British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[
Home]
[
Databases]
[
World Law]
[
Multidatabase Search]
[
Help]
[
Feedback]
European Court of Human Rights
You are here:
BAILII >>
Databases >>
European Court of Human Rights >>
PADALEVICIUS v. LITHUANIA - 12278/03 [2009] ECHR 2014 (7 July 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/2014.html
Cite as:
[2009] ECHR 2014
[
New search]
[
Contents list]
[
Printable RTF version]
[
Help]
SECOND
SECTION
CASE OF
PADALEVIČIUS v. LITHUANIA
(Application
no. 12278/03)
JUDGMENT
STRASBOURG
7 July
2009
FINAL
07/10/2009
This
judgment may be subject to editorial revision.
In the case of Padalevičius v. Lithuania,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens,
President,
Ireneu
Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė
Jočienė,
Dragoljub
Popović,
Nona
Tsotsoria,
Işıl
Karakaş,
judges
and Françoise
Elens-Passos, Deputy
Section Registrar,
Having
deliberated in private on 16 June 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 12278/03) 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, Juozas
Padalevičius (“the applicant”), on 4 April 2003.
The
applicant was represented by Mr L. Biekša, a lawyer
practising in Vilnius. The
Lithuanian Government (“the Government”) were represented
by their Agent, Ms E. Baltutytė.
On
11 May 2006 the Court
decided to give notice to the Government of the
applicant’s complaints under Articles 6 § 1 of
the Convention and Article 1 of Protocol No. 1 to
the Convention. It also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1943 and lives in the Kaunas region.
On
an unspecified date in 1991 the former owners of the land belonging
to the Noreikiškės settlement, situated on the territory
of the Lithuanian Academy of Agriculture (“the LAA”),
filed claims for restitution of their ownership rights.
On
13 March 1992 the Noreikiškės settlement local
council assigned a plot of land for the applicant’s use and for
construction of a private house. On 20 July 1992 the applicant
paid 2,970 Russian roubles (RUR) for the use of that plot.
On
13 October 1992 a meeting of the Kaunas Regional Board took
place attended by the applicant, acting on behalf of the LAA, a
representative of the pre-nationalisation owners who sought to
restore their property rights to the land assigned to the territory
of the new LAA settlement, and representatives of various municipal
and State institutions. It was decided to organise another meeting to
discuss the possibility of restoring property rights to the land in
Noreikiškės settlement in kind and to propose to the
Government that plots of 0.3 hectares be allocated to the former
owners for the construction of private houses.
Between
1992 and 1995 the Government enacted several decrees allowing persons
in the applicant’s position to acquire ownership of the land
they had been using.
On
11 April 1995 the applicant and the Kaunas municipality signed a
land-purchase agreement which specified that on 20 July 1992 the
applicant had paid 29.70 Lithuanian litas (LTL) for the plot of land.
On 14 April 1995 the plot of land was registered in the State
Land Registry in the applicant’s name and, in accordance with
Lithuanian law, the applicant became its owner.
On
5 June 1995, civil proceedings were brought by a group of eight
private individuals for annulment of the land-purchase agreements,
including that of the applicant. The plaintiffs claimed restitution
of their property rights to the land in question, which the LAA had
allocated for the building of private houses and which had been
nationalised by the Soviet occupying power in the 1940s. The dispute
involved a total of 129
co-defendants, including the applicant.
On
27 June 1995 the Kaunas District Court ordered the seizure of the
applicant’s land. The order was later upheld by the Kaunas
Regional Court and the Supreme Court, and specified that the
applicant could grow only plants with a one-year lifespan on the land
at issue. Moreover, the applicant was forbidden from carrying out any
construction activities on the land pending the court proceedings.
On
28 October 1996 the Kaunas District Court dismissed the action
as unsubstantiated.
On
5 February 1998 the Kaunas Regional Court quashed the decision,
noting that the lower court had failed to properly inform 38
defendants in the case about the forthcoming hearing. The case was
returned for fresh examination at first instance.
On
26 February 1999 the Kaunas District Court again dismissed the
action.
On
an unspecified date the case was transferred to the PanevėZys
Regional Court, which examined it on appeal.
On
14 March 2000 the PanevėZys Regional Court stayed the
proceedings, deciding to submit a question as to the
constitutionality of the Government decrees on the basis of which the
land had been sold to the applicant.
On
6 March 2002 the Kaunas County Governor’s Office informed
the applicant that despite the courts’ ban on pursuing any
activities on the plot of land, “at present there are perennial
plants and there is also a pond”. The applicant was requested
to “bring the illegal actions to an end”. On 12 April
2002 the applicant informed the local authorities that “it was
only from your letter that I learned about the seizure of my plot of
land. The pond was dug, the plants were planted and other works were
done in 1993, 1994 and the first half of 1995”.
