CASE OF MARKETTRANS, PP v. UKRAINE

FIFTH SECTION

CASE OF MARKETTRANS, PP v. UKRAINE

(Application no. 16989/15)

JUDGMENT
 

STRASBOURG

26 June 2025

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

In the case of Markettrans, Pp 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. 16989/15) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 26 March 2015 by a private enterprise Markettrans, Pp (“the applicant company”), located in Kherson;

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

the parties’ observations;

Having deliberated in private on 5 June 2025,

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

SUBJECT MATTER OF THE CASE

1.  The case concerns the applicant company’s deprivation of property that it had bought from a trade union organisation following an action brought by a prosecutor seeking the return of the ownership of that property to the State.

2.  The historical and legal background pertaining to the status and functioning of trade unions in Ukraine has been summarised in detail by the Court in the judgment Batkivska Turbota Foundation v. Ukraine (no. 5876/15, §§ 6-23 and 38-40, 9 October 2018).

3.  As regards the present case, the Court notes that in 1960 the trade unions in the Ukrainian Soviet Socialist Republic (“the Ukrainian SSR”) were united under an umbrella organisation – the Ukrainian Republican Council of Trade Unions (“the Ukrprofrada”). The latter created a wide network of healthcare and tourist facilities and organisations all over Ukraine that was managed by various branches of the Ukrprofrada, including the Ukrainian Central Council on Tourism and Excursions (“the UCCTE”).

4.  In 1986 the local association of fishermen and hunters of the Kherson Region transferred the ownership of its tourist base in the village of Krynky (the Ostap Vyshnia tourist base – hereinafter “the base”) to the UCCTE.

5.  In October 1990 the Federation of Independent Trade Unions of Ukraine (“the Federation”) was founded; it declared itself independent of the State, and of all bodies of the Ukrainian SSR and the Soviet Union. The Federation was also declared the legal successor to the Ukrprofrada.

6.  On 18 November 1990 an agreement between the General Conference of Trade Unions of the Soviet Union and the Federation was approved (“the 1990 agreement”), whereby various assets were “reserved” (закріплені) for the Federation.

7.  In August-October 1991 the UCCTE was reorganised into a closed joint stock company named Ukrproftur; its articles of association were duly registered by the authorities. Ukrproftur obtained ownership rights over all trade union property used for tourist activities. It had a network of its subsidiaries in all regions of Ukraine including the Kherson Region.

8.  By a resolution of 10 April 1992 (“Resolution no. 2268”), the Parliament of (by then) independent Ukraine ordered that, until a list of legal successors to the USSR-wide civic organisations of the former Soviet Union had been drawn up, all assets belonging to such entities that were located on the territory of Ukraine were to be temporarily transferred to the State Property Fund of Ukraine (“the SPFU”), an organisation set up to manage State-owned property.

9.  By a resolution of 4 February 1994, Parliament further ordered that until the owners of the above-mentioned assets had been determined by means of legislation, those assets were to be regarded as State property. It appears that no such legislation has been passed to date.

10.  As early as 1997, the domestic courts were called upon to deal with cases concerning the status of property that had belonged to the Soviet trade unions. Apart from the relevant judgment delivered by the Higher Arbitration Court of Ukraine (“the HACU”) – which was described in detail in paragraphs 20-23 of Batkivska Turbota Foundation (cited above) – that court also examined a similar action against Ukrproftur. By a judgment of 20 January 1997, the HACU dismissed the SPFU’s claims and found that the assets that had formed the basis for the creation of Ukrproftur had not been in the USSR-wide Council of Trade Unions’ possession and were therefore not covered by the resolutions of 10 April 1992 and 4 February 1994. Accordingly, the court found that Ukrproftur had been founded lawfully, that there was no basis for annulling its founding documents, and that the SPFU’s claims to its property were ill-founded.

11.  In 1999 Ukrproftur transferred the ownership of the base in the village of Krynky to its subsidiary in the Kherson Region – the closed joint stock company Khersonturyst. The latter’s title to the base was formalised by the local authorities in 2002 by means of the issuance of several ownership certificates (each relating respectively to one of the several premises constituting the base).

12.  In 2008 the applicant company bought the base from Khersonturyst for a total of 2.1 million Ukrainian hryvnias (UAH – approximately 275,000 euros (EUR) at the time). The applicant company’s title to the base was duly entered in the relevant register.

