CEDH · CASELAW;COMMUNICATEDCASES;ENG — 20 mars 2024

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } Published on 8 April 2024   THIRD SECTION Application no. 18440/23 OÜ PAREM KALLAS against Estonia lodged on 28 April 2023 communicated on 20 March 2024 SUBJECT MATTER OF THE CASE The application concerns a delay in establishing the amount of compensation and the sum of this compensation for the applicant’s land which had been designated for public use. The present application is a follow-up to the application lodged by the same applicant company in the earlier case no. 56002/19 OÜ Parem Kallas . In that case the Committee declared the application inadmissible by its decision of 5 July 2022. In that decision the Court found the applicant company’s complaint under Article 6 § 1 of the Convention to be inadmissible due to the domestic remedies not (yet) having been exhausted. The Court also found the applicant company’s complaint under Article 1 of Protocol No. 1 to the Convention, in so far as it concerned compensation to be paid in view of the passage of time, to be premature as at the relevant time the domestic proceedings were still ongoing. In 2001 a local municipality (the city of Pärnu) made a zoning decision designating a part of land belonging to a certain A.S. for a future extension of a public-use street. The concerned part – hereinafter referred to as “the plot” – measured approximately 15% of the entire land. Under the law then in force the municipality had the subsequent obligation to purchase the plot for immediate and fair compensation if and when the landowner submitted such a request. However, it appears that A.S. had at that time confirmed that he would not lodge the expropriation request before such time that the municipality indeed intended to construct the extension of the street in question. Subsequently, in May 2002 A.S. transferred the entire land (including the plot in question) as a non-monetary contribution to the applicant company. The value of the entire land was estimated to be 31,955 euros (EUR). In July 2002 the applicant company lodged a request for the municipality to expropriate the plot intended for a street extension and later repeated this request (hereinafter “expropriation and compensation proceedings”). In 2004 the applicant company asked a court to order the municipality to purchase the plot. In a judgment which became final in April 2006 the Tallinn Court of Appeal ordered the municipality to decide the expropriation of the plot within two months. In May 2006 the municipality set the amount of compensation on the basis of an expert opinion. The domestic courts quashed the decision and ordered the municipality to decide again on the amount, reasoning that the expert opinion had not taken into account adequate factors. From 2012 to 2017 the municipality set consecutively three more times the amounts and twice again the courts quashed the decisions as flawed but upheld the last decision. In May   2019 the judgment upholding a decision to expropriate the plot for EUR   30,000 entered into force. The price was meant to reflect the value of the plot in 2001. In 2012, in parallel to the expropriation and compensation proceedings, and in view of the length of time that the expropriation and compensation proceedings had taken, the applicant company initiated another set of court proceedings against the municipality, claiming compensation in respect of pecuniary damage it had allegedly suffered (hereinafter “the proceedings for damages”). In the context of these proceedings, on 10 October 2019, the Tallinn Administrative Court dismissed the applicant’s supplementary claim for compensation in respect of non-pecuniary damage, which it alleged it had suffered on account of, inter alia , the excessive length of the expropriation and compensation proceedings. The applicant company did not appeal against this decision. On 28 February 2023 the Supreme Court, in the context of the proceedings for damages, dismissed the applicant company’s various claims for compensation in respect of pecuniary damage. As for the claim to be compensated for the effects of inflation, the Supreme Court found that a) the confirmation of A.S. to postpone the expropriation request had also bound the applicant company; b) the municipality could be considered to have unlawfully delayed the expropriation proceedings from May 2006 until July 2012 when it had offered to the applicant to purchase the plot for EUR 37,068.77 (the offer which the applicant could have accepted and could have sold the plot); c) in principle, the applicant company would be entitled to compensation covering the effects of inflation which had occurred during the period of unlawful delay (“inflation compensation”). However, in the circumstances of the case at hand the Supreme Court found that the payment of the inflation compensation should be excluded. The reasons for such exclusion were the following: a) the municipality had never remained idle in the proceedings, but owing to the legal and factual complexity of assessing the correct value of the plot, it had had no objective possibility to speed up the expropriation proceedings; b) the delay and related damage would have been likely to occur even if the municipality had adopted a lawful decision earlier in the proceedings, as the applicant had repeatedly (in 2012 and 2015) refused to accept the municipality’s offers to purchase the plot for a price exceeding EUR 30,000; c) the sum of EUR 30,000 would have been the adequate price for the plot also in 2012, given the manner that the price had been modified in the relevant expert opinion taking into account aspects that were favourable to the applicant; d) A.S. had purchased the entire land (of which the plot in question formed only 15%) in 2000 for a price of approximately EUR 24,000. The Supreme Court concluded that payment of the inflation compensation would have resulted in the applicant company’s unreasonable enrichment and dismissed this claim. Likewise, the Supreme Court dismissed the applicant company’s further claims for compensation in respect of default interest, foregone interest payments and plot’s maintenance costs relying, inter alia , on the reasons above. The municipality and the applicant company agreed on the expropriation of the land in October 2022 for the sum of EUR 30,000. The municipality has not started to construct the extension of the street. The applicant company complains under Article 6 § 1 of the Convention about the length of the entirety of the domestic proceedings (including the expropriation and compensation proceedings and the proceedings for damages) and under Article 1 of Protocol No. 1 to the Convention that this length of proceedings (the passing of time) was not taken into account when awarding him the sum for the plot of land (the value of which was calculated with reference to 2001). QUESTIONS TO THE PARTIES 1.     Given the proceedings undertaken by the applicant (that is to say the expropriation and compensation proceedings as well as the later proceedings for damages) and the subject matter of the applicant’s complaint, what is the period to be taken into consideration under Article 6 § 1 of the Convention in order to assess whether the length of proceedings has been reasonable (compare Kiurkchian v. Bulgaria , no. 44626/98, §§ 51-52, 24 March 2005; Richeux v. France , no. 45256/99, §§ 34-37, 12   June 2003; Kiefer v.   Switzerland , no. 27353/95, §§ 8 and 26, 28 March 2000)?   2.     Has the applicant exhausted all effective domestic remedies, as required by Article   35 §   1 of the Convention with respect to the complaint concerning the excessive length of proceedings (see in that regard, OÜ Parem Kallas v. Estonia [Committee], no. 56002/19, §§   12-15, 5 July 2022)?   3.     Was the length of the proceedings in the present case in breach of the “reasonable time” requirement of Article   6 §   1 of the Convention?   4.     Regarding the alleged violation of Article 1 of Protocol No. 1 to the Convention, what exactly is to be seen as a “possession” in the circumstances of the present case and what is to be seen as constituting an interference with its enjoyment (see OÜ Parem Kallas v. Estonia [Committee], no.   56002/19, § 18, 5 July 2022; see also the Supreme Court’s judgment of 28   February 2023 in case no. 3-12-2486, § 47)?   5.     Has there been a violation of Article 1 of Protocol No. 1 to the Convention (see Czajkowska and Others v. Poland , no. 16651/05, §§ 60-63, 13 July 2010 ; Schembri and Others v. Malta , no. 42583/06, §§ 38-42, §   45, 10 November 2009)? In that connection, was the duration of the expropriation and compensation proceedings and the proceedings for damages, taken as a whole, in compliance with the requirements of Article 1 of Protocol No. 1 to the Convention?