On
10 May 2002 the Constitutional Court adopted a ruling, finding that
the Government decrees in question violated the rights of the former
owners of the land, who had the right to restitution of their
property. The decrees were declared unconstitutional as contradicting
Article 23 of the Constitution and, inter alia, Article 12 § 1
(15) of the Law on the procedure and conditions governing the
restoration of rights of ownership to existing real property
(Įstatymas dėl piliečių
nuosavybės teisių į išlikusį nekilnojamąjį
turtą atstatymo tvarkos ir sąlygų) (“the
Restitution Law”). The ruling read in part as follows:
“... although the legislature enjoys a certain
discretion in establishing the conditions and procedure for the
restoration of rights of ownership, in doing so it must take account
of the constitutional principle of protection of the right of
ownership. This principle also presupposes that, unless it is
necessary for the needs of society, land unlawfully nationalised by
the occupying government must be returned to its owners in kind under
the procedure and conditions established by law...
... given that Government Decree no. 649 of
25 August 1993 and Government Decree no. 294 of 19 April 1994
established that the land allocated to the LAA also included an area
designated for building private dwelling houses, and that it was
established that the status of the land, subject to being bought out
by the State, was granted because that land was on territory
allocated to the scientific and educational establishment, and given
also that Government Decree no. 350 of 9 March 1995
permitted natural persons to acquire private ownership of the plots
of land on the territory attributed to the educational-production
base of the LAA, the right of the owners to restore their ownership
rights over the said land has been denied”.
As
a result, on 28 June 2002 the PanevėZys Regional Court reversed
the decision of the Kaunas District Court of 26 February 1999. It was
noted that the Government decrees on the basis of which the applicant
had signed the land-purchase agreement had been declared
unconstitutional. Consequently, the administrative acts whereby the
land had been sold to the applicant were declared null and void. The
court also observed that “the defendants [one of them being the
applicant] have for the most part not started the construction works.
Not all the defendants have bought out the plots of land which were
assigned to them for construction of private houses and not all the
[defendants] who signed land-purchase agreements have had them
registered”. The court applied Article 1.80 of the Civil Code
and ordered restitution, obliging the local authorities to return to
the applicant the sum of LTL 29.70 which he had previously paid for
the plot of land at issue. As some of the defendants had paid for
their plots of land in 1992 with “single-use investment
vouchers” (vienkartinėmis išmokomis), the
court ordered that those sums be repaid to them.
The
defendants, including the applicant, lodged an appeal on points of
law. They alleged, inter alia, that the PanevėZys
Regional Court had examined the case in the absence of their lawyer.
The defendants further argued that it would be impossible to execute
the appellate court’s decision since it ordered restitution in
“single-use investment vouchers”, which no longer had any
pecuniary value in Lithuania. Lastly, they contended that the
annulment of the land-purchase contracts was contrary to the right to
protection of private property and would amount to re-privatisation.
On
31 January 2003 the Supreme Court upheld the decision. It stated that
the annulment of the impugned acts was necessary to protect the
legitimate interests of the pre-nationalisation owners. The court
acknowledged that the “single-use investment vouchers”
had in the meantime ceased to exist as a means of payment. The
Supreme Court noted, however, that the subject matter of the
proceedings was the annulment of the land-purchase contracts and that
the assessment of possible compensation for the investment vouchers
had not been its subject matter. Finally, the court found that on
19 June 2002 the applicant’s lawyer had been duly notified
of the appellate court hearing which was to take place on 27 June
2002, and that she had requested that the hearing be postponed, given
that she had to attend another court hearing at the same time. The
Supreme Court, however, noted that the applicant’s lawyer had
failed to provide any proof of that hearing. The court ruled that,
taking into account the need to ensure the speediness of the
proceedings and the high number of participants in the case, the
appellate court had taken a reasonable decision to hear the case in
the lawyer’s absence.
By
a decision of 14 March 2005 the Deputy Governor of Kaunas County
restored the former owners’ title to the plot of land on the
LAA settlement of which the applicant had acquired ownership under
the annulled land-purchase agreement of 11 April 1995.
II. RELEVANT DOMESTIC LAW AND PRACTICE
The
Constitution of the Republic of Lithuania provides:
Article 23
“Property shall be inviolable. Rights of ownership
shall be protected by law.
Property may be expropriated only for
the needs of society and in accordance with the procedure established
by law, and shall be justly compensated.”
The
Restitution Law, adopted on 18 June 1991 and amended on numerous
occasions, provided that, in restoring property rights, priority was
to be given to restitution in kind. The State retained the right to
buy out the property from the previous owners if the current social
conditions and relations so required (atsiZvelgiant į
visuomeninius santykius). In particular, Article 12 § 1
(15) of the Law provided that the State could buy out land which
had been allocated to scientific or educational institutions for
carrying out experiments or for other scientific purposes.
On
25 August 1993 the Government adopted decree no. 649 on the
status of land used by the Lithuanian Academy of Agriculture and
approval of the zoning scheme for its use. In an attempt to create
better conditions for the LAA to address scientific, educational and
social issues, it was decided that the land, which was used by the
LAA and which the LAA’s management had earmarked for the
construction of private housing, could be bought out by the State.
On
19 April 1994 the Government adopted decree no. 294 and
partially amended decree no. 649, specifying that part of the
total area of land used by the LAA was to be set aside for building
private houses on campus. On 9 March 1995 the Government enacted
decree no. 350, which granted natural persons the right to
acquire private ownership of the plots of land which were on the
territory of the LAA and which had been allocated to them by the
Noreikiškės settlement local council prior to 15 March
1992 for the building of dwelling houses.
