I incorrectly predicted that there's no violation of human rights in FEDERATION OF TRADE UNIONS OF CHERNIGIV REGION v. UKRAINE.

Judgment

FIFTH SECTION
CASE OF FEDERATION OF TRADE UNIONS OF CHERNIHIV REGION v. UKRAINE
(Application no. 40633/15)

JUDGMENT
STRASBOURG
9 January 2025

This judgment is final but it may be subject to editorial revision. In the case of Federation of Trade Unions of Chernihiv Region v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
María Elósegui, President, Gilberto Felici, Kateřina Šimáčková, judges,and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 40633/15) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 11 August 2015 by a Ukrainian organisation, the Federation of Trade Unions of Chernihiv Region (“the applicant organisation”), which is located in Chernihiv and was represented by Mr I.Y. Lishchyna, a lawyer practising in Kyiv;
the decision to give notice of the application to the Ukrainian Government (“the Government”), represented by their Agent, Ms M. Sokorenko;
the parties’ observations;
Having deliberated in private on 5 December 2024,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The case concerns the applicant organisation’s complaint, under Article 1 of Protocol No. 1, that it was deprived of property that it had owned for decades as the legal successor to a Soviet-era regional trade union organisation. 2. The detailed historical and legal background pertaining to the status and functioning of trade unions in Ukraine has been summarised 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 it shall be recalled that in October 1990 the Federation of Independent Trade Unions of Ukraine (“the Federation”) was founded; it declared its independence from the State, and from the bodies of the Ukrainian Soviet Socialist Republic (“the Ukrainian SSR”) and the Soviet Union. The Federation was also declared the legal successor to the Ukrainian Republican Council of Trade Unions. 4. 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. 5. By a resolution of 10 April 1992 (“Resolution no. 2268”), the Parliament of the by then independent Ukraine ordered that, until a list of legal successors to the Union-wide civic organisations of the former Soviet Union had been drawn up, all assets belonging to those entities and located in the territory of Ukraine were to be temporarily transferred to the State Property Fund of Ukraine (“the SPFU”), an authority set up to manage State property. 6. By a resolution of 4 February 1994, Parliament further ordered that until the owners of the above-mentioned assets had been determined by legislation, those assets were to be regarded as State property. It appears that no such legislation has been passed to date. 7. 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. The first judgment delivered on the matter found in favour of the trade unions (relevant domestic case-law has been described in detail in Batkivska Turbota Foundation (cited above), §§ 20-23 and 40-43). 8. The applicant organisation was created in December 1990 as an association of trade unions of the Chernihiv Region. Its statute states that it is the legal successor to the Chernihiv Regional Council of Trade Unions (“Chernihiv RCTU”; a trade union organisation created during Soviet times). 9. It appears that between 1983 and 1987 the Chernihiv RCTU built a non‐residential building intended for use by trade unions, in particular for training activities. In late December 1987 the building, with a total surface of 3,502.3 square metres, was “authorised for use”. 10. In 2002 the applicant organisation obtained an ownership certificate for the building from the local authorities. It had been using the building as a site for its Training and Methodological Centre. 11. In October 2011 the local prosecutor submitted an action to the Commercial Court of the Chernihiv Region (“the local court”), seeking to invalidate the applicant organisation’s title and to reclaim the building as property of the State (as represented by the SPFU). The prosecutor argued that the Chernihiv RCTU had never been an independent entity, either administratively or financially, and that it had been subordinate to the Ukrainian Republican Council of Trade Unions, which in turn had been subordinate to the Union-wide Central Council of Trade Unions. Before 1990 all trade unions in the Soviet Union had therefore been Union-wide civic organisations. Referring to Resolution no. 2268, the prosecutor contended that Parliament had transferred all property belonging to the former Union‐wide civic organisations to the SPFU. The disputed building, constructed by the Chernihiv RCTU, therefore belonged to the State and could not have been lawfully registered as the applicant organisation’s property. 12. The applicant organisation argued that it was the legal successor to the Chernihiv RCTU. Referring to the 1990 agreement, it stated that the property transferred to the Federation (and thus to its local branches) could no longer be regarded as property of the Union-wide civic organisations, and consequently was not covered by Resolution no. 2268. It emphasised that in any event Resolution no. 2268 and other legal instruments on the matter had been adopted after the above-mentioned 1990 agreement. 13. On 26 December 2011 the prosecutor’s claims were allowed by the local court, which essentially agreed with his arguments, particularly that the trade union organisations of independent Ukraine were not the successors to the Soviet-era trade unions so they were unable to claim any rights over property which had been owned by the latter. In reaching its conclusions it referred to several Supreme Court judgments delivered between 2005 and 2010 in similar cases. 