CEDH · CASELAW;COMMUNICATEDCASES;ENG — 29 juin 2012

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Application no. 17978/05 lodged on 4 May 2005 by Mr Jurijus Arlauskas, born in 1955, and Mr Eduardas Albergas, born in 1949, both living in Vilnius. In 1994 the Vilnius City Municipality assigned a plot of land of 0.08   hectares to the second applicant, Mr Albergas, for construction of a private house. According to the provisions of the domestic law in force and due to his status as an exile’s family member, Mr Albergas was entitled to acquire this plot of land. On 5 September 1995 Mr Albergas and the Vilnius Region Administration signed a land-purchase agreement by which he bought the plot from the State. The applicant paid 422 Lithuanian litai (LTL) and 423   “single-use investment vouchers” (vienkartinės išmokos). Subsequently, he registered the disputed plot of land in his name in the Real Estate Registry. In 1997 Mr Albergas sold the plot for LTL 6,000 (about 1740 euros (EUR)) to the first applicant, Mr Arlauskas, who then registered the plot of land in his own name. 1.     Civil proceedings concerning the annulment of the contracts Being unable to use his plot of land the first applicant brought a claim before the courts against a private person R.A., alleging a breach of the right to peaceful enjoyment of his possession. The first applicant claimed that R.A., who lived next to the plot of land, had unlawfully put a fence around it. R.A. lodged a counterclaim against both applicants requesting the annulment of the land purchase agreements of 1995 and 1997 together with the decisions of the authorities. R.A. claimed restoration in natura of her ownership rights to the disputed plot of land as it was part of her father’s land which had been nationalised by the Soviet authorities. R.A. had requested the restoration of property rights in 1991, and in 1999 the rights had been restored in natura , but only to a part of her father’s plot of land. The courts of two instances granted the applicant’s claim and dismissed R.A.’s counterclaim, noting that according to the Law on Restitution in force in 1994, R.A. was entitled to restitution in natura of not more than 0.2   hectares of land. The local authorities had taken into consideration this circumstance when assigning the plot of land to Mr Albergas. The fact that under the Law on Restitution in force after 1 July 1997 R.A. was entitled to restoration in natura of up to 1 hectare of land was not considered as meaning that the decisions adopted by the local authorities in 1994-1995 were automatically invalid. The Supreme Court by a final decision of 27 November 2002 overturned the decisions of the lower courts. By applying the principle of priority of the former owners’ rights that had been developed in the civil case P.   Roževičienė v. Panevėžio miesto valdyba and others, no.   3K-3-384/1999, the Supreme Court concluded that the local authorities in 1994-1995 were not allowed to sell plots of land to third persons before the ownership rights were restored. By the decision of the Supreme Court the contracts of 1995 and 1997 were annulled and the plot was returned to the State. Mr Albergas had to return to Mr Arlauskas LTL 6,000. The State had to return to Mr Albergas LTL   422; no amount paid in “single-use investment vouchers” was returned, as the investment vouchers had no longer any pecuniary value at the time of the Supreme Court’s decision. 2.     Administrative and civil proceedings for redress Alleging the loss that they incurred after the decision of the Supreme Court, the applicants applied to the National Land Service in 2004 with requests to be assigned a new plot of land of the same size and value. These requests were dismissed. The applicants addressed the administrative courts. They alleged that by the decision of the Supreme Court they had been deprived of the property and the sums that had been awarded did not compensate their damage. In particular, Mr Albergas alleged that the court had not awarded the full value of the property, especially because part of the price had been paid in “single-use investment vouchers”. On 1 October 2004 the Vilnius Regional Administrative Court dismissed the claim. On 19 January 2005 the Supreme Administrative Court upheld this decision. The courts noted that the provisions of the domestic law under which Mr Albergas had been assigned the plot of land were no longer valid. As concerns Mr Arlauskas, the domestic law did not provide for him a possibility to be assigned a plot of land either. Later on, the applicants applied to the civil courts with a claim for damages against the Vilnius City Municipality. On 29 September 2005 the Vilnius City 1st District Court dismissed the applicants’ claim. It appears that the applicants have not appealed against this decision.   