CASE OF BASARI, TOV v. UKRAINE

FIFTH SECTION

CASE OF BASARI, TOV v. UKRAINE

(Application no. 78121/16)

JUDGMENT
 

STRASBOURG

20 November 2025

This judgment is final but it may be subject to editorial revision.

In the case of BASARI, TOV v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

 Kateřina Šimáčková, President,
 María Elósegui,
 Gilberto Felici, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 78121/16) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 29 November 2016 by a private Ukrainian company BASARI, TOV (“the applicant company”), located in Odesa, which was represented by Mr A.V. Polishchuk, a lawyer practising in Odesa;

the decision to give notice of the complaints under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention to the Ukrainian Government (“the Government”), represented by their Agent, Ms M. Sokorenko, and to declare the remainder of the application inadmissible;

the parties’ observations;

Having deliberated in private on 23 October 2025,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The case concerns two sets of proceedings which allegedly interfered with the applicant company’s title to real estate and its commercial activities. The applicant company relied on Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention.

2.  In 2001 the Odesa City Council leased a plot of land, measuring around 2,900 square metres, in downtown Odesa to the K. company to reconstruct the area and build an underground car park. Afterwards, the authorities issued and approved various documents confirming the K. company’s permission to carry out the construction.

3.  By a final judgment of the Higher Administrative Court dated 30 May 2007, the K. company was granted, in relation to the ongoing construction, a right of easement (including the right of trespass, right to store construction materials and right to lay cables and pipes) to an adjacent plot of land measuring 0.7 ha.

4.  In February 2014, after the completion of the work, the authorities issued a declaration attesting that the newly constructed premises were ready for use.

5.  Later in 2014 the K. company transferred the premises first to two individuals, Ch. and D., who were the investors in 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 with ownership certificates for the entirety of the premises constituting the underground car park.

6.  In the meantime, in several sets of proceedings initiated by different parties, the courts were called upon to decide on the lawfulness of the February 2014 declaration on completion of work. Eventually, three opposing judgments on that matter were delivered: judgments dated 30 July 2014 and 24 March 2015 upheld the validity of the declaration, but a judgment of 23 December 2014 invalidated the declaration on the grounds that the right of easement had not been duly registered and that the conditions of that easement had been overstepped.

7.  In February 2015 the Odesa City Council initiated proceedings seeking to have the construction of the car park declared unlawful, the title to it invalidated and the municipality’s rights acknowledged. Both the K. company and the applicant company were defendants in the case.

8.  On 19 January 2016 the Odesa Commercial Court of Appeal allowed the City Council’s claims and invalidated the applicant company’s title to the car park. In its ruling it referred to the judgment of 23 December 2014 invalidating the 2014 declaration and to the fact that the right of easement as established by the 2007 judgment had not been registered, as was required by law. The court thus essentially found that the premises in question were an unauthorised construction. During the proceedings the applicant company argued that easements established by a court decision were not subject to registration. It contended that in April 2007 (that is, before the adoption of the final judgment establishing the easement), Article 100 of the Civil Code requiring the registration of the right of easement had been amended so as to require such registration only for easements established by a contract. The applicant company argued that those amendments, however, had come into force only in June 2007 (that is, after the adoption of the final judgment establishing the easement) owing to an unreasonable delay in the signature and publication of the amending law. That had been the authorities’ error, which should have been interpreted to the applicant company’s benefit. The court noted in that respect that the requirement to register land easements had existed in the Land Code for a long time and continued to apply even during the period between the adoption of the new law of April 2007 abolishing that requirement and its coming into force. The court further noted that that same law had introduced into the Ukrainian legal order the concept of superficies – a form of easement on land designed specifically for instances where the land would be used for construction. Therefore, after the respective amendments came into force the applicant company’s rights to the land had to be formalised as superficies.

9.  On 31 May 2016 the Higher Commercial Court of Ukraine upheld the above-mentioned judgment.

10.  While the above-mentioned title annulment proceedings were still pending, the applicant company “reconstructed” the premises in issue, converting them into an underground shopping mall of a total surface of almost 6,000 square metres. In August 2015 it obtained a new declaration attesting that these “reconstructed” premises were ready for use and in September 2015 the local registration service registered the applicant company’s title to the new premises.

