VASILEVSKA AND BARTOSEVIC v. LITHUANIA - 38206/11 (Judgment : Article 1 of Protocol No. 1 - Protection of property : Fourth Section Committee) [2018] ECHR 1022 (18 December 2018)

In the case of Vasilevska and Bartoševič v. Lithuania,

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

Paulo Pinto de Albuquerque, President,
Egidijus Kūris,
Iulia Antoanella Motoc, judges,
and Andrea Tamietti, Deputy Section Registrar,

Having deliberated in private on 27 November 2018,

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

PROCEDURE

1. The case originated in two applications (nos. 38206/11and 18054/12) 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 two Lithuanian nationals, Ms Lilija Vasilevska and Mr Tadeuš Bartoševič ("the applicants"), on 23 May 2011 and 25 January 2012.

2. The applicants were represented by Ms E. Jankovska, a lawyer practising in Vilnius. The Lithuanian Government ("the Government") were represented by their Agent, most recently Ms K. Bubnytė-Širmenė.

3. Application no. 38206/11was communicated to the Government on 6 December 2011. As for application no. 18054/12, the complaint concerning Article 1 of Protocol No. 1 to the Convention was communicated to the Government on 18 October 2017, and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicants were born in 1960 and 1959 respectively and live in Vilnius.

5. In 1991 the applicants' grandfather, P.S., applied for restoration of his property rights to land which had been nationalised by the Soviet regime. In 1994 the administrative authorities acknowledged that P.S. had the right to have his property rights restored.

6. On 28 September 2004 the Vilnius County Administration (hereinafter "the VCA") restored P.S.'s property rights by giving him 8.17 hectares of land, consisting of several plots in Kryžiokai and Naujaneriai, areas in the Vilnius city municipality.

7 . On 25 May 2005 P.S. sold a plot of 0.50 hectares out of the 8.17 hectares given to him to S.M. On 30 June 2005 P.S. sold a plot of 1.27 hectares to Ž.J. Both sale agreements were certified by a notary.

8 . On 26 July 2005 P.S. died. The applicants were issued with a certificate of inheritance in respect of his estate on 21 December 2005.

A. Annulment of property rights to 2.50 hectares

9 . On 28 July 2008 the prosecutor of the Vilnius Region (hereinafter "the prosecutor") lodged a claim with the Vilnius Regional Court, seeking to have P.S.'s property rights to 2.50 of the 8.17 hectares given to him annulled. The prosecutor submitted that 2.50 hectares of the plot was covered by forest. Since that forest was situated in a city, it was considered a forest of national importance and could therefore only be owned by the State (see the relevant domestic law cited in Beinarovič and Others v. Lithuania , nos. 70520/10and 2 others, §§ 86-89, 12 June 2018). In view of the circumstances, the VCA's decision had to be declared unlawful and its effects annulled. The prosecutor asked that after annulling P.S.'s property rights to that part of the land, the applicants' property rights to it also be annulled.

10 . The applicants and the VCA disputed the prosecutor's claim. However, on 21 October 2009 the Vilnius Regional Court allowed it. On 24 May 2010 the Court of Appeal dismissed an appeal lodged by the applicants, and on 10 December 2010 the Supreme Court dismissed their appeal on points of law, upholding the lower courts' decisions in their entirety.

B. Annulment of property rights to 0.15 hectares

11 . On 15 December 2008 the prosecutor lodged a further claim with the Vilnius Regional Court, seeking to have P.S.'s property rights to 0.15 hectares of the 8.17 hectares given to him annulled, on the grounds that it was covered by a forest of national importance, as well as to have the applicants' property rights to that part of the plot annulled. Since the 0.15 hectares had been sold to S.M. (see paragraph 7 above), the prosecutor asked that after annulling P.S.'s property rights, the sale agreement between him and S.M. be annulled in respect of that part of the land.

12 . The applicants disputed the prosecutor's claim. However, on 10 December 2009 the Vilnius Regional Court allowed it. The court annulled P.S.'s property rights to the 0.15 hectares, as well as the sale agreement between P.S. and S.M. with respect to that amount of land. It stated that the applicants, as P.S.'s heirs, had to take over his legal obligations, and ordered them to return to S.M. what he had paid for the 0.15 hectares - 49,500 Lithuanian litai (LTL, approximately 14,340 euros (EUR)).