On
27 May 1994 the Constitutional Court examined the issue of
compatibility with the Constitution of the domestic laws on the
restitution of property rights. In its decision the Constitutional
Court held, inter alia, that possessions which had been
nationalised by the Soviet authorities since 1940 should be
considered as “property under the de facto control of
the State”. The Constitutional Court also stated that, if
possible, the property rights should be restored in kind. It further
ruled that buying out land in the countryside for the purpose of
building private housing served no public interest, since after such
land was bought out it could be privatised, thereby breaching the
previous owners’ right to restitution.
The
Law on the initial privatisation of State property
(Valstybinio turto pirminio privatizavimo įstatymas),
adopted on 28 February 1991 and amended on numerous occasions,
provided that Lithuanian citizens would be granted “single-use
investment vouchers” (vienkartinės
išmokos), for amounts ranging from RUR 2,000
to RUR 10,000, for the initial privatisation of State property.
On
16 September 1992 the Litas Committee adopted decision no. 2,
pursuant to which the rouble as a currency unit was to be withdrawn
from monetary transactions with effect from 1 October 1992. A
new temporary currency, the talonas, was to be used instead of the
rouble, the exchange rate between the two being 1:1.
Under
the Litas Committee’s decision of 14 June 1993 the talonas
ceased to exist and was replaced by a new permanent currency, the
Lithuanian litas. The exchange rate was 100 talonai to 1 litas.
The
Civil Code, in force since 1 July 2001, provides insofar as
relevant as follows:
Article 1.80 Nullity of a transaction that does not
comply with the mandatory statutory provisions
“1. Any transaction that fails to comply with the
mandatory statutory provisions shall be null and void.
2. When a transaction is declared null and void, each
party shall be required to restore to the other party everything he
or she has received by means of that transaction (restitution). Where
it is impossible to restore in kind the items received, the parties
shall be required to compensate each other in money, unless the law
provides for other consequences as a result of the transaction’s
being declared void.
...”
Article 4.97 Payments on the return of items
illegally possessed
“1. In claiming an
item as stipulated by Article 4.95 of this Code, the owner shall have
the right to demand: from the person who knew or should have known
that his possession was illegal (possessor in bad faith), that he or
she reimburse or provide compensation for all income he or she
received or should have received during the entire period of
possession; from an illegal possessor in good faith – all
income which such possessor received or should have received since
the time when he or she found out or should have found out about the
possession being illegal or found out about the commencement of
a civil case concerning restitution of the item concerned.
2. An illegal possessor in bad faith shall have the
right in his or her turn to claim from the owner necessary expenses
related to the item concerned from the time the owner receives income
from it.
3. An illegal possessor in good faith shall have
the right to claim from the owner compensation for all his expenses
incurred in connection with the item concerned that have not been
covered by income received from it.
4. An illegal possessor in good faith shall have
the right to keep those parts that have been added to improve the
item concerned, provided these can be removed without causing damage
to it. If the parts added as improvement cannot be removed or if the
item was improved in a different manner, the illegal possessor in
good faith shall have the right to claim a compensation for the
expenses arising from such improvement, in an amount not greater than
the increase in value.”
Article 6.145 Grounds for restitution
“1. Restitution shall take place where a person is
required to return to another person the property he or she has
received either unlawfully or by error, or as a result of the
transaction whereby the property was received by him or her being
annulled ab initio, or as a result of the obligation becoming
impossible to perform because of force majeure. ...”
Article 6.146 Manner of restitution
“Restitution shall be made in kind, except in
cases where this is impossible or would cause serious inconvenience
to the parties. In the latter case, restitution shall be effected by
means of an equivalent monetary payment.”
Article 6.147 Estimation of monetary equivalent
“1. The monetary equivalent shall be estimated on
the basis of the prices valid at the time when the debtor received
the items he is required to restore.”
Article 6.150 Reimbursement for expenses incurred
for the care of the property
“The repayment of expenses for the care and
custody of the property subject to restitution which have been
incurred by the person who is required to return the property shall
be carried out in accordance with the provisions of Book IV of this
Code, applicable in respect of possessors in good faith and
possessors in bad faith.”
Article 6.151 Restoration of fruits and
revenues
“1. The fruits and revenues accruing from the
property subject to restitution shall belong to the person required
to make restitution. This person shall bear all the expenses incurred
in the production of those benefits and revenues. ...”
Article
240 of the Code of Civil Procedure, in force until 1 January
2003, provided that a court could suspend proceedings in a case, at
the request of the participants in the proceedings or of its own
motion, when it submitted a request to the Constitutional
Court to resolve a question as to the constitutionality of the act
applicable in that particular case. Under Article 241 of the Code,
the proceedings were suspended until the Constitutional Court had
given its ruling.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant submitted that the length of the proceedings in his case
had been incompatible with the “reasonable time”
requirement laid down in Article 6 § 1 of the Convention, which
reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
A. Admissibility
1. The parties’ arguments
The
Government contended that the applicant could have applied to the
domestic courts, claiming redress under Article 6.272 of the Civil
Code for the length of the civil proceedings. Relying on the ruling
of the Constitutional Court of 19 August 2006, the Government
also argued that, even assuming that specific redress had not been
enshrined in any law, the applicant could have claimed redress by
relying directly on the Constitution. In view of the applicant’s
failure to lodge such a claim in the present case, the complaint
about the length of the proceedings should be rejected for
non-exhaustion of domestic remedies, pursuant to Article 35 § 1
of the Convention. The Government further submitted that part of the
impugned civil proceedings fell outside the Court’s competence
ratione temporis. Lastly, the Government submitted that the
applicant’s complaint was manifestly ill-founded.