13.  In 2011 the local prosecutor brought an action in the Kherson Region Commercial Court seeking (i) the invalidation of all title documents to the base (including those in respect of Khresonturyst), as well as of the sale contract with the applicant company, and (ii) the transfer of ownership of the base to the SPFU. The prosecutor argued that before 1990 all trade unions in the Soviet Union had been USSR-wide civic organisations. By Resolution no. 2268, Parliament had transferred all property belonging to such organisations to the SPFU. The prosecutor thus contended that the Federation had had no right to transfer the base to Ukrproftur, and Ukrproftur had in turn had no right to transfer the base on to Khersonturyst. It followed also that the base had belonged to the State and could not have been lawfully registered as the applicant company’s property.

14.  The prosecutor’s claims were, after one re-examination of the case, eventually allowed by the courts, which essentially agreed with his arguments that former Soviet-era trade unions’ property had been State property and could not have been transferred to private ownership by the trade-union organisations. The courts referred, inter alia, to Resolution no. 2268 and to a Supreme Court judgment of 16 September 2014 (which had concerned a similar case). The final judgment was adopted by the Higher Commercial Court of Ukraine on 28 October 2014.

15.  The parties have not informed the Court how (and if) the base was used by Khersonturyst before 2008, or by the applicant company between 2008 and 2014, or by the State after 2014. From the information that is publicly available, it appears that by the 1990s the base was in a dilapidated condition and not used to host tourists. It is also known that the village of Krynky, where the base is located, was occupied by Russian troops in the days immediately following Russia’s February 2022 invasion of Ukraine. It appears that it is currently in the so-called “grey zone”.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 1 of Protocol No. 1 to THE CONVENTION

16.  The Government argued that the applicant company had failed to exhaust the available domestic remedies as it had not lodged a claim for damages following the invalidation of its title. In particular, they asserted that the applicant company had had an opportunity to lodge a compensation claim against Khersonturyst under Article 216 of the Civil Code (on the legal consequences of the invalidity of a deed). It could also have lodged a claim for compensation in respect of the expenses that it had incurred for the maintenance and preservation of property under Article 390 of the Civil Code. The Government provided two examples of domestic case-law in respect of the application of the above-noted provisions.

17.  The applicant company disagreed: it submitted that its complaints related to the fact that the State had violated its property rights, and that any possibility of obtaining compensation from a seller had nothing to do with that issue.

18.  The Court observes that the existence of a remedy that might allow an applicant to obtain compensation but does not lead to the reinstatement of title 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).

19.  In the Court’s view, the Government’s arguments concerning availability of compensation must, in the light of the Court’s above case law, be rather addressed within the framework of the proportionality analysis.

20.  The Court further notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

21.  The applicant company contended that it had bought the base from a lawful owner, and that both its title and that of the previous owner had been duly registered by the authorities. It also emphasised that for many years the State had not raised any claims in respect of the disputed property or otherwise showed any interest in it. Accordingly, the applicant company believed that it had good grounds to consider that that acquisition had been lawful. The applicant company also noted the involvement of the prosecutorial authorities in the case and argued that that had been a part of a large-scale campaign launched by the Prosecutor General, P., who had been appointed after Viktor Yanukovych had become President. That campaign had allegedly urged that local prosecutors verify all transfers of property relating to the trade unions and challenge them in an effort to ensure that such property be returned to State ownership. The applicant company also submitted that during that period even the domestic courts’ practice in the relevant category of cases had changed and that the domestic courts had begun to rule in favour of the State (even though they had previously ruled in favour of the trade unions or trade-union organisations).

22.  The Government conceded that there had been an interference with the applicant company’s property rights. They submitted, however, that the interference had been lawful, aimed at protecting the public interest, and proportionate. In particular, they noted that the disputed property had been State property under the resolution of 4 February 1994, and that it could not have been alienated without the State’s consent. The return of the base to the State had thus been intended to ensure its use as a recreational facility for public needs. Under the proportionality head the Government reiterated their argument that the applicant company had failed to lodge claims for damages (see paragraph 16 above), and added that the applicant company (and, apparently, Ukrproftur and Khersonturyst) had “[taken] advantage of the fact that the State had not adopted any special law concerning ... the property of the trade unions of [the] former USSR”.

23.  In reply to the latter argument the applicant company submitted that the Government had failed to explain how exactly it had unfairly taken advantage of the situation. It also noted that the Government had tried to portray it as the “guilty party”, rather than the “injured party”.

24.  The Court notes that the general principles regarding interference with the peaceful enjoyment of possessions were summarised in, for example, Kryvenkyy v. Ukraine (no. 43768/07, § 42, 16 February 2017). The Court must assess whether the interference was lawful and in the public interest, and whether it pursued a legitimate aim by means that were reasonably proportionate to the aim sought to be realised.

