TRUCHANOVIC AND OTHERS v. LITHUANIA - 15708/10 (Judgment : Article 1 of Protocol No. 1 - Protection of property : Fourth Section Committee) [2018] ECHR 1041 (18 December 2018)

In the case of Truchanovič and Others 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 four applications (nos. 15708/10, 15874/10, 25117/10and 28380/10) 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 eight Lithuanian nationals, Mr Ježi Truchanovič ("the first applicant"), Mr Marjan Truchanovič ("the second applicant"), Ms Marija Butkevič ("the third applicant"), Ms Vaclava Sniežko ("the fourth applicant"), Ms Leokadija Pavlova ("the fifth applicant"), Ms Jelena Dvarionienė ("the sixth applicant"), Ms Marija Narkevič ("the seventh applicant") and Ms Genoefa Stankevič ("the eighth applicant") on 10 March 2010 (the first, second and third applicants), 2 March 2010 (the fourth and fifth applicants), 21 April 2010 (the sixth and seventh applicants) and 27 April 2010 (the eighth applicant).

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. On 30 November 2010 the seventh applicant died. Her daughter and legal heir, Ms Irena Maksimovič, expressed the wish to pursue the proceedings on her behalf.

4. On 6 December 2011 the applications were communicated to the Government.

5. On 12 October 2013 the third applicant died. The first and second applicants, her brothers and legal heirs, expressed the wish to pursue the proceedings on her behalf.

6. On 28 January 2016 the second applicant died. His daughters and legal heirs, Ms Irena Kristina Truchanovič, Ms Regina Marija Dubickaja and Ms Julita Petrauskienė, expressed the wish to pursue the proceedings on his behalf.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

7. The first applicant was born in 1937, the second applicant was born in 1930, the third applicant was born in 1934, the fourth applicant was born in 1945, the fifth applicant was born in 1930, the sixth applicant was born in 1954, the seventh applicant was born in 1926 and the eighth applicant was born in 1929. They all live in Vilnius.

A. Annulment of the applicants' property rights

8. On various dates in 1991 the first, second, third, sixth, seventh and eighth applicants applied for restoration of their property rights to land which had been nationalised by the Soviet regime. The fourth and fifth applicants did so in 2000.

9. Between 1995 and 2001 the administrative authorities or courts acknowledged that the first, second and third applicants had the right to have their property rights restored in respect of plots of land in Gudeliai, and that the fourth, fifth, sixth, seventh and eighth applicants had the right to have their property rights restored in respect of plots of land in Kriaučiūnai. Gudeliai and Kriaučiūnai were former villages which had become part of the Vilnius city municipality in 1996.

10. In 2005 and 2006 the Vilnius County Administration (hereinafter "the VCA") restored the applicants' property rights by giving them the following plots:

- the first, second and third applicants - a total of ten hectares in Gudeliai;

- the fourth and fifth applicants - a total of two hectares in Kriaučiūnai;

- the sixth and seventh applicants - a total of 8.149 hectares in Kriaučiūnai;

- the eighth applicant - 4.6663 hectares in Kriaučiūnai.

11. On various dates in 2008 the prosecutor of the Vilnius Region (hereinafter "the prosecutor") lodged claims with the Vilnius Regional Administrative Court, seeking to have the applicants' property rights to some of the land given to them annulled. The prosecutor submitted that part of the applicants' land was covered by forests. Since those forests were situated in a city, they were considered forests of national importance ( valstybinės reikšmės miškai ) 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). As a result, the prosecutor argued that the VCA's decisions restoring the applicants' property rights to such forests had to be declared unlawful and their effects annulled.

12. In all of the applicants' cases, the courts upheld the prosecutor's claims. The final decisions were taken by the Supreme Administrative Court between January and March 2010. By virtue of those decisions, the applicants' property rights were annulled with respect to the following plots:

- the first, second and third applicants - 3.66 hectares;

- the fourth and fifth applicants - 0.52 hectares;

- the sixth and seventh applicants - 1.22 hectares;

- the eighth applicant - 1.2 hectares.