The
applicant contested the Government’s arguments.
2. The Court’s assessment
The Court observes first that it has no competence to
examine events which occurred prior to 20 June 1995, the date of the
entry into force of the Convention with regard to Lithuania. In so
far as part of the civil proceedings took place before that date,
this part of the application should be rejected under Article 35 §§
3 and 4 as being incompatible ratione temporis with the
provisions of the Convention.
As
to the Government’s plea concerning the exhaustion of domestic
remedies, the Court recalls its conclusion in the case of Četvertakas
and Others v. Lithuania (no. 16013/02, §§ 29-31,
20 January 2009), where it decided that a claim for damages under
Article 6.272 of the Civil Code or the Constitution did not satisfy
the test of “effectiveness” in contexts of the present
kind. The Court finds no
reason to depart from its existing case-law in this regard. It
therefore remains unconvinced that the possibility of claiming
damages for the excessive length of proceedings under Article 6.272
of the Civil Code or the Constitution had – at the moment of
the introduction of the present application – already acquired
a sufficient degree of legal certainty requiring its exhaustion for
the purposes of Article 35 § 1 of the Convention.
That
being so, the Government’s plea of inadmissibility on the
ground of non-exhaustion of domestic remedies must be dismissed.
The
Court also notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
1. The parties’ arguments
The
Government contended that the proceedings had been protracted due to
their complexity, not as a result of any omissions on the part of the
State. In particular, the case involved many participants who had
submitted numerous claims and counterclaims. Some of the parties to
the case during the civil proceedings had been replaced by other
persons. The case file consisted of six volumes (1,852 pages)
and the case was complicated from the legal point of view due to its
restitution aspect. They also argued that, taking into account what
was at stake for the applicant, the civil proceedings had not caused
him prejudice to such an extent as to impose on the courts concerned
a duty to deal with his case as a matter of great urgency, as was
true of certain types of litigation.
The
Government also drew the Court’s attention to the fact that
part of the proceedings had taken place before the Constitutional
Court, which heard cases in corpore and was the only
institution which exercised constitutional review. Since its role as
guardian of the Constitution made it particularly necessary for the
Constitutional Court to sometimes take into account other
considerations than mere chronological order in deciding which cases
were entered on its list, such as the nature of the case and its
importance in political and social terms, the length of the
proceedings before that court had been reasonable. Lastly, the
Government emphasised that in Lithuania the Constitutional Court did
not belong to the ordinary courts system and was not entitled to
review their decisions. Since the Constitutional Court could not hear
civil or criminal cases or investigate individual complaints
concerning alleged violations of constitutional rights, the part of
the proceedings conducted before the Constitutional Court should not
be taken into account in assessing the reasonableness of length of
proceedings in a civil case.
In
view of the above the Government concluded that there had been no
breach of the right to a hearing within a “reasonable time”,
conferred by Article 6 § 1 of the Convention.
The
applicant disagreed, stating that the complexity of the case was not
sufficient to discharge the State of its obligation to respect the
reasonable-time requirement. He further argued that before the
proceedings had been initiated he had started preparations to build
his home on the plot of land at issue and that therefore the delay in
the proceedings had caused him considerable financial uncertainty and
stress.
2. The Court’s assessment
(a) Applicability of Article 6 § 1 of the
Convention
The Court has regard to the Government’s argument that from
14 March 2000 until 10 May 2002 proceedings in the civil
case had been suspended until the Constitutional Court had given its
ruling. In this connection the Court reiterates, however, that
proceedings come within the scope of Article 6 § 1,
even if they are conducted before a constitutional court, where their
outcome is decisive for civil rights and obligations
(see Pammel
v. Germany, 1 July 1997, § 53, Reports of Judgments and
Decisions 1997 IV).
In
the present case the Court points out that the applicant had bought
the land from the State and that, later, civil proceedings were
instituted by a group of persons with a view to having the
land-purchase agreement declared void (see paragraphs 9 and 10
above). The dispute before the civil courts therefore concerned the
applicant’s right to protection of his property, which is
certainly a civil right within the meaning of Article 6 § 1
of the Convention.
At
a later stage in the proceedings the PanevėZys Regional Court
referred the case to the Constitutional Court for a ruling on the
constitutionality of the Government decrees on the basis of which the
applicant had purchased the plot of land (see paragraph 16 above)
and, acting on the basis of Article 240 of the Code of Civil
Procedure, stayed the proceedings.