2. Application no. 17285/08 lodged on 31 March 2008 by Ms Daina Noreikienė, born in 1965, and Mr Algirdas Noreika, born in 1961, both living in Ramučiai, Kaunas Region. The applicants are husband and wife. By decisions of 1993 of the Karmelava Distric Council of the Kaunas Region and of 1996 of the Kaunas Region Administration, a plot of land of 1.97   hectares was assigned to the first applicant, Ms Noreikienė. The price of the plot was set to be 126 “single-use investment vouchers” and LTL   6. On 2 August 2004 the land purchase agreement was signed and the applicants acquired the plot of land from the State. Subsequently the plot of land was registered in the Real Estate Registry in the applicants’ name. In 2005 a private person, V.A., applied to the courts with a civil claim asking for annulment of the land purchase agreement and the legal acts of the authorities concerning the plot of land. He asked to be awarded the disputed plot of land for the purposes of restoration of his ownership rights in natura , arguing that a request for restitution of property had already been submitted in 1991; therefore, the plot of land had been assigned and later sold to Ms Noreikiene unlawfully. On 14 April 2006 the Kaunas Region District Court granted the claim. On 31 October 2006 the Kaunas Regional Court quashed the decision of the lower court and dismissed the civil claim. V.A. lodged a cassation appeal. On 15 May 2007 the Supreme Court overturned the decision of 31   October 2006 and remitted the case for re-examination. On 24 September 2007 the Kaunas Regional Court granted the claim by upholding the decision of 14 April 2006. The court applied the principle of priority of the former owners’ rights. The land purchase agreement of 2   August 2004 was annulled. The plot of land was assigned to a private person, V.A., while the applicants were awarded LTL   129 (about EUR   37) for the loss of possession. On 30 November 2007 the Supreme Court refused to examine the applicants’ appeal on points of law, having concluded that it did not raise any important legal issues.   3. Application no. 25747/07 lodged on 15 June 2007 by Mr Juljan Romankevič, born in 1934, living in Gineitiškės, Vilnius Region. In 1998 the applicant’s property rights to a part of his father’s land near Vilnius were restored. On 5 June 2002 the Vilnius Region Administration restored his rights to the remaining part – restituted in natura of 0.53   hectares of the land. This plot of the land was then registered in the Real Estate Registry in the applicants’ name. In January 2005, after having discovered that the decision of 5 June 2002 was based on the erroneous data prepared by the State’s hired land surveyor and had possibly breached the rights of other former landowners, the General Prosecutor’s Office initiated administrative proceedings for annulment of the applicant’s title to the plot. The Vilnius Region Administration admitted that its decision was unlawful. On 8 September 2005 the Vilnius Regional Administrative Court dismissed the prosecutor’s complaint. However, on 12 December 2005 the case was remitted for a re-examination by the Supreme Administrative Court. On 20 April 2006 the Vilnius Regional Administrative Court granted the claim and annulled the decision of 5 June 2002. Finally, on 15 January 2007 the Supreme Administrative Court upheld the decision of the lower court. As a consequence, the plot of land was taken away and returned to the State. No compensation was awarded to the applicant.   4. Application no 42927/08 lodged on 19 July 2008 by Mr Vytautas Tunaitis, born in 1959, living in Kaunas. By decisions of 1989 and 1991 Kaunas City Municipality assigned a plot of land of 0.03   hectares to the applicant for the construction of a private house. In 1994 the applicant paid the price for the plot, part of it being paid in “single-use investment vouchers”. According to the information provided by the applicant, he had prepared a construction project, a building permit had been issued, some building materials had been bought and the foundations of the house had been laid. By a decision of 17 October 2005 the Kaunas Region Administration sold the plot of land to the applicant. On 28 October 2005 the land purchase agreement was signed and the applicant acquired the plot of land from the State. Subsequently, it was registered in the Real Estate Registry in the applicant’s name. Later on, two private persons applied to the courts with a civil claim asking for the annulment of the land purchase agreement and the legal acts of the authorities concerning the plot of land. They asked to be granted the disputed plot of land for the purposes of restoration of their ownership rights in natura , arguing that a request for restitution of property had already been submitted in 1992; therefore the plot of land had been assigned and later sold to Mr Tunaitis unlawfully. On 16 August 2007 the Kaunas City District Court granted the claim and annulled the land purchase agreement. The sum of LTL   122 was awarded to the applicant, and the plot of land was returned to the State. On 23 January 2008 the Kaunas Regional Court upheld that decision. On 30 April 2008 the Supreme Court refused to examine the applicant’s appeal on points of law, having concluded that it did not raise any important legal issues.   5. Application no. 34911/06 lodged on 12 August 2006 by Ms Digrytė-Klibavičienė, born in 1972, living in Vilnius. By an agreement of 18 July 2000 the applicant acquired from the State for LTL   59,776 a plot of land of 0.2   hectares and registered it with the Real Estate Registry in her name. In December 2002, after having established that the land sale was not in accordance with the provisions of the law, a public prosecutor applied to the courts requesting the annulment of the agreement and the related legal acts of the authorities. On 23 September 2003 the Vilnius City 1 st District Court dismissed the claim. This decision was upheld by the Vilnius Regional Court on 18   December 2003. However, on 26 April 2004 the Supreme Court remitted the case for a re-examination. On 10 February 2005 the Vilnius City 1 st District Court dismissed the prosecutor’s claim again. On 17 June 2005 the Vilnius Regional Court overturned the decision of the lower court and granted the claim. The applicant’s title to the plot was annulled, the plot of land had to be returned to the State and the applicant received back the amount of money she had paid for it. On 13 February 2006 the Supreme Court dismissed her cassation appeal as unfounded.   6. Application no. 31102/06 lodged on 5 July 2006 by Ms Danutė Paplauskienė, born in 1932, living in Vilnius. By a decision of 18 June 2002 the Vilnius Region Administration restored the property rights of the applicant to 0.23 hectares of land. Subsequently the plot of land was registered in the Real Estate Registry in the applicant’s name. On 15 July 2002 the applicant sold this plot of land for LTL 76,000 to two private persons, E.T. and D.Z. They became owners of the plot. 1.     Proceedings concerning the annulment of the land sale agreement In June 2004 a public prosecutor initiated civil proceedings for annulment of the decision of 18 June 2002 and the land sale agreement on the ground that in 1993 the disputed plot of land had already been sold by the State to a private person, R.G. Moreover, the plot was situated in a community garden ( sodininkų bendrija ) and therefore the former owners’ rights to it could not be restored under the Law on Restitution enacted on 18   June 1991. The Vilnius Region Administration acknowledged that the plot of land had been assigned to the applicant unlawfully. On 5 May 2005 the Vilnius 1 st City District Court granted the prosecutor’s claim. The title to the plot of land was annulled. The plot was awarded to R.G. and the applicant was obliged to pay LTL   76,000 to the private persons, E.T. and D.Z. On 15 September 2005 the Vilnius Regional Court dismissed the applicant’s appeal. On 22 March 2006 by a final decision the Supreme Court upheld the decisions of the lower courts. 2.     Proceedings for damages against the State According to the information submitted by the applicant, she had to borrow money to fulfil her obligation to pay LTL   76,000 and cover other legal expenses. She also alleged that the unlawful actions of the authorities and the related court proceedings had significantly worsened her state of health, as she suffered stress and later became disabled. In November 2005, after having received a refusal of the Vilnius Region Administration to compensate her for her loss, the applicant filed a claim for LTL   90,479 in pecuniary and LTL   300,000 in non-pecuniary damage. By a final decision of 15 November 2007 of the Supreme Administrative Court, the applicant was awarded LTL   838 for pecuniary and LTL 2,000 for non-pecuniary damage. The court also concluded that the unlawful actions of the national authorities had violated the applicant’s legitimate expectations. Later on, by a decision of 9 April 2009 the Vilnius Region Administration restored the property rights of the applicant by granting her a new plot of land of 0.23 hectares.   7. Application no. 45092/07 lodged on 11 October 2007 by Ms Kotrina Pyrantienė, born in 1942, living in Akademija, Kaunas Region. In 1994 a local authority assigned a plot of land of 0.5 hectares to the applicant. On 6 August 1996 the Kaunas Region Administration confirmed the sale of the land to the applicant. By an agreement of 24 August 1996 she acquired the plot of land from the State for 61.21 “single-use investment vouchers” and registered it with the Real Estate Registry in her name. Following a civil claim brought by third persons seeking restoration of their ownership rights to the plot, on 2 October 2003 the Kaunas Regional Court annulled the above-mentioned decision of 6 August 1996 as unlawful, as well as the sale of the disputed plot of the land, which then had to be returned to the State. It was concluded that the authorities did not have a right to sell that plot of land as the previous owner had already lodged a request for restoration of his property rights to the nationalised property in   1991. It was also decided to remit the case to the first instance court for the determination of restitution as the land sale agreement was declared void. On 6 February 2004 the Supreme Court refused to accept the applicant’s cassation appeal as being lodged outside the time limit. After the case had been remitted an independent expert was appointed in the proceedings before the first instance court. It was established that the plot’s market value in September 2005 was LTL 112,500 while in August   1996 it amounted to LTL 18,000. Nonetheless, the Kaunas Regional Court, acting as a court of first instance, on 5 October 2006 decided to award the applicant LTL 1,466, noting that this price corresponded to the preferential price the applicant had paid in 1996. On 26 February 2007 the Court of Appeal upheld the decision of the lower court and rejected the applicant’s arguments that Article 6.147 § 2 of the Civil Code had to be applied by awarding the applicant the highest value of the property as she had been deprived of it due to the State’s institutions’ fault. On 8 May 2007 the Supreme Court refused to accept the applicant’s cassation appeal as it raised no important legal issues.   8. Application no. 42322/09 lodged on 13 July 2009 by Ms Violeta Grigaliūnienė, born in 1955, living in Kaunas. In 1992 a local authority assigned a plot of land of 0.15 hectares to the applicant for the construction of a private house. By an agreement of 4 May 1995 the applicant acquired the plot of land from the State for 29.70 “single-use investment vouchers”, registered it with the Real Estate Registry in her name and later build a storage house there. In 2003 the Kaunas Region Administration lodged a civil claim for annulment of the above-mentioned decision and the land sale agreement as it infringed the rights of previous owners of the same plot of land. The Administration further argued that the legal basis according to which the applicant had acquired the plot had been abolished by the ruling of the Constitutional Court of 10 May 2002. On 4 June 2004 the Kaunas Region District Court granted the claim and annulled the land sale agreement. As regards restitution, the plot had to be returned to the State and the applicant was awarded 29.70 “single-use investment vouchers”. The Kaunas Regional Court and subsequently the Supreme Court upheld the decision; however, the courts remitted the case to the first instance court for re-examination of the question concerning the restitution. In March 2007 an independent expert appointed by the court established that the plot’s market value was LTL 189,600. Nonetheless, the Kaunas Regional Court on 6 March 2008 decided to award the applicant LTL 29.70, noting that this price corresponded to the preferential price the applicant had paid in 1995. The court rejected the applicant’s arguments that Article   6.147   § 2 of the Civil Code had to be applied by awarding her the highest value of the property as she had been deprived of the plot of land due to the State’s institutions’ fault. On 19 August 2008 the Court of Appeal upheld the decision of the lower court but increased the amount and awarded the applicant LTL   2,976 (a nominal value indicated in the land sale agreement of 1995). On 27 January 2009 the Supreme Court dismissed the applicant’s cassation appeal as unfounded.   9 . Application no. 57675/09 lodged on 21 October 2009 by Ms Kostancija Žilinskienė, born in 1943, living in Šilėnai, Šiauliai Region. In 2000 by a notarized agreement with a third person, L.S.G., the applicant acquired a right to have ownership rights restored to a plot of land that had previously been nationalised by the Soviet Regime. According to the applicant, she paid LTL 1,400. By a decision of 16 October 2001 of the Šiauliai Region Administration the applicant was granted a plot of land of 1.78 hectares for the restitution of the ownership rights. Subsequently, she registered the plot with the Real Estate Registry in her name. In May 2008 the prosecutor’s office applied to the courts with a civil claim for annulment of the above-mentioned decision and the land sale agreement, arguing that L.S.G. had forged the documents and the authorities had acted unlawfully when restoring the property rights to the applicant. Therefore, the Law on Restitution had been violated. On 11 November 2008 the court of first instance fully granted the claim. The plot of land had to be returned to the State. No compensation was awarded to the applicant. On 17 February 2009 the Šiauliai Regional Court upheld the decision of the lower court. On 22 April 2009 the Supreme Court refused to examine the applicant’s appeal on points of law, having concluded that it did not raise any important legal issues. B.     