CASE OF PALIUTIS v. LITHUANIA
(Application no. 34085/09)
24 November 2015
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Paliutis v. Lithuania,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Vincent A. De Gaetano,
Boštjan M. Zupančič,
Iulia Antoanella Motoc, judges,
and Françoise Elens-Passos, Section Registrar,
Having deliberated in private on 3 November 2015,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 34085/09) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Lithuanian national, Mr Antanas Paliutis (“the applicant”), on 12 June 2009.
2. The applicant was represented by Mr K. Paliutis, a lawyer practising in Vilnius. The Lithuanian Government (“the Government”) were represented by their Agent, Ms K. Bubnytė.
3. The applicant alleged that he had been denied a fair trial on account of the domestic courts’ failure to examine his claim, in breach of Article 6 § 1 of the Convention.
4. On 4 December 2014 the application was communicated to the Government.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1957 and lives in Vilnius.
6. The applicant owned a 0.53 hectare plot of land in the village of Tarailiai (Tauragė region). In 2005 he submitted a request to the local authorities to change the classification of the land from agricultural to residential use. In accordance with the domestic law, such a request had first to be granted by the municipal council and then approved by the county administration.
7. Tauragė District Municipal Council granted the applicant’s request and prepared a detailed area plan (detalusis planas) (hereinafter “the plan”). The plan was subsequently submitted for approval to the Tauragė County Administration (hereinafter “the TCA”). However, on 25 November 2005 the TCA refused to approve the plan on the ground that it had not been prepared in accordance with the domestic laws governing the planning process.
8. The applicant submitted a complaint to the State Inspectorate for Planning and Construction (hereinafter “the Inspectorate”), which was the competent institution for out-of-court settlement of disputes arising from the planning process. On 10 August 2006 the Inspectorate held that the TCA’s refusal to approve the plan had been unfounded.
9. After the Inspectorate’s decision, Tauragė District Municipal Council re-submitted the plan to the TCA. However, on 13 November 2006 the TCA informed the council and the applicant that it would not review its previous decision to refuse approval.
10. On 22 December 2006 the Inspectorate notified the TCA that its refusal to approve the plan had been unfounded and urged it to review that decision. It appears that the TCA did not take any action in that respect.
11. In January 2007 the applicant lodged a claim with the Klaipėda Regional Administrative Court. He asked the court to order the TCA to approve the plan. Following the court’s suggestion, in April 2007 the applicant added a request to annul the TCA’s decision of 25 November 2005.
12. On 4 May 2007 the Klaipėda Regional Administrative Court dismissed the applicant’s claims. The court held that county administration’s decisions on approval of detailed area plans were valid for one year after their adoption. If the plan had not been adopted within that time, the decision became invalid and the plan had to be re-submitted for approval. Therefore, the court found that the TCA’s decision of 25 November 2005 was no longer valid and could not have any effect on the applicant’s situation. The court stated that it had no competence to examine the lawfulness of an invalid act and dismissed the claim. It also held that, as a result, there was no need to examine the applicant’s remaining claims.
13. The applicant appealed against that judgment. He complained, inter alia, that the first instance court had not examined his original request - to order the TCA to approve the plan.
14. On 15 February 2008 the Supreme Administrative Court upheld the applicant’s appeal and returned the case for re-examination by the first-instance court. The Supreme Administrative Court noted that when a county administration refused to approve a detailed area plan, that plan could be re-submitted only after the errors indicated in the refusal had been corrected. However, if the author of the plan disagreed with the indicated errors, he or she would effectively be denied access to court if the proceedings lasted longer than a year. The court also noted that the applicant’s original request had been to order the TCA to approve the plan and that the first-instance court had not made any findings in that respect.
15. On 16 October 2008 the Klaipėda Regional Administrative Court, after re-examining the case, again decided to dismiss the applicant’s claims. The court held that decisions of the Inspectorate, taken during the out-of-court settlement procedure, were mandatory for county administrations (see paragraph 20 below). Accordingly, the Inspectorate’s decisions of 10 August 2006 and 22 December 2006 had repealed the TCA’s decision of 25 November 2005. As a result, the TCA’s refusal to approve the plan was no longer valid and the court had no competence to examine its lawfulness. The court also held that, as a result, there was no need to examine the applicant’s remaining claims.
16. The applicant appealed against that judgment, again complaining that the first-instance court had not examined his request to order the TCA to approve the plan, and that it had not followed the Supreme Administrative Court’s judgment of 15 February 2008 (see paragraph 14 above).
