BYKOVA AND OTHERS v. LITHUANIA - 66042/10 (Judgment : Article 1 of Protocol No. 1 - Protection of property : Fourth Section Committee) [2018] ECHR 1042 (18 December 2018)

In the case of Bykova 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 an application (no. 66042/10) 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 seven Lithuanian nationals, Ms Nina Bykova ("the first applicant"), Ms Tatjana Medvedeva ("the second applicant"), Ms Aleksandra Senkevič ("the third applicant"), Mr Piotr Medvedev ("the fourth applicant"), Mr Arkadij Medvedev ("the fifth applicant"), Mr Anatolij Medvedev ("the sixth applicant") and Ms Jelena Syrcova ("the seventh applicant"), on 20 October 2010.

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 6 December 2011 the application was communicated to the Government.

4 . On 19 August 2012 the second applicant died. The third applicant, her sister and legal heir, expressed the wish to pursue the proceedings on her behalf.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5 . The first, second, third, fourth, fifth and sixth applicants are siblings who were born in 1949, 1944, 1947, 1952, 1955 and 1954 respectively and live in Vilnius. The seventh applicant is the first applicant's daughter; she was born in 1968 and also lives in Vilnius.

6 . In 1991 the fifth applicant applied for restoration of his property rights to his late father's land, which had been nationalised by the Soviet regime. In that application he indicated that the first, second, third, fourth and sixth applicants, as well as their mother, P.M., and brother, N.M., were also possible candidates to have their property rights to that land restored.

7 . On 8 March 2004 the Vilnius County Administration (hereinafter "the VCA") restored the property rights of the first, second, third, fourth, fifth and sixth applicants, as well as P.M. and N.M., by giving them all joint ownership of 5.80 hectares of agricultural land and 3.20 hectares of forest in Naujakiemis, an area in the Vilnius city municipality. As P.M. and N.M. had died by then, the applicants inherited their share of the land.

8 . On 31 March 2006 the first, second, third, fourth, fifth and sixth applicants signed two preliminary agreements ( preliminariosios sutartys ) with the seventh applicant by which they undertook to sell her the two plots and the seventh applicant paid them 1,000 Lithuanian litai (LTL, approximately 290 euros (EUR)). However, final sale agreements were not concluded and the seventh applicant did not become the owner of the plots.

A. Annulment of property rights to nine hectares

9. On 29 August 2008 the prosecutor of the Vilnius Region (hereinafter "the prosecutor") lodged a claim with the Vilnius Regional Court, seeking to have the first, second, third, fourth, fifth and sixth applicants' property rights to the nine hectares given to them annulled. The prosecutor submitted that the two plots given to the applicants were covered by forest which, being situated within a city, was considered a forest of national importance 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). According to the information provided by the prosecutor, forests of national importance covered the entire plot of 3.20 hectares, as well as 1.37 hectares of the other plot (see paragraph 7 above). In view of the circumstances, the VCA's decision had to be declared unlawful and its effects annulled. The prosecutor asked that after annulling the first, second, third, fourth, fifth and sixth applicants' property rights to the two plots, their preliminary agreements with the seventh applicant (see paragraph 8 above) also be annulled.

10 . The applicants and the VCA disputed the prosecutor's claim. However, on 1 September 2009 the Vilnius Regional Court allowed the claim. It underlined that transferring forests of national importance to private ownership was contrary to the law (ibid., §§ 89-91) and therefore the VCA's decision had to be annulled. The court held that the applicants could not be considered as having acquired their property rights in good faith ( sąžiningi įgijėjai ) because the information about the presence of forests on their land had been available in a public register and any diligent person should have known that, under the Constitution, forests of national importance could only be owned by the State.

11 . The court annulled the restoration of the first, second, third, fourth, fifth and sixth applicants' property rights and ordered them to return the two plots to the State. It also annulled the preliminary agreements between them and the seventh applicant and ordered them to return to the seventh applicant the LTL 1,000 (approximately EUR 290) which she had paid them pursuant to those agreements (see paragraph 8 above).

12 . The applicants and the VCA lodged appeals against that decision. However, on 22 April 2010 the Court of Appeal dismissed the appeals and upheld the lower court's decision in its entirety. The applicants then lodged an appeal on points of law, but on 23 July 2010 the Supreme Court refused to accept it for examination, holding that it raised no important legal issues.

B. Subsequent restitution process

13 . On 23 February 2012 the first, second, third, fourth, fifth and sixth applicants received a letter from the National Land Service (the institution which took over the relevant functions of the VCA after an administrative reform - hereinafter "the NLS") confirming that, after the courts had annulled their property rights to nine hectares of land, 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.

