ZILINSKIENE v. LITHUANIA - 57675/09 (Judgment (Merits and Just Satisfaction) : Court (Fourth Section)) [2015] ECHR 1046 (01 December 2015)

In the case of Žilinskienė v. Lithuania,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

     András Sajó, President,
     Boštjan M. Zupančič,
     Nona Tsotsoria,
     Paulo Pinto de Albuquerque,
     Krzysztof Wojtyczek,
     Egidijus Kūris,
     Iulia Antoanella Motoc, judges,
and Françoise Elens-Passos, Section Registrar,

Having deliberated in private on 10 November 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 57675/09) 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, Ms Kostancija Žilinskienė (“the applicant”), on 19 October 2009.

2. The applicant was represented by Ms G. Striaukienė, a lawyer practising in Šiauliai. The Lithuanian Government (“the Government”) were represented by their Agent, Ms E. Baltutytė.

3. The applicant alleged that she had been deprived of her property by a decision of a domestic court and had not received adequate compensation, in breach of Article 1 of Protocol No. 1 to the Convention.

4. On 29 June 2012 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1943 and lives in Šilėnai, in the Šiauliai Region.

6. In June 2000 the Radviliškis Land Department of the Šiauliai County Administration recognised L.S.G.’s right to the restoration of title to 4.07 hectares of land in the Radviliškis area. The plot of land in question had belonged to two other individuals, P.M. and E.M., and had been nationalised by the Soviet regime.

7. Later that month the applicant and L.S.G. signed a notarised agreement by which L.S.G. transferred (perleido) to the applicant the right to the restoration of title to 2.07 hectares of the above-mentioned plot of land. The agreement did not indicate whether the applicant had given any money to L.S.G. in exchange for this right. However, the applicant subsequently claimed (see paragraph 12 below) that she had paid 1,400 Lithuanian litai (LTL; approximately 405 euros (EUR)).

8. On 16 October 2001 the Šiauliai County Administration estimated that the value of the plot of land transferred to the applicant was LTL 2,124 (EUR 615). The Šiauliai County Administration then awarded the applicant the right of title to 1.78 hectares of land of equivalent value. The applicant registered the plot in the Land Registry under her own name.

9. In October 2004 the Special Investigation Service began investigating allegations of fraud, forgery of documents and abuse of office (under Articles 182, 228 and 300 of the Criminal Code) relating to the restoration of property rights by the Radviliškis Land Department. In January 2005 the prosecutor of the Šiauliai Region (hereinafter “the prosecutor”) launched a similar investigation. Subsequently, the two investigations were joined.

10. In May 2008 the prosecutor submitted a request to the Radviliškis District Court for the annulment of the agreement between the applicant and L.S.G. The prosecutor stated that L.S.G. had not had the right to the restitution of P.M. and E.M.’s land and thus could not legally have transferred that right to the applicant.

11. On 11 November 2008 the Radviliškis District Court granted the prosecutor’s request. The court held that L.S.G. had not been P.M. and E.M.’s relative or heir and thus, under the applicable law, had not been entitled to the restoration of title to their land (see paragraph 17 below). Therefore, the court declared the agreement between the applicant and L.S.G. null and void ab initio, confiscated the plot of land from the applicant, and returned it to the State.

12. During the proceedings the applicant claimed that she had paid LTL 1,400 (EUR 405) to L.S.G. for the right of title to the land, and L.S.G. acknowledged that she had received an unspecified sum of money. However, since no such payment had been mentioned in the text of their agreement, the court held that the right of title had been transferred to the applicant for free and did not award her any compensation.

13. On 17 February 2009 the Šiauliai Regional Court dismissed the applicant’s appeal and upheld the decision of the lower court. The court found that the applicant had not proved that she had paid for the transfer of the right of title. It also noted that under the Civil Code, property which had been unlawfully obtained for free could be confiscated from an owner, irrespective of whether the owner had acquired such property in good faith (see paragraphs 19 and 20 below).

14. On 22 April 2009 the Supreme Court refused to examine a cassation appeal lodged by the applicant on the ground that it did not raise any important legal issues.