14. On 3 June 2014 that judgment was quashed by the Kyiv Commercial Court of Appeal (“the appellate court”). Having analysed the statutory documents of the Ukrainian trade union organisations created in the early 1990s, the court established that they were the successors to the Soviet trade unions and that the same applied to the applicant organisation. It further analysed the legislation regarding property rights in the Soviet Union and in independent Ukraine and concluded that trade unions had been able to own property and that such property had been akin to private property. The applicant organisation therefore lawfully owned the disputed building because it was property which had been assigned to the trade unions by the 1990 agreement and which was not covered by Resolution no. 2268. 15. On 29 July 2014 the High Commercial Court of Ukraine (“the HCCU”) quashed the appellate court’s judgment and remitted the case to that court for a fresh examination. The HCCU held that the appellate court had failed to “conclusively establish” which legal regime the disputed property was governed by in the light of the legislative provisions in force at the time of events. It also pointed out that the appellate court had failed to establish whether the 1990 agreement had empowered the Federation to own and to dispose of property. 16. On 10 November 2014, following its re-examination of the case, the appellate court once again dismissed the prosecutor’s claims, essentially repeating its previous reasoning. The prosecutor lodged a cassation appeal. 17. On 19 February 2015 the HCCU quashed the appellate court’s judgment. It held that the legislative instruments that had been adopted in the early 1990s regarding the property of the Soviet trade unions (see paragraphs 5-6 above) had been aimed at protecting and securing that property as state property after Ukraine’s independence in order to protect the interests of its citizens. The fact that the Federation had proclaimed itself independent and had acquired property from the General Conference of Trade Unions of the Soviet Union did not mean that the above-mentioned legislation did not apply to it. In addition, the HCCU rejected the finding that the applicant organisation was the successor to the relevant Soviet organisation. In view of those considerations, the HCCU found that the disputed building was State property and that the applicant organisation’s title to it had to be invalidated. It refused, however, to grant the prosecutor’s request to reclaim the building from the applicant organisation on the grounds that the SPFU only had the right to dispose of State property but not to own or possess it. The HCCU further held that having regard to the fact that the applicant organisation had been using the building for its statutory activities, which were in the interests of society, it had to be considered to be a “lawful user of State property” and no grounds existed for reclaiming the building. 18. It is apparent from the parties’ observations that between 2015 and 2024 the applicant organisation continued to use the disputed building as a training centre and that that centre also included several hotel rooms and a café. As a result of a missile attack on 17 April 2024 the building was completely destroyed. THE COURT’S ASSESSMENT
ALLEGED VIOLATION OF ARTICLE 1 of Protocol nO. 1 to THE CONVENTION
19. The applicant organisation complained under Article 1 of Protocol No.1 to the Convention that the deprivation of its property had been unlawful and disproportionate. It also complained under Articles 6 and 13 of the Convention that the domestic courts’ decisions in its case had lacked adequate reasoning and that there was a lack of effective domestic remedies. 20. The Court, being the master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), considers that the applicant organisation’s complaints fall to be examined under Article 1 of Protocol No. 1 only. 21. The Government conceded that there had been an interference with the applicant organisation’s right to the peaceful enjoyment of its possessions. They submitted, however, that the interference had been lawful, effected in the public interest and proportionate. In particular, they noted, referring to judgments delivered between 2018 and 2020, that the current opinion of the Supreme Court on the status of property of the former Soviet trade union organisations located in Ukraine was unequivocal, essentially amounting to a recognition that such property was State property. They also referred to the Supreme Court’s judgment of 2 July 2019 which had been delivered in the framework of the review proceedings following the Court’s judgment in Batkivska Turbota Foundation (cited above) in which the Supreme Court had once again confirmed that the property of the former Soviet trade unions belonged to the State. The Government considered that the Supreme Court’s position indicated “a change in the negative situation with respect to the principle of legality” in cases similar to that of Batkivska Turbota Foundation (cited above), including the present case. 22. As to the public interest, the Government argued that the interference had been necessary for the restoration of State ownership of the disputed property, which had been transferred to the applicant organisation without a proper legal basis. They further noted that the number of assets of that kind left over from Soviet times and their importance for the country’s social and economic infrastructure was significant. Returning such assets to State ownership “to meet the needs of the citizens” was in the national interest. 