14 . On 8 and 30 May 2012 the first applicant sent letters to the NLS on behalf of all the aforementioned applicants, asking that land in the original location which was not covered by forest be returned to them.

15 . On 26 July 2012 the NLS sent a letter to the first, second, third, fourth, fifth and sixth applicants which stated that it might be possible to give them two plots in Naujakiemis, measuring 4.44 and 0.07 hectares, so if they wished to receive those plots, their requests would be considered when the land plan was being prepared. As for the restoration of property rights to the remaining land, the applicants were asked to consider alternative forms of restitution (ibid., § 92) and to inform the authorities of their choice. It is unclear whether the applicants replied to that letter.

16 . On 19 August 2012 the second applicant died (see paragraph 4 above). The third applicant was issued with a certificate of inheritance with respect to the second applicant's estate on 12 December 2012.

17 . On 19 February 2015 the NLS approved a list of candidates to receive plots of land in several areas around Vilnius, including Naujakiemis. The first, second, third, fourth, fifth and sixth applicants were included in that list as candidates to receive two plots measuring a total of 4.4115 hectares.

18 . On 6 May 2015 the NLS adopted decisions to restore the first, second, third, fourth, fifth and sixth applicants' property rights by giving them two plots of agricultural land, measuring a total of 4.4115 hectares. The decisions stated that the rights to the remaining 4.5885 hectares would be restored at a later date.

19 . On 28 August 2017 the NLS adopted decisions to restore the first, second, third, fourth, fifth and sixth applicants' property rights to the remaining 4.5885 hectares by means of monetary compensation of EUR 5,307, corresponding to the indexed value of the land (that is to say, the value established by relevant public authorities).

II. RELEVANT DOMESTIC LAW AND PRACTICE

20. 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. PRELIMINARY QUESTION

21. The Court notes at the outset that the second applicant died after the present application had been lodged. The third applicant, her sister and legal heir, expressed her wish to continue the proceedings before the Court on her late sister's behalf (see paragraphs 4 and 16 above). The Government have not disputed that the third applicant is entitled to pursue the application on the second applicant's 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).

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

22. The applicants complained that their property rights had been annulled because of mistakes made by the authorities, the monetary compensation given to them for part of their land had been insufficient and the length of the restitution process had been excessive. 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

1. Victim status

(a) As concerns the seventh applicant

23 . The Government submitted that the seventh applicant could not claim to be a "victim" within the meaning of Article 34 of the Convention because she had never participated in the restitution process and the decisions to annul the restoration of property rights had not directly affected her. They submitted that the seventh applicant had not been deprived of her property because the money which she had paid to the other applicants pursuant to the preliminary sale agreements had been returned to her (see paragraphs 8 and 11 above).

24. The Court observes at the outset that the Government only raised this objection in their comments on the applicants' observations and claim for just satisfaction. It reiterates that under Rule 55 of the Rules of Court, any plea of inadmissibility must, in so far as its character and the circumstances permit, be raised by the respondent Contracting Party in its written or oral observations on the admissibility of the application (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 64, 5 July 2016, and Khlaifia and Others v. Italy [GC], no. 16483/12, § 52, 15 December 2016). The Government did not refer to any circumstances which might have precluded them from raising the objection in a timely manner.

25. However, in the present case the Court sees no need to examine whether the Government are estopped from making the above objection since it finds that an objection on the grounds of victim status is an objection which goes to its jurisdiction and, as such, the Court is not prevented from examining it of its own motion (see R.P. and Others v. the United Kingdom , no. 38245/08, § 47, 9 October 2012, and Buzadji , cited above, § 70).

26 . The Court reiterates that in order to be able to lodge an application in accordance with Article 34 of the Convention, an applicant must be able to show that he or she was "directly affected" by the measure complained of (see, among many other authorities, Tănase v. Moldova [GC], no. 7/08, § 104, ECHR 2010).

27. In the present case, the seventh applicant was not a candidate to have her property rights restored and she did not acquire any property in the restitution process (see paragraphs 6, 7, 18 and 19 above). Nor did she become the owner of the impugned plots of land by other means - she and the other applicants had only signed preliminary agreements by which they had undertaken to conclude sale agreements, but such sale agreements were never concluded (see paragraph 8 above). In this connection, the Court reiterates that the Convention does not guarantee the right to acquire property (see, among many other authorities, Kopecký v. Slovakia [GC], no. 44912/98, § 35 (b), ECHR 2004-�IX). When the domestic courts annulled the restoration of the first, second, third, fourth, fifth and sixth applicants' property rights and their preliminary agreements with the seventh applicant, they ordered those applicants to return to the seventh applicant the money she had paid them pursuant to the preliminary agreements (see paragraph 11 above). The seventh applicant did not allege that she had sustained any other losses as a result of the annulment of the other applicants' property rights.