25.  The Court reiterates that the present case is factually and legally similar to that of Batkivska Turbota Foundation (cited above). It therefore considers that its findings regarding the lawfulness of the interference (as set out in paragraph 58 of that judgment) are equally relevant to the present case. The Court also reiterates its finding in Federation of Trade Unions of the Chernihiv Region ([Committee], no. 40633/15, § 28, 9 January 2025) that no special law on the status of the property of the former Soviet trade unions has yet been passed, in spite of the fact that the Ukrainian Constitution requires that a “legal regime governing property shall ... be defined by law only” (Article 92).

26.  Nevertheless, in the present case the Court does not find it necessary to decide whether the above-noted considerations alone can serve as a basis for finding a violation. Given that a conspicuous problem arises with respect to the proportionality of the interference with the applicant company’s property rights, the Court will continue the examination of the case and turn to that question. As to the issue of the “public interest” in the interference, the Court considers that it is closely linked to the proportionality of the interference; it will therefore examine it within the context of proportionality (see Batkivska Turbota Foundation, cited above, § 58, with further references).

27.  In this connection, the Court observes that the applicant company bought the property from Khersonturyst in 2008 – that is, at least six years after Khersonturyst’s title to the property was registered by the authorities (even without taking much earlier developments into account, see paragraphs 7 and 11 above). The applicant company’s title was also duly formalised by the authorities. The Court has no evidence before it that indicates that the applicant company bought the property in bad faith. Moreover, at no point during the domestic proceedings was it argued that the applicant company had acted in bad faith or without exercising due diligence.

28.  On the other hand, the Court notes the applicant company’s argument that a prosecutor had become involved in the case as a result of instructions that he had allegedly received “from above” (see paragraph 21 above). The Court notes that the material before it comprises no formal confirmation that that there had indeed been a “campaign” lacking any legal grounds initiated by the higher authorities; nevertheless, it cannot but note that in numerous cases examined by the Court against Ukraine (not only relating to trade unions property), it had indeed been prosecutors who had initiated proceedings to reclaim property. Moreover, those cases all related to essentially the same period (see, on the facts, the above-cited cases of Batkivska Turbova Foundation and Federation of Trade Unions of the Chernihiv Region; see also Odeska Buterbrodna Kompaniya, TOV v. Ukraine, [Committee], no. 59414/15, 12 December 2024; Vitse v. Ukraine (dec.), no. 64351/14, 21 November 2024; Drozdyk and Mikula v. Ukraine, nos. 27849/15 and 33358/15, 24 October 2024; Shmakova v. Ukraine [Committee], no. 70445/13, 11 January 2024, Bratushka v. Ukraine (dec.), no. 67790/13, 26 January 2023, and Atima Limited v. Ukraine, no. 56714/11, 20 May 2021).

29.  Furthermore, the Court notes that – even assuming that the property transferred to Ukrproftur and Khersonturyst had indeed been State property and that the State attempted to regain its title to that property – the Court fails to understand why the State had to wait for so long to recover its title to the property. In this connection, the Court finds it immaterial that the prosecutor allegedly did not learn of the 2008 contract (under which the applicant company bought the base from Khersonturyst) until 2011, given the fact that both the Khersonturyst’s and the applicant company’s titles (as well as the sale contract) had been duly registered by the State authorities and that that information was available in the relevant registers. In other words, the State knew (or ought to have known) about the alleged misdeeds in respect of its property long before 2011. The Court notes that it has already found in similar cases that it is for the State authorities (through the existing relevant procedures) to ensure the effective protection of the State’s property interests (see, for example, Gladysheva v. Russia, no. 7097/10, §§ 78-79, 6 December 2011).

30.  The Court further observes that in explaining the “public interest” justification for the interference with the applicant company’s property rights, the Government made only a general submission about the need to restore the State’s rights in respect of the disputed property (see paragraph 22 above); the Government did not argue that the State needed that property for any particular and compelling reason. They did not explain how the State’s interest in owning that property served the “public interest” (see Maksymenko and Gerasymenko v. Ukraine, no. 49317/07, § 57, 16 May 2013). Nor did the prosecutor advance any specific argument in that respect when bringing his action in 2011. The Government have also not provided any information as to how the disputed base was used by Khersonturyst (for example, whether it was used for recreational purposes by the members of trade unions or otherwise used in the interests of society), or as to whether the State registered its title to the base after the judgment of 2014 and how it used it, if at all (contrast Batkivska Turbota Foundation, cited above, §§ 33-34; also see Shmakova, cited above, § 11). In that connection the Court does not overlook the fact that, according to the relevant openly available information, the base has been in a dilapidated condition since the 1990s.