In
the instant case the proceedings in the Constitutional Court were
therefore closely linked to those in the civil courts; not only was
the former’s decision directly decisive for the applicant’s
civil right but in addition, as the proceedings arose from an
application for a ruling on constitutionality, the PanevėZys
Regional Court had to wait for the Constitutional Court’s
decision before it could give a decision. It follows that
Article 6 § 1 is also applicable to the part of the
proceedings which took place before the Constitutional Court.
(b) Compliance with Article 6 § 1 of the
Convention
(i) Period to be taken into consideration
The
Court notes at the outset that although the civil proceedings were
instituted on 6 June 1995, the period falling within the Court’s
jurisdiction only began on 20 June 1995, when the Convention came
into force with regard to Lithuania, and lasted until 31 January
2003, when the Supreme Court adopted a final decision in the case.
The overall length of the proceedings was thus around 7 years and
8 months.
(ii) Applicable criteria
The
Court has held on numerous occasions that Article 6 § 1
imposes on the Contracting States the duty to organise their judicial
systems in such a way that their courts can meet each of its
requirements, including the obligation to hear cases within a
reasonable time. Although this obligation cannot be construed in the
same way for a constitutional court as for an ordinary court, it is
for the Strasbourg Court in the last instance to verify that it has
been complied with, having regard to the particular circumstances of
each case and the criteria laid down in its case-law
(see Klein
v. Germany, no. 33379/96, § 42, 27 July 2000, and the
case-law cited therein).
The
Court also reiterates that the reasonableness of the length of
proceedings must be assessed in the light of the circumstances of the
case and with reference to the following criteria: the complexity of
the case, the conduct of the applicant and the relevant authorities
and what was at stake for the applicant in the dispute (see, among
many other authorities, Frydlender v. France [GC], no.
30979/96, § 43, ECHR 2000-VII).
The
Court shares the Government’s view that the applicant’s
case was indeed complex, particularly due to the number of
participants, ongoing legislative changes and its restitution and
constitutionality aspects. That, however, cannot justify the total,
significant length of the proceedings.
On
the facts of this case the Court finds no evidence to demonstrate
that at any stage of the proceedings the applicant displayed dilatory
conduct or otherwise disrupted the proper conduct of those
proceedings. As regards the conduct of the authorities, however, the
Court cannot overlook the fact that, owing to the Kaunas District
Court’s failure to properly summon 38 defendants, the case was
returned to it for fresh examination, which prolonged the civil
proceedings by more than two years (see paragraphs
12-14 above).
As to the Government’s argument regarding the overburdening of
the Constitutional Court, it should be pointed out that a general
work overload is no justification for an unreasonable delay, and that
the other social factors relied on by the Government can have played
only a secondary role in the present case (see Pitra v. Croatia,
no. 41075/02, § 23, 16 June 2005). The Government’s
argument in this respect should therefore be rejected.
In
the light of all the circumstances of the case, the Court concludes
that the reasonable time required by Article 6 § 1 was exceeded,
and that there has therefore been a breach of that provision.
II. ALLEGED VIOLATION OF ARTICLE
1 OF PROTOCOL No. 1 TO THE CONVENTION
The
applicant complained about the annulment of the land-purchase
agreement. He further argued that the compensation granted to him by
the courts for that land had been derisory. The applicant alleged a
violation of Article 1 of Protocol No. 1, which states as follows:
“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.”
The parties’ arguments
The
Government submitted at the outset that the applicant had never had a
“possession” as regards the plot of land at issue, since
when concluding the annulled land-purchase agreement of 11 April
1995 he had not been acting bona fide and therefore could not
enjoy the protection of Article 1 of Protocol No. 1 to the
Convention. In particular, on 13 October 1992 the applicant, as
the vice-rector of the LAA and on its behalf, attended the meeting
also attended by representatives of the local authorities and
pre-nationalisation land owners, which was held in order to solve the
question of the further development of the LAA settlement and to
resolve the land restitution matter (see paragraph 7 above).
Consequently, the applicant was well aware that the land allocated to
LAA employees so that they could build private houses on it was the
object of the restitution claim. By declaring the land-purchase
agreements, including that of the applicant, null and void the
domestic courts were striving to protect the rights of those former
owners, which had been denied to them.
As
regards the currency which the applicant used to pay for the plot of
land, the Government observed that on 20 July 1992 the applicant
paid for the use of the land a sum 2,970 Russian roubles, which was
the currency in circulation at that period. Given that at the time
the land-purchase agreement of 11 April 1995 was signed the
Lithuanian litas was the official currency in the Republic, that
agreement indicated that the applicant had paid a sum of 29.70 litas
(for legislative changes regarding currency regulations see
paragraphs 29 and 30 above). Subsequently the PanevėZys Regional
Court annulled the applicant’s title to the plot of land and
ordered that the said amount of LTL 29.70 be repaid to him. Even
allowing for the fact that due to the depreciation of the currency,
inflation and other economic factors, the purchasing power of RUR
2,970 in 1992 would have been higher than that of LTL 29.70 in 2002,
the applicant had not suffered substantial losses in the present
case. The Government accordingly considered that the burden on the
applicant, who was required to return the property, had not been
excessive and that the means employed to protect the former owners’
right to property had not been disproportionate in relation to the
public interest.
