Bazhenov and Others v. Russia and Ukraine: Property Rights under Occupation

By Natalia Cwicinskaja

Occupation does not bring private transactions to a halt. In Crimea, property continued to be bought, sold and registered after Russia asserted jurisdiction over the peninsula. In Bazhenov and Others v Russia and Ukraine, the European Court of Human Rights (Court) confronted the tension between protecting individual property and the consequences of non-recognition for interests created under the occupying power’s legal order. Building on Ukraine v Russia (re Crimea), the judgment addresses further questions about which property interests arising from private transactions during occupation may qualify as ‘possessions’ under Article 1 of Protocol No. 1 (paras 53-66).  It also considers whether measures affecting protected interests were ‘in accordance with the law’ when assessed in the light of international humanitarian law (IHL) (paras 77-86).

The legal starting point is the Grand Chamber’s finding in Ukraine v Russia (re Crimea) that the wholesale application of Russian law in Crimea was contrary to the Convention, interpreted in the light of IHL, and could not qualify as ‘law’ for Convention purposes (paras 933–46). Four three-judge Committee judgments subsequently applied that finding. Bekirov and Others v Russia, Shukurdzhyyev and Kuzmin v Russia and Ukraine and Ametov and Others v Russia concerned sanctions and proceedings arising from peaceful assemblies, while Zhunko v Russia applied them to a fine and car re-registration, finding a violation of Article 1 of Protocol No. 1 (respectively, paras 14-20, 13-16,12-21 and paras 13-17). Bazhenov, by contrast, was decided by a seven-judge Chamber and extends that case-law to interests in land and sale proceeds, including the effects of a private transaction governed solely by Russian law during occupation (paras 53-66). The twelve applications joined in Bazhenov were among 230 applications concerning land in Crimea communicated by the Court in December 2021. Although not designated as a pilot or lead judgment,  Bazhenov appears to be the first merits judgment from that group and may be relevant to the remaining cases.

From Ukrainian land allocation to Russian confiscation

In 2009 and 2010, the Sevastopol City Administration and City Council transferred public land into private ownership for individual dachas. Ukrainian authorities investigated the allocations, while administrative courts upheld the City Administration’s decisions. The first and third applicants received plots directly, while the others purchased them, including the second applicant, who bought hers from the third in 2015 under Russian law (paras 6 and 46).  All registered their titles under Russian law, but only the third, fourth and fifth applicants had previously registered them under Ukrainian law (para 7).

Between 2015 and 2017, Russian authorities sought cancellation of the titles. They alleged that the plots had been unlawfully privatised under Ukrainian law as forest land, but relied on the Russian Civil Code to reclaim them as Russian public property. The Russian ‘court’ accepted the claims, cancelled the titles and ordered their return without compensation. The  appeals failed (paras 8-11). After the title was cancelled, the purchaser sued the seller, and the Russian ‘courts’ ordered repayment of the purchase price, interest and expenses under Article 461 of the Russian Civil Code. The seller had therefore transferred the land but was also required to return the money received for it (paras 12-13, 19 and 65).

The Court’s judgment

The Court had jurisdiction over the complaints against Russia because the events occurred before 16 September 2022, when Russia ceased to be a Convention Party, and Russia had exercised effective control over Crimea (paras 33-35). Three applicants waived their claims against Ukraine, which the Court accordingly struck out (paras 39-43).

The  Court first considered whether  the asserted interests were ‘possessions’ under Article 1 of Protocol No. 1, an autonomous concept covering existing assets and sufficiently established claims supported by a legal provision or legal act (paras 55-56).

The first applicant had a ‘possession’ despite not registering his title  under Ukrainian law: the allocation decision was capable of creating a legitimate expectation, a conclusion supported by the Russian authorities’ own treatment of him as the landowner in the recovery proceedings (paras 57-59, 66).

By contrast, the second applicant’s interest in the land was not a ‘possession’: she had bought and registered the plot under Russian law in 2015, contrary to Ukrainian law and the Temporarily Occupied Territories Act (paras 60-64). Although IHL does not expressly regulate property transactions between private parties, the Court invoked the occupying power’s duty to respect, as far as possible, the law of the occupied territory and the duty of non-recognition reflected in Article 41 of the Articles on State Responsibility (para 61). Because Russian law could not qualify as ‘law’ for Convention purposes, the transaction provided no legal basis for a legitimate expectation to the land (para 62).