13 . On 23 September 2010 the Court of Appeal dismissed an appeal lodged by the applicants, and on 11 April 2011 the Supreme Court dismissed their appeal on points of law, upholding the lower courts' decisions in their entirety.

14. The Court has not been informed whether the applicants have paid the amount of LTL 49,500 (approximately EUR 14,340) to S.M.

C. Annulment of property rights to 0.87 hectares

15 . On 14 November 2008 the prosecutor lodged yet another claim with the Vilnius Regional Court, seeking to have P.S.'s property rights to 0.87 hectares of the 8.17 hectares given to him annulled, on the grounds that it was covered by a forest of national importance, as well as to have the applicants' property rights to that part of the plot annulled. Since the 0.87 hectares had been sold to Ž.J. (see paragraph 7 above), the prosecutor asked that after annulling P.S.'s property rights, the sale agreement between him and Ž.J. be annulled in respect of that part of the land.

16 . The applicants disputed the prosecutor's claim, but on 8 March 2010 the Vilnius Regional Court allowed it. The court annulled the VCA's decision to restore P.S.'s property rights in the part concerning the 0.87 hectares, as well as the sale agreement between P.S. and Ž.J. in respect of that amount of land. It ordered the applicants, as P.S.'s heirs, to return to Ž.J. what she had paid for the 0.87 hectares - LTL 188,730 (approximately EUR 54,660).

17 . The applicants appealed against the first-instance court's decision, but on 12 July 2011 the Court of Appeal upheld it in its entirety. The applicants then lodged an appeal on points of law, but on 19 September 2011 the Supreme Court refused to examine it on the basis that it raised no important legal issues.

18. On 22 August 2013 the applicants paid to Ž.J. the amount of LTL 188,730 (approximately EUR 54,660), as well as LTL 6,440 (approximately EUR 1,865) in bailiff's expenses.

D. Subsequent restitution process

19 . On 23 February 2012 the applicants received a letter from the National Land Service (the institution which took over the relevant functions of the VCA after an administrative reform - hereinafter "the NLS") confirming that, after the courts had annulled P.S.'s property rights to 3.52 hectares of land, he had retained the right to have those property rights restored. The applicants were informed of the forms of restitution provided for by the domestic law (ibid., § 92) and asked to inform the authorities of their preferred form of restitution. It is unclear whether the applicants replied to this letter.

20 . On 24 July 2012 the applicants received another letter from the NLS which stated that there was a possibility for the applicants to receive a plot of land for the construction of an individual home in the Vilnius city area, but as there were 4,806 other candidates waiting to receive plots in the area, the restitution process would take a long time. The applicants were asked to consider an alternative form of restitution, such as being given a plot of land in a rural area, a plot of land for the construction of an individual home in a different city, or monetary compensation (ibid.). They were also informed that there remained about 0.10 hectares of vacant land in Kryžiokai, so if they wished to receive a plot in that area, their request would be considered when the land plan was being prepared.

21 . On 21 August 2012 the applicants sent a letter to the NLS. They submitted that the annulment of their property rights to 3.52 hectares of land had caused them pecuniary damage in the amount of LTL 627,630 (approximately EUR 181,770), consisting of the value of the 2.50 hectares of land which had been taken away from them (see paragraph 9 above), according to a private assessment, as well as the amounts which the applicants had been ordered to pay to S.M. and Ž.J. (see paragraphs 12 and 16 above). In the applicants' view, being put on the list with 4,806 other candidates and being made to wait for an undetermined period of time for restitution was unacceptable. The applicants asked to be allocated a plot of land for the construction of an individual home in Vilnius in the order of priority, and if that was not possible, to be informed how many plots were available in Vilnius and when they might expect to receive one. They also stated that they would agree to receive a plot of land in Kryžiokai but would first want to know its exact location. The applicants stated that they did not wish to choose any other form of restitution.

22 . On 14 December 2012 the NLS approved the list of candidates to receive plots of land in several areas around Vilnius, including Kryžiokai. The applicants were included in that list as candidates to receive 3.52 hectares of land. On 31 December 2012 the NLS held a meeting at which candidates were offered plots in the relevant areas. The applicants took part in that meeting and chose four plots, measuring a total of 0.8035 hectares. As regards the remaining land, they stated that they would wait for the decision of the European Court of Human Rights in their case.

