Here’s a breakdown of the European Court of Human Rights’ decision in the case of BASARI, TOV v. Ukraine:<\/p>\n
**1. Essence of the Decision:**<\/p>\n
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.<\/p>\n
**2. Structure and Main Provisions:**<\/p>\n
* **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.
\n * **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.
\n * **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.
\n * **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.
\n * **Second Interim Measure Proceedings:** This section describes a separate interim measure that prohibited the use of the premises, effectively halting the company’s business.
\n * **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.
\n * **Preliminary Issue:** The Court addressed a preliminary issue regarding the six-month time limit for submitting the application.
\n * **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.
\n * **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.
\n * **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.
\n * **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.
\n * **Article 41 of the Convention:** The Court addressed the application of Article 41 of the Convention and dismissed the applicant company\u2019s claims for just satisfaction.<\/p>\n
**3. Main Provisions for Practical Use:**<\/p>\n
* **Length of Proceedings:** The decision reinforces the importance of timely legal proceedings. Undue delays can constitute a violation of Article 6 of the Convention.
\n * **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.
\n * **Right to Property:** The decision confirms that measures controlling the use of property must be lawful, in the general interest, and proportionate.
\n * **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 \u201cvictim\u201d 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
\n * **Six-month rule:** The decision clarifies that the six-month time-limit for the applicant company\u2019s 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).<\/p>\n
**** 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.<\/p>\n