17. On 12 December 2008 the Supreme Administrative Court dismissed the applicant’s appeal. It upheld the lower court’s findings that the TCA’s decision had been repealed by the Inspectorate and that courts had no competence to examine invalid acts. The Supreme Administrative Court then held that the applicant’s request to order the TCA to approve the plan was “derived” (išvestinis) from the request to annul the TCA’s decision; having dismissed the latter, there was therefore no need to examine the former request either. Lastly the court noted that the applicant had not requested that the court order the TCA to comply with the Inspectorate’s decisions, so it would make no findings in that respect.
18. In 2010, following a national administrative reform, all county administrations were abolished and their planning powers were transferred to the Inspectorate. The applicant then submitted a new request to change the classification of his land and it was approved by all the relevant authorities. The classification of the land was changed to residential use in February 2012.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Planning process
19. At the material time, the Instruction on the Procedure for the Verification of Planning Documents, adopted by the Ministry of the Environment, provided that decisions on the approval of planning documents were valid for one year after their adoption. If a planning document had not been adopted within that time, the decision became invalid and the document had to be re-submitted for approval. If the approval was refused, the planning document could be re-submitted only after the errors indicated in the refusal had been corrected (paragraphs 19 and 20).
20. At the material time, the Regulations on the State Supervision of Planning, Construction and Use of Buildings, adopted by the Government, provided that the State Inspectorate for Planning and Construction was responsible for the supervision of construction on the national level and that its decisions were binding for all individuals and legal entities involved in the planning process and in construction (paragraphs 4.2 and 11).
B. Proceedings before administrative courts
21. Article 15 § 1 of the Law on Administrative Proceedings provides that administrative courts have the competence to examine the lawfulness of decisions and actions of public administration authorities, as well as the refusal by those authorities to perform actions within their competence, or delays in performing them.
22. Article 10 of the Law on Administrative Proceedings provides that the court must explain to the parties their procedural rights and obligations, warn them about the consequences of procedural actions or inaction, and assist them in implementing their procedural rights.
23. Article 52 of the Law on Administrative Proceedings provides that the claimant has the right to clarify or change the subject of the claim at any stage of the proceedings until the court adjourns for deliberation.
24. Article 86 § 3 of the Law on Administrative Proceedings provides that a court’s judgment must respond to all the principal claims submitted by the claimant.
25. The Constitutional Court of the Republic of Lithuania in its ruling of 16 January 2006 stated the following:
“The constitutional imperatives - that justice can only be administered by courts, that law must be publicly accessible, and that examination of cases must be fair - imply that every judgment (or another final decision of a court) must be based on legal arguments. The reasoning must be rational - the judgment must contain sufficient arguments to justify its conclusion. In this context it is also noted that the principle of legal certainty ... means, inter alia, that a judgment cannot omit arguments or circumstances which are relevant for reaching a fair conclusion in the case. Judgments must be clear for parties and participants in the case. If this requirement is not fulfilled, that is not the administration of justice as enshrined in the Constitution.”
26. The Supreme Administrative Court of Lithuania in its judgment of 27 January 2004 in case no. A7-121/2004 stated that a person can submit complaints to administrative courts only in respect of such legal acts which have an effect on his or her rights or legal interests.
27. The Supreme Administrative Court of Lithuania in its judgment of 14 March 2008 in case no. A575-155/2008 stated that courts cannot take over the functions of public administration unless explicitly provided by law.
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
28. The applicant complained that the domestic courts had failed to examine his principal request (to order the TCA to approve the detailed area plan) and that by doing so they had failed to follow the Supreme Administrative Court’s binding judgment of 15 February 2008. He relied on Article 6 § 1 and Article 13 of the Convention. The Court considers that the applicant’s complaints fall to be examined solely under Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
29. The Government submitted that the applicant had failed to exhaust domestic remedies by not initiating separate judicial proceedings against the State under Article 6.271 of the Civil Code for redress for the alleged violations of his rights.
30. The applicant did not comment on this point.
31. The Court reiterates that an applicant who has exhausted a remedy that is apparently effective and sufficient cannot be required also to have tried others that were available but probably no more likely to be successful (see, among many other authorities, T.W. v. Malta [GC], no. 25644/94, § 34, 29 April 1999).
32. In this connection the Court observes that the applicant lodged an appeal before the Supreme Administrative Court raising the same complaints as those which he later submitted to this Court (see paragraph 16 above). If that appeal had been successful, it would have remedied the alleged deficiencies in the proceedings that the applicant complained of (see also Kinský v. the Czech Republic, no. 42856/06, § 64, 9 February 2012). Consequently, the Court does not consider that the applicant was obliged to exhaust any other remedy, and dismisses the Government’s objection.
33. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, and that it is not inadmissible on any other grounds. It must therefore be declared admissible.
1. Failure to examine the applicant’s request
(a) The parties’ submissions
34. The applicant submitted that the domestic courts had failed to examine his principal request - to order the TCA to approve the detailed area plan. He noted that the TCA had in the past refused to comply with the decisions of the Inspectorate. He also doubted whether those decisions were binding according to the domestic law. Thus, the applicant argued that he could not have achieved an approval of the plan by the TCA without a court order and that by refusing to examine his claim the courts had deprived him of any redress.
35. The Government firstly submitted that the courts’ finding as to the invalidity of the TCA’s previous decision had in principle been favourable to the applicant because it had enabled him to re-submit the plan to the TCA for a fresh examination. The Government noted that the applicant had not done so after the final court judgment in his case.
36. The Government further submitted that the applicant’s request to order the TCA to approve the plan was outside the courts’ competence. They stated that the principle of separation of powers, as developed in the case-law of the highest domestic courts, precluded courts from carrying out the functions of public administration. Accordingly, the courts could not satisfy the applicant’s request and order the TCA to adopt a specific decision.
37. Lastly the Government noted that the applicant had failed to properly formulate his claims before the domestic courts because he had not requested them to order the TCA to comply with the Inspectorate’s decisions - a request that the courts would have been competent to examine. They stated that the applicant had the right to institute separate court proceedings on that matter but he had chosen not to do so.
(b) The Court’s assessment
(i) General principles
38. The Court reiterates that Article 6 § 1 secures to everyone the right to have any claim relating to his or her civil rights and obligations brought before a court or tribunal. In this way the Article embodies the “right to a court”, of which the right of access, that is, the right to institute proceedings before courts in civil matters, constitutes one aspect only (see, among many other authorities, Golder v. the United Kingdom, 21 February 1975, § 36, Series A no. 18, and Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 43, ECHR 2001-VIII).
39. The Court also reiterates that the right to a fair hearing as guaranteed by Article 6 § 1 of the Convention includes, in particular, the right of the parties to submit any observations that they consider relevant to their case. The purpose of the Convention being to guarantee not rights that are theoretical or illusory but rights that are practical and effective, this right can only be seen to be effective if the observations are actually “heard”, that is duly considered by the court. In other words, the effect of Article 6 is, among others, to place the “tribunal” under a duty to conduct a proper examination of the submissions, arguments and evidence presented by the parties, without prejudice to its assessment of whether they are relevant (see, among many other authorities, Perez v. France [GC], no. 47287/99, § 80, ECHR 2004-I, and Albina v. Romania, no. 57808/00, § 30, 28 April 2005).
40. The Court reaffirms, moreover, that while Article 6 § 1 obliges the courts to give reasons for their judgments, it cannot be understood as requiring a detailed answer to every argument put forward by the parties. The extent to which this duty to give reasons applies may vary according to the nature of the decision. It is moreover necessary to take into account, inter alia, the diversity of the submissions that a litigant may bring before the courts and the differences existing between the Contracting States with regard to statutory provisions, customary rules, judicial opinion and the presentation and drafting of judgments. That is why the question as to whether a court has failed to fulfil the obligation to state reasons, deriving from Article 6 of the Convention, can only be determined in the light of the circumstances of the case (see, among many other authorities, Ruiz Torija v. Spain, 9 December 1994, § 29, Series A no. 303-A, and Wagner and J.M.W.L. v. Luxembourg, no. 76240/01, § 90, 28 June 2007).
(ii) Application of the above principles in the present case
41. The applicant complained that the domestic courts had failed to examine his request to order the TCA to approve the detailed area plan.
42. The Court notes that the request in question was the sole claim which the applicant had originally submitted to the domestic courts. Before the examination of the case began, he added an additional request - to annul the TCA’s previous decision - at the suggestion of the first-instance court. The latter request was subsequently dismissed at all instances because the courts held that the disputed TCA’s decision had been repealed by the Inspectorate. Meanwhile the request to order the TCA to approve the plan was not addressed at all during the first examination of the applicant’s case before the Klaipėda Regional Administrative Court, as subsequently noted in the Supreme Administrative Court’s decision to remit the case for re-examination (see paragraph 14 above). Nonetheless, when re-examining the case, the Klaipėda Regional Administrative Court once again stayed silent on that request. The first and only time when the applicant’s request to order the TCA to approve the plan was explicitly addressed by any court was the Supreme Administrative Court’s judgment of 12 December 2008 - the final judgment in the applicant’s case (see paragraph 17 above). The Court notes that the applicant had repeatedly raised that request in all his appeals to the domestic courts (see paragraphs 13 and 16 above).