28 . In such circumstances, the Court considers that the seventh applicant cannot be said to be "directly affected" by the measures complained of in the present case. Accordingly, she cannot be considered a "victim" within the meaning of Article 34 of the Convention. Her complaints are thus incompatible ratione personae with the provisions of the Convention and must be declared inadmissible according to Article 35 §§ 3 (a) and 4.

(b) As concerns the remaining applicants

29 . The Government submitted that the first, second, third, fourth, fifth and sixth applicants' property rights had been fully restored by decisions of 6 May 2015 and 28 August 2017 (see paragraphs 18 and 19 above). They therefore considered that the applicants could no longer claim to be victims of a violation of the Convention and asked the Court to strike the application out of its list of cases in line with Article 37 § 1 (b) of the Convention.

30. The applicants submitted that the market value of the land which had been taken from them and not restored in natura amounted to LTL 324,000 (approximately EUR 93,840) (see paragraph 42 below), and thus the compensation of EUR 5,307 (see paragraph 19 above) had been manifestly insufficient.

31. The Court considers that the Government's submissions summarised in paragraph 29 above are to be characterised as an objection of loss of victim status. In this respect, it reiterates that a decision or measure favourable to the applicant is not, in principle, sufficient to deprive him or her of his or her status as a "victim" for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Nada v. Switzerland [GC], no. 10593/08, § 128, ECHR 2012, and the cases cited therein).

32. In the present case, the Court observes that there has not been any acknowledgment on the part of the national authorities of a violation of the applicants' Convention rights. Furthermore, even though the applicants' property rights were eventually restored, they were not afforded redress with respect to their complaints about delays in the restitution process and the allegedly insufficient monetary compensation. In such circumstances, the Court considers that the first, second, third, fourth, fifth and sixth applicants may still claim to be victims of a violation of the Convention for the purposes of Article 34. The Government's objection must therefore be dismissed.

2. Exhaustion of domestic remedies

(a) Separate civil proceedings against the State

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

34. 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.

35. 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 a remedy effective in practice within the meaning of Article 35 § 1 of the Convention (ibid., §§ 111-12). It sees no reason to reach a different conclusion in the present case. The Government's objection is therefore dismissed.

(b) The applicants' appeal on points of law

36. The Government contended that the applicants' appeal on points of law had not complied with the requirements of domestic law, as demonstrated by the fact that the Supreme Court had refused to examine it (see paragraph 12 above).

37. The applicants submitted that in the domestic proceedings they had been represented by the same lawyer as several other individuals who were in a similar situation to them. Their appeals on points of law had contained essentially the same arguments, but the Supreme Court had only accepted some of them for examination, without providing any reasons (see, for example, ibid., §§ 49-51).

38. The Court has previously held that it is for the Supreme Court to decide questions of domestic law, particularly whether a case is important for the consistent interpretation of Lithuanian law. What matters for the Court is whether in an appeal applicants "at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law" raised the complaints which they subsequently made to the Court (ibid., § 118, and the cases cited therein).

39. In the present case, the Court observes that in their appeal on points of law the applicants did raise the complaints concerning the annulment of their property rights which they subsequently made to the Court. Furthermore, the Supreme Court did not indicate that that appeal did not comply with the formal requirements or time-limits laid down in domestic law (see paragraph 12 above). It follows that the Government's objection must be dismissed.

3. Other grounds of inadmissibility

40. The Court notes that the first, second, third, fourth, fifth and sixth applicants' complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

1. The parties' submissions

(a) The applicants

41. The applicants submitted essentially the same arguments as those submitted by the applicants in Beinarovič and Others (cited above, §§ 121-24).

42 . They also submitted that the monetary compensation awarded to them had been insufficient. They referred to an assessment of the market value of the land which had been previously given to them, carried out by a private assessor in March and April 2010 at their request. According to that assessment, the value of 4.5885 hectares of land in Naujakiemis at the relevant time had been LTL 324,000 (approximately EUR 93,840). The applicants therefore argued that the compensation of EUR 5,307 (see paragraph 19 above) could not be considered as an appropriate way of restoring their property rights. They also disputed the value of the land indicated by the Government (see paragraph 45 below).

(b) The Government

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

44 . They further argued that the applicants themselves had contributed to delays in the restitution process by failing to promptly express their wish as to their preferred form of restitution, despite "numerous invitations" to do so by the authorities.

