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“Batkivska Turbota Charity Foundation v Ukraine” Judgment of ECHR

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“Batkivska Turbota Charity Foundation v Ukraine” Judgment of ECHR

04. 03. 2019

Case brief of Batkivska Turbota Foundation v. Ukraine (application no. 5876/15, judgment of 9 October 2018).

The applicant in this case is the Charity Foundation, which since its establishment has been providing assistance to children in difficult life circumstances and since 2014 to the families who were forced to flee because of Russian aggression.

In 1991, the Federation of Trade Unions of Ukraine and the Social Insurance Fund of Ukraine established two enterprises of Ukrprofozdorovnytsya and Ukrproftur and transferred them sanatorium and resort facilities of the Federation of Trade Unions of Ukraine.

These enterprises were registered in accordance with the law effected at that time and received title documents on the transferred property.

During 1997 – 2009, prosecutor’s offices repeatedly disputed in the courts the transfer of the property of the Trade Unions to the aforementioned enterprises. All of the prosecutor’s clams were unsuccessful.

In 2002, the Applicant purchased a part of the sanatorium of the Ukrprofozdorovnytsya in Pushcha-Vodytsia for 2 000 000 UAH.

Following the purchase, the Application repaired sanatorium’s premises and purchased medical equipment necessary for the rehabilitation of children.

In 2011, the deputy prosecutor of the city of Kyiv, acting on behalf of the State and representing the State Property Fund of Ukraine and the Ministry of Healthcare of Ukraine, lodged a claim with the Kyiv City Commercial Court to annul the contract of purchase and sale of property.

The prosecutor grounded his claim on the fact that he had JUST KNOWN that the Council of Ministers of the Ukrainian SSR, transferring that property in 1960 to the Trade Unions, had no intent to alienate it. Thus, the disputed property belongs to the state.

The Kyiv City Commercial Court upheld the prosecutor’s position and allowed the claim, while pointing out the unreasonableness of the applicant’s references to the violation of the European Convention on Human Rights.

Kyiv Commercial Court of Appeal quashed that judgment!

In 2014, the Higher Commercial Court of Ukraine upheld the cassation appeal of the prosecutor and ordered the property to be returned to the state’s ownership.

This decision was left unchanged by the decision of the Supreme Court of Ukraine.

The State Property Fund was registered the new owner of the disputed property.

The European Court concluded that the Applicant’s deprivation of property constituted a violation of its rights guaranteed by Article 1 of Protocol No. 1 to the Convention. In particular, the Court noted.

  1. Interference could not be considered to “ meet the lawfulness requirement “, because:

  • there was no legislation that determined the legal status of property of the Trade Unions of the former USSR;

  • case-law on this issue was controversial and for a long period the judicial system was not able to develop a unified approach to that issue.

  1. Interference was not carried out “in the public interest”, because:

  • neither the prosecutor’s claim nor judicial decisions made it clear what exactly was the “public interest”;

  • no evidence was provided that the Applicant’s deprivation of property was the only way to restore rights of the state;

  • if the “interest” still existed, then it was unclear why the property was decided to be taken away from the Applicant only after 12 years following its purchase.

  1. The intervention imposed a disproportionate individual burden, given that the Applicant received no adequate compensation for the seized property.

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