The
Government pointed out that while the vast majority of the defendants
in the civil proceedings concerning the land they had acquired had
paid with “single-use investment vouchers”, some of them,
including the applicant, had paid for their plots in roubles. In the
appeal on points of law the defendants had claimed that it would be
impossible to execute the appellate court’s decision, since
compensation for the expired vouchers had been estimated in a
non-existent currency – “single-use investment vouchers”.
However, in its decision of 31 January 2003 the Supreme Court
held that the question of compensation for the lost “single-use
investment vouchers” was not the subject matter of that case.
As regards the other defendants, including the applicant, who had
paid for their plots in roubles, the Government emphasised that they
had failed to claim that the compensation the court awarded them had
been inadequate.
Relying
on the above the Government concluded that this part of the
application should be declared inadmissible and rejected under
Article 35 §§ 3 and 4 of the Convention.
The
applicant disagreed with the Government and claimed that the latter
could not rely on defects in its own legislation as a basis for
depriving him of his property rights. He further argued that he had
acquired the property in good faith. Regarding the damage he had
allegedly suffered, the applicant contended that, after the local
authorities had assigned the plot of land to him, he had started
preparations to build a house on it and the annulment of the
land-purchase agreement had caused him loss of the time, labour and
money he had invested in that connection. It was unfair that the only
compensation he could secure was reimbursement of the price he had
paid for the land in 1992, when the purchasing power of 2,970 roubles
in Lithuania was far higher than its equivalent of LTL 29.70 in 2002.
Moreover, the price of land in Lithuania back in 1992 had been
significantly lower than at the present time.
Admissibility
1. Whether there was interference
The
Court notes that on 11 April 1995, that is to say before
24 May
1996, the date on which Protocol No. 1 to the Convention entered
into force with regard to Lithuania, the applicant bought the plot of
land in question and, even while accepting the
existence of certain restrictions on the property at that
time, became its owner (see paragraphs 9
and 11 above). The Court observes further that the applicant
was deprived of his property as a consequence of the findings of the
Constitutional Court and the Supreme Court in their respective
decisions of 10 May 2002 and 31 January 2003. By virtue of those
decisions the applicant’s property title to the plot of land in
question was nullified.
The
Court finds, therefore, that there was a deprivation of property
within the meaning of the second sentence of Article 1 of Protocol
No. 1 to the Convention. Such deprivation of property must be lawful,
in the public interest and must strike a fair balance between the
demands of the general interest of the community and the requirements
of the protection of the individual’s fundamental rights (see
Gashi v. Croatia, no. 32457/05, § 28, 13 December
2007).
2. Whether the interference was provided for by law
It
is not disputed that the applicant was deprived of his property as a
consequence of the adoption by Parliament and application by the
courts of the Restitution Law. By virtue of that law as interpreted
and applied by the courts, the authorities allowed the nullification
of his property title acquired in 1995, in order to satisfy the
restitution claims of persons from whom that property had been
expropriated in the 1940s. Moreover, the question of the compensation
for that property was decided under
Lithuanian civil law. The Court is thus satisfied that the
nullification of the applicant’s property title was in
accordance with domestic law.
3. Legitimate aim and proportionality
The
Court must next determine whether a fair balance was struck between
the general interests of the community and the individual’s
fundamental rights (see Pressos Compania Naviera S.A. and Others
v. Belgium, 20 November 1995, § 38, Series A no. 332).
The
Court recalls that it has already dealt with the question of the
annulment of contracts of sale under which applicants bought property
that previously had been nationalised during the communist regime
(see Panikian v. Bulgaria, no. 29583/96, Commission
decision of 10 July 1997; Pincová and Pinc v. the Czech
Republic, no. 36548/97, ECHR 2002-VIII; Bečvář
and Bečvářová v. the Czech Republic, no.
58358/00, 14 December 2004; Mohylová
v. the Czech Republic (dec.), no. 75115/01,
6
September 2005; and Velikovi and Others v. Bulgaria,
nos. 43278/98, 45437/99, 48014/99, 48380/99, 51362/99, 53367/99,
60036/00, 73465/01 and 194/02, 15 March 2007). In those cases
the Court and the Commission were called upon to assess difficult
situations, all of which concerned legislation adopted with the aim
of making good injustices dating back decades and inherited from
communist rule in the respective States.
In
this connection the Court reiterates that, because of their direct
knowledge of their society and its needs, the national authorities
are in principle better placed than the international judge to
appreciate what is “in the public interest”. Under the
system of protection established by the Convention, it is thus for
the national authorities to make the initial assessment of the
existence of a problem of public concern warranting measures which
may interfere with property rights. Where the legislature has made a
choice by enacting laws which it considers to be in the general
interest, the possible existence of alternative solutions does not in
itself nullify the justification behind the contested legislation.
Accordingly, States enjoy a certain margin of appreciation in this
sphere (see, Malama v. Greece, no. 43622/98, § 46,
ECHR 2001-II). It is not for the Court to say whether the
legislation represented the best solution, provided that the
authorities remain within the bounds of that margin (see, mutatis
mutandis, Mellacher and Others v. Austria,
19 December 1989, § 53, Series A
no. 169).