43. The Government argued that the domestic courts had not needed to examine the applicant’s request because their finding that the TCA’s decision had been repealed by the Inspectorate had been sufficient to enable him to re-submit the plan for a fresh examination. The domestic courts’ conclusion as to the invalidity of the TCA’s decision was based on legal provisions which established the binding effect of the Inspectorate’s decisions (see paragraph 20 above). However, the Court notes that those legal provisions had already been in place when the applicant, Tauragė District Municipal Council and the Inspectorate repeatedly urged the TCA to comply with the decisions of the latter institution and when the TCA nonetheless refused to do so (see paragraphs 9-10 above). In this context the Court is not persuaded that the domestic courts’ finding that the TCA’s decision had been repealed by the Inspectorate was sufficient, in and of itself, to ensure that the applicant’s repeated request to the TCA would succeed.
44. The Court also notes the Government’s argument that the domestic courts did not have the competence to order public administration authorities to take specific decisions, in line with the principle of the separation of powers. Without making any findings as to the substance of that argument, the Court notes that the domestic courts did not use that reasoning in any of their decisions (while, in contrast, both the Klaipėda Regional Administrative Court and the Supreme Administrative Court explicitly held that they did not have the competence to annul an administrative act which had already been repealed (see paragraphs 12, 15 and 17 above)) (see, mutatis mutandis, Ruiz Torija, cited above, § 30). Furthermore, the Court notes that the Supreme Administrative Court in its judgment of 12 December 2008 dismissed the applicant’s request not as a result of lack of competence but because it considered that request to be “derived” from the applicant’s other claim (see paragraph 17 above). Accordingly, the Court cannot find sufficient grounds in the domestic courts’ judgments to believe that they stayed silent on the applicant’s request on grounds of lack of competence.
45. However, even assuming that the domestic courts had compelling reasons not to examine the applicant’s request, the Court notes that no such reasons were provided in any of the judgments delivered in the case. In this connection the Court reiterates that, even though the courts cannot be required to state the reasons for rejecting each argument of a party, they are nonetheless not relieved of the obligation to undertake a proper examination of, and to respond to, the main pleas put forward by that party (see Wagner and J.M.W.L., cited above, § 96). One of the functions of a reasoned decision is to demonstrate to the parties that they have been heard, while it also affords a party the possibility to appeal against the decision and have it reviewed by an appellate body (see Suominen v. Finland, no. 37801/97, § 37, 1 July 2003, and Kuznetsov and Others v. Russia, no. 184/02, § 83, 11 January 2007). While an appellate court may, in principle, simply endorse the reasons for a lower court’s decision, this will not suffice in those cases where the lower court did not provide such reasons as to enable the parties to make effective use of their right of appeal (see Jokela v. Finland, no. 28856/95, § 73, ECHR 2002-IV, and Boldea v. Romania, no. 19997/02, § 33, 15 February 2007).
46. In the present case, the two judgments of the first-instance court stated only that it was unnecessary to examine the applicant’s remaining claims after his request to annul the TCA’s previous decision had been dismissed. The Supreme Administrative Court in its judgment of 12 December 2008 held that the request to order the TCA to approve the plan was “derived” from the request to annul its previous decision. The Supreme Administrative Court did not explain why it considered the former request to be derived from the latter - especially keeping in mind that the applicant had submitted the request for annulment later, at the suggestion of the first-instance court. That same judgment also indicated that the applicant should instead have requested that the courts order the TCA to comply with the Inspectorate’s decision. However, the Court considers that the distinction between the applicant’s request (to order the TCA to approve the plan) and the alternative suggested by the Supreme Administrative Court (to order the TCA to comply with the Inspectorate’s decision) was not obvious to the applicant. For that reason, the Supreme Administrative Court should have provided a sufficient explanation as to why the applicant’s request had been dismissed.
47. The Court further notes that the applicant repeatedly raised his request to order the TCA to approve the plan in all his appeals to the domestic courts, and that the request was formulated in a sufficiently clear and precise manner (see Ruiz Torija, cited above, § 30; Pronina v. Ukraine, no. 63566/00, § 25, 18 July 2006; and Kuznetsov and Others, cited above, § 84). While it is not the Court’s task to examine whether the applicant’s claim was well-founded, it nonetheless observes that by failing to examine it without giving sufficient reasons, the domestic courts denied the applicant the right to have a final determination on a matter submitted to a court (see Ruiz Torija, cited above, § 30; Pronina, cited above, § 25; and, mutatis mutandis, Marini v. Albania, no. 3738/02, § 120, 18 December 2007).
