Communicated on 15 September 2020
Published on 5 October 2020
FIFTH SECTION
Application no. 37536/16
Tatjana KOTOVIČA against Latvia
and 2 other applications
(see list appended)
STATEMENT OF FACTSThe circumstances of the cases
1. The applicants are Latvian nationals. They were born in 1951, 1972 and 1970 respectively and live in Riga
2. The facts of the cases, as submitted by the applicants, may be summarised as follows.
3. On 8 September 1998 the Central Privatisation Commission of Residential Buildings (“Privatisation Commission” – Centrālā dzīvojamo māju privatizācijas komisija) transferred the ownership rights prior to privatisation of the residential building (nodeva īpašumā līdz dzīvojamās mājas privatizācijai) of premises designated as “artists’ workshop” in a residential building to SIA “Arhitektūras vide”.
4. On 12 May 1999 SIA “Arhitektūras vide” gave 5/35 undivided shares of that property to Mr Karnauhs, the late spouse of the applicant in case no. 37536/16, as a gift. On 4 June 1999 SIA “Arhitektūras vide” sold 7/35 undivided shares of that property to Mr Ivanovs, the applicant in case no. 37579/16.
5. On 19 September 2000 the Privatisation Commission, on the basis of the Law on the Privatisation of State and Local Self-Government Apartment Houses (Par valsts un pašvaldību dzīvojamo māju privatizāciju), sold 5/35 undivided shares of those premises to Mr Karnauhs, 7/35 undivided shares to Mr Ivanovs and the remainder of the undivided shares to SIA “Arhitektūras vide”, thereby completing the privatisation. Their respective property rights were entered in the land register.
6. On 3 October 2003 SIA “Arhitektūras vide” sold 7/35 undivided shares of those premises to Mr Maksimovs, the applicant in case no. 37570/16. His property rights were also entered in the land register.
7. On 25 August 2008 the owners of the apartments of that residential building brought civil proceedings seeking the annulment of all the decisions, contracts and land register entries with respect to the privatisation and subsequent sale of the premises designated as “artists’ workshop”. They argued that those premises constituted an unfinished attic of the residential building and therefore could not have been privatised as a separate object. Instead, it was the shared property of the apartment owners.
8. On 23 February 2011 the Riga Regional Court granted these claims in full. On 13 March 2014 the Civil Cases Chamber of the Supreme Court also fully allowed those claims. It noted that on 14 December 2000 the Law on the Privatisation of State and Local Self-Government Apartment Houses had been amended to explicitly state that artists’ workshops could only be privatised if they had been constructed and declared operational; however, even prior to those amendments the legislature had not intended to allow for the privatisation of objects that did not exist in real life. Accordingly, the Civil Cases Chamber of the Supreme Court found that the Privatisation Commission had breached the Law on the Privatisation of State and Local Self-Government Apartment Houses, as it had privatised premises that could not have been the object of privatisation. It followed that those premises could also not have been the lawful object of any subsequent transactions. The courts considered that all of the defendants had acted in bad faith, as they had all been aware that the object of the sale – the artist’s workshops – had not existed in real life but that it was instead an unfinished attic. With respect to the argument of Mr Karnauhs that he had invested in the property and had rebuilt it into an artist’s workshop, the domestic courts noted that he had done so after the unlawful privatisation.
9. On 28 December 2015 the Civil Cases Department of the Supreme Court refused to institute cassation proceedings. It referred to eleven judgments of the Supreme Court (including a 2006 judgment in case no. SKC-241), noting that there was a settled case-law with respect to the privatisation of attics of residential buildings.Relevant domestic law and practice
10. Section 17 of the Law on the Privatisation of State and Local Self-Government Apartment Houses sets out the procedure for the privatisation of artists’ workshops. Up to 2000 it provided, in essence, that such workshops could be privatised by their tenants.
11. With the amendments of 14 December 2000 that took effect on 31 December 2000 it was added that the tenants could privatise the artists’ workshops if those workshops had been constructed and declared operational.
12. On 10 May 2006 the Civil Law department of the Senate of the Supreme Court in case no. SKC-241, ruled that the attic formed part of the shared property of the residential building and could not in itself be an object of privatisation as that would interfere with the rights and lawful interests of the apartment owners. The property acquired through an unlawful privatisation could not be the subject of any subsequent transactions, even if it had been rebuilt into an artists’ workshop, as the rights of the apartment owners prevailed.
COMPLAINT
The applicants complain under Article 1 of Protocol No. 1 that they have been deprived of the property that they had acquired in good faith.
QUESTIONS TO THE PARTIES
1. Does the reservation made by Latvia in respect of Article 1 of Protocol No. 1 apply to the facts of which the applicants complain?
If so, to what extent does the reservation affect the application of that Article in the present case?
2. Has there been an interference with the applicants’ right of property, within the meaning of Article 1 of Protocol No. 1?
Have the applicants been deprived of their possessions in the public interest, and in accordance with the conditions provided for by law, within the meaning of Article 1 of Protocol No. 1?
If so, was that deprivation necessary in accordance with the general interest and was there a reasonable relationship of proportionality between the means employed and the aim sought to be realised? In particular, did that deprivation impose an excessive individual burden on the applicants?
Was there a compensatory mechanism available to the applicants that did not place a disproportionate burden on them?
APPENDIX
No.
Application
no.
Lodged on
Applicant name
Year of birth
Place of residence
37536/16
22/06/2016
Tatjana KOTOVIČA
1951
Riga
37570/16
22/06/2016
Andrejs MAKSIMOVS
1972
Riga
37579/16
22/06/2016
Kaspars IVANOVS
1970
Riga
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