The
Court accepts that the general objective of restitution laws, namely
to attenuate the consequences of certain infringements of property
rights caused by the communist regime, is a legitimate aim and a
means of safeguarding the lawfulness of legal transactions,
protecting the country’s socio-economic development (see
Pincová and Pinc, cited above, § 58), or, as in
present case, securing the rights of former owners. In these
circumstances, and having regard to the State’s margin of
appreciation, the Court accepts that the deprivation of property
experienced by the applicant served not only the interests of the
original owners of the land in question, but also the general
interests of society as a whole (see Bečvář and
Bečvářová, cited above, §
67).
Much
argument was devoted by the parties to the amount of compensation the
applicant received after the courts annulled his title to the plot of
land. In this connection the Court reiterates that a person deprived
of property must in principle obtain compensation which is reasonably
related to its value, even though the legitimate objectives of public
interest may call for the reimbursement of less than the full market
value (see Pressos Compania Naviera S.A. and Others, cited
above, § 38, and The Holy Monasteries v. Greece,
9 December 1994, §§ 70-71, Series A no. 301-A). Thus,
Article 1 of Protocol No. 1 does not guarantee a right to full
compensation in all circumstances (see Broniowski v. Poland [GC],
no. 31443/96, § 182, ECHR 2004 V).
At
the same time, whilst accepting the legitimacy of the general
objective of restitution laws, the Court considers it necessary to
ensure that the attenuation of past injustices does not create new
wrongs. To that end, legislation should make it possible to take into
account the particular circumstances of each case, so that persons
who acquired possessions in good faith are not made to bear the
burden of responsibility which is rightfully that of the State which
previously confiscated the disputed possessions (see Pinc and
Pincová, cited above, § 58).
Turning to the present case the Court takes notice of
the Government’s argument that the applicant had bought the
previously nationalised plot of land under favourable conditions and
owing to his privileged position as a vice-rector of the LAA. While
acknowledging that the applicant could have been aware that certain
problems with regard to the plot of land he was about to acquire
existed at the material time
(see paragraph 7 above), the Court
cannot follow the Government’s argument that he purchased that
plot in bad faith. The Court would emphasise its previous case-law to
the effect that it is for the domestic courts to establish, on the
basis of evidence adduced by the parties to the civil proceedings,
whether or not there has been unlawful profiteering in a particular
case. Where the domestic courts have not made such a finding, the
respondent Government cannot rely before the Court on suppositions in
the opposite sense. Such an approach would run contrary to the
principle of rule of law inherent in the Convention (see Velikovi
and Others v. Bulgaria, nos. 43278/98, 45437/99, 48014/99,
48380/99, 51362/99, 53367/99, 60036/00, 73465/01 and 194/02, §§
187-188, 15 March 2007). In the instant case the domestic courts
established no such abuse of position.
On
the question of the burden borne by the applicant in the instant
case, the Court would emphasise that it is not required to decide on
what basis the domestic courts should have assessed the amount of
compensation payable; it cannot take the place of the Lithuanian
authorities in determining the year that should have been taken into
consideration for the valuation of the land (see, mutatis
mutandis, Malama, cited above, § 51, and Pinc and
Pincová, cited above, § 60). Instead, the Court
observes that in 2003 the applicant was reimbursed the original
purchase price, fixed in 1992. There can be no doubt that over time
the sum he had paid suffered some devaluation. Neither can the Court
fail to note that the value of the land, as it was in 1992, cannot
reasonably be related to its value eleven years later.
The
Court points out, however, that the applicant signed the
land-purchase agreement on 11 April 1995 and three days later
registered his title to that property in the State Land Registry,
thereby becoming its owner. The Court cannot overlook the fact that
as far back as 5 June 1995 civil proceedings had been instituted
by the initial owners whose property had been nationalised during the
communist era. It follows that there was only a rather short period
when the applicant could have reasonably considered himself as being
the undisputed owner of the land (see, by converse implication,
Panikian v. Bulgaria, cited above). What is more, as early as
27 June 1995 the Kaunas District Court ordered the seizure of the
applicant’s land, allowing him to grow only annual plants and
at the same time prohibiting him from carrying out any long-term
agricultural or construction activities on that land while the court
proceedings were pending. In this relation the Court notes that there
was some activity at the plot – perennial plants were planted
and a pond was dug (see paragraph 17 above). It is not for the Court
to speculate as to whether those actions were completed by the time
the Kaunas District Court issued its injunction, or after that ban.
The Court can only note that the applicant’s title to the plot
of land was annulled in 2003 and that therefore during that period he
was not prevented from making use of the plot and the pond as well as
enjoying the fruits of the plants which, under Article 6.151 § 1
of the Civil Code, he did not have to return to the lawful owners of
that land.
In
the past the Court has already dealt with cases concerning housing in
which the applicants lived for many decades and which the latter were
obliged to leave because of restitution of property. Following
restitution decisions taken years later, those applicants were unable
to purchase alternative accommodation and consequently were left in
an uncertain and indeed difficult situation. This was one of the
arguments prompting the Court to find a violation of Article 1 of
Protocol No. 1 to the Convention (see Pinc and Pincová,
cited above, §§ 61-64). That reasoning, however, does not
apply to the present case, where the restitution process in
particular aimed at protecting the rights of former owners (see
paragraph 18 above). What is more, the applicant had another
dwelling, had not built a house on the plot of land at issue and, in
addition, was explicitly prohibited from doing so by the domestic
courts pending the civil litigation. It follows that as regards the
possibility to have a roof above his head the applicant was not
placed in a particularly vulnerable situation and therefore did not
have to bear an excessive burden which would have upset the fair
balance that should be maintained between the demands of the general
interest on the one hand and protection of the right to protection of
property on the other.