23. As to proportionality, the Government argued that the present case was different from the case of Batkivska Turbota Foundation (ibid. ), in which the applicant foundation, having bought the disputed property from a trade union organisation, was a bona fide purchaser as it could not have known that the seller had not been the lawful owner of the property and had not had the right to dispose of it. The applicant in the present case was itself a trade union organisation and so it must have been aware of the legislation classifying its property as State property, in particular the above-mentioned Resolution no. 2268. The Government further emphasised, with reference to the HCCU’s conclusions in its judgment of 19 February 2015, that in the present case the disputed building had not been reclaimed from the applicant organisation and therefore there were no grounds to consider that it had suffered an excessive individual burden. 24. The applicant organisation argued that the interference in question could not be considered lawful. It referred to the Court’s findings in Batkivska Turbota Foundation (cited above, § 57) that there had been no uniform approach at the domestic level as regards the status of property which had belonged to the former Soviet trade unions located in the territory of the Ukrainian SSR and that that situation had been caused, in particular, by the absence of a special law on the matter. The applicant organisation submitted that those findings were fully pertinent to its own case. It further argued that the 1992 and 1994 resolutions were inapplicable to its case ratione temporis (as also held by the appellate court in both of its judgments dismissing the prosecutor’s claim). It further argued that the Government’s reference to the Supreme Court’s case-law from 2018 to 2020 on the matter had no bearing on its own case, which had been heard between 2011 and 2015, nor was it relevant to its title which it had obtained in 2002. Lastly, it submitted that, to date, no law on the status of the former Soviet trade unions’ property had been passed. 25. As to the public interest, the applicant organisation argued that the Government’s submissions in that regard had been too general and that it had not explained what the alleged “needs of the citizens” vis-à-vis the property in question were, or why those needs had not emerged for so many years. 26. On the issue of proportionality, the applicant organisation conceded that it had continued to use the building in question after the 2015 judgment invalidating its title. It nevertheless argued that, as it had no longer been the building’s formal owner, it had been unable to insure the building against the risks associated with the hostilities in Ukraine, nor would it be able to obtain financing for its reconstruction or be entitled to any compensation following its destruction under any of the compensation schemes that were being contemplated. It also argued that it had been the bona fide owner of property and had been deprived of it without any compensation. 27. 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 reasonably proportionate to the aim sought to be realised. 28. The Court reiterates that the present case is factually and legally similar to Batkivska Turbota Foundation (cited above). It therefore considers that its findings regarding the lawfulness of the interference as set out in paragraphs 57-58 of that judgment are equally relevant to the present case. In addition, the Court agrees with the applicant organisation that the Government’s reference to the Supreme Court’s case-law on the matter, developed between 2018 and 2020, as evidence of an allegedly settled domestic practice, has no bearing on the applicant organisation’s case, which had been examined by the courts many years earlier. The Court is also mindful that, even if the current domestic case-law could be considered to be settled and consistent, no special law on the status of the former Soviet trade unions’ property has been passed to date, in spite of the fact that the Ukrainian Constitution requires that a “legal regime for property shall ... be defined by law only” (Article 92). 29. As to the public interest, the Court notes that the Government made a rather general submission about the need to restore the State’s rights in respect of the former Soviet entities’ property (see paragraph 22 above). Although the Court can understand that such property might be important for the social and economic life of society, it observes that in the present case the applicant, a trade union organisation, had been using the disputed building for its direct statutory activities, which undoubtedly also serve the interests of society. The Government have not shown how the State, after having regained the right to use the building, intended to use it. In that context the Court notes that the 2015 HCCU judgment left the disputed building in the applicant organisation’s possession precisely on account of its activities serving the interests of society. Furthermore, assuming that the property in question was indeed State property and that the State had been attempting to reclaim its title to it, the State knew or ought to have known about the registration of the applicant organisation’s title in 2002 at the latest; however, it did not react for nine years afterwards. The Court fails to understand why, if there existed a pressing need, the State had to wait so long. Cumulatively, those considerations raise serious doubts as to whether there was a public interest in depriving the applicant organisation of its property in the present case (see Batkivska Turbota Foundation, cited above, § 62, and Shmakova v. Ukraine [Committee], no. 70445/13, §§ 14-16, 11 January 2024). 