B. Subsequent restitution process

13. In 2010 and 2011 the fourth and fifth applicants sent several letters to the VCA and subsequently to the National Land Service (the institution which took over the relevant functions of the VCA after an administrative reform - hereinafter "the NLS"), asking that their rights to 0.52 hectares be restored by new land in Kriaučiūnai being given to them or, if that was not possible, land of equivalent value in a different area in Vilnius. It does not appear that they received any answers from those institutions.

14. On 9 November 2011 the NLS adopted a decision to restore the seventh applicant's property rights by giving her 0.251 hectares of agricultural land. The decision stated that her rights to the remaining 0.78 hectares would be restored later. However, the seventh applicant submitted to the Court that that decision had not been related to her property rights annulled by the domestic courts (see paragraph 12 above), and the Government did not argue otherwise.

15. In February 2012 all the applicants received letters from the NLS confirming that, after the courts had annulled their property rights, they 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. The applicants again received similar letters from the NLS in July 2012 stating that there were 4,806 other candidates waiting to receive plots for the construction of an individual home in the Vilnius city area, and thus the restitution process would take a long time. The applicants were asked to consider alternative forms 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.).

16. On 25 May 2012 the NLS adopted a decision to restore the eighth applicant's property rights by giving her 0.4419 hectares of agricultural land. The decision stated that her rights to the remaining 0.7581 hectares would be restored later.

17. In July 2012 the fourth applicant received a letter from the NLS informing her that a plot of land was being prepared for her in Medininkai, in the Vilnius Region. The fourth applicant replied to that letter by stating that she had never agreed to be given land in that area, and asked the NLS to stop any preparation in that regard.

18. In August 2012 all the applicants sent letters to the NLS in which they asked, inter alia , to be allocated plots of land for the construction of individual homes in Vilnius in the order of priority, or to receive compensation in respect of the pecuniary damage which they had sustained as a result of the annulment of their property rights.

19. On 26 May 2016 the NLS held a meeting for candidates to receive plots of land in certain areas around Vilnius, including Kriaučiūnai. The eighth applicant's representative took part in that meeting and chose two plots. The fifth applicant took part in that meeting but did not choose any plots.

20. On 3 June 2016 the NLS adopted a decision to restore the eighth applicant's property rights by giving her 0.24 hectares of agricultural land. The decision stated that her rights to the remaining 0.5181 hectares would be restored later.

21. On 17 June 2016 the NLS informed the first, second and third applicants (or their heirs - see paragraphs 5 and 6 above) that their property rights to 3.66 hectares would be restored by monetary compensation of 2,646 euros (EUR). However, the applicants did not agree to this proposal, and it was not carried out.

22. In February 2017 the NLS sent a letter to the seventh applicant, asking her to indicate the area in which she wished to receive a plot. The seventh applicant's heir (see paragraph 3 above) replied that same month, indicating her choice.

23. On 29 November and 14 December 2017 the NLS held meetings for candidates to receive plots of land in certain areas around Vilnius, including Kriaučiūnai. The fifth, sixth and eighth applicants took part in those meetings but did not choose any plots. During the latter meeting, the fifth applicant stated that she would not choose any plots because her complaint was being examined by the European Court of Human Rights.

24. On 9 January 2018 the NLS held a meeting for candidates to receive plots of land in certain areas around Vilnius, including Kriaučiūnai. The seventh applicant's heir (see paragraph 3 above) took part in that meeting but did not choose any plots.

25. In January 2018 the first, second and third applicants (or their heirs - see paragraphs 5 and 6 above) sent a letter to the NLS stating that they had expressed their wish for their property rights to be restored in kind and not by monetary compensation. They informed the NLS that their complaint was being examined by the European Court of Human Rights, and that the NLS should refrain from any unilateral actions which might make the Court's decision impossible to implement.

26. At the date of the latest information provided to the Court (12 October 2018), the applicants' property rights had still not been restored with respect to the following plots:

- the first, second and third applicants - 3.66 hectares;

- the fourth and fifth applicants - 0.52 hectares;

- the sixth and seventh applicants - 1.22 hectares;

- the eighth applicant - 0.5181 hectares.

