CASE OF BASARI, TOV v. UKRAINE
Here’s a breakdown of the European Court of Human Rights’ decision in the case of BASARI, TOV v. Ukraine:
**1. Essence of the Decision:**
The case concerns a Ukrainian company, BASARI, TOV, and its complaints regarding two sets of legal proceedings that impacted its property rights and business activities. The company argued that its right to a fair trial and the right to property were violated. The Court found a violation of Article 6 regarding the excessive length of the second set of proceedings, as well as violations of Article 6 and Article 1 of Protocol No. 1 concerning an unfair interim measure that halted the company’s commercial activities. The Court dismissed other complaints, finding them manifestly ill-founded.
**2. Structure and Main Provisions:**
* **Subject Matter:** The case revolves around two sets of proceedings concerning the applicant company’s title to a car park and later, a shopping mall, and the impact of these proceedings on the company’s commercial activities.
* **Background:** The decision outlines the history of the property, including the initial lease for a car park construction, transfer of ownership, and subsequent “reconstruction” into a shopping mall.
* **First Set of Proceedings:** This section details the legal challenges to the initial car park construction and the applicant company’s title to it. The key issue was the registration of an easement.
* **Second Set of Proceedings:** This part focuses on the legal challenges to the “reconstructed” shopping mall and the applicant company’s title to it. It also describes an interim measure that prohibited any registration actions concerning the property.
* **Second Interim Measure Proceedings:** This section describes a separate interim measure that prohibited the use of the premises, effectively halting the company’s business.
* **The Court’s Assessment:** This is the core of the decision, where the Court analyzes the applicant company’s complaints under the European Convention on Human Rights.
* **Preliminary Issue:** The Court addressed a preliminary issue regarding the six-month time limit for submitting the application.
* **Article 1 of Protocol No. 1:** The Court found that the complaints regarding the first set of proceedings were rendered meaningless due to the reconstruction of the car park into a shopping mall.
* **Article 6 of the Convention:** The Court found that the length of the second set of proceedings was excessive and failed to meet the “reasonable time” requirement.
* **Article 6 of the Convention in respect of the Second Interim Measure:** The Court found that the 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.
* **Article 1 of Protocol No. 1 to the Convention in respect of the Second Interim Measure:** The Court found 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.
* **Article 41 of the Convention:** The Court addressed the application of Article 41 of the Convention and dismissed the applicant company’s claims for just satisfaction.
**3. Main Provisions for Practical Use:**
* **Length of Proceedings:** The decision reinforces the importance of timely legal proceedings. Undue delays can constitute a violation of Article 6 of the Convention.
* **Interim Measures:** The decision highlights the need for fairness and proportionality when applying interim measures. While rapid decisions may be necessary, procedural safeguards must be respected, and the measures must be related to the subject of the dispute.
* **Right to Property:** The decision confirms that measures controlling the use of property must be lawful, in the general interest, and proportionate.
* **Victim Status:** The decision clarifies that a favorable decision or measure is not 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
* **Six-month rule:** The decision clarifies 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).
**** This decision has implications for Ukraine, emphasizing the need for its judicial system to ensure fair and timely proceedings, particularly when dealing with property rights and interim measures affecting business activities.
CASE OF RJABIŅINS AND OTHERS v. LATVIA
The European Court of Human Rights (ECtHR) in the case of Rjabiņins and Others v. Latvia (application no. 55091/15) found a violation of Article 8 (right to respect for private and family life) taken alone and in conjunction with Article 13 (right to an effective remedy) of the Convention. The case concerned the covert interception of the applicants’ telephone conversations during a criminal investigation, their subsequent discovery of the interception, and their inability to challenge it effectively. The Court emphasized that the orders issued by the investigating judge lacked sufficient detail and an individualized assessment of the necessity and proportionality of the surveillance measures for each applicant. The domestic court’s rejection of the applicants’ complaint as out of time further deprived them of an effective remedy. As a result, the Court awarded each applicant EUR 2,500 in respect of non-pecuniary damage.
