(Application no. 27576/05)
21 July 2009
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 Aleksa v. Lithuania,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Ireneu Cabral Barreto,
Nona Tsotsoria, judges,
and Sally Dollé, Section Registrar,
Having deliberated in private on 30 June 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Proceedings regarding the premises
B. Proceedings regarding the plot of land
II. RELEVANT DOMESTIC LAW AND PRACTICE
“The rights of a former owner to particular property have not been restored until the property is returned or appropriate compensation is afforded. The law does not itself provide any rights while it is not applied to a concrete person in respect of a specific property. In such a situation the legal effect of a decision by a competent authority to return the property or to provide compensation is such that only from that moment does the former owner obtain property rights to a specific property.”
The Constitutional Court also held that fair compensation for property which could not be returned in kind was compatible with the principle of the protection of property.
Article 8 Conditions and procedures for restoration of ownership rights to residential houses, portions thereof and flats
“1. Ownership rights to residential houses, portions thereof and flats shall be restored to persons specified in Article 2 of this Law by returning them in kind, except for residential houses, portions thereof and flats which are subject to a State buyout pursuant to Article 15 of this Law...”
Article 15 Residential houses, portions thereof and flats bought out by the State
“Residential houses, portions thereof and flats shall be bought out by the State from the citizens specified in Article 2 of this Law, who shall be afforded compensation in accordance with Article 16 of this Law, provided that such residential houses, portions thereof or flats:
(1) have been converted into premises unfit for human occupancy and used for educational, health care protection, cultural or scientific purposes, or by communal care residences. The list of such premises shall be approved by the Government...”
Article 16 Compensation to citizens for real property bought out by the State
“1. The State shall compensate citizens for existing real property which is bought out by the State, as well as for real property which existed prior to 1 August 1991, but subsequently ceased to exist as a result of decisions adopted by the State or local authorities.
2. When the State compensates citizens for real property which, in accordance with this Law, is not given back in kind, the principle of equal value shall be applied to both the property that is not returned and other property which is transferred instead of it as compensation for the property bought out by the State. ...
7. Compensation for buildings used for economic and commercial purposes, residential houses, portions thereof and flats which are not returned pursuant to this Law shall be established in accordance with the methods approved by the Government. ...”
Article 6: Privatisation of land
“2. In the implementation of land reform, land shall be acquired either by restoring the right to ownership, or by purchasing the land. ...”
Article 22: Delimitation of plots of land and distribution of documentation on land ownership
“On the basis of the land-use plans produced in connection with the land reform, the State Institute of Land-Use Management shall mark the boundaries of plots of land and shall prepare documentation attesting to land ownership or land-usage rights.”
45. The Code of Civil Procedure, in force since 1 January 2003, provides that a judge may withdraw from a hearing on his or her own initiative, or the parties to the procedure may request the judge's removal, when there are circumstances raising doubts as to that person's impartiality (Article 68). Article 366 § 1 (8) of the Code provides that civil proceedings may be reopened if an unlawfully constituted court heard the case.
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE LENGTH OF THE PROCEEDINGS
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by an independent and impartial tribunal...”
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE PARTIALITY OF THE DOMESTIC COURTS
IV. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
A. The applicant's inability to recover the disputed premises in kind
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
B. Modification of the size and location of the plot of land
C. The overall delay in finalising the restitution process
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT
(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, the following sums, to be converted into the national currency of that State at the rate applicable on the date of settlement:
(i) EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage,
(ii) EUR 655 (six hundred and fifty-five euros), plus any tax that may be chargeable to the applicant, for costs and expenses;
(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;
Done in English, and notified in writing on 21 July 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinion of Judge Jočienė is annexed to this judgment.
Partly Dissenting Opinion of Judge JOČIENĖ
Accordingly, I find no violation Article 1 of Protocol No. 1 to the Convention in this case.