11.  The applicant company leased the premises as separate shops. In particular, in July 2018 it leased the premises to the P. company. The lease agreement provided that the monthly rent payment was 21 United States dollars per square metre.

12.  The local authorities brought an action to have the 2015 declaration on readiness for use invalidated. It was rejected by a final judgment of the Sixth Administrative Court of Appeal of 10 April 2019.

13.  In April 2016 the local authorities initiated commercial proceedings before the Odesa Regional Commercial Court, seeking to have the applicant company’s new title to the “reconstructed” premises invalidated and to have the land returned to the municipality. They essentially relied on the courts’ findings in the first set of proceedings described above.

14.  In May 2016, on a request by the local authorities in the framework of the above-mentioned commercial proceedings, the court granted an interim measure (захід забезпечення позову) and prohibited the conduct of any registration actions with respect to the premises in issue. In that ruling the court took into account the fact that during the first set of proceedings the applicant company had already undertaken actions that had led to the re-registration of its rights to the property. The applicant company appealed against that interim measure, but was unsuccessful.

15.  This set of proceedings is still pending. According to the information provided by the Government, the examination of the case had been suspended between May 2016 and March 2017, as there was a need to await the outcome of two other related sets of proceedings. The Government also informed the Court that the case file had on numerous occasions been sent to the courts of appeal and/or cassation, following appeals by the parties against procedural decisions adopted during the preparatory stage of proceedings. Between May 2021 and March 2023, a forensic expert examination had been pending in the case. Lastly, the Government informed the Court that the applicant company had submitted four requests for the recusal of judges in the case and its representative had failed to appear at the hearings six times. It appears that in July 2023 an additional forensic expert assessment of the same type was ordered by the court; it is still pending.

16.  On 17 January 2019, in the framework of the second set of proceedings described above, the local authorities submitted another request for interim measure seeking to “prohibit the use” of the premises in issue by the applicant company or “any other persons”. The request indicated that there existed a dispute over the premises in question, that they had been constructed in breach of existing regulations and could pose a danger to the health and life of people.

17.  The above-mentioned request was granted by the Odesa Regional Commercial Court the next day, 18 January 2019. The parties were not present at the hearing and the court’s ruling states that the decision on the interim measures had been taken in accordance with Article 140 of the Code of Commercial Procedure, which provided that requests for interim measures had to be examined within two days and notification of the parties was not required.

18.  The court’s ruling imposing the interim measure was subject to immediate execution. The applicant company asserted in that connection that it had been forced to terminate its lease agreement for the shops. In support of that assertion, it provided a copy of an agreement of 22 January 2019 between it and the P. company, which had been leasing the premises of the mall, stipulating that as of that date the lease had been terminated.

19.  On 2 October 2019, following an appeal by the applicant company, the above-mentioned ruling was quashed by the South-western Commercial Court of Appeal. The court found that the requested interim measure had been, firstly, unrelated to the subject matter of the claim or the enforcement of a possible future judgment in the case and, secondly, had essentially led to the cessation of the commercial activities of the applicant company and other persons.

20.  On 17 February 2020 the Supreme Court rejected a cassation appeal lodged by the local authorities and upheld the above-mentioned judgment of the appellate court. The applicant company was notified of the Supreme Court’s judgment on 4 March 2020.

21.  In their observations the Government informed the Court that no writs of enforcement had been issued in respect of the final judgment in the first set of proceedings relating to the invalidation of the applicant company’s title, nor were any writs of enforcement issued in the second set of proceedings.

THE COURT’S ASSESSMENT

22.  The present case comprises two application forms relating to the two sets of proceedings respectively – one dating to 2016 and the other to 2020. The final domestic decision dated 17 February 2020, which is the subject matter of some of the complaints raised in the second application form, was received by the applicant company on 4 March 2020. The latter date is therefore the starting point of the six-month time-limit for the submission of the application to the Court.

23.  The second application form contains no postmark or other information that would allow the Court to clearly establish the date of its dispatching. The date on the application form is indicated as 3 September 2020 (that is, within the six-month time-limit), and the date of receipt by the Court of the FedEx package containing it is 9 September 2020 (that is, outside the six-month time-limit).

24.  The applicant company, being so requested, failed to provide information confirming the date of the dispatching of the application form, nor did the Government provide any information on the matter.

25.  The Court reiterates that the date of introduction of an application is the date of the postmark when the applicant dispatched a duly completed application form to the Court (Rule 47 § 6 (a) of the Rules of Court; see, for example, Vasiliauskas v. Lithuania [GC], no. 35343/05, §§ 115-17, ECHR 2015). However, special circumstances – such as an impossibility of establishing when the application was posted – may justify a different approach: for example, taking the date of the application form or, in its absence, the date of its receipt at the Court’s Registry as the introduction date (see Bulinwar OOD and Hrusanov v. Bulgaria, no. 66455/01, §§ 30-32, 12 April 2007).

26.  In the present case, in the absence of unequivocal information that would have allowed the clear establishment of the date of the dispatching of the applicant company’s second application form and considering that there are grounds to believe that it had been posted shortly after its signing on 3 September 2020 (so as to allow its delivery within around five or six days, that is, by 9 September 2020), the Court considers it fair to apply the approach more favourable to the applicant company and accepts the date of the signing of the second application form, that is 3 September 2020, as the date of introduction of that application.

27.  The applicant company complained under Article 6 of the Convention that the principle of the legal certainty had been breached, in that (i) the legal provision related to the requirement to formalise an easement by way of its registration, as referred to by the courts, had not been clear and predictable enough and the relevant procedures had not existed at the time and that (ii) the courts had failed to take into account the findings made in the earlier judgments, namely those of 30 May 2007, 30 July 2014 and 24 March 2015, and had thus decided the same issues anew. It further complained under Article 1 of Protocol No. 1 that the annulment of its title to the car park had been unlawful (referring essentially to the same arguments as described above under Article 6) and disproportionate, as no compensation had been provided to it.

28.  The Court, being the master of characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia, nos. 37685/10 and 22768/12, § 114, 20 March 2018), finds it appropriate to examine the applicant company’s complaints under Article 1 of Protocol No. 1 only.

29.  The Government argued that the applicant company’s case had been duly and in detail examined by the domestic courts, which had provided reasons and explanations regarding the legislative requirements of registering easements and the consequences of non-compliance. They asserted that no right to “possession” could be claimed by the applicant company. The Government also submitted that the court judgments of 30 July 2014, 24 March 2015 and 23 December 2014 had related to issues which were different from those examined in the first set of proceedings in that they had not related to the question of validity of the applicant company’s title but had delved into the issue of lawfulness of the 2014 declaration of completion of work and acceptance of the premises for use. In any event, the key reason for the invalidation of the applicant company’s title had been the fact that it had failed to prove that it had been using the land lawfully.

30.  The Court notes at the outset that the present complaints as to the first set of proceedings cannot be examined in isolation from the developments that took place later and are described under the second set of proceedings. In particular, while the first set of proceedings aimed at invalidating the applicant company’s title to the car park were pending, the applicant company conducted a reconstruction of that car park, converted it into a shopping mall and registered its title to a “new” property object. Accordingly, by the time the final judgment in the first set of proceedings had been adopted in 2016, such object of property defined as “car park” no longer existed. In view of those circumstances, the Court considers that currently, as well as at the time of submission of the applicant company’s application in 2016, the situation at the domestic level has changed to such an extent that any complaints as to the previously adopted court decisions are rendered virtually meaningless (see, mutatis mutandis, Tashevski v. Bulgaria (dec.), no. 30211/09, § 28, 11 December 2018, and Uhl v. the Czech Republic (dec.), no. 1848/12, §§ 26 and 27, 25 September 2012).

31.  Moreover, the applicant company still retains its title to the premises in issue (even if in a new form) and cannot be said to have actually been “deprived” of property. The Court does not overlook that the authorities initiated another set of proceedings seeking to invalidate the applicant company’s new title, but those proceedings are still pending. It would be open to the applicant company to submit an application to the Court after their termination, if it believes that its rights have been violated.

32.  Considering the circumstances above, the Court finds that this part of the application is manifestly ill-founded and rejects it in accordance with Article 35 §§ 3 and 4 of the Convention.

