FIFTH SECTIONCASE OF BASARI, TOV v. UKRAINE(Application no. 78121/16)      JUDGMENT STRASBOURG20 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 CASE1. 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.Background information2. 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.First set of proceedings: title to the car park7. 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.Second set of proceedings: title to the shopping mall10. 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.Second interim MEASURE proceedings16. 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 ASSESSMENTpreliminary issue22. 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.ALLEGED VIOLATION of Article 1 of Protocol No. 1 to the Convention IN RESPECT OF THE FIRST SET OF PROCEEDINGS27. 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.

Outcome for Article P1-1: violation