15. On 23 January 2009 the prosecutor instituted criminal proceedings before the Šiauliai District Court against S.D., a former official in the Radviliškis Land Department. S.D. was charged with several counts of forgery of documents and abuse of office under Articles 228 and 300 of the Criminal Code. She was accused of, inter alia, having acted together with L.S.G. in forging documents which purported to prove L.S.G.’s right to the restoration of title to certain property, with the aim of selling that right to other individuals. The indictment noted that L.S.G. had received approximately LTL 1,400 (EUR 405) from the applicant in exchange for the right to the restoration of title to the property in question. At the time of the parties’ final submissions to the Court, the criminal case was still awaiting examination before the first-instance court.

II. RELEVANT DOMESTIC LAW

A. Constitutional and statutory provisions

16. Article 31 of the Constitution of the Republic of Lithuania provides:

“A person shall be presumed innocent until proved guilty according to the procedure established by law and declared guilty by an effective court judgment...”

17. Article 2 § 1 of the Law on the Restoration of Ownership Rights to Existing Real Property (Piliečių nuosavybės teisių į išlikusį nekilnojamąjį turtą atkūrimo įstatymas), adopted on 1 July 1997 and amended several times (hereinafter “the Restitution Law”), provided that ownership rights had to be restored to the former owners of property, and that where such owners were deceased, ownership rights had to be restored to their relatives and heirs.

18. Article 1.80 § 1 of the Civil Code, in force since 1 July 2001, provides that any transaction which fails to comply with the mandatory statutory provisions shall be null and void, and each party to such a transaction shall be bound to return to the other party everything they have received from the transaction.

19. Article 4.96 § 2 of the Civil Code provides that the State may confiscate immovable property from a person who acquired such property in good faith only if the rightful owner lost such property as a result of a crime. Article 4.96 § 3 provides that where the ownership of property has been acquired for free from a person who had no right to transfer the ownership of that property, such property can be confiscated from the person who acquired it, irrespective of whether he or she acquired it in good faith.

B. Practice of the Constitutional Court

20. In its ruling of 30 October 2008, the Constitutional Court held as follows:

“Unlawfully acquired property does not become the property of the person who has [thus] acquired it. That person does not obtain rights of ownership which are protected by the Constitution (a ruling of the Constitutional Court of 5 July 2000) ...

A situation may arise in which a person seeking to acquire property lawfully acquires property which has been lost by its owner on account of a crime committed by other persons, and the person acquiring it does not and could not have known that. In this regard it must be noted that even where a person acquires property without knowing or being [in a position] to know that the owner lost it on account of a crime, the acquisition of such property shall not be regarded as creating rights of ownership in respect of the person acquiring the property. As the Constitutional Court has held more than once, no right can result from unlawfulness ...

It must be noted that State institutions, when adopting decisions concerning State property, must follow the norms and principles of the Constitution and under no circumstances may they act ultra vires - that is to say, exceed their powers. Ultra vires acts on the part of State institutions or officials shall not be deemed to constitute acts of the State itself ... [I]t must be noted that if State officials, when acting ultra vires, commit a crime, this does not mean that such crime can be identified as an action or omission on the part of the State itself, and that the State, as the owner, cannot retrieve property which has been lost on account of a crime committed by a State official ...

[I]t must be concluded that ... a person who has acquired property in good faith, where such property has been lost by the owner on account of a crime committed by other persons, is not held to be the owner of that property. Thus, under the Civil Code, the legal status of the owner and that of the person acquiring the property in good faith is not the same ...”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION

21. The applicant complained that she had been deprived of her land, of which she had been a bona fide owner, without receiving any compensation. She relied on Article 1 of Protocol No. 1 to the Convention, which reads 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.”

A. Admissibility

22. The Government firstly submitted that the applicant had failed to exhaust domestic remedies by not initiating separate judicial proceedings under Article 6.271 of the Civil Code against the State for redress for the allegedly unlawful deprivation of property.

23. The applicant did not comment on that argument.

24. The Court refers to its findings in Pyrantienė v. Lithuania (no. 45092/07, § 27, 12 November 2013) and Albergas and Arlauskas v. Lithuania (no. 17978/05, § 44, 27 May 2014), where it was not demonstrated that at the time the application in question was lodged with the Court, a claim under Article 6.271 of the Civil Code would have constituted an effective remedy and would have had any prospects of success (see, mutatis mutandis, Beshiri and Others v. Albania, no. 7352/03, § 55, 22 August 2006). The Court does not find any reasons to reach a different conclusion in the present case.

25. Accordingly, the Court dismisses the Government’s objection that the applicant failed to exhaust domestic remedies by not lodging a claim under Article 6.271 of the Civil Code.

26. The Government further submitted that the applicant had failed to exhaust domestic remedies by not submitting a civil claim in the criminal case against S.D. They argued that any damage suffered by the applicant had been a result of criminal acts committed by S.D. and her accomplices (including L.S.G), but not the State, and that those individuals were thus responsible for compensating the applicant for her losses.

27. The applicant did not comment on that argument.

28. The Court considers that the Government’s submission that the damage to the applicant had been caused by criminal acts committed by certain individuals is closely related to the substance of the complaint under Article 1 of Protocol No. 1 to the Convention and should therefore be joined to the merits.

29. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) 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’ submissions

30. The applicant submitted that she had acquired the plot of land in good faith and that her interests therefore had to be protected. She argued that any losses on the part of the State should be covered by those individuals who had acted unlawfully and not by confiscating the land from the applicant, who was a bona fide owner. The applicant also submitted that she had paid LTL 1,400 (EUR 405) for the right of title to the land and that she had invested labour and money in improving the plot and preparing it for agricultural activity and that therefore taking the land away from her without any compensation had unjustifiably restricted her property rights.

31. The applicant further submitted that the domestic courts had annulled the agreement between her and L.S.G. without first examining the criminal case and without establishing the criminal responsibility of any individuals. The applicant also complained that other individuals who had obtained land in similar circumstances had not subsequently had their land confiscated.

32. The Government submitted that the confiscation of the land from the applicant had taken place within the context of a large-scale criminal investigation, which had begun in 2004. The investigation concerned multiple allegations of well-organised criminal acts aimed at the unlawful appropriation of land and the sale of restitution rights. The investigating authorities had identified thirty-seven initial suspects, eleven of whom were eventually indicted. More than 130 witnesses had been questioned in the case and the final text of the indictment consisted of 335 pages. The Government submitted that both the applicant and the State had been victims of those criminal activities. Accordingly, the applicant had had the possibility of being recognised as a victim in the criminal case and claiming damages from the defendants.

33. The Government further submitted that the interference with the applicant’s right to the peaceful enjoyment of her property had been justified by the public interest in ensuring that land was not being unlawfully taken from the State and distributed to individuals who had no ownership rights to such land. The Government also stated that the applicant had not proved before the domestic courts that she had paid money for the right of title to the plot of land; they further argued that it had been the applicant’s responsibility to ensure that the agreement she had signed accurately represented the obligations of both parties, and she could not subsequently rely on her own negligence.

34. Lastly, the Government argued that the wrongful allocation of land to L.S.G. had occurred within the context of land reform, which was linked to the process of restoring former owners’ rights to property that had been nationalised by the Soviet regime. Therefore, according to the Court’s relevant case-law regarding central and eastern European States, the circumstances concerning the transition from a totalitarian regime to a democracy and the specific circumstances of each case had to be taken into account.

2. The Court’s assessment

(a) Applicable rule of Article 1 of Protocol No. 1

35. The Court reiterates that Article 1 of Protocol No. 1 to the Convention, which guarantees in substance the right to property, comprises three distinct rules. The first rule, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of the peaceful enjoyment of property. The second rule, in the second sentence of the same paragraph, covers deprivation of possessions and makes it subject to certain conditions. The third rule, contained in the second paragraph, recognises that the Contracting States are entitled, among other things, to control the use of property in accordance with the general interest. The second and third rules, which are concerned with particular instances of interference with the right to the peaceful enjoyment of property, must be construed in the light of the general principle laid down in the first rule (see, among many authorities, Immobiliare Saffi v. Italy [GC], no. 22774/93, § 44, ECHR 1999-V, and Broniowski v. Poland [GC], no. 31443/96, § 134, ECHR 2004-V).

36. In the present case the Government argued that the State had confiscated the applicant’s land within the context of criminal proceedings, as property allegedly obtained through criminal activity (see paragraph 32 above).

37. The Court’s constant approach has been that confiscation, while it involves the deprivation of possessions, also constitutes control of the use of property within the meaning of the second paragraph of Article 1 of Protocol No. 1 (see Sun v. Russia, no. 31004/02, § 25, 5 February 2009; C.M. v. France (dec.), no. 28078/95, 26 June 2001; and Air Canada v. the United Kingdom, 5 May 1995, § 34, Series A no. 316-A).

38. In the present case the Court notes that the confiscation proceedings concerning the applicant’s property were instituted by the prosecutor who had been in charge of the criminal investigation into allegedly unlawful activities in the Radviliškis Land Department. However, at the time of the domestic court proceedings it had not been established whether any crimes had been committed, and no individuals had been convicted (see, by contrast, Veits v. Estonia, no. 12951/11, § 74, 15 January 2015). The domestic courts annulled the agreement between the applicant and L.S.G., relying on provisions of civil law and without making any reference to the ongoing criminal proceedings (see paragraphs 11 and 13 above). The annulment was definitive and not dependent on the final outcome of the criminal case (see, by contrast, Raimondo v. Italy, 22 February 1994, §§ 20 and 29, Series A no. 281-A). The material in the Court’s possession indicates that, at the date of the parties’ final submissions, it had not been established whether the restitution right had been wrongfully allocated to L.S.G. as a result of criminal activity or due to errors on the part of public authorities (for examples of the latter, see Pyrantienė, cited above; Albergas and Arlauskas, cited above; and Paplauskienė v. Lithuania, no. 31102/06, 14 October 2014).

39. Given these circumstances the Court is not persuaded that the taking of the applicant’s property fell under the second paragraph of Article 1 of Protocol No. 1. Accordingly, it must be considered as deprivation of possessions under the rule contained in the second sentence of that provision.

(b) General principles

40. The relevant general principles are set out in paragraphs 37-40 of Pyrantienė, cited above.

41. In the present case it is not disputed that there has been an interference with the applicant’s property rights. Having found that this interference falls to be considered as “deprivation of possessions” within the meaning of the second sentence of Article 1 of Protocol No. 1, the Court must now ascertain whether the impugned deprivation was justified under that provision.

(i) Lawfulness of the interference

42. The decision of the domestic courts to annul the agreement between the applicant and L.S.G. was based on the provisions of the Restitution Law that provide a list of those categories of individuals entitled to the restitution of property (Article 2 § 1), as well as provisions of the Civil Code governing the annulment of transactions (Article 1.80) (see paragraphs 17-20 above). The Court therefore finds that the deprivation was in accordance with the law, as required by Article 1 of Protocol No. 1.

(ii) Legitimate aim

43. The Court reiterates that because of their direct knowledge of 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 an initial assessment as to the existence of a problem of public concern warranting measures of deprivation of property. Here, as in other fields to which the safeguards of the Convention extend, the national authorities accordingly enjoy a certain margin of appreciation (see, among other authorities, Pincová and Pinc v. the Czech Republic, no. 36548/97, § 47, ECHR 2002-VIII, 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, § 168, 15 March 2007).

44. The Court has previously found that measures designed to correct authorities’ mistakes and to defend the interests of former owners of property pursued a legitimate aim (see Pyrantienė, cited above, §§ 44-48, and Bečvář and Bečvářová v. the Czech Republic, no. 58358/00, § 67, 14 December 2004). In the present case it was determined that L.S.G. did not have the right to the restoration of title to the property in question under the applicable law and that she could not therefore legally transfer such a right to the applicant. Although it does not appear that any former owners had claimed their rights to the land in question, the Court nonetheless considers that there was a public interest in ensuring that land was not transferred to persons who did not have the right to the restoration of title to such property. Accordingly, the Court is satisfied that the impugned measure was undertaken in pursuit of a legitimate aim.

(iii) Proportionality

45. The Court reiterates that any interference with property must, in addition to being lawful and having a legitimate aim, also satisfy the requirement of proportionality. A fair balance must be struck between the demands of the general interest of the community and the requirements of the protection of the fundamental rights of the individual in question, the search for such a fair balance being inherent in the whole of the Convention. The requisite balance will not be struck where the person concerned bears an individual and excessive burden (see Sporrong and Lönnroth v. Sweden, 23 September 1982, §§ 69-74, Series A no. 52, and Brumărescu v. Romania [GC], no. 28342/95, § 78, ECHR 1999-VII).

46. On several occasions in cases which concerned the correction of mistakes made in the process of restitution, the Court has emphasised the necessity of ensuring that the remedying of old injuries does not create disproportionate new wrongs (see Velikovi and Others, cited above, § 178). To that end, legislation should make it possible to take into account the particular circumstances of each case, so that individuals who have acquired their possessions in good faith are not made to bear the burden of responsibility. The risk of any mistake made by a State authority must be borne by the State, and errors must not be remedied at the expense of the individual concerned (see Gladysheva v. Russia, no. 7097/10, § 80, 6 December 2011, and Pyrantienė, cited above, § 70).

47. Within the context of revoking ownership of a property transferred erroneously, the good governance principle may not only impose on the authorities an obligation to act promptly in correcting their mistake, but may also necessitate the payment of adequate compensation or another type of appropriate reparation to the former bona fide holder of the property (see Romankevič v. Lithuania, no. 25747/07, § 37, 2 December 2014, and the cases cited therein).

48. In order to assess the burden borne by an applicant, the Court must examine the particular circumstances of each case, such as the conditions under which the disputed property was acquired and the compensation that was received by the applicant in exchange for the property, as well as the applicant’s personal and social situation (see Pyrantienė, cited above, § 51).

49. In the present case the applicant acquired the right to the restoration of title to land from a third person - L.S.G. - whose property rights had been previously recognised by the State authorities. The agreement between the applicant and L.S.G. to transfer said right of title was annulled after the prosecutor lodged a civil claim, which was then allowed by the domestic courts. It was established that under the provisions of the Restitution Law, L.S.G. did not have the right to restoration of the plot of land in question and that the local authorities had accordingly not been entitled to recognise her rights to that plot.

50. The Court considers that at the time of the acquisition, the applicant did not have any reason to doubt the validity of L.S.G.’s property rights, which had been recognised by the State authorities. She was also entitled to rely on the fact that the administrative acts of 2000 and 2001, on the basis of which she had acquired the property, would not be retrospectively invalidated to her detriment (see Kopecký v. Slovakia [GC], no. 44912/98, §§ 45-47, ECHR 2004-IX, and Pyrantienė, cited above, § 61). The Court also reiterates that for the purpose of acquiring a proprietary interest it is immaterial whether the applicant acquired the land for free or for a monetary payment (see Vistiņš and Perepjolkins v. Latvia [GC], no. 71243/01, § 121, 25 October 2012).

51. The fact that L.S.G. did not have the right to restoration of title to the plot of land in question was established by the district court for the first time only on 11 November 2008 - eight years after the applicant had entered into the agreement with L.S.G. (see paragraphs 7 and 11 above). Furthermore, to date it has not been established whether any crime had actually been committed in awarding property rights to L.S.G. (see paragraph 15 above). The Court finds those circumstances relevant in determining whether the applicant could be considered a bona fide owner of the property. At the same time, the Court acknowledges that the applicant’s good faith could be called into question in view of the fact that her agreement with L.S.G. did not indicate any payment for the land, although subsequently they both claimed that a certain sum had been paid. However, the domestic courts which examined the case did not consider that the applicant had acted in bad faith, and the Court sees no reason to doubt their conclusion (see, mutatis mutandis, Vistiņš and Perepjolkins, cited above, § 120).

Therefore, the Court is satisfied that the applicant was a bona fide owner, as found by the domestic courts, and that her proprietary interest in the enjoyment of the land had been sufficiently established (see Pyrantienė, cited above, § 60, and Albergas and Arlauskas, cited above, §§ 68-69). As a result, the Court finds that the applicant had a “legitimate expectation” of being able to continue to enjoy that possession.

52. After the applicant’s title to the plot of land was annulled, she did not receive any compensation for it. The domestic courts held that the applicant had acquired the right to the restoration of title from L.S.G. free of charge, as no payment had been mentioned in the text of their agreement. The Court recalls that, as a general rule, it is for the domestic courts to assess the evidence before them and establish the relevant facts (see Paplauskienė, cited above, § 61). Accordingly, the Court does not question the conclusion of the domestic courts that the applicant acquired the land for free. However, as already stated above, that did not affect the applicant’s legitimate expectation of being able to enjoy her possession. Nor could it be assumed that she had not had any expenses related to the maintenance of the property. In this connection the Court notes that the applicant held the plot of land from October 2001 (when it was registered in the Land Registry under her name) until November 2008, and that she stated that during this time she had made substantial efforts to render the land suitable for agricultural activity (although no documents supporting the cost had been presented - see paragraph 62 below).

53. In this connection the Court reiterates that the taking of property without payment of an amount reasonably related to its value will normally constitute a disproportionate interference, and a total lack of compensation can be considered justifiable under Article 1 of Protocol No. 1 only in exceptional circumstances (see Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, § 94, ECHR 2005-VI, and the cases cited therein). In line with the Court’s case-law, in order to achieve the fair balance between the demands of the general interest of the community and the requirements of the protection of the fundamental rights of the individual, the compensation must be reasonably related to the “market” value of the property at the time of expropriation, taking into account all the relevant circumstances of each case (see paragraph 48 above; Pincová and Pinc, cited above, § 53; and Vistiņš and Perepjolkins, cited above, § 111).

54. The Government argued that the unlawful allocation of the land to L.S.G. had occurred within the context of land reform, which was linked to the complex process of the restoration of former owners’ property rights in Lithuania, as well as possibly criminal acts on the part of certain individuals attempting to profit from the misappropriation of land. In the Court’s view, although it is true that States face complex legal and factual issues when resolving such questions, in the present case it has not been established that the hindrance to the peaceful enjoyment of the applicant’s property resulted from criminal acts, and the taking of that property was not dependent on the outcome of the criminal proceedings, which have not been concluded to date (see paragraph 38 above). Neither have the Government demonstrated any justifying exceptional circumstances (see, mutatis mutandis, Nekvedavičius v. Lithuania, no. 1471/05, § 88, 10 December 2013, and Albergas and Arlauskas, cited above, § 62).

In this connection, the Court dismisses the Government’s preliminary objection that the applicant should have lodged a civil claim in the criminal proceedings (see paragraphs 26-28 above).

55. The foregoing considerations are sufficient to enable the Court to conclude that the conditions under which the applicant had her title to the plot of land removed imposed an individual and excessive burden on her and that the authorities failed to strike a fair balance between the demands of the public interest on the one hand and the applicant’s right to the peaceful enjoyment of her possessions on the other. There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

56. 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

57. As concerns pecuniary damage, the applicant claimed 1,400 Lithuanian litai (LTL; 405 euros (EUR)), which she stated she had paid to L.S.G. for the right to the restoration of title to the land, as well as LTL 20,000 (EUR 5,790) in respect of the investment she had made in improving the land.

58. The applicant also claimed LTL 5,000 (EUR 1,448) in respect of non-pecuniary damage for suffering and emotional distress caused by the violation.

59. The Government submitted that the domestic courts had dismissed the applicant’s argument that she had paid money to L.S.G. They also submitted that the applicant had not provided any proof of the money she stated she had invested in improving the plot. Lastly, the Government considered that the applicant’s claim in respect of non-pecuniary damage was excessive and unsubstantiated.

60. The Court notes that the applicant was deprived of her property in connection with the violation found. Among the matters which the Court takes into account when assessing compensation are pecuniary damage, which is the loss actually suffered as a direct result of an alleged violation, and non-pecuniary damage, which is reparation for the anxiety, inconvenience, uncertainty and other non-pecuniary loss caused by such violation (see, among other authorities, Ernestina Zullo v. Italy, no. 64897/01, § 25, 10 November 2004).

61. In addition, if one or more heads of damage cannot be calculated precisely or if the distinction between pecuniary and non-pecuniary damage proves difficult, the Court may decide to make an overall assessment (see Comingersoll S.A. v. Portugal [GC], no. 35382/97, § 29, ECHR 2000-IV).

62. The Court notes that the applicant did not submit any documents to confirm the level of expenses which she claimed to have disbursed in improving the plot of land. Nonetheless, the Court considers that the applicant suffered certain pecuniary loss in connection with the failure of the State to award her adequate compensation for the deprivation of her property. Moreover, the Court also finds that the applicant must have suffered uncertainty and frustration as a result of the violation found.

63. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant a lump sum of EUR 2,500 in respect of pecuniary and non-pecuniary damage.

B. Costs and expenses

64. The applicant also claimed LTL 160 (EUR 46) for the costs and expenses incurred before the domestic courts and LTL 1,239 (EUR 359) for those incurred before the Court.

65. The Government contested that claim as unsubstantiated.

66. 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 are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 405, covering costs under all heads.

C. Default interest

67. 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. Joins to the merits the Government’s preliminary objection that the applicant failed to lodge a civil claim in the criminal proceedings and dismisses it;

2. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;

3. 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 amounts:

(i) EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable, in respect of pecuniary and non-pecuniary damage;

(ii) EUR 405 (four hundred and five euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 1 December 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Françoise Elens-Passos András Sajó
Registrar President

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> ZILINSKIENE v. LITHUANIA - 57675/09 (Judgment (Merits and Just Satisfaction) : Court (Fourth Section)) [2015] ECHR 1046 (01 December 2015) URL: http://www.bailii.org/eu/cases/ECHR/2015/1046.html Cite as: [2015] ECHR 1046