal provisions as to the requirement to formalise a right of servitude by way of its registration and the courts’ failure to take into account the findings on the matter in the judgments of 30 May 2007, 30 July 2014 and 24 March 2015?
3. Did the interference impose an excessive individual burden on the applicant company (see Immobiliare Saffi v. Italy, [GC], no. 22774/93, § 59, ECHR 1999-V?
4. Has the applicant company complied with the six-months rule when submitting its second application form to the Court, considering that it was signed on 3 September 2020 and received by the registry of the Court on 9 September 2020?
5. Is Article 6 of the Convention applicable to the interim relief proceedings complained of? If, yes, did the applicant company have a fair hearing in the determination of its civil rights and obligations, in accordance with the requirements of that provision, in particular, was the principle of equality of arms respected as regards the proceedings on application of the interim relief measure?
6. Has there been an interference with the applicant company’s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1 on account of the application of the interim relief measure, and was that interference in the public interest, in accordance with the conditions provided for by law and did it impose an excessive individual burden on the applicant?
7. Is the length of the pending commercial proceedings in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?
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