The Court found no basis for protecting the second applicant’s interest under the ‘Namibia exception’, derived from the ICJ’s 1971 Advisory Opinion and previously relied on in the Court’s own case law in Loizidou v Turkey.  The exception limits the consequences of non-recognition where disregarding certain acts would harm the territory’s inhabitants, but the Court did not explain why it had to be read  narrowly (paras 27 and 63). The Court contrasted this outcome with its approach to northern Cyprus, where it had recognised the validity of certain measures adopted by the  ‘Turkish Republic of Northern Cyprus’ (‘TRNC’) and found its courts compatible with the Convention tradition (para 63). The Court had previously found that the wholesale application of Russian law in Crimea was incompatible with the Convention in the light of IHL, while Russia’s subsequent departure from the Council of Europe ‘compounded’ the distinction (para 63, referring to Mozer v the Republic of Moldova and Russia, paras 137-141). The purchaser’s interest in the land therefore did not constitute a ‘possession’, without prejudice to a possible claim under Ukrainian law (para 64).

The third applicant, who had sold the plot to the second applicant, lacked victim status regarding the deprivation of the land despite remaining its registered owner under Ukrainian law. Without ruling on the sale’s validity, the Court treated the purchase price as her existing possession and the repayment order as affecting that asset (paras 49-52 and 65-66).

Turning to the merits, the Court treated the measures as deprivations of possessions (para 80). It regarded the alleged breaches of Ukrainian law as a pretext: the title cancellations rested on Russian law and disregarded even local de facto measures purporting to preserve existing Ukrainian titles (para 82). The repayment order likewise relied on Article 461 of the Russian Civil Code and made the seller responsible for the allegedly unlawful conduct of the Ukrainian authorities that had allocated the land (para 83).

The Court further found that the decisions could not be justified under IHL: irrespective of whether the initial allocations complied with Ukrainian law, the confiscation breached Article 46 of the Hague Regulations, which admits no military or other exception (paras 24, 28 and 85). Since the decisions also rested on Russian law, they were not ‘in accordance with the law’; the Court therefore did not examine legitimate aim or proportionality (paras 77 and 84-86).

Applying the rule reiterated in Sargsyan v Azerbaijan (dec.), that deprivation resulting from an invalid formal act may be continuing, the Court held that the applicants who had not voluntarily disposed of their plots remained their legal owners. It accordingly found a continuing deprivation and a violation of Article 1 of Protocol No. 1 (paras 67-70 and 87-91).

The Court also found a violation of Article 6 § 1 because the Russian ‘courts’ operating in Crimea were not tribunals ‘established by law’ (paras 95 and 99-100). Article 6 applied even to the purchaser whose land interest did not constitute a possession, since the proceedings had significant repercussions for her rights; Article 13 was not examined separately (paras 96, 101-102).

Property interests formed under occupation

Bazhenov addresses whether a legal order imposed by an occupying power can itself generate a new Convention-protected property interest. The closest earlier property cases concerned whether measures adopted by de facto authorities could extinguish pre-existing rights. The judgment suggests that the legal source of the substantive interest, rather than its later registration, is decisive: the first applicant’s legitimate expectation arose from an earlier Ukrainian allocation decision despite later Russian registration, whereas the purchaser’s interest was created exclusively under Russian law after the occupation (paras 7 and 57-64).

That contrast is visible in three earlier cases. In Loizidou v Turkey, the Court denied Convention effect to a purported expropriation under the ‘TRNC’ Constitution. In Chiragov and Others v Armenia, it rejected ‘Nagorno-Karabakh Republic’ privatisation legislation as terminating displaced owners’ land rights (respectively, paras 42-47 and paras 148-149). Taganova and Others v Georgia and Russia came closer: possible third-party acquisitions in Abkhazia did not extinguish the applicants’ pre-existing rights, and Georgian law rendered unlawful real estate transactions void (paras 184-185). Although Bazhenov cited that finding when noting that the 2015 purchase contravened Ukrainian law (para 60), Taganova considered the original owners’ rights, not whether a third-party purchaser had independently acquired a ‘possession’. 

The refusal to recognise the purchaser’s land interest should not be read as declaring every private transaction under Russian law in Crimea legally non-existent. The Court noted that IHL does not expressly regulate such transactions, confined its conclusion to the purchaser’s proprietary interest, and left open a claim  under Ukrainian law (paras 61 and 64). It also protected the seller’s proceeds without determining the transaction’s legitimacy (paras 51 and 65-66). Bazhenov thus exposes a broader tension surrounding illegal territorial regimes: rights created by the unlawful situation may be denied legal effect, but applying that invalidity indiscriminately may create protection gaps for the population.