30. As to proportionality, the Court notes that, indeed, unlike in Batkivska Turbota Foundation (cited above), in which the applicant was a charity foundation which had bought property from a trade union organisation, the applicant in the present case is itself a trade union organisation. In the Government’s view, that meant that it could not have claimed to have lawfully owned the disputed building as it must have known that it belonged to the State. However, the Court observes that the applicant organisation considered itself the lawful owner of the property on the basis of the 1990 agreement and the fact that its statute, which had been duly registered by the authorities, specified that it was the successor to the former Soviet regional trade union organisation. Moreover, as noted above, there was a marked inconsistency in the domestic case-law regarding the status of the Soviet trade unions’ property, which stemmed from the absence of clear legislative regulation (see paragraph 28 above). 31. Furthermore, the applicant organisation had been using the building to carry out its statutory activities for decades. In 2002 it obtained formal ownership documents for the building. It appears that at no point in time, between 1990 and 2002 or during the registration procedure, did the State authorities detect any possible problems regarding the status of the building. In view of the above, the Court cannot consider that the applicant organisation had not been the bona fide owner. In that connection the Court reiterates that mistakes or errors committed by State authorities should serve the benefit of the persons affected, especially where no other conflicting private interest is at stake. In other words, the risk of any mistake made by the State authorities must be borne by the State and the errors must not be remedied at the expense of the individual concerned (see, for example, Maksymenko and Gerasymenko v. Ukraine, no. 49317/07, § 64, 16 May 2013, and the case-law cited therein). 32. The Court further observes that, by its judgment of 19 February 2015, the HCCU invalidated the applicant organisation’s title to the building but did not reclaim it from the organisation’s possession on account of the nature of its statutory activities. The Government relied on that fact as proof of lack of an excessive burden having been imposed on the applicant organisation in the present case. The Court observes that a similar situation occurred in Batkivska Turbota Foundation (cited above, § 34), in which the applicant foundation had been able to continue using the property even after the invalidation of the contract of sale and of its title. The Court nevertheless found a violation in that case because it was not convinced that the invalidation of the applicant foundation’s title had been the only possible option for the State to restore its rights in respect of the disputed property (ibid., § 62). The Court sees no reason to depart from that conclusion in the present case. Furthermore, the Court has not been provided with an explanation as to the legal regime by which the present applicant organisation’s continued use of the building in question had been governed during that time, and what guarantees it might have provided to the applicant organisation, if any. In any event, the Court considers that following the invalidation of its title, the applicant organisation could no longer have enjoyed the same range of rights as it had previously had as the building’s registered owner. In that connection the Court is also mindful of the applicant organisation’s argument that it would be unable to benefit from any compensation schemes for the destroyed property (see paragraph 26 above). 33. In the light of the above considerations, the Court finds that there has been a violation of Article 1 of Protocol No. 1 to the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION
34. The applicant organisation claimed 22,339,404 Ukrainian hryvnias (UAH; approximately 718,043 euros (EUR) according to the applicant organisation’s calculations) in respect of pecuniary damage, corresponding to the value of the building to which it had lost its title. That amount was based on a one-page valuation report dated 20 October 2008 which had been commissioned by the applicant organisation for unknown purposes. 35. The applicant organisation further claimed EUR 20,000 in respect of non-pecuniary damage. It also claimed UAH 21,808.53 (approximately EUR 701 according to the applicant organisation’s calculations) in respect of costs and expenses incurred during the domestic proceedings and 4,000 United States dollars in legal fees for its representation before the Court. 36. The Government contested those claims as excessive and unsubstantiated. They also repeated their position that there had been no violation in the present case. 37. The Court considers that, in the circumstances of the present case, the question of the application of Article 41 of the Convention is not ready for decision. That question must accordingly be reserved, and the subsequent procedure fixed, having due regard to any agreement which might be reached between the Government and the applicant organisation (Rule 75 §§ 1 and 4 of the Rules of Court). FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) reserves the said question in whole;
(b) invites the Government and the applicant organisation to submit, within three months, their written observations on the matter and, in particular, to notify the Court of any agreement that they may reach; and
(c) reserves the further procedure and delegates to the President of the Committee the power to fix the same if need be. Done in English, and notified in writing on 9 January 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Martina Keller María Elósegui Deputy Registrar President