However, as it appears from the information at the Court's possession, those four plots were eventually not given to the applicants, for reasons not provided to the Court.

23 . On 21 August 2014 the NLS adopted a land plan of the aforementioned areas around Vilnius, as well as the list of individuals who would be allocated plots in those areas. The applicants were included in the list and were entitled to receive two plots of land, measuring a total of 0.203 hectares. The applicants later submitted to the Court that those two plots included installations and buildings belonging to third parties.

24 . On 21 April 2015 the applicants sent a letter to the NLS, asking it to temporarily suspend the planning of the two aforementioned plots "while court proceedings [were] ongoing" ( kol vyksta teismai ). The Government submitted that the applicants' letter must have been referring to the proceedings before the Court, as no relevant domestic proceedings had been ongoing at that time.

25 . On 25 May 2016 the applicants took part in another candidates' meeting and chose three plots, measuring a total of 0.23 hectares. It does not appear that they were offered any more plots at that meeting.

26 . In another candidates' meeting held on 10 July 2018 the applicants were offered a plot of 0.1239 hectares in joint ownership with a third party, but they refused it on the grounds that such joint ownership would not be financially beneficial to them.

27 . On 11 October 2018 the NLS adopted a decision to restore P.S.'s property rights by giving him 0.23 hectares of land. The decision stated that his rights to the remaining 3.29 hectares would be restored at a later date.

28 . At the date of the latest information provided to the Court (15 October 2018), the applicants' property rights to 3.29 hectares of land had still not been restored.

II. RELEVANT DOMESTIC LAW AND PRACTICE

29. For the relevant domestic law and practice, see Beinarovič and Others v. Lithuania (nos. 70520/10and 2 others, §§ 84-103, 12 June 2018).

THE LAW

I. JOINDER OF THE APPLICATIONS

30. Having regard to the similar subject matter of the applications, the Court finds it appropriate to order their joinder (Rule 42 § 1 of the Rules of Court).

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

31. The applicants complained that their property rights had been annulled because of mistakes made by the authorities, and that to date they had not been fully compensated either by restitution in kind or in monetary terms. They 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

Exhaustion of domestic remedies

32. The Government submitted that the applicants could have instituted separate civil proceedings against the State and claimed compensation for non-pecuniary damage caused by the unlawful actions of the authorities. They referred to several rulings of the Supreme Court and the Supreme Administrative Court which they considered relevant in the circumstances (see the rulings cited in Beinarovič and Others , nos. 70520/10and 2 others, § 107, 12 June 2018).

33. The applicants submitted that in their appeals they had asked the courts to protect their property rights and apply the law in a "fair" manner, but no compensation had been offered to them.

34. The Court has already examined the Government's submissions related to domestic remedies which are available in a situation such as that of the applicants, and has held that instituting separate civil proceedings against the State could not be considered an effective remedy within the meaning of Article 35 § 1 of the Convention (ibid., §§ 111-13). It sees no reason to reach a different conclusion in the present case. The Government's objection is therefore dismissed.

35. The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties' submissions

36. The applicants submitted essentially the same arguments as those submitted by the applicants in Beinarovič and Others (cited above, §§ 121-�24).

37. The Government submitted essentially the same arguments as those which they had submitted in Beinarovič and Others (cited above, §§ 125-�31). In particular, they submitted that the domestic authorities had been active in contacting the applicants and informing them about the process, but they were not entitled to take over the initiative from the applicants, and the latter had failed to cooperate. The restitution could not be finalised until the applicants expressed their intentions as to their preferred form of restitution. The Government therefore argued that the delays in the restitution process had been imputable to the applicants.

2. The Court's assessment

(a) Existence of an interference with the right to peaceful enjoyment of possessions, its lawfulness and legitimate aim

38. In its recent judgment in the case of Beinarovič and Others (cited above), the Court examined decisions to annul the applicants' property rights to land which had been given to them by public authorities, on the grounds that that land included forests of national importance. In that case, the Court found that the annulment of the applicants' property rights had constituted an interference with their right to the peaceful enjoyment of their possessions, that that interference had been in accordance with the law, and that it had pursued a legitimate aim in the public interest, namely the protection of forests of national importance (ibid., §§ 132-37). In view of the similarities between the facts of those cases and those of the present one, the Court sees no reason to depart from the conclusions reached in the judgment in Beinarovič and Others . It remains to be ascertained whether the interference was proportionate in the particular circumstances of the present case.