31.  The Court is also mindful of the fact that the applicant company (a private-law entity) must have bought the base with the aim of using it as a tourist facility in order to realise a profit. That differentiates the present case from (i) the above-cited case of Batkivska Turbota Foundation, in which the applicant was a charity organisation using a sanatorium that it had bought from a trade union organisation in order to support children facing “difficult life circumstances” and (ii) the case of Federation of Trade Unions of the Chernihiv Region (also cited above), in which the applicant was a trade union organisation itself. The Court, however, notes that, in and of itself, the fact that the property was intended to be used for profitable activities is not decisive. It reiterates in that respect that mistakes or errors committed by State authorities should serve to the benefit of the persons concerned – especially where no other conflicting private interest is at stake. In other words, the risk of any mistake made by the State authority must be borne by the State and the errors must not be remedied at the expense of the individual concerned (see Batkivska Turbota Foundation, § 61 and Maksymenko and Gerasymenko, both cited above, § 64).

32.  That brings the Court to the question of any compensation that the applicant company could have obtained. The Government’s argument in that respect is twofold. Firstly, they argued that the applicant company could have sought damages from Khersonturyst under Article 216 of the Civil Code which sets out the consequences of deeds being found to be invalid. In particular, it provides that if a deed is found to be invalid, each party is obliged to return in kind (as the case may be) everything that was received by way of execution of that deed to the other party. That mechanism seems to offer, in principle, a possibility to obtain compensation (see, mutatis mutandis, Tverdokhlebova v. Ukraine, no. 15830/16, § 11, 16 January 2025). Nevertheless, given the circumstances of the present case, the Court considers that requiring the applicant company to make use of that mechanism would place an excessive burden on it.

33.  As to the Government’s second suggestion that the applicant company could have claimed, under Article 390 of the Civil Code, compensation for the amount spent on preserving and maintaining the property, the Court lacks information enabling it to decide whether that option was practical and effective – particularly given the absence of any examples of domestic-law judgments that should have been provided by the Government by way of supporting their argument under that head. The judgment referred to by the Government in their observations only mentions the possibility for a person deprived of property to lodge a claim under Article 390, but it does not set out any actual conclusions as to the application of that provision.

34.  In the light of the above, the Court concludes that the interference with the applicant company’s property rights (in addition to raising serious doubts as to its lawfulness – as noted in paragraph 25 above) imposed a disproportionate burden on the applicant company, given that its title to the property had been annulled in the aforementioned circumstances.

35.  There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

36.  The applicant company submitted no separate claims for just satisfaction but noted that it supported its claims raised in the application form. In its application form the applicant company claimed the value of the base in the amount specified the sale contracts – namely, UAH 2,109,999 (or EUR 275,456.92 as of the date of sale) in respect of pecuniary damage. It also claimed EUR 30,000 in respect of the alleged violations of Article 6 of the Convention. Lastly, the applicant company claimed EUR 10,000 in respect of non-pecuniary damage.

37.  The Government contested those claims. They reiterated their position that there had been no violation of the applicant company’s rights and that it could have claimed damages from Khersonturyst. They also noted that it had been open to the applicant company to lodge a request for a review of its case following the Court’s judgment; such a review might have led to the restitution of its title. As regards non-pecuniary damage, the Government considered that the amount claimed was excessive. Regarding the amount of EUR 30,000 claimed in respect of the alleged violations of Article 6 of the Convention, they considered that sum to be fully unsubstantiated.

38.  The Court finds that the applicant company sustained both pecuniary and non-pecuniary damage as a result of the violation of Article 1 of Protocol No. 1 as found in this case.

39.  The Court has previously held that a precise calculation of the sums that should be awarded in order to afford an applicant a complete reparation in respect of the pecuniary suffered may not be possible, given the inherently uncertain nature of the damage that was caused by the violation. Moreover, if one or more heads of damage cannot be calculated precisely or if it proves difficult to distinguish between pecuniary and non-pecuniary damage, the Court may decide to make a global assessment ruling on an equitable basis (see Comingersoll S.A. v. Portugal [GC], no. 35382/97, § 29, ECHR 2000‑IV, and East West Alliance Limited v. Ukraine, no. 19336/04, § 253, 23 January 2014).

40.  Having regard to all the material in its possession, the Court finds it appropriate to rule in equity and to make a global assessment in the present case. It considers it reasonable to award the applicant company the overall sum of EUR 50,000 covering pecuniary and non-pecuniary damage, plus any tax that may be chargeable on that sum.

41.  The Court rejects the applicant company’s arguments as to the amount of EUR 30,000 as fully unsubstantiated noting that the complaints under Article 6 were declared inadmissible at the stage of communication of the case.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay the applicant company, within three months, EUR 50,000 (fifty thousand euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, in respect of pecuniary and non-pecuniary damage;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;

Done in English, and notified in writing on 26 June 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Martina Keller Kateřina Šimáčková
 Deputy Registrar President