II. RELEVANT DOMESTIC LAW AND PRACTICE

27. 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

28. 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. PRELIMINARY QUESTIONS

29. The Court notes at the outset that the second, third and seventh applicants died after their applications had been lodged (see paragraphs 3, 5 and 6 above). Their legal heirs (the second applicant's daughters - Ms Irena Kristina Truchanovič, Ms Regina Marija Dubickaja and Ms Julita Petrauskienė, the third applicant's brothers - the first and second applicants, and the seventh applicant's daughter - Ms Irena Maksimovič) expressed their wish to continue the proceedings before the Court on behalf of those applicants. The Government have not disputed that the second, third and seventh applicants' heirs are entitled to pursue the application on the applicants' behalf, and the Court sees no reason to hold otherwise (see, among other authorities, Sargsyan v. Azerbaijan (dec.) [GC], no. 40167/06, § 51, 14 December 2011, and the case-law cited therein).

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

30. 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

31. 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 those rulings cited in Beinarovič and Others , nos. 70520/10and 2 others, § 107, 12 June 2018).

32. 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 that no compensation had been offered to them.

33. The Court has already examined the Government's submissions related to domestic remedies available in a situation such as the applicants' and 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.

34. 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

35. The applicants submitted essentially the same arguments as those submitted by the applicants in Beinarovič and Others (cited above, §§ 121-24). In particular, they argued that the land which had been offered to them during the subsequent restitution process had been of significantly lower quality than the plots which had been previously given to them.

36. The Government submitted essentially the same arguments as those which they had submitted in Beinarovič and Others (cited above, §§ 125-31).

2. The Court's assessment

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

37. 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 peaceful enjoyment of possessions, that that interference had been in accordance with the law and that it had pursued a legitimate aim of public interest, namely the protection of forests of national importance (ibid., §§ 132-37). In view of the similarity 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 applicants in the present case.

(b) Proportionality of the interference

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

39. In the present case, the applicants complained that the annulment of their property rights to the land restored to them 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.

40. All eight applicants had their property rights annulled by final court decisions adopted between January and March 2010 (see paragraph 12 above). Having examined the documents submitted to it by the parties indicating the steps taken by the authorities in the subsequent restitution process (see paragraphs 13-26 above), the Court is unable to conclude that from 2010 to the date of the last available information (12 October 2018 - see paragraph 26 above) the Lithuanian authorities acted with sufficient promptness in order to compensate the applicants for the losses which they had sustained as a result of the authorities' mistakes (see, for similar situations, ibid., §§ 149-50 and 156). It notes in particular that it appears that no actions at all were taken between July 2012 and May 2016 (see paragraphs 17-19 above). The Court emphasises 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 paragraph 15 above). Furthermore, in their letters of August 2012, the applicants reiterated that they had already undergone the process once, and asked for priority treatment (see paragraph 18 above). However, their request for such treatment was not addressed at any stage.

41. Furthermore, the Court sees no reason to find that the delays in the restitution proceedings were imputable to the applicants. It observes that all the applicants replied to the authorities' letters without undue delay (see paragraphs 18 and 22 above) and some even took the initiative in contacting the authorities themselves (see paragraphs 13 and 18 above). Although, in candidates' meetings, many of the applicants declined the plots which had been offered to them (see paragraphs 19, 23 and 24 above), in their observations to the Court they submitted that the plots offered to them had been of low quality (see paragraph 35 above), and the Court does not find such grounds for refusal unreasonable.

42. The Court takes note of the fact that at the candidates' meeting held on 14 December 2017 the fifth applicant stated that she would not choose any plots because her case was pending before the Court (see paragraph 23 above), and that in January 2018 the first, second and third applicants (or their heirs - see paragraphs 5 and 6 above) asked the NLS to refrain from any unilateral action before their case was decided by the Court (see paragraph 25 above). However, the Court observes that up to that point those applicants had not refused to participate in the restitution process, nor had they taken any action to suspend it (compare and contrast ibid., § 162). In the Court's view, the fact that they became less willing to cooperate after seven or eight years of participation in protracted proceedings without satisfactory results does not give grounds to shift the responsibility for the overall length of those proceedings from the authorities to the applicants.