33.  The applicant company complained under Article 6 that the duration of the second set of proceedings was unreasonably lengthy.

34.  The Government argued that the duration of the examination of the case had not been excessive, considering that there had been objective impediments, in particular the need to wait for the outcome of the other related proceedings or of a complex forensic expert assessment. They also pointed to several instances when the applicant company had submitted requests for the recusal of judges or when its representative had failed to appear.

35.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants in the dispute (see Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

36.  The Court notes that the proceedings in question commenced in April 2016 and are still pending before the first-instance court, that is for more than nine years. As it appears from the documents available, the proceedings were suspended for a total of around thirty-two months awaiting the outcome of other related proceedings (ten months) and the completion of an expert assessment (twenty-two months). The examination of the case had further been delayed considerably (for around twenty-six months in total) because of the need to transfer the case file to the appellate court and the court of cassation in connection with the defendants’ appeals against procedural decisions taken at the preparatory stage. More delays were caused by the applicant company’s requests for the recusal of judges and its representative’s failure to appear at seven hearings, but those delays were comparatively short.

37.  The Court notes that it can accept that the case was of a certain complexity and might have required a comprehensive approach, including the need to wait for the outcome of the related proceedings or the conduct of a forensic expert assessment. Nevertheless, it notes that the forensic expert assessment had been pending for twenty-two months and several months afterwards an additional forensic expert assessment of the same type was ordered by the court and that expert assessment is still pending (around two years after it was requested; see paragraph 15 above).

38.  The Court does not overlook the fact that the applicant company as defendant might have contributed to the initial delay in the proceedings by lodging, one after another, appeals against various procedural decisions taken at the preparatory stage of the hearing. Nevertheless, the Court observes that the proceedings had been pending before the local court for more than nine years without any meaningful examination of the merits. Even taking due account of the lawful periods of suspension and those delays that might have occurred as a result of the applicant company’s own actions, such a lengthy of examination of the case cannot be considered reasonable (see, for example, Karnaushenko v. Ukraine, no. 23853/02, 30 November 2006).

39.  The Court finds that the length of the second set of proceedings was excessive and failed to meet the “reasonable time” requirement. The applicant company’s complaint is therefore admissible and discloses a violation of Article 6 of the Convention.

40.  The applicant company complained under Article 6 of the Convention that the second interim measure had been applied unfairly and in breach of the principle of equality of arms because the applicant company had not been informed of the request for the application of that measure and had been precluded from commenting on it.

41.  The Government argued that Article 6 was not applicable to the interim measure proceedings in question. Referring to Micallef v. Malta ([GC], no. 17056/06, §§ 83-85, ECHR 2009) and Moura Carreira and Lourenço Carreira v. Portugal ((dec.), no. 41237/98, ECHR 2000-VIII) they conceded that the right at issue had been “civil”, but argued that the measure complained of had been “protective (or security) measure” aimed, under the national legislation, at ensuring full enforcement of the judgment at the end of the proceedings and had not entailed the determination of civil rights and obligations.

42.  The Court reiterates that Article 6 under its civil “limb” applies only to proceedings determining civil rights or obligations. Not all interim measures determine such rights and obligations, and the applicability of Article 6 will depend on whether certain conditions are fulfilled. Firstly, the right at stake in both the main and the injunction proceedings should be “civil” within the autonomous meaning of that notion under Article 6 of the Convention. Secondly, the nature of the interim measure, its object and purpose as well as its effects on the right in question should be scrutinised. Whenever an interim measure can be considered effectively to determine the civil right or obligation at stake, notwithstanding the length of time it is in force, Article 6 will be applicable (see Micallef, cited above, §§ 83-85). Subsequently to Micallef, the Court also applied Article 6 of the Convention to proceedings which were considered preliminary and not related to any main proceedings because the outcome of the preliminary proceedings had been determinative of civil rights (see Udorovic v. Italy, no. 38532/02, § 37, 18 May 2010) and to an interim measure that had not provisionally ruled on the merits of the main proceedings but which had had “a direct effect on the civil right at stake” (see Kübler v. Germany, no. 32715/06, § 48, 13 January 2011). Accordingly, the “right at stake” referred to in Micallef does not necessarily imply that the interim measure must determine the same right as the subject of the main proceedings (see Pekárny a cukrárny Klatovy, a.s. v. the Czech Republic, nos. 12266/07 and 3 others, § 65, 12 January 2012).