45 . The Government lastly submitted that the applicants' property rights had been fully restored by decisions of 6 May 2015 and 28 August 2017 (see paragraphs 18 and 19 above). They stated that the authorities had decided to restore the applicants' property rights by way of monetary compensation because the applicants' requests for land in the original location could not be satisfied for lack of available land, and they had not asked that their property rights be restored in any other form. The Government referred to the information provided by the Centre of Registers, according to which the indexed value of 4.5885 hectares of land in Naujakiemis had been approximately EUR 24,432 in 2010. The Government argued that despite the difference between the indexed value of the plot and the compensation awarded to the applicants (EUR 5,307), they "should be considered as [having been] properly compensated due to their own failure to act properly enabling competent authorities to provide [them with] a plot of equal value in a different location".

2. The Court's assessment

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

46. 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 present case.

(b) Proportionality of the interference

47. 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).

48. 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.

49. At the same time, however, the Court cannot accept the conclusion of the domestic court that the applicants had not acquired their property rights in good faith (see paragraph 10 above). As in previous similar cases, it is not convinced that the applicants should have questioned the actions of the relevant authorities instead of expecting the latter to take all measures to avoid mistakes in applying the legislation, especially taking into account the complexity and technical nature of the legal acts governing the process of restoration of land titles (ibid., § 144, and the cases cited therein). The Court concludes that the applicants obtained their property rights in good faith, and thus should not have had to bear the burden of remedying the mistakes for which the authorities were solely responsible.

50. The Court must therefore assess whether the authorities complied with their obligation to promptly and adequately compensate the applicants for the loss which they suffered as a result of the authorities' mistakes. In connection with this, it underlines that the correction of the authorities' errors should not create disproportionate new wrongs (ibid., § 140, and the cases cited therein).

(i) Length of the restitution process

51. The applicants' property rights to nine hectares of land were annulled by the final court decision of 23 July 2010 (see paragraph 12 above). However, they received the first letter from the NLS, informing them about the forms of restitution provided for by law and asking them to indicate their choice, only on 23 February 2012 (see paragraph 13 above), that is one year and seven months after the annulment of their property rights.

52. Furthermore, despite the fact that the applicants had informed the authorities that they wished to receive land in the original location in May 2012 (see paragraph 14 above), they were included in the list of candidates to receive that land only in February 2015 (see paragraph 17 above) and received it in May 2015 (see paragraph 18 above). It therefore took the authorities almost five years after the annulment of the applicants' property rights to restore their rights only in part. It then took another two years and three months for the applicants to be awarded monetary compensation for the remainder of the land (see paragraph 19 above), thereby bringing the duration of the restitution process to more than seven years. The Government did not provide the Court with any details as to what action had been taken with respect to the applicants between July 2012 and February 2015, and then between May 2015 and August 2017. The Court observes that the authorities were aware of the applicants' individual situation - specifically, that their property rights had already been restored and subsequently annulled because of the mistakes made in the restitution process (see paragraphs 13 and 15 above). However, it does not appear that the applicants' individual situation had been taken into account at any stage.

53 . The Government argued that delays in the restitution process had resulted from the applicants' failure to indicate their chosen form of restitution in a timely manner, despite "numerous invitations" to do so (see paragraph 44 above). However, the Court cannot accept this argument. According to the documents in its possession, the applicants were asked to inform the authorities about their chosen form of restitution in February 2012 and they did so without undue delay (see paragraph 14 above). They were then asked, in July 2012, to indicate their choice with regard to the part of the land which could not be restored in the original location. The Court does not have any information on whether they replied to that letter (see paragraph 15 above). Be that as it may, the Government have not referred to any instances between July 2012 and August 2017 in which the applicants had been invited by the authorities to indicate their choice but had failed to do so, or where they had made unreasonable requests (compare and contrast Palevičiūtė and Dzidzevičienė v. Lithuania , no. 32997/14, §§ 61-62, 9 January 2018, in which the applicants asked for land to be returned in natura despite being informed that that was not possible, and Beinarovič and Others , cited above, § 162, in which one of the applicants explicitly refused to participate in the restitution process in accordance with domestic law). In such circumstances, the Court is not convinced that the length of the restitution process was imputable mainly to the applicants.

54. Accordingly, the Court finds that the length of the restitution process - more than seven years - could not be justified in the circumstances of the present case.

(ii) Adequacy of the monetary compensation

55. The applicants also argued that the monetary compensation which had been awarded to them for the part of land which could not be restored in natura had been insufficient, as it fell significantly below the market value of that land (see paragraph 42 above).

56 . The Court has previously accepted that the principle of partial restitution to rectify old wrongs conformed to the Convention, and that