(b) Proportionality of the interference

39. The relevant general principles concerning the proportionality of an interference with the right to the peaceful enjoyment of one's possessions in cases where that interference results from the need to correct mistakes made by public authorities were summarised in Beinarovič and Others (cited above, §§ 138-42).

40. In the present case, the applicants complained that the annulment of their property rights to the land which had been restored to their grandfather had been contrary to Article 1 of Protocol No. 1 to the Convention. In line with its case-law (ibid., §§ 139, 140 and 143), the Court considers that the Lithuanian authorities were entitled to correct their mistakes and annul the restoration of the applicants' property rights in order to protect forests classified as being of national importance. Accordingly, it is of the view that the annulment in itself did not constitute a violation of the applicants' rights under Article 1 of Protocol No. 1. At the same time, the Court underlines that the correction of the authorities' errors should not create disproportionate new wrongs (ibid., § 140, and the cases cited therein). It must therefore assess whether the authorities complied with their obligation to promptly and adequately compensate the applicants for the losses which they had suffered as a result of the authorities' mistakes.

41. The applicants' property rights were annulled by final court decisions adopted on 10 December 2010, 11 April 2011 and 19 September 2011 (see paragraphs 10, 13 and 17 above). By letters sent in February and July 2012, the NLS informed the applicants about the forms of restitution provided for by law and asked them to indicate their choice (see paragraphs 19 and 20 above), and in December 2012 the applicants were invited to a meeting at which they chose several plots (see paragraph 22 above). The Court is prepared to accept that up to that point, the authorities acted with sufficient promptness.

42. However, despite the fact that during the meeting held in December 2012 the applicants chose four plots, measuring a total of 0.8035 hectares, those plots were not given to them (see paragraph 22 above). It appears that almost two years later the applicants were offered two different plots, but they refused those plots on the grounds that they included installations and buildings belonging to third parties (see paragraph 23 above) - reasons which cannot be considered unjustified. The applicants were next invited to a meeting of candidates only in May 2016 (see paragraph 25 above); they chose several plots at that meeting, but those plots were only given to them more than two years later, in October 2018 (see paragraph 27 above). The Court cannot overlook the lengthy periods of inactivity between the actions taken by the authorities with respect to the applicants, in particular from December 2012 to August 2014 (see paragraphs 22 and 23 above) and from May 2016 to July 2018 (see paragraphs 25 and 26 above), when it appears that no actions at all were taken.

43. Although the Government argued that the delays in the restitution process were imputable to the applicants, the Court cannot accept this argument. It observes that the applicants participated in candidates' meetings, they chose some of the plots offered to them and refused others for reasons which do not appear unjustified (see paragraphs 23 and 26 above). Even though during the meeting held in December 2012 the applicants stated that they wished to wait for the Court's decision with regard to some of their property rights, that did not preclude the authorities from restoring their rights to the four plots which they had chosen at that same meeting (see paragraph 22 above). Furthermore, while in April 2015 the applicants sent a letter asking the NLS to stop planning the two plots which they had previously chosen (see paragraph 24 above), that letter concerned only those specific plots, and afterwards the applicants continued participating in the restitution process and chose several other plots offered to them (see paragraphs 25 and 26 above). Accordingly, it cannot be said that the applicants effectively suspended the restitution process (compare and contrast Beinarovič and Others , cited above, § 162). The Court therefore sees no grounds to find that the applicants themselves significantly contributed to the delays.

44. The Court further observes that the authorities were aware of the applicants' individual situation - specifically, that their property rights had already been restored and later had to be annulled because of the mistakes made in the restitution process (see paragraphs 19 and 20 above). Furthermore, in their letter of August 2012, the applicants reiterated that they had already undergone the process once, and asked for priority treatment (see paragraph 21 above). However, their request for such treatment was not addressed at any stage.