48. The foregoing considerations are sufficient to enable the Court to conclude that by not examining the applicant’s request to order the TCA to approve the detailed area plan and by not giving sufficient reasons for such a decision the domestic courts fell short of their obligations under Article 6 § 1 of the Convention. There has accordingly been a violation of that provision.
2. Failure to follow the Supreme Administrative Court’s judgment of 15 February 2008
49. The applicant complained that by not examining his request to order the TCA to approve the detailed area plan the domestic courts had failed to follow the Supreme Administrative Court’s binding judgment of 15 February 2008 (see paragraph 14 above), in breach of legal certainty.
50. Having regard to the finding that the domestic courts’ failure to examine the applicant’s request to order the TCA to approve the plan infringed his right to fair trial under Article 6 § 1, the Court considers that it is not necessary to examine whether it also breached the principle of legal certainty guaranteed by that same provision.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
51. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
1. The parties’ submissions
52. The applicant claimed 15,251.70 euros (EUR) in respect of pecuniary damage, consisting of:
(a) EUR 9,020.07 for loan interest payments from January 2006 to February 2012 - according to the applicant, he intended to sell his land and use the money to build a house in Vilnius, but the domestic courts’ judgments made the sale impossible, so he had to take out a loan from the bank;
(b) EUR 1,158 for the preparation of a new detailed area plan in 2011; however, the applicant stated that he had not retained the receipt;
(c) EUR 5,073.63 for the difference between the market value of the land in 2008 and in 2012 - the applicant based his estimate on the methodology established by the Government.
53. The applicant also claimed EUR 5,000 in respect of non-pecuniary damage.
54. The Government contested those amounts. As regards pecuniary damage, they argued that the applicant had failed to demonstrate a causal link between the alleged violation of Article 6 § 1 of the Convention and the pecuniary damage that he had allegedly sustained.
55. The Government firstly submitted that the applicant had entered into the loan agreement with the bank in 2005, so his obligation to pay interest could not be considered a direct consequence of the domestic courts’ judgments delivered in 2008. They further submitted that the applicant had not needed to pay for the preparation of a new detailed area plan because, in accordance with the domestic law, the original plan had remained valid for five years, that is to say until 2010, and could have been re-submitted for approval at any time. The Government also noted that the applicant had not presented any proof of his expenses for the preparation of the new plan. Lastly they argued that the sum claimed by the applicant for the loss in the market value of the land was purely hypothetical because there was no evidence to suggest that in 2008 he would have sold the land for its market price.
56. As regards non-pecuniary damage, the Government submitted that the amount claimed by the applicant was excessive and not substantiated by any evidence.
2. The Court’s assessment
57. The Court reiterates that the principle underlying the provision of just satisfaction for a breach of Article 6 of the Convention is that the applicant should as far as possible be put in the position he or she would have enjoyed had the proceedings complied with the Convention’s requirements. The Court will award financial compensation under Article 41 only where it is satisfied that the loss or damage complained of was actually caused by the violation it has found, since the State cannot be required to pay damages in respect of losses for which it is not responsible (see Kingsley v. the United Kingdom [GC], no. 35605/97, § 40, ECHR 2002-IV, and the cases cited therein).
58. In the present case, the Court has found a violation of Article 6 § 1 of the Convention on account of the fact that the domestic courts failed to examine the applicant’s request and did not provide sufficient reasons for such a decision. However, it does not follow that if the courts had examined the applicant’s request or provided reasons, that request would have been granted. The Court also does not find sufficient grounds to establish that the examination of the applicant’s request by the domestic courts would have resulted in him selling the land in 2008 at the market price of the time. Lastly, without prejudice to the necessity of preparing a new detailed area plan in 2011, the Court notes that the applicant did not submit any documents to substantiate any expenses he may have had in that respect. Accordingly, the Court does not discern any causal link between the violation found and the pecuniary damage alleged by the applicant; it therefore rejects this claim.
59. On the other hand, the Court considers that the applicant suffered distress and frustration in view of the domestic courts’ failure to examine his request, contrary to Article 6 § 1 of the Convention. The Court also considers that the applicant’s suffering and frustration cannot be compensated for by a mere finding of a violation. Accordingly, the Court grants the applicant’s claim in respect of non-pecuniary damage in full and awards him EUR 5,000.
B. Costs and expenses
60. The applicant did not submit any claim in respect of costs and expenses. The Court therefore makes no award under this head.
C. Default interest
61. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention as regards the non-examination of the applicant’s claim by the domestic courts;
3. Holds that there is no need to examine the other complaint under Article 6 of the Convention;
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 24 November 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos András