CASE OF VARNIENĖ v. LITHUANIA

SECOND SECTION

CASE OF VARNIENĖ v. LITHUANIA

(Application no. 42916/04)

JUDGMENT

STRASBOURG

12 November 2013

FINAL

12/02/2014

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Varnienė v. Lithuania,

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

Guido Raimondi, President,

Danutė Jočienė,
Dragoljub Popović,
András Sajó,
Işıl Karakaş,
Paulo Pinto de Albuquerque,
Helen Keller, judges,

and Stanley Naismith, Section Registrar,

Having deliberated in private on 22 October 2013,

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

PROCEDURE

1. The case originated in an application (no. 42916/04) 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 Elena Varnienė (“the applicant”), on 16 November 2004.

2. The applicant was represented by Mr R. Lelertavičius, a lawyer practising in Vilnius. The Lithuanian Government (“the Government”) were represented by their Agent, Ms E. Baltutytė.

3. The applicant alleged that her rights under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 had been breached by the State’s reluctance to restore her property rights to a particular plot of land, and by the fact that the court decision made in her favour was set aside in violation of the res judicata principle.

4. On 19 June 2006 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1920 and resides in Vilnius.

6. In 2000, the local authorities restored the applicant’s rights to part of a plot of land located near house no. 43 in Svajonių street in the Valakupiai neighbourhood in Vilnius. The plot had belonged to her late mother, but had been nationalised in the 1940s.

7. The applicant brought an action against the Vilnius local authority, claiming restitution of her property rights to the remaining 0.33 hectares of the plot in natura.

8. On 21 December 2001 the Vilnius Regional Administrative Court dismissed her action as unsubstantiated. It noted that in the Government ruling no. 239 (see Relevant domestic law and practice part below) the area where the plot was located was designated as a forest of national importance. Given that such forests were to be bought out by the State, in accordance with Article 13 of the Law on the Restoration of the Rights of Ownership of Citizens to Existing Real Property enacted in 1997 (hereinafter “the Law on Restitution”), there was no legal basis to grant the applicant’s action. The court also implied that the applicant could obtain restitution in another form, as Article 16 of the Law on Restitution provided.

9. On 12 February 2002 the Supreme Administrative Court quashed the decision and granted the applicant’s action. On the basis of topographic plans provided by the local authorities the court found that the disputed plot of land was situated adjacent to the buildings that belonged to the applicant. The court noted that the documents concerning the return in natura of that plot had been prepared before the Government ruling no. 239 was adopted. Nevertheless, that ruling merely noted that 13,990 hectares of land constituted forests of national importance; the boundaries of those plots had not been marked. For the appellate court, there were no factual data to support the claim that the disputed 0.33 hectares of land were in a forest of national importance. The court also noted that by a letter of 23 March 2001 the Vilnius local authority had confirmed that the boundaries of forests of national importance in Valakupiai neighbourhood had not [yet] been established. Lastly, and as it had been confirmed by the Vilnius local authority, there were no other obstacles to return the plot in natura.

The appellate court thus ordered the Vilnius local authority to restore the applicant’s rights to “the 0.33 hectares of land adjacent to the house no. 43 in Svajonių street in Vilnius”. That decision became final and effective.

10. In 2003, the applicant brought an action against the Vilnius local authority, complaining that the decision of 12 February 2002 had not been executed.

11. On 31 October 2003 the Vilnius Regional Administrative Court granted her action, obliging the Vilnius local authority to take relevant measures to execute the court decision of 12 February 2002. The court noted that the local authority had not established any additional circumstance, which had materialised after 12 February 2002, that would make it impossible to restore the property rights in natura.

12. The Vilnius local authority appealed, arguing that the disputed plot in fact was in the forest of national importance. It noted that, contrary to what had been concluded by the lower court, there was new evidence to that effect. Firstly, on 7 August 2002 the Ministry of Environment had presented a report no. 08-03-4386 stating that the forest did include the plot; the local authority submitted that before preparing the above report, a specialist of the Forestry Department had checked the plot on the spot [and confirmed that there was a forest]. Secondly, another report no. 12-2-430 of 22 January 2003 by the Ministry of Environment also confirmed, on the basis of the latest topographic data from Valakupiai neighbourhood, the presence of a national forest on the disputed plot. Thirdly, an extract from the Vilnius territorial plan also showed that the disputed plot fell into the category of property to be bought by the State. The Vilnius local authority argued that all those new pieces of evidence had been presented to the Vilnius Regional Administrative Court before it adopted the decision of 31 October 2003, but the court had not taken them into account.

The appeal was received at the registry of the Supreme Administrative Court on 20 November 2003.

13. By a ruling of 1 December 2003 the president of the Supreme Administrative Court took notice of the appeal and ordered the parties to submit written responses to it.

14. On 9 February 2004 the president of the Supreme Administrative Court lodged a recommendation for the reopening of the case. He wrote that although the Supreme Administrative Court had found that there were no data to establish that the disputed plot of land was in the forest of national importance, the documents by the Ministry of Environment and the Vilnius local authority allowed the conclusion that that plot could be in such a protected area.

15. On 12 February 2004 a Chamber of three Supreme Administrative Court judges decided to reopen the proceedings. It found that the Supreme Administrative Court could have erred in fact and thus in law when adopting the decision of 12 February 2002. In particular, the Supreme Administrative Court had found that there were insufficient data to prove that the plot at issue was in the forest of national importance, because the borders of such forests had not been marked. However, such forests were marked on the topographic plans by the Ministry of Environment, attached to the Government’s ruling no. 239. Should the disputed plot be located in the areas marked on those topographic plans, it could belong only to the State.

16. The execution proceedings were stayed until the resolution of the merits of the applicant’s claim for the 0.33 hectares of land.

17. In the meantime, the Supreme Administrative Court ordered the Forestry Department at the Ministry of Environment to provide the court with maps showing forests of national importance in the Valakupiai neighbourhood.

18. On 20 May 2004 the Supreme Administrative Court quashed its decision of 12 February 2002. It noted that the applicant’s claim had to be determined on the basis of the Government’s ruling no. 239 and Article 13 of the Law on Restitution, and reiterated that the topographic plans by the Ministry of Environment were an inseparable part of the Government’s ruling no. 239. The court decision reads:

“after the proceedings in the applicant’s case had been resumed, the Supreme Administrative Court had obtained an extract of the forests’ topographic map approved by the Government’s ruling no. 1154 of 23 October 1997 [which on 1 March 2000 was partly amended by the Government’s ruling no. 239]. Having compared that map with other maps in the case-file (pages 137 and 240), it is clear that the plot of land to be returned [in natura] to the applicant is in the forest of national importance. This fact was confirmed by relevant State institutions. It follows that pursuant to Article 13 § 1 of the Law on Restitution, the applicant may not claim restitution of the disputed plot, situated near the house no. 43 in Svajonių street in Vilnius, in natura. It must also be concluded that the Supreme Administrative Court, when it decided the case on appeal, had not identified the boundaries of forests of national importance, and thus applied the law erroneously...”

19. In the light of the above, the Supreme Administrative Court held that “the original ruling of 21 December 2001 of the Vilnius Regional Administrative Court, whereby the applicant’s restitution claim had been dismissed, was, in principle, correct”.

20. As it transpires from the documents submitted by the Government, page 240 of the administrative case-file is a topographic map of Valakupiai neighbourhood; the document’s date is 11 May 2004. The disputed plot appears to be in the national forest.

21. By a letter of 13 March 2012 the Government informed the Court that, as it concerned the 0.33 hectares plot of land in Svajonių street, the applicant still had a possibility to obtain another plot of land of equal value or to receive monetary compensation. The Vilnius City Land Management Department had informed the applicant about her options. However, the applicant insisted that she be given that particular plot and had not expressed her wish as to other possible way of compensation.

II. RELEVANT DOMESTIC LAW AND PRACTICE

22. The process of restitution of property in Lithuania was initially regulated by the Law on the Procedure and Conditions for Restoration of Ownership Rights to Existing Real Property (Įstatymas dėl piliečių nuosavybės teisių į išlikusį nekilnojamąjį turtą atstatymo tvarkos ir sąlygų), enacted on 18 June 1991 and amended on numerous occasions. The Law provided for two forms of restitution – return of the property in natura or compensation for it, if its physical return was not possible.

23. On 27 May 1994 the Constitutional Court examined the issue of the compatibility of the Constitution with the domestic laws on the restoration of property rights. As concerns the possessions which had been nationalised by the Soviet authorities since 1940, the Constitutional Court held:

“The rights of a former owner to particular property have not been restored until the property is returned or appropriate compensation is afforded. The law does not itself provide any rights while it is not applied to a concrete person in respect of a specific property. In such a situation the legal effect of a decision by a competent authority to return the property or to provide compensation is such that only from that moment does the former owner obtain property rights to a specific property.”

The Constitutional Court also held that fair compensation for property which could not be returned in natura was compatible with the principle of the protection of property.

24. On 1 July 1997 the Lithuanian Parliament enacted the Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property (Piliečių nuosavybės teisių į išlikusį nekilnojamąjį turtą atkūrimo įstatymas). That Law abolished the Law of 18 June 1991.

25. Article 13 § 1 (1) of the Law on Restitution at the material time provided the State was to buy the forests assigned to town forests and forest parks, on the ground that such forests were of national importance. Article 16 of the Law stipulated that the bought property was to be compensated for by transferring into a person’s ownership a plot of land of equal value. Should the person refuse such compensation, pecuniary compensation was also possible.

26. By ruling no. 239 of 1 March 2000, partly amending earlier ruling no. 1154, the Government approved an area of 13,990 hectares of forests in Vilnius as forests of national importance. The topographic plans of those forests were prepared by the Ministry of Environment and attached to the ruling.

27. The Law on Administrative Proceedings reads:

Article 145. Coming into Effect of the Decision, Ruling or Order of the Appellate Court

“The decision, ruling or order of the appellate court shall become effective on the day it is made and shall not be subject to appeal by cassation.”

Article 153. Grounds for the Re-opening of the Proceedings

“1. If a case has been disposed of by virtue of an effective court decision, ruling or order, the proceedings may be resumed on the grounds and according to the procedure established in this Section.

2. The proceedings may be resumed on the following grounds:

1) if the European Court of Human Rights finds that a decision of the court of the Republic of Lithuania is not in conformity with the European Convention on the Protection of Human Rights and Fundamental Freedoms or its Protocols;

(...)

10) in case of submission of clear evidence that there was a violation of substantive law norms, because of which an unlawful decision, ruling or order could have been adopted;

(...)”

Article 154. Entities Entitled to File a Petition for the Re-opening of Proceedings

“1. The right to file a petition for the re-opening of the proceedings shall be vested in the parties to the proceedings and their statutory representatives, the persons excluded from the hearing of the case, if the decision, ruling or order which has become effective infringes their rights or interests protected by law, also in the prosecutor and entities of public administration with a view to protecting the public interest or the rights of the State and individuals and interests protected by law.

2. The president of the Supreme Administrative Court of Lithuania shall have the right to submit the recommendation to resume the proceedings on his own initiative or on the proposal of the president of the Regional administrative court.”

Article 156. Time-Limits for Filing a Petition for Re-opening of the Proceedings

“1. A petition for reopening of the proceedings may be filed within three months from the day when the entity who filed it learned or should have learned of the circumstances furnishing grounds for re-opening.

2. Persons who have failed to observe for good reason the time limits for filing the petition for reopening of the proceedings may be granted the restoration of the status quo ante provided the petition for the re-opening of the proceedings has been filed within one year from the day the decision became effective.

3. A petition for the reopening of the proceedings shall be inadmissible if more than five years have lapsed from the day the decision or order became effective.”

28. Article 6.246 of the Civil Code establishes a general rule of
non-contractual liability and provides that civil liability may arise from
non-performance of a duty established by laws or a contract, or from violation of the general duty to behave with care. Article 6.272 of the Code allows to hold a pre-trial investigation officer or a court liable for damage resulting either from unlawful conviction, arrest or application of unlawful procedural measures.

29. The ruling of the Constitutional Court of 19 August 2006 reads:

“...by virtue of the Constitution, a person has the right to claim compensation for damage caused by the unlawful actions of State institutions and agents, even if such compensation is not foreseen by law; the courts adjudicating such cases ... have the power to award appropriate compensation by directly applying the principles of the Constitution ... as well as the general principles of law, while being guided inter alia by the principle of reasonableness, etc.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

30. The applicant complained about the reopening of the court proceedings and the review of the Supreme Administrative Court’s final decision of 12 February 2002. The Court considers that the complaint falls to be examined under Article 6 § 1 of the Convention, which, inasmuch as relevant in this case, reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...”

A. Admissibility

31. The Government submitted that the applicant had failed to exhaust the domestic remedies, given that she had not initiated court proceedings for alleged damage as regards the quashing of the decision of 12 February 2002 of the Supreme Administrative Court. For the Government, the applicant could have claimed redress on the basis of Articles 6.246 and 6.272 of the Civil Code, of the ruling of the Constitutional Court of 19 August 2006 or of the Convention directly.

32. Alternatively, the Government were of the view that the complaint was manifestly ill-founded, for resumption of the administrative proceedings and quashing of the “initially final decision” did not give rise to any appearance of a violation of Article 6 § 1 of the Convention.

33. The Court has examined the Government’s plea of non-exhaustion of the domestic remedies. As concerns the provisions of the Civil Code, it notes that they establish the right to claim damages for unlawful actions of the State institutions or for their failure to behave with care. However, the Court has difficulties in seeing how those provisions could have allowed the applicant to start fresh court proceedings in order to challenge the adoption of the Supreme Administrative Court’s decision of 20 May 2004. The same holds true as regards the other two legal bases mentioned by the Government. Accordingly, the Government’s objection must be dismissed.

34. The Court also finds that this complaint 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

35. The applicant argued that the reopening of the administrative court proceedings in her case was in breach of the res judicata principle. The factual circumstances had been correctly determined during the first set of proceedings, where a final court decision had been taken. Nonetheless, after the reopening the Supreme Administrative Court had one more time investigated the factual circumstances of her case. This time, the same domestic legal acts were interpreted differently, and, as a result, a ruling to her detriment was adopted.

36. The Government submitted that the resumption of the administrative proceedings in the applicant’s case was not in breach of the res judicata principle. Similarly to the facts in Ryabykh v. Russia (no. 52854/99, § 54, ECHR 2003-IX), the president of the Supreme Administrative Court was not a party to the proceedings in the present case. However, unlike in Ryabykh, there were strict time-limits for the possible resumption of the court proceedings. Most importantly, the decision of 20 May 2004 adopted by the Supreme Administrative Court did not have an effect of providing a “second chance” for the State to obtain a re-examination of the dispute already determined by way of a final decision. On the contrary, the administrative case had to be resumed because the chamber of three judges decided that in its earlier decision the Supreme Administrative Court could have misinterpreted the laws regulating restoration of property rights (paragraph 15 above). By virtue of the resumption of the administrative court proceedings in the applicant’s case it was sought to correct the mistakes of interpretation and application of the specific laws. The Government lastly submitted that the case was not re-examined from the very beginning, thus the factual circumstances were not re-examined and only the issues regarding correct application of law were tackled. In sum, no legal uncertainty was created in the instant case and the State did not fail to strike a fair balance between the interests of the applicant and the need to ensure the proper administration of justice.

2. The Court’s assessment

37. With regard to the substance of the complaint, the Court reiterates that the right to a fair hearing before a tribunal as guaranteed by Article 6 § 1 of the Convention must be interpreted in the light of the Preamble to the Convention, which, in its relevant part, declares the rule of law to be part of the common heritage of the Contracting States. One of the fundamental aspects of the rule of law is the principle of legal certainty, which requires, among other things, that where the courts have finally determined an issue, their ruling should not be called into question (see Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999-VII).

38. Legal certainty presupposes respect for the principle of res judicata, that is the principle of the finality of judgments. This principle underlines that no party is entitled to seek a review of a final and binding judgment merely for the purpose of obtaining a rehearing and a fresh determination of the case. Higher courts’ power of review should be exercised to correct judicial errors and miscarriages of justice, but not to carry out a fresh examination. The review should not be treated as an appeal in disguise, and the mere possibility of there being two views on the subject is not a ground for re-examination. A departure from that principle is justified only when made necessary by circumstances of a substantial and compelling character (see Ryabykh, cited above, § 52; Asito v. Moldova, no. 40663/98, § 46, 8 November 2005).

39. Turning to the applicant’s case, the Court recalls that the decision of 12 February 2002 was overturned on 20 May 2004 by the Supreme Administrative Court on the ground that the same court had earlier misinterpreted relevant facts and thus domestic legislation. The Supreme Administrative Court dismissed the applicant’s claim that the disputed plot of land should be returned to her in natura and closed the matter, thus setting at naught an entire judicial process which had ended in a decision that was legally binding under Article 145 of the Law on Administrative Proceedings. The Court also observes that the final judgment of 12 February 2002 was the result of contentious proceedings before two levels of jurisdiction, including the Supreme Administrative Court. Those proceedings had the effect of determining the applicant’s property rights
vis-à-vis the State. The principle of legal certainty dictates that where a civil dispute is examined on the merits by the courts, it should be decided once and for all.

40. The Court further notes that the review of the decision of 12 February 2002 was set in motion by the president of the Supreme Administrative Court – who was not a party to the proceedings – in whom such power was vested by Article 154 § 2 of the Law on Administrative Proceedings. It takes notice of the Government’s argument that, unlike in Ryabykh, the exercise of this power by the president was subject to a five year time-limit, so that judgments were not liable to be challenged indefinitely. That being so, the Court cannot fail to observe that two years lapsed from the date the decision in the applicant’s favour had become legally binding to the day the proceedings were reopened (see paragraphs 9 and 15 above). In this context the Court recalls that it has already found an issue under Article 6 § 1 of the Convention where the final decisions by the domestic courts had been challenged fourteen months after they became binding and enforceable (see, mutatis mutandis, Prisyazhnikova and Dolgopolov v. Russia, no. 24247/04, § 25, 28 September 2006). Neither can the Court overlook the circumstance that the arguments used by the president of the Supreme Administrative Court and by the three judges’ Chamber of that court to justify the reopening of the proceedings and fresh investigation of the applicant’s civil claim, that is that the disputed plot was in the forest of national importance, were essentially the same as those employed by the Vilnius local authority in the first set of administrative proceedings. Since those arguments had already been examined and rejected by the Supreme Administrative Court on appeal, the reopening of the proceedings can be regarded as an attempt by the local authority to re-argue the case on the points which had failed on appeal.

41. The Government have claimed that the resumption of the administrative court proceedings was necessary for correct interpretation of the domestic laws regulating restitution of property. In the applicant’s case the property at issue was a plot of land, in their view located in a forest of national importance. In this context, the Court recalls its case-law about public interest in protecting nature and forests and that financial imperatives and even certain fundamental rights, such as ownership, should not be afforded priority over environmental protection considerations (see paragraph 54 below). Be that as it may, it remains to be ascertained whether the resumption of the proceedings was more than a mere re-hearing of the case.

42. As to the decision of 20 May 2004, the Court observes that, as the decision reads, “after the proceedings in the applicant’s case had been resumed, the Supreme Administrative Court had obtained an extract of the forests topographic maps approved by the Government’s ruling no. 1154 of 23 October 1997. Having compared that map with other maps in the case-file (pages 137 and 240), it is apparent that the plot of land to be returned [in natura] to the applicant is in the forest of national importance. This fact had been confirmed by relevant State institutions”. In such circumstances, the Court has difficulties in accepting the Government’s argument that factual circumstances were not re-examined after the resumption of the court proceedings. It can also be considered that the actions of the Supreme Administrative Court in its judgment of 20 May 2004 had the effect of providing a “second chance” for the State to obtain a re-examination of a dispute already determined by way of a final judgment in contentious proceedings to which another emanation of the State, the specialised territorial administrative authority in charge of restitution, had been a party and had been afforded all procedural means to defend the State’s interests.

43. As the Court has previously held, it is unavoidable that in court proceedings the parties have conflicting views on interpretation of facts and application of the substantive law. The courts are called upon to examine their arguments in a fair and adversarial manner and make their assessment of the claim (see Kot v. Russia, no. 20887/03, § 29, 18 January 2007).

In the instant case, the Court observes that before an application for reopening of the administrative court proceedings was lodged, the merits of the applicant’s claim had been examined by the first-instance and appellate courts. It has not been claimed that any of those courts acted outside its competence or that there was a fundamental defect in the proceedings before them. The Court further notes that in its decision of 20 May 2004 the Supreme Administrative Court did not mention any piece of legislation that had changed since 12 February 2002, that is, the day when its earlier purportedly final and binding decision was taken. The legal bases it relied upon – the Government rulings no. 1154 of 23 October 1997 and no. 239 of 1 March 2000 as well as Article 13 of the Law on Restitution – were identical to those that existed during the first set of administrative proceedings (see paragraphs 18 and 42 above). The fact that on 20 May 2004 the Supreme Administrative Court held that the first instance court’s decision of 21 December 2001, by which the applicant’s request for restitution in natura had been rejected, was “in principle correct” only appears to corroborate this conclusion.

44. In the light of the principles of its case-law and the preceding considerations, the Court holds that the resumed examination of the applicant’s case and setting aside the decision of 12 February 2002 infringed the principle of legal certainty and the applicant’s “right to a court” under Article 6 § 1 of the Convention.

45. There has accordingly been a violation of that Article.

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

46. The applicant complained that the State did not return the plot of land in natura. She relied on Article 1 of Protocol No. 1 to the Convention, which provides:

“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.”

1. The parties’ submissions

47. The applicant was dissatisfied with the annulment of the Supreme Administrative Court’s decision of 12 February 2002, depriving her of her property. She argued that there was no legal basis or public interest not to return her the disputed plot of land in natura. Lastly, the applicant expressed a wish that the land to which she had ownership should be in one place.

48. The Government contended that in the present case it could not be strictly stated that the applicant had “possessions” within the meaning of Article 1 of Protocol No. 1 to the Convention. Relying on the Court’s judgments in Jasiūnienė v. Lithuania (no. 41510/98, § 40, 6 March 2003) and Kehaya and Others v. Bulgaria (nos. 47797/99 and 68698/01, § 72, 12 January 2006), they submitted that the domestic decision as to the restoration of the applicant’s ownership rights to the disputed 0.33 hectares plot of land had not yet been adopted. On this point the Government drew the Court’s attention to the fact that the mere administrative court decision did not by itself mean that the applicant’s ownership rights were restored. The decision concerning the factual restoration of her rights had to be taken by the Vilnius Region Governor.

49. Alternatively, and should the Court consider that there was an interference with the applicant’s right to protection of property, the Government submitted that such interference was provided for by the Law on Restitution and was based upon the public interest in protecting the State’s forests. Lastly, given that the applicant was still entitled to the restoration of property as such, by allocating her a plot of equal value in another location or by obtaining pecuniary compensation, a fair balance had been struck between the applicant’s interests and those of the community.

2. The Court’s assessment

(a) Admissibility

50. The Court considers that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring it inadmissible has been established. Therefore, it should be declared admissible.

(b) Merits

51. The Court observes that according to its case-law, Article 1 of Protocol No. 1, which in substance guarantees the right of property, comprises three distinct rules (see, in particular, James and Others v. the United Kingdom, 21 February 1986, § 37, Series A no. 98): the first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest. The second and third rules are concerned with particular instances of interference with the right to the peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule (see Broniowski v. Poland [GC], no. 31443/96, § 134, ECHR 2004-V).

52. In the absence of a formal expropriation, that is to say a transfer of ownership, the Court considers that it must look behind the appearances and investigate the realities of the situation complained of. Since the Convention is intended to guarantee rights that are “practical and effective”, it has to be ascertained whether that situation amounted to a de facto expropriation, as was argued by the applicant (see Sporrong and Lönnroth v. Sweden, 23 September 1982, § 63, Series A no. 52).

53. As concerns the circumstances of the instant case, the Court recalls that by the then final and effective decision of 12 February 2002 the Supreme Administrative Court ordered the Vilnius local authority to restore the applicant’s rights to “the 0.33 hectares of land adjacent to the house no. 43 in Svajonių street in Vilnius”. Given the precision with which the obligation on the local authorities to bestow the title upon the applicant to the disputed plot was formulated, the Court is ready to accept that the Lithuanian court decision provided the applicant with an enforceable claim which constituted a “possession” within the meaning of Article 1 of Protocol No. 1. It notes, however, that despite all the efforts by the applicant, the Supreme Administrative Court’s decision had not been executed, which could be attributed solely to the Vilnius local authority (see paragraphs 10-12 above). Furthermore, after the administrative court proceedings were reopened, on 20 May 2004 the Supreme Administrative Court deprived the applicant of all the fruits of the previously final court decision in her favour, by holding that the contested plot of land could be owned only by the State. In these circumstances the Court finds that there has been interference with the applicant’s right to the peaceful enjoyment of her possessions, which amounts to a “deprivation” of property within the meaning of the first paragraph of Article 1 of Protocol No. 1 (see, mutatis mutandis, Brumărescu, cited above, § 77).

54. The Court has given due attention to the Government’s argument that pursuant to Article 16 of the Law on Restitution the applicant still retains the right to restoration of her property rights, by obtaining another plot of land of equal value or obtaining pecuniary compensation (see Aleksa v. Lithuania, no. 27576/05, § 72, 21 July 2009; also see Maria Atanasiu and Others v. Romania, nos. 30767/05 and 33800/06, § 164, 12 October 2010). Taking into account the Lithuanian courts’ conclusions that the plot of land at issue is situated in the forest of national importance, the Court also reiterates its position that financial imperatives and even certain fundamental rights, such as ownership, should not be afforded priority over environmental protection considerations, in particular when the State has legislated in this regard (see Turgut and Others v. Turkey, no. 1411/03, § 90, 8 July 2008 and the cases cited therein). Be that as it may, the Court also recalls that it has already found a violation of Article 6 § 1 of the Convention as regards the annulment of the Supreme Administrative Court’s final decision of 12 February 2002, which had determined the applicant’s property rights vis-à-vis the State. It therefore considers that for the years that followed (see paragraphs 9 and 18 above) the applicant had been deprived of her property without a proper legal basis. Whilst acknowledging that after the Supreme Administrative Court’s decision of 20 May 2004 the applicant has a right to choose another plot of land or to receive a pecuniary compensation, the Court nevertheless holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

55. 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

56. The applicant claimed 50,000 Lithuanian litai (LTL, approximately 14,480 euros (EUR)) in respect of non-pecuniary damage, caused by ten years of administrative proceedings in Lithuania.

57. The Government disputed the claim.

58. Having regard to its finding of violations of Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention, and deciding on an equitable basis, the Court awards the applicant EUR 8,000 in respect of non-pecuniary damage.

B. Costs and expenses

59. The applicant claimed LTL 5,000 for the costs and expenses incurred before the domestic courts. To substantiate her claim she submitted a bill for the sum of LTL 2,000 (approximately EUR 580).

60. The Government contested this claim.

61. 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 considers it reasonable to award the applicant EUR 580.

C. Default interest

62. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention admissible;

2. Holds that there has been a violation of the applicant’s right to a fair hearing and the right to a court as guaranteed by Article 6 § 1 of the Convention;

3. Holds that there has been a violation of the applicant’s right to protection of her possessions as guaranteed by Article 1 of Protocol No. 1 to the Convention;

4. 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 8,000 (eight thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage,

(ii) EUR 580 (five hundred and eighty 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;

5. Dismisses the remainder of the applicant’s claims for just satisfaction.

Done in English, and notified in writing on 12 November 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stanley NaismithGuido Raimondi
RegistrarPresident

 

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