45. Accordingly, the Court finds that the authorities failed to act with sufficient promptness to restore the applicants' property rights. The restitution process included significant periods of inactivity which were imputable solely to the authorities, and as a result, at the date of the last available information (see paragraph 28 above), the applicants' property rights to 3.29 hectares of land have still not been restored after more than seven years. There has therefore been a violation of Article 1 of Protocol No. 1 to the Convention.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

46. The applicants further complained under Article 6 § 1 and Article 13 of the Convention that the domestic courts in the proceedings concerning the annulment of their property rights had disregarded their arguments and had adopted unfair and unfounded decisions. Lastly, they complained under Article 14 of the Convention that they had been discriminated against on the basis of their national origin - they submitted that the majority of individuals who had had their rights to forests restored and later annulled had been Polish.

47. Having regard to its findings under Article 1 of Protocol No. 1 to the Convention, the Court considers that no separate issues arise under Articles 6 § 1 and 13 of the Convention. It therefore finds that it is not necessary to examine the admissibility and merits of the applicants' complaints under these provisions.

48. As to the applicants' complaint under Article 14 of the Convention, the Court finds that the material in its possession does not disclose any appearance of a violation of that provision. This part of the applications must therefore be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

49. 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

1. Pecuniary damage

50. The applicants claimed 186,290 euros (EUR) in respect of pecuniary damage. They submitted that that amount corresponded to the market value of the land which had been taken from them and the amounts which the courts had ordered them to pay to S.M. and Ž.J.

51. The Government submitted that the best way of remedying the violations of the applicants' rights was to restore their property rights in one of the forms provided for by domestic law, and that awarding any other compensation would be premature. They also argued that the assessment of the market value of the land had been carried out by a private company at the applicants' request and could not be regarded as independent.

52. The Court considers that the question of the application of Article 41 in respect of pecuniary damage is not ready for decision. It is therefore necessary to reserve the matter, due regard being had to the possibility of an agreement between the respondent State and the applicants (Rule 75 §§ 1 and 4 of the Rules of Court).

2. Non-pecuniary damage

53. The applicants claimed EUR 28,960 in respect of non-pecuniary damage for the stress and inconvenience caused by the prolonged violations of their rights.

54. The Government submitted that the applicants' claim in respect of non-pecuniary damage was excessive and unsubstantiated.

55. The Court considers that the applicants undoubtedly suffered distress and frustration in view of their prolonged inability to have their property rights restored. However, it considers the amount claimed by them excessive. Making its assessment on an equitable basis, the Court awards the applicants EUR 6,500 jointly in respect of non-pecuniary damage.

B. Costs and expenses

56. The applicants also claimed 1,474 Lithuanian litai (LTL, approximately EUR 427) for the costs and expenses incurred before the domestic courts. They provided copies of receipts showing that they had paid that amount in court fees and litigation costs.

57. The Government submitted that those expenses had not been "incurred in order to prevent or obtain redress for the matter found to constitute a violation of the Convention, as required by the Court" and should therefore be rejected.

58. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses 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 grants the claim for costs and expenses in full and awards the applicants EUR 427 under this head (see, mutatis mutandis , Beinarovič and Others , cited above, §§ 175-77).

C. Default interest

59. 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. Decides to join the applications;

2. Declares the applicants' complaint concerning Article 1 of Protocol No. 1 to the Convention admissible and the complaint concerning Article 14 of the Convention inadmissible;

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

4. Holds that there is no need to examine the admissibility and merits of the applicants' complaints concerning the alleged unfairness of proceedings under Articles 6 § 1 and 13 of the Convention;

5. Holds that the question of the application of Article 41 is not ready for decision in so far as pecuniary damage resulting from the violation found in the present case is concerned, and accordingly:

(a) reserves the said question;

(b) invites the Government and the applicants to submit, within six months, their written observations on the matter and, in particular, to notify the Court of any agreement that they may reach;

6. Holds

(a) that the respondent State is to pay the applicants jointly, within three months, the following amounts:

(i) EUR 6,500 (six thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 427 (four hundred and twenty-seven euros), plus any tax that may be chargeable to the applicants, 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;

7. Dismisses the remainder of the applicants' claim for just satisfaction.

Done in English, and notified in writing on 18 December 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Andrea Tamietti Paulo Pinto de Albuquerque
Deputy Registrar President

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