FIFTH SECTION
CASE OF FEDERATION OF TRADE UNIONS OF CHERNIHIV REGION v. UKRAINE
(Application no. 40633/15)

JUDGMENT
STRASBOURG
9 January 2025

This judgment is final but it may be subject to editorial revision. In the case of Federation of Trade Unions of Chernihiv Region v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
María Elósegui, President, Gilberto Felici, Kateřina Šimáčková, judges,and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 40633/15) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 11 August 2015 by a Ukrainian organisation, the Federation of Trade Unions of Chernihiv Region (“the applicant organisation”), which is located in Chernihiv and was represented by Mr I.Y. Lishchyna, a lawyer practising in Kyiv;
the decision to give notice of the application to the Ukrainian Government (“the Government”), represented by their Agent, Ms M. Sokorenko;
the parties’ observations;
Having deliberated in private on 5 December 2024,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The case concerns the applicant organisation’s complaint, under Article 1 of Protocol No. 1, that it was deprived of property that it had owned for decades as the legal successor to a Soviet-era regional trade union organisation. 2. The detailed historical and legal background pertaining to the status and functioning of trade unions in Ukraine has been summarised 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 it shall be recalled that in October 1990 the Federation of Independent Trade Unions of Ukraine (“the Federation”) was founded; it declared its independence from the State, and from the bodies of the Ukrainian Soviet Socialist Republic (“the Ukrainian SSR”) and the Soviet Union. The Federation was also declared the legal successor to the Ukrainian Republican Council of Trade Unions. 4. 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. 5. By a resolution of 10 April 1992 (“Resolution no. 2268”), the Parliament of the by then independent Ukraine ordered that, until a list of legal successors to the Union-wide civic organisations of the former Soviet Union had been drawn up, all assets belonging to those entities and located in the territory of Ukraine were to be temporarily transferred to the State Property Fund of Ukraine (“the SPFU”), an authority set up to manage State property. 6. By a resolution of 4 February 1994, Parliament further ordered that until the owners of the above-mentioned assets had been determined by legislation, those assets were to be regarded as State property. It appears that no such legislation has been passed to date. 7. 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. The first judgment delivered on the matter found in favour of the trade unions (relevant domestic case-law has been described in detail in Batkivska Turbota Foundation (cited above), §§ 20-23 and 40-43). 8. The applicant organisation was created in December 1990 as an association of trade unions of the Chernihiv Region. Its statute states that it is the legal successor to the Chernihiv Regional Council of Trade Unions (“Chernihiv RCTU”; a trade union organisation created during Soviet times). 9. It appears that between 1983 and 1987 the Chernihiv RCTU built a non‐residential building intended for use by trade unions, in particular for training activities. In late December 1987 the building, with a total surface of 3,502.3 square metres, was “authorised for use”. 10. In 2002 the applicant organisation obtained an ownership certificate for the building from the local authorities. It had been using the building as a site for its Training and Methodological Centre. 11. In October 2011 the local prosecutor submitted an action to the Commercial Court of the Chernihiv Region (“the local court”), seeking to invalidate the applicant organisation’s title and to reclaim the building as property of the State (as represented by the SPFU). The prosecutor argued that the Chernihiv RCTU had never been an independent entity, either administratively or financially, and that it had been subordinate to the Ukrainian Republican Council of Trade Unions, which in turn had been subordinate to the Union-wide Central Council of Trade Unions. Before 1990 all trade unions in the Soviet Union had therefore been Union-wide civic organisations. Referring to Resolution no. 2268, the prosecutor contended that Parliament had transferred all property belonging to the former Union‐wide civic organisations to the SPFU. The disputed building, constructed by the Chernihiv RCTU, therefore belonged to the State and could not have been lawfully registered as the applicant organisation’s property. 12. The applicant organisation argued that it was the legal successor to the Chernihiv RCTU. Referring to the 1990 agreement, it stated that the property transferred to the Federation (and thus to its local branches) could no longer be regarded as property of the Union-wide civic organisations, and consequently was not covered by Resolution no. 2268. It emphasised that in any event Resolution no. 2268 and other legal instruments on the matter had been adopted after the above-mentioned 1990 agreement. 13. On 26 December 2011 the prosecutor’s claims were allowed by the local court, which essentially agreed with his arguments, particularly that the trade union organisations of independent Ukraine were not the successors to the Soviet-era trade unions so they were unable to claim any rights over property which had been owned by the latter. In reaching its conclusions it referred to several Supreme Court judgments delivered between 2005 and 2010 in similar cases. 