Relevant domestic law The Law on Restitution ( Įstatymas dėl piliečių nuosavybės teisių į išlikusį nekilnojamąjį turtą atstatymo tvarkos ir sąlygų ), enacted on 18   June   1991 and amended on numerous occasions, provided for two forms of restitution: 1) the return of the property in natura , or 2) compensation for it (by allocating another plot of land or paying pecuniary compensation), if physical return of the property was not possible. Article 19 § 2 (1) of the Law on Prosecutor’s Office provides that a prosecutor may initiate court proceedings to defend the public interest, if he or she considers that laws have been breached. Article 1.80 of the Civil Code provides that any transaction that fails to meet mandatory statutory provisions is null and void. When a transaction is null and void, each party is bound to restore to the other party everything he or she has received according to that transaction (restitution). Where it is impossible to restore in natura what was received, the parties are bound to compensate what they received from each other in money, unless the laws provide for other consequences of nullity of the transaction. Article 6.147 of the Civil Code provides for the estimation of monetary equivalence. Paragraph 1 of the said Article establishes that monetary equivalence shall be estimated according to prices that were valid at the time when the debtor received what he is liable to restore. According to paragraph 2, in the event of the person liable to make restitution being in bad faith, or where the restitution is due to his fault, he shall be bound to return the highest value of the property. Article 6.271 of the Civil Code, in force since 1   July 2001, provides that damage caused by unlawful acts of institutions of public authority must be compensated by the State, irrespective of the fault of a particular public servant or other employee of public authority institutions. COMPLAINTS The applicants complain under Article 1 of the Protocol No. 1 to the Convention that the State unlawfully deprived them of their property. In particular, in applications nos. 17978/05, 31102/06, 25747/07, 45092/07, 42927/08, 42322/09 they also complain about a lack of just compensation. Further, in applications nos. 34911/06, 31102/06, 25747/07, 17285/08, 42927/08, 42322/09 the applicants complain under Article 6 § 1 about the fairness of the proceedings, alleging that the domestic courts erred in assessing the evidence and applying the law. In case no. 45092/07 the applicant complains under Article 13 that the courts erred in applying the domestic law and alleges that she was deprived of an effective remedy, in particular that the Supreme Court refused to accept her appeal for the examination. In addition to the above complaints and arguments, in case no. 25747/07 the applicant complains under Article 6 § 1 about the length of the court proceedings. In case no. 31102/06 the applicant also complains under Article 13 about the lack of an effective remedy and, invoking Article 10, about a breach of the right to information and dignity. Moreover, in the same case she alleges that the courts unlawfully applied interim measures and seized her property, including her pension, thus she was left without a source of income during the proceedings. Invoking Article 8 and Article 2 of the Protocol No. 7 to the Convention the applicants in case no. 17285/08 complain that their right to private life was infringed and their right to appeal was breached by the Supreme Court, which refused to examine their cassation appeal. In application no. 34911/06, invoking Articles 14 and 17, the applicant complains about discrimination and restriction of her rights, as the Supreme Court examined her appeal by way of written proceedings, thus depriving her of a public court hearing. QUESTIONS TO THE PARTIES   COMMON QUESTIONS   1. Have the applicants been deprived of their possessions, in view of the annulment of their titles to the properties at issue?   If so, was the interference with the peaceful enjoyment of their possessions necessary and proportionate for the purposes of Article   1 of Protocol No.   1 to the Convention?   In particular, was the compensation awarded to the applicants for the deprivation of their property in line with the requirements of Article   1 of the Protocol No.   1 to the Convention (see Lithgow and Others v.   the United Kingdom , 8   July   1986, §   120, Series   A no.   102; Jahn and Others v.   Germany [GC], nos. 46720/99, 72203/01 and 72552/01, § 94, ECHR   2005-VI; Brumărescu v. Romania (just satisfaction) [GC], no.   28342/95, §§ 21-24, ECHR 2001 ‑ I; Kehaya and Others v. Bulgaria (just satisfaction), nos. 47797/99 and 68698/01, §§ 17-26, 14 June 2007)?   2. Were the applicants required to initiate new separate proceedings for redress against the State in order to be considered as having exhausted domestic remedies in view of the lack of just satisfaction?   The parties are requested to inform the Court about any further developments regarding the applicants’ possible claims for redress and/or restoration of the applicants’ property rights. CASE-SPECIFIC QUESTION Paplauskienė v. Lithuania, application no. 31102/06   Can the applicant still be considered a victim of a violation of Article 1 of the Protocol No. 1 to the Convention? In this connection the Court notes that she was awarded LTL 838 for pecuniary and LTL   2,000 for non-pecuniary damage and by a decision of 9 April 2009 her property rights to a plot of land of 0.23 hectares were restored.