Lastly,
the Court places particular emphasis on the fact that the applicant
never raised before the domestic courts the question of the adequacy
of the compensation for the plot of land he was deprived of. As noted
by the Supreme Court in its decision of 31 January 2003, the civil
proceedings merely concerned the annulment of land-purchase contracts
(see paragraph 21 above). It is true that some of the defendants in
that case complained that they would have no use for “single-use
investment vouchers”. However, as is clear from the material
before the Court, the applicant purchased the land in roubles,
whereas the courts ordered restitution in litas, which is the
Lithuanian currency after 1993. The Court further observes that,
under Article 4.97 §§ 3 and 4 of the Civil Code, the
applicant could have claimed compensation from the persons entitled
to restitution of the land for the expenses he had incurred in
looking after or improving it. However, the Court has no information
to suggest that the applicant ever brought such claims.
As
stated earlier (see paragraph 63 above) the Court, mindful of the
importance of the legitimate aims pursued by the Restitution Law and
the particular difficulties involved in regulating the restitution of
nationalised property after decades of totalitarian rule, would not
regard as disproportionate every imbalance between the relevant
public interest and the Restitution Law’s effects on the
particular individual concerned. A certain “threshold” of
hardship must have been crossed for the Court to find a breach of the
applicant’s Article 1 Protocol No. 1 rights (see Velikovi
and Others, cited above, § 234).
In
the cumulative circumstances of the present case the Court does not
consider that such a threshold of hardship has been reached. It
follows that this part of the application is manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention and
must be rejected pursuant to Article 35 § 4.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The
applicant argued under Article 6 § 1 of the Convention that the
courts had incorrectly applied domestic procedural and substantive
law when examining his claims regarding restitution of the land in
question. The applicant further alleged that the appellate court had
examined the case in the absence of his lawyer.
As
regards the alleged misapplication of domestic law, the Court
considers that it is not its place to act as a court of appeal or, as
is sometimes said, as a court of fourth instance, against decisions
taken by the domestic courts. It is the role of the domestic courts
to interpret and apply the relevant rules of procedural and
substantive law (see, among many authorities, Baumann v. Austria,
no. 76809/01, § 49, 7 October 2004). The Court notes, however,
that in the present case the courts did give detailed reasoning,
addressing every relevant objection raised by the applicant and
explaining their factual findings and the interpretation of the law.
Neither
is the Court persuaded by the applicant’s argument that his
defence rights were breached because his lawyer could not represent
him at the appellate instance. It must be borne in mind that on
19 June 2002 the applicant’s lawyer already knew that the
hearing of the appellate court would take place on 27 June 2002.
She requested the PanevėZys Regional Court to postpone the
hearing because she had another court hearing at that time; however,
as observed by the Supreme Court, she failed to bring any proof in
that connection (see paragraph 21 above). The Court sees no reason to
depart from the Supreme Court’s findings, which were based on
its direct knowledge of the facts of the case. Consequently, the
applicant’s complaints that there has been a breach of Article
6 § 1 of the Convention cannot be entertained and should be
dismissed as manifestly ill-founded in accordance with Article 35 §§
3 and 4 thereof.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
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.”
A. Damage
The
applicant claimed LTL 180,000 (approximately 52,174 euros (EUR)) in
respect of pecuniary damage and LTL 100,000 (approximately EUR
28,985) in respect of non-pecuniary damage.
80. The Government contested these claims
as unreasonable and excessive.
The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, it considers that the applicant must have sustained
non-pecuniary damage as a result of the violation found. Ruling on an
equitable basis, it awards him EUR 2,500
under that head.
B. Costs and expenses
The
applicant also claimed LTL 3,000 (approximately EUR 869) for the
costs and expenses incurred before the Court. He submitted to the
Court the agreement with his lawyer according to which the said
amount was to be paid in two instalments: LTL 600, which had
already been paid, for preparation of the applicant’s
observations and the remaining part of LTL 2,400 to be paid
after the Court adopted its decision.
The
Government contested the claim as excessive.
According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
finds that the sum claimed should be awarded in full.
C. Default interest
The
Court considers it appropriate that the default interest 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
Declares the applicant’s complaint
concerning the excessive length of proceedings admissible
and the remainder of the application inadmissible;
Holds that there has been a violation of Article
6 § 1 of the Convention;
Holds
(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 2,500 (two thousand five hundred euros),
plus any tax that may be chargeable, in respect of non-pecuniary
damage,
(ii)
EUR 869 (eight hundred and sixty-nine 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;
Dismisses
the remainder of the applicant’s claims for just satisfaction.
Done in English, and notified in writing on 7 July 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise
Elens-Passos Françoise
Tulkens
Deputy
Registrar President