14. On 3 June 2014 that judgment was quashed by the Kyiv Commercial Court of Appeal (“the appellate court”). Having analysed the statutory documents of the Ukrainian trade union organisations created in the early 1990s, the court established that they were the successors to the Soviet trade unions and that the same applied to the applicant organisation. It further analysed the legislation regarding property rights in the Soviet Union and in independent Ukraine and concluded that trade unions had been able to own property and that such property had been akin to private property. The applicant organisation therefore lawfully owned the disputed building because it was property which had been assigned to the trade unions by the 1990 agreement and which was not covered by Resolution no. 2268. 15. On 29 July 2014 the High Commercial Court of Ukraine (“the HCCU”) quashed the appellate court’s judgment and remitted the case to that court for a fresh examination. The HCCU held that the appellate court had failed to “conclusively establish” which legal regime the disputed property was governed by in the light of the legislative provisions in force at the time of events. It also pointed out that the appellate court had failed to establish whether the 1990 agreement had empowered the Federation to own and to dispose of property. 16. On 10 November 2014, following its re-examination of the case, the appellate court once again dismissed the prosecutor’s claims, essentially repeating its previous reasoning. The prosecutor lodged a cassation appeal. 17. On 19 February 2015 the HCCU quashed the appellate court’s judgment. It held that the legislative instruments that had been adopted in the early 1990s regarding the property of the Soviet trade unions (see paragraphs 5-6 above) had been aimed at protecting and securing that property as state property after Ukraine’s independence in order to protect the interests of its citizens. The fact that the Federation had proclaimed itself independent and had acquired property from the General Conference of Trade Unions of the Soviet Union did not mean that the above-mentioned legislation did not apply to it. In addition, the HCCU rejected the finding that the applicant organisation was the successor to the relevant Soviet organisation. In view of those considerations, the HCCU found that the disputed building was State property and that the applicant organisation’s title to it had to be invalidated. It refused, however, to grant the prosecutor’s request to reclaim the building from the applicant organisation on the grounds that the SPFU only had the right to dispose of State property but not to own or possess it. The HCCU further held that having regard to the fact that the applicant organisation had been using the building for its statutory activities, which were in the interests of society, it had to be considered to be a “lawful user of State property” and no grounds existed for reclaiming the building. 18. It is apparent from the parties’ observations that between 2015 and 2024 the applicant organisation continued to use the disputed building as a training centre and that that centre also included several hotel rooms and a café. As a result of a missile attack on 17 April 2024 the building was completely destroyed. THE COURT’S ASSESSMENT
ALLEGED VIOLATION OF ARTICLE 1 of Protocol nO. 1 to THE CONVENTION
19. The applicant organisation complained under Article 1 of Protocol No.1 to the Convention that the deprivation of its property had been unlawful and disproportionate. It also complained under Articles 6 and 13 of the Convention that the domestic courts’ decisions in its case had lacked adequate reasoning and that there was a lack of effective domestic remedies. 20. The Court, being the master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), considers that the applicant organisation’s complaints fall to be examined under Article 1 of Protocol No. 1 only. 21. The Government conceded that there had been an interference with the applicant organisation’s right to the peaceful enjoyment of its possessions. They submitted, however, that the interference had been lawful, effected in the public interest and proportionate. In particular, they noted, referring to judgments delivered between 2018 and 2020, that the current opinion of the Supreme Court on the status of property of the former Soviet trade union organisations located in Ukraine was unequivocal, essentially amounting to a recognition that such property was State property. They also referred to the Supreme Court’s judgment of 2 July 2019 which had been delivered in the framework of the review proceedings following the Court’s judgment in Batkivska Turbota Foundation (cited above) in which the Supreme Court had once again confirmed that the property of the former Soviet trade unions belonged to the State. The Government considered that the Supreme Court’s position indicated “a change in the negative situation with respect to the principle of legality” in cases similar to that of Batkivska Turbota Foundation (cited above), including the present case. 22. As to the public interest, the Government argued that the interference had been necessary for the restoration of State ownership of the disputed property, which had been transferred to the applicant organisation without a proper legal basis. They further noted that the number of assets of that kind left over from Soviet times and their importance for the country’s social and economic infrastructure was significant. Returning such assets to State ownership “to meet the needs of the citizens” was in the national interest. 