The judgment can thus be read as distinguishing the creation of a new land title from the protection of an existing asset. The Russian legal order could not ground the purchaser’s legitimate expectation to the plot, but the sale proceeds already received by the seller were an existing asset affected by the repayment order (paras 50, 52, 60-66). This is narrower than either recognising the transaction in full or denying all its legal consequences.

The second applicant’s position exposes a boundary between Convention protections: her land title fell outside the scope of Article 1 of Protocol No. 1, while the proceedings affecting it remained subject to Article 6 § 1 (paras 64 and 96). Bazhenov thus confirms that Article 6 may apply where the asserted interest is not a ‘possession’, provided that the proceedings determine a genuine and serious dispute over an arguable civil right. It leaves open which other civil transactions under the legal order operating in Crimea may fall within the narrow Namibia exception (paras 61-64).

The Namibia exception and the role of IHL

The role of IHL differed between determining whether the purchaser had a ‘possession’ and assessing the merits. At the first stage, the Court invoked the occupying power’s IHL duty to respect the law of the occupied territory and the duty of non-recognition under general international law, while noting that IHL contains no express rule on private transactions (para 61). On the merits, Article 46’s prohibition of confiscation informed the Convention requirement of lawfulness rather than providing a separate cause of action. Because the decisions rested on Russian law and could not be justified under IHL, the Court resolved the case at the lawfulness stage without reaching the usual fair-balance analysis (paras 24, 28 and 81-86).

The comparison with northern Cyprus is central to the Court’s treatment of the 2015 sale. In Cyprus v Turkey, the Grand Chamber held that disregarding acts of de facto authorities was ‘far from absolute’, especially for private law relationships necessary for life in the territory (paras 90-98). Demopoulos and Others v Turkey applied the same functional approach by treating the remedies provided by the ‘TRNC’ Immovable Property Commission as relevant and effective without recognising the ‘TRNC’ itself (paras 95-96 and 127-128). Neither case determined whether a person purchasing land after the establishment of the unrecognised regime thereby acquired a Convention protected possession.

Against that background, Bazhenov distinguished northern Cyprus on three grounds: the incompatibility of the wholesale application of Russian law with the Convention in the light of IHL; the different assessment of the northern Cypriot judicial system; and Russia’s departure from the Council of Europe (para 63). The last creates a temporal difficulty: the purchase and proceedings occurred between 2015 and 2018, while Russia ceased to be a Party to the Convention on 16 September 2022 (paras 12-13, 33 and 60). Although the Court treated Russia’s departure merely as a factor which ‘compounded’ the divergence, that institutional change should have no bearing on whether the 2015 transaction created a Convention protected possession, which must be assessed in its legal context at the time.

The agreement was private, but its asserted proprietary effect depended on land registration under the legal order imposed by the occupying power. It therefore lay at the intersection of the humanitarian exception for everyday private relations and the duty not to give effect to public acts implementing an unlawful territorial regime. This mixed character supports subject-matter-specific analysis rather than regime-wide presumptions.

The Court’s narrow approach appears to rest on the duty of non-recognition and on the fact that the sale acquired its purported proprietary effect through land registration under the legal order imposed by Russia. That result is defensible because recognition could give effect to the attempted annexation. The distinction from northern Cyprus is nevertheless only partly convincing. The earlier Cyprus case law adopted a functional and context sensitive approach, asking whether limited effect should be given to particular acts or institutions in order to avoid a legal vacuum and protect everyday private relations. When distinguishing that case law, Bazhenov relied mainly on systemic differences between Crimea and northern Cyprus, although it had first examined the legal basis of the particular transaction (paras 60-63). The judgment therefore justifies the outcome in this transaction more readily than it defines the Namibia exception’s scope for other ordinary private relations during prolonged occupation.

Conclusion

Bazhenov does not comprehensively resolve the validity of private transactions under occupation. It protects interests rooted in Ukrainian law despite their later Russian registration and the seller’s proceeds from a post-occupation transaction, but refuses to treat a land title created solely under Russian law as a ‘possession’ (paras 57-66).

The judgment therefore gives a clearer answer on the protection of pre-existing property against measures of the occupying power than on the treatment of private relations formed during occupation. Its narrow application of the Namibia exception leaves unclear which such relations may nevertheless receive limited legal effect under the Convention (paras 61-64). This uncertainty matters in practice: inhabitants continue to buy, sell and organise their affairs even when the available legal order cannot be recognised as lawful under the Convention.