The judgment begins by outlining the facts of the case, detailing the applicants’ employment, the criminal investigation, and the authorization and execution of the covert interception of their telephone communications. It then presents the applicants’ complaints, relying on Articles 8 and 13 of the Convention, arguing that the interference with their private life was unjustified and that they lacked an effective remedy to challenge the interception. The Court’s assessment follows, declaring the application admissible and addressing the alleged violation of Articles 8 and 13. The Court refers to general principles concerning covert surveillance measures and effective domestic remedies, as summarized in previous cases. It concludes that while the interception had a legal basis in domestic law, the requirement that the measure be “necessary in a democratic society” was not satisfied due to the lack of detail and individualized assessment in the investigating judge’s orders. Finally, the judgment addresses the application of Article 41 of the Convention, awarding the applicants compensation for non-pecuniary damage. There are no changes compared to previous versions.
The main provisions of the decision that may be the most important for its use are those concerning the necessity and proportionality of covert surveillance measures. The Court emphasized that orders authorizing such measures must contain sufficient detail and an individualized assessment, demonstrating that the investigating judge considered whether the investigation could be conducted by less intrusive means. The absence of such detail and individualized assessment, as well as the lack of an effective remedy for challenging the surveillance measures, led the Court to find a violation of Articles 8 and 13 of the Convention. This highlights the importance of ensuring that domestic laws and practices provide adequate safeguards against arbitrary or disproportionate surveillance, and that individuals have access to effective remedies to challenge such measures.
CASE OF ZVONAR v. UKRAINE
Here’s a breakdown of the Zvonar v. Ukraine decision:
1. **Essence of the Decision:**
The European Court of Human Rights (ECtHR) examined a case where a Ukrainian citizen, Mr. Zvonar, was deprived of land he had purchased from local authorities after a prosecutor challenged the legality of the sale. The Court found that while the deprivation of land constituted an interference with his property rights, there was no violation of Article 1 of Protocol No. 1 of the Convention. The Court emphasized that the interference was lawful, pursued a public interest, and, importantly, the applicant had the possibility to seek compensation for the value of the land, which he did not pursue. The Court accepted the applicant’s wife as having standing to continue the proceedings after his death.
2. **Structure and Main Provisions:**
* The judgment begins by outlining the background of the case, including the applicant’s purchase of land, the prosecutor’s challenge, and the decisions of Ukrainian courts.
* It then addresses a preliminary issue regarding the applicant’s death and the standing of his wife to continue the proceedings. The Court accepted the wife’s standing.
* The core of the decision focuses on the alleged violation of Article 1 of Protocol No. 1 (protection of property).
* The Court assesses whether the interference with the applicant’s property rights was lawful, in the public interest, and proportionate.
* It highlights that the applicant had the opportunity to seek compensation under Ukrainian law (specifically Article 216 of the Civil Code) but did not do so.
* The judgment concludes that there was no violation of Article 1 of Protocol No. 1.
3. **Main Provisions for Use:**
* **Lawfulness and Public Interest:** The decision reinforces the principle that interference with property rights must be lawful and serve a public interest.
* **Proportionality and Compensation:** The judgment underscores the importance of compensation in cases of property deprivation. It clarifies that the availability of a remedy for compensation is crucial in assessing whether a fair balance has been struck between individual rights and the public interest.
* **Burden of Proof:** The decision suggests that the onus is on the applicant to demonstrate that available compensation mechanisms are inadequate.
* **Domestic Law Interpretation:** The ECtHR defers to the interpretation of domestic law by national courts unless there are compelling reasons to do otherwise.
* **Standing of Heirs:** The decision confirms that heirs can continue proceedings before the Court in place of a deceased applicant.
This decision highlights the importance of pursuing available remedies at the national level, particularly concerning compensation, when alleging a violation of property rights under the Convention.