23. As to proportionality, the Government argued that the present case was different from the case of Batkivska Turbota Foundation (ibid. ), in which the applicant foundation, having bought the disputed property from a trade union organisation, was a bona fide purchaser as it could not have known that the seller had not been the lawful owner of the property and had not had the right to dispose of it. The applicant in the present case was itself a trade union organisation and so it must have been aware of the legislation classifying its property as State property, in particular the above-mentioned Resolution no. 2268. The Government further emphasised, with reference to the HCCU’s conclusions in its judgment of 19 February 2015, that in the present case the disputed building had not been reclaimed from the applicant organisation and therefore there were no grounds to consider that it had suffered an excessive individual burden. 24. The applicant organisation argued that the interference in question could not be considered lawful. It referred to the Court’s findings in Batkivska Turbota Foundation (cited above, § 57) that there had been no uniform approach at the domestic level as regards the status of property which had belonged to the former Soviet trade unions located in the territory of the Ukrainian SSR and that that situation had been caused, in particular, by the absence of a special law on the matter. The applicant organisation submitted that those findings were fully pertinent to its own case. It further argued that the 1992 and 1994 resolutions were inapplicable to its case ratione temporis (as also held by the appellate court in both of its judgments dismissing the prosecutor’s claim). It further argued that the Government’s reference to the Supreme Court’s case-law from 2018 to 2020 on the matter had no bearing on its own case, which had been heard between 2011 and 2015, nor was it relevant to its title which it had obtained in 2002. Lastly, it submitted that, to date, no law on the status of the former Soviet trade unions’ property had been passed. 25. As to the public interest, the applicant organisation argued that the Government’s submissions in that regard had been too general and that it had not explained what the alleged “needs of the citizens” vis-à-vis the property in question were, or why those needs had not emerged for so many years. 26. On the issue of proportionality, the applicant organisation conceded that it had continued to use the building in question after the 2015 judgment invalidating its title. It nevertheless argued that, as it had no longer been the building’s formal owner, it had been unable to insure the building against the risks associated with the hostilities in Ukraine, nor would it be able to obtain financing for its reconstruction or be entitled to any compensation following its destruction under any of the compensation schemes that were being contemplated. It also argued that it had been the bona fide owner of property and had been deprived of it without any compensation. 27. 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 reasonably proportionate to the aim sought to be realised. 28. The Court reiterates that the present case is factually and legally similar to Batkivska Turbota Foundation (cited above). It therefore considers that its findings regarding the lawfulness of the interference as set out in paragraphs 57-58 of that judgment are equally relevant to the present case. In addition, the Court agrees with the applicant organisation that the Government’s reference to the Supreme Court’s case-law on the matter, developed between 2018 and 2020, as evidence of an allegedly settled domestic practice, has no bearing on the applicant organisation’s case, which had been examined by the courts many years earlier. The Court is also mindful that, even if the current domestic case-law could be considered to be settled and consistent, no special law on the status of the former Soviet trade unions’ property has been passed to date, in spite of the fact that the Ukrainian Constitution requires that a “legal regime for property shall ... be defined by law only” (Article 92). 29. As to the public interest, the Court notes that the Government made a rather general submission about the need to restore the State’s rights in respect of the former Soviet entities’ property (see paragraph 22 above). Although the Court can understand that such property might be important for the social and economic life of society, it observes that in the present case the applicant, a trade union organisation, had been using the disputed building for its direct statutory activities, which undoubtedly also serve the interests of society. The Government have not shown how the State, after having regained the right to use the building, intended to use it. In that context the Court notes that the 2015 HCCU judgment left the disputed building in the applicant organisation’s possession precisely on account of its activities serving the interests of society. Furthermore, assuming that the property in question was indeed State property and that the State had been attempting to reclaim its title to it, the State knew or ought to have known about the registration of the applicant organisation’s title in 2002 at the latest; however, it did not react for nine years afterwards. The Court fails to understand why, if there existed a pressing need, the State had to wait so long. Cumulatively, those considerations raise serious doubts as to whether there was a public interest in depriving the applicant organisation of its property in the present case (see Batkivska Turbota Foundation, cited above, § 62, and Shmakova v. Ukraine [Committee], no. 70445/13, §§ 14-16, 11 January 2024). 