43. The Court also reiterates that Article 1 of Protocol No. 1 to the Convention does not impose any restrictions on the Contracting States' freedom to determine the scope of property restitution (see Beinarovič and Others , cited above, § 146, and the cases cited therein). It observes that, under Lithuanian law, the authorities were entitled to restore property rights by monetary compensation, even without the applicants' consent (ibid., § 93). In several previous cases in which the applicants had failed to properly express their will as to their preferred way of restitution, the Court considered that the payment of monetary compensation was compatible with the Convention (see Nekvedavičius v. Lithuania (merits), no. 1471/05, § 62, 10 December 2013, and Valančienė v. Lithuania , no. 2657/10, § 63, 18 April 2017). Therefore, even if any of the applicants had failed to express their choice as to the form of restitution or had refused the plots offered to them, the Court considers that the authorities had the ability to restore their property rights by monetary compensation, in line with the principles established in the Court's case-law (see Beinarovič and Others , cited above, § 158).

44. Accordingly, the Court finds that the overall length of the restitution process was imputable to the authorities, and they are responsible for the fact that, at the date of the last available information (12 October 2018 - see paragraph 26 above), the applicants' property rights have still not been restored after more than eight years. There has therefore been a violation of Article 1 of Protocol No. 1 to the Convention in respect of all eight applicants.

IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

45. 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. They lastly 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.

46. 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.

47. 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.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

48. 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

49. The applicants claimed the following amounts in respect of pecuniary damage:

- the first, second and third applicants - 156,680 euros (EUR) jointly;

- the fourth and fifth applicants - EUR 112,980 jointly;

- the sixth and seventh applicants - EUR 55,610 jointly;

- the eighth applicant - EUR 13,630.

They submitted that these amounts corresponded to the market value of the land which had been taken from them and in respect of which their property rights had not been restored.

50. 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.

51. 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

52. The applicants claimed EUR 14,480 each in respect of non-pecuniary damage for the stress and inconvenience caused by the prolonged violations of their rights.

53. The Government submitted that the applicants' claims in respect of non-pecuniary damage were excessive and unsubstantiated.

54. 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 amounts claimed by them excessive. Making its assessment on an equitable basis and taking into account its findings in the present judgment, the Court awards the applicants the following amounts in respect of non-pecuniary damage:

- EUR 3,000 to the first applicant (who is also one of the third applicant's heirs - see paragraph 5 above), to the second applicant's heirs (see paragraph 6 above) and to the third applicant's heirs (see paragraph 5 above) jointly;

- EUR 5,000 to the fourth and fifth applicants jointly;

- EUR 5,000 to the sixth applicant and to the seventh applicant's heir (see paragraph 3 above) jointly;

- EUR 6,500 to the eighth applicant.

B. Costs and expenses

1. The fourth and fifth applicants

55. The fourth and fifth applicants also claimed EUR 232 for the expenses which they had incurred to have the forest delimited from the rest of their land. They submitted a copy of a relevant receipt.

56. 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.

57. 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 are reasonable as to quantum. In the present case, the Court does not discern any causal link between the violation found in the present case, which is the authorities' failure to promptly and adequately compensate the applicants for the losses suffered as a result of the annulment of their property rights, and the expenses incurred by the fourth and fifth applicants to have the forest delimited from the rest of their land. In the Court's view, these expenses were not sustained in the attempt of redressing the alleged violation of Article 1 of Protocol No. 1 at the domestic level and the applicants would have had to delimit their land even if the compensation process had been carried out promptly. Therefore, the Court rejects the fourth and fifth applicants' claim under this head.

2. The remaining applicants

58. The remaining applicants did not submit any claims in respect of costs and expenses. The Court therefore makes no award under this head.

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 that the second, third and seventh applicants' legal heirs (see paragraphs 3, 5 and 6 above) have standing to continue the present proceedings in those applicants' stead;

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

4. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention in respect of all the applicants;

5. 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;

6. 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 (or their heirs) 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;

7. Holds

(a) that the respondent State is to pay, within three months, the following amounts in respect of non-pecuniary damage, plus any tax which may be chargeable:

(i) EUR 3,000 (three thousand euros) to the first applicant, to the second applicant's heirs and to the third applicant's heirs jointly,

(ii) EUR 5,000 (five thousand euros) to the fourth and fifth applicants jointly;

(iii) EUR 5,000 (five thousand euros) to the sixth applicant and to the seventh applicant's heir jointly;

(iv) EUR 6,500 (six thousand five hundred euros) to the eighth applicant;

(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.

8. Dismisses the remainder of the applicants' claims 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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