43.  In the present case, the interim measure in the form of the prohibition of any use of the premises by the applicant company or any other persons was requested by the claimant – the local authorities – in the framework of the commercial proceedings seeking to invalidate the applicant company’s title to the premises. Considering that the applicant company was leasing the premises in issue to another company for shops, the granting of such interim measure must have meant the cessation of all commercial activities in the shopping mall. Indeed, the applicant company argued that this had been the issue, stating that it had had to terminate its lease with the tenant of the shops in the mall (see paragraph 18 above).

44.  In the light of the circumstances above, the Court considers that the rights at stake in the main proceedings and the interim proceedings were “civil” in nature. It further notes that the sweeping and prolonged interim measure as applied in the present case, while having no direct impact on the applicant company’s title as such (which was the subject matter of the main proceedings), nevertheless had an effect comparable to that which would have existed if the applicant company’s title to the premises in question had been invalidated, that is to say, no commercial or any other activities could take place.

45.  The Court therefore finds that the interim measure proceedings in question engaged Article 6 § 1 of the Convention under its civil limb (see Pekárny a cukrárny Klatovy, a.s., cited above, §§ 67-71; mutatis mutandis, Nedyalkov and Others v. Bulgaria (dec.), no. 663/11, § 109, 10 September 2013, with further references; and Maniscalco v. Italy (dec.), no. 19440/10, § 33, 2 December 2014). The Government’s preliminary objection is, accordingly, rejected.

46.  The Government argued that after the interim measure had been found to be unlawful and had been discontinued, the applicant company could have claimed compensation under Article 146 of the Code of Commercial Procedure, which stipulated that if an action was left without consideration or was dismissed, fully or in part, the defendant was entitled to compensation of damage caused by such interim measures at the expense of the party at whose request they had been applied. The Government provided examples from the relevant domestic case-law.

47.  The Court notes that a decision or measure favourable to an applicant is not, in principle, sufficient to deprive the applicant of his or her status as a “victim” for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 180, ECHR 2006-V). Only when these conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of an application (see Selahattin Demirtaş v. Turkey (no. 2) [GC], no. 14305/17, §§ 217-23, 22 December 2020). In the present case, even assuming that there was an acknowledgment of a breach of the applicant company’s procedural rights under Article 6, no redress has been provided to the applicant company. The alleged possibility of obtaining compensation, apart from being dependent on the termination of the main proceedings, did not entail compensation to be paid by the State, but rather by the local authorities as claimant in the proceedings if they would have lost the case.

48.  Accordingly, the Court finds that the Government’s preliminary objection must be rejected.

49.  Under this head the Government argued that the six-month time-limit for the applicant company’s complaints as regards the alleged violation of the right to a fair trial in respect of the second interim measure was to be calculated as of the date of its imposition by the local court (18 January 2019) or, at the latest, as of the date on which that measure had been discontinued by the appellate court (2 October 2019). Considering that the application raising the respective complaints had been submitted to the Court in September 2020, the Government contended that, in respect of both of the above-mentioned dates, the application had been lodged outside the six-month time-limit.

50.  The Court observes that, although the decision on the interim measure was immediately enforceable, it could still have been challenged through an ordinary appeal process, including in the court of cassation. In the present case, the interim measure was discontinued following an appeal by the applicant company, but the final decision on that matter was delivered on 17 February 2020 by the Supreme Court, which rejected the claimant’s cassation appeal. Considering the circumstances above and bearing in mind that an appeal against an interim measure and procedural violations related to its application could have remedied the situation (see Maniscalco, cited above, § 35), the applicant company cannot be blamed for waiting for the Supreme Court’s decision before submitting its complaints to the Court (see, mutatis mutandis, Rustavi 2 Broadcasting Company Ltd and Others v. Georgia, no. 16812/17, §§ 268-69, 18 July 2019, and Naftogazvydobuvannya, PJSC v. Ukraine (dec.), no. 14767/16, §§ 3 and 9, 7 December 2023). Accordingly, the Government’s preliminary objection must be rejected.

51.  The Court further notes that the applicant company’s complaints under Article 6 of the Convention in respect of the second interim measure proceedings are neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must, therefore, be declared admissible.

52.  The applicant company asserted that the second interim measure had been applied to it unfairly and had breached the principle of equality of arms, as it had not been informed of or involved in the proceedings on the application of that measure. The applicant company noted that that had been a direct result of the requirements of the domestic legislation.

53.  The Government noted that, under Article 140 of the Code of Commercial Procedure, only in exceptional cases, when the explanations and evidence provided by the claimant were insufficient to examine the request for the application of interim measures, could the courts examine such a request in a hearing with the parties summoned. Therefore, summoning the parties to a hearing on interim measures was not an obligation of the court, but a right. The Government further noted that the domestic court had considered the reasons provided in the request for the second interim measure, in particular, the need to effectively protect the rights of the claimant – a representative of the territorial community which was the owner of the land in question, and the possible existence of a threat to the life and health of people, and had found them sufficiently justified to issue an immediate interim measure order without holding a hearing.

54.  The Court reiterates that the adversarial principle and the principle of equality of arms, which are closely linked, are fundamental components of the concept of a “fair hearing” within the meaning of Article 6 § 1 of the Convention (see Regner v. the Czech Republic [GC], no. 35289/11, § 146, 19 September 2017). They require a “fair balance” between the parties: each party must be afforded a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-à-vis his or her opponent or opponents (see Andrejeva v. Latvia [GC], no. 55707/00, § 96, ECHR 2009). Moreover, the parties must be given the opportunity to have knowledge of and comment on all evidence adduced or observations filed, even by an independent member of the national legal service, with a view to influencing the court’s decision (see Kress v. France [GC], no. 39594/98, §§ 65 and 74, ECHR 2001‑VI).

55.  In respect of interim measures, the Court has already ruled that in exceptional cases – where, for example, the effectiveness of the measure sought depends upon a rapid decision-making process – it may not be possible immediately to comply with all of the requirements of Article 6. Thus, in such specific cases, while the independence and impartiality of the tribunal or the judge concerned is an indispensable and inalienable safeguard in such proceedings, other procedural safeguards may apply only to the extent compatible with the nature and purpose of the interim proceedings at issue. In any subsequent proceedings before the Court, it will fall to the Government to establish that, in view of the purpose of the proceedings at issue in a given case, one or more specific procedural safeguards could not be applied without unduly prejudicing the attainment of the objectives sought by the interim measure in question (see Micallef, cited above, § 86). In particular, the Court has accepted in Nedyalkov and Others (cited above, § 117) that to be able to serve their purpose of preventing the dissipation of forfeitable assets, applications for freezing orders need to be heard without notice, and that was not in itself incompatible with the requirements of Article 6 § 1 of the Convention. At the same time, the Court considered that a public hearing was arguably required on appeal, in view of what was at stake for the applicants – the potentially long-term freezing of a considerable number of assets, including their bank accounts. Under the domestic legislation the court could, if it believed it necessary, opt for a public hearing. Nevertheless, considering that the applicants, who were legally represented, made no such requests and failed to show that such requests would have had no prospect of success in practice, the Court found the complaint about the lack of public hearing manifestly ill-founded (ibid., § 118).

56.  The situation in the present case is somewhat similar to that described above, as the domestic legislation clearly provides that requests for the application of interim measures should be, as a rule, examined without the parties’ notification or holding a hearing. Only in exceptional cases, when additional explanations are needed from the defendant, can a court order a hearing and summon the parties. In the present case, the applicant company was neither informed of the request for the application of the second interim measure submitted by the local authorities nor provided with a copy of it and no hearing was held. While that is not in and of itself contrary to the Convention, as interim measures often presuppose a need for a rapid (and unexpected) decision, the Court notes that the second interim measure was applied in January 2019, that is, when the case had already been pending before the local court for almost three years. There is nothing in the case file to show that the request to apply the second interim measure was somehow urgent or prompted by the applicant company’s actions or any other developments at that particular moment in time. Moreover, and as later established on appeal, the requested interim measure – the general prohibition on using the premises – had no relation to the subject matter of the dispute or the enforcement of a possible court judgment in favour of the claimant in the future. In that respect, the Court bears in mind that another interim measure had already been pending in the case since its very initiation which prohibited the applicant company from taking any registration actions in respect of the premises in issue (see paragraph 14 above), having had a direct bearing on the subject matter of the dispute and aiming to ensure the claimant’s rights had its claims been granted.

57.  With that in mind, the Court cannot but conclude that in the circumstances of the present case the procedure on the application of the second interim measure, which had no apparent signs of urgency, but could have had, as it did, sweeping consequences for the applicant company’s commercial activities, had to ensure that the applicant company knew of and could comment on that request. That conclusion is not altered by the fact that the applicant company was able to challenge, successfully, the ruling on the application of the interim measure in question, particularly as the Court of Appeal discontinued that measure only nine months later (contrast Maniscalco, cited above, § 35, and see, mutatis mutandis, Shvydka v. Ukraine, no. 17888/12, §§ 52-54, 30 October 2014, in the context of appeal proceedings which were terminated after a person had already served an administrative arrest).

58.  There has, accordingly, been a violation of Article 6 § 1 of the Convention.

59.  The applicant company further complained under Article 1 of Protocol No. 1 that the second interim measure had led to the complete cessation of its commercial activities and subsequent loss of profit, thus disproportionately interfering with its right to the peaceful enjoyment of its possessions. That had been aggravated by the impossibility of obtaining compensation once the decision to apply an interim measure had been quashed as being unlawful.

60.  Under this head the Government raised an argument similar to that raised in respect of the applicant company’s Article 6 complaint (see paragraph 46 above).

61.  The Court observes that part of the applicant company’s complaint under Article 1 of Protocol No. 1 was, specifically, that it could not obtain compensation in relation to the decision to discontinue the interim measure. It also reiterates its decisions in previous property-related cases to the effect that the existence of a remedy that may allow an applicant to obtain compensation should be taken into account – not within the context of the exhaustion of domestic remedies, but for the purposes of assessing the proportionality of the interference and the calculation of pecuniary damage if a violation of Article 1 of Protocol No. 1 to the Convention is found (see, for example, Batkivska Turbota Foundation v. Ukraine, no. 5876/15, § 47, 9 October 2018).

62.  With that in mind, the Court rejects this preliminary objection by the Government.

63.  Under this head the Government raised an argument similar to that raised in respect of the applicant company’s Article 6 complaint (see paragraph 49 above).

64.  The Court notes that the applicant company’s complaint of an alleged violation of Article 1 of Protocol No. 1 was centred not only around the question of interference with property rights because of the application of the second interim measure, but because of the disproportionate burden that that measure, coupled with the impossibility of obtaining compensation as long as the main proceedings had been pending (which had been the case), had placed on it (contrast Naftogazvydobuvannya, cited above, § 7 in fine). With that in mind and having regard to its findings as to admissibility under Article 6 (see paragraph 50 above), the Court considers that in respect of the present complaints, the applicant company also cannot be said to have missed the six-month time-limit.

65.  The Court further notes that the applicant company’s complaints are neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must, therefore, be declared admissible.

66.  The applicant company argued that the second interim measure had essentially led to the immediate cessation of its commercial activities and loss of profit. In particular, it had had to suspend its lease agreement with the P. company in respect of the premises. That suspension had lasted for more than one year, according to it, until the final decision by the Supreme Court quashing the ruling applying the interim measure.

67.  The Government provided no comments on the merits of this complaint.

68.  The Court considers that the second interim measure, in place from 18 January to 2 October 2019 (see paragraphs 17 and 19 above) and leading, apparently, to the almost immediate cessation of all commercial activities on those premises, constituted an interference with the applicant company’s peaceful enjoyment of its possessions within the meaning of Article 1 of Protocol No. 1. The Court further considers that the case file contains no evidence to suggest that the interim measure was still in force after 2 October 2019, as might have been asserted by the applicant company.

69.  The Court further finds that that interim measure served to control the use of its property within the meaning of the second paragraph of Article 1 of Protocol No. 1 (see, mutatis mutandis, JGK Statyba Ltd and Guselnikovas v. Lithuania, no. 3330/12, § 117, 5 November 2013). In order to comply with the requirements of the second paragraph, it must be shown that the measure constituting the control of use of property was lawful, that it was “in accordance with the general interest” and that there existed a reasonable relationship of proportionality between the means employed and the aim sought to be realised (ibid., § 118).

70.  In the present case, the interim measure was applied on the basis of the provisions of the Code of Commercial Procedure (see paragraph 17 above). However, while it was allegedly aimed at protecting the rights and interests of the claimant, it was not reasonably related to the subject matter of the case or the enforcement of a judgment which might have been adopted in the future in favour of the claimant (see paragraph 19 above). The Court also bears in mind that another interim measure was pending against the applicant company, prohibiting it from undertaking any registration action in respect of the premises in issue. Accordingly, the Court has doubts as to whether the second interim measure could be considered lawful or pursuing a legitimate aim (see, mutatis mutandis, Gorkovlyuk and Kaganovskiy v. Ukraine [Committee], no. 49785/06, § 108, 4 October 2018).

71.  Furthermore, the Court notes that while the measure applied in the present case was not a seizure as such, its effects were comparable to seizure and, by its nature, it was a harsh and restrictive measure. Just as seizure, it was capable of affecting the rights of an owner to such an extent that his or her main business activity might have been put at stake and the more time such provisional measures stayed in place, the bigger was the impact on the owner’s peaceful enjoyment of possessions (see JGK Statyba Ltd and Guselnikovas, cited above, §§ 129 and 30). In that connection the Court notes that the second interim measure was in force for nine months (until its discontinuation on 2 October 2019) but that the applicant company must have remained in the situation of uncertainty for several further months – up until the adoption of the Supreme Court’s decision on 17 February 2020.

72.  It appears that during the above period, the applicant company was precluded from using the premises to obtain income. In that regard, the Court notes the Government’s assertion that the domestic courts’ acknowledgment of the unlawfulness of the application of the interim measure had opened a possibility for the applicant company of claiming damages. The Government relied in that connection on Article 146 of the Code of Commercial Procedure and provided examples of relevant domestic case-law.

73.  The Court observes that Article 146 of the Code of Commercial Procedure provides that an action to compensate damages caused as a result of interim measures can only be brought in the event that the main action is left without consideration or is dismissed, fully or in part. The Court will not, and cannot, rule in abstracto whether such provision is compatible with the Convention. In the present case, considering that the main proceedings are still pending before the local court nine years after their initiation without any decision adopted on the merits (see the Court’s findings as to the length of proceedings in paragraphs 38-39 above), the Court fails to see how the applicant company could have made meaningful use of that legal avenue (compare Nedyalkov and Others, cited above, §§ 92-95; see JGK Statyba Ltd and Guselnikovas, cited above, §§ 131 and 32). Moreover, the examples of the domestic case-law referred to by the Government also suggest that Article 146 was applied in those cases precisely in situations where the proceedings had already been terminated by way of delivery of a judgment refusing the claimants’ actions. The Government has not put forward any other argument or proposal regarding the opportunities available to the applicant company to obtain compensation for its losses sustained as a result of the unlawful application of the interim measure in its case.

74.  Considering the foregoing, the Court finds that, in the circumstances of the present case, the applicant company was made to bear an excessive burden. There has, accordingly, been a violation of Article 1 of Protocol No. 1 to the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

75.  The applicant company argued, in the light of the alleged violation of Article 1 of Protocol No. 1 in respect of the first set of proceedings, that the restoration of its title to the car park would have been an appropriate remedy. The applicant company did not submit any other claims in respect of pecuniary or non-pecuniary damage.

76.  Considering that the Court found the applicant company’s complaints under Article 1 of Protocol No. 1 in respect of the first set of proceedings manifestly ill-founded and that there no other claims for just satisfaction, the Court finds that there is no call to make any award of compensation to the applicant company.

77.  The applicant company claimed 25,000 euros in respect of costs and expenses which allegedly covered its lawyer’s fee for representation before the Court.

 78.  Considering that the applicant company has not provided any documents in support of that claim, the Court makes no award under that head.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

Done in English, and notified in writing on 20 November 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Martina Keller Kateřina Šimáčková
 Deputy Registrar President