30. As to proportionality, the Court notes that, indeed, unlike in Batkivska Turbota Foundation (cited above), in which the applicant was a charity foundation which had bought property from a trade union organisation, the applicant in the present case is itself a trade union organisation. In the Government’s view, that meant that it could not have claimed to have lawfully owned the disputed building as it must have known that it belonged to the State. However, the Court observes that the applicant organisation considered itself the lawful owner of the property on the basis of the 1990 agreement and the fact that its statute, which had been duly registered by the authorities, specified that it was the successor to the former Soviet regional trade union organisation. Moreover, as noted above, there was a marked inconsistency in the domestic case-law regarding the status of the Soviet trade unions’ property, which stemmed from the absence of clear legislative regulation (see paragraph 28 above). 31. Furthermore, the applicant organisation had been using the building to carry out its statutory activities for decades. In 2002 it obtained formal ownership documents for the building. It appears that at no point in time, between 1990 and 2002 or during the registration procedure, did the State authorities detect any possible problems regarding the status of the building. In view of the above, the Court cannot consider that the applicant organisation had not been the bona fide owner. In that connection the Court reiterates that mistakes or errors committed by State authorities should serve the benefit of the persons affected, especially where no other conflicting private interest is at stake. In other words, the risk of any mistake made by the State authorities must be borne by the State and the errors must not be remedied at the expense of the individual concerned (see, for example, Maksymenko and Gerasymenko v. Ukraine, no. 49317/07, § 64, 16 May 2013, and the case-law cited therein). 32. The Court further observes that, by its judgment of 19 February 2015, the HCCU invalidated the applicant organisation’s title to the building but did not reclaim it from the organisation’s possession on account of the nature of its statutory activities. The Government relied on that fact as proof of lack of an excessive burden having been imposed on the applicant organisation in the present case. The Court observes that a similar situation occurred in Batkivska Turbota Foundation (cited above, § 34), in which the applicant foundation had been able to continue using the property even after the invalidation of the contract of sale and of its title. The Court nevertheless found a violation in that case because it was not convinced that the invalidation of the applicant foundation’s title had been the only possible option for the State to restore its rights in respect of the disputed property (ibid., § 62). The Court sees no reason to depart from that conclusion in the present case. Furthermore, the Court has not been provided with an explanation as to the legal regime by which the present applicant organisation’s continued use of the building in question had been governed during that time, and what guarantees it might have provided to the applicant organisation, if any. In any event, the Court considers that following the invalidation of its title, the applicant organisation could no longer have enjoyed the same range of rights as it had previously had as the building’s registered owner. In that connection the Court is also mindful of the applicant organisation’s argument that it would be unable to benefit from any compensation schemes for the destroyed property (see paragraph 26 above). 33. In the light of the above considerations, the Court finds that there has been a violation of Article 1 of Protocol No. 1 to the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION
34. The applicant organisation claimed 22,339,404 Ukrainian hryvnias (UAH; approximately 718,043 euros (EUR) according to the applicant organisation’s calculations) in respect of pecuniary damage, corresponding to the value of the building to which it had lost its title. That amount was based on a one-page valuation report dated 20 October 2008 which had been commissioned by the applicant organisation for unknown purposes. 35. The applicant organisation further claimed EUR 20,000 in respect of non-pecuniary damage. It also claimed UAH 21,808.53 (approximately EUR 701 according to the applicant organisation’s calculations) in respect of costs and expenses incurred during the domestic proceedings and 4,000 United States dollars in legal fees for its representation before the Court. 36. The Government contested those claims as excessive and unsubstantiated. They also repeated their position that there had been no violation in the present case. 37. The Court considers that, in the circumstances of the present case, the question of the application of Article 41 of the Convention is not ready for decision. That question must accordingly be reserved, and the subsequent procedure fixed, having due regard to any agreement which might be reached between the Government and the applicant organisation (Rule 75 §§ 1 and 4 of the Rules of Court). FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) reserves the said question in whole;
(b) invites the Government and the applicant organisation to submit, within three months, their written observations on the matter and, in particular, to notify the Court of any agreement that they may reach; and
(c) reserves the further procedure and delegates to the President of the Committee the power to fix the same if need be. Done in English, and notified in writing on 9 January 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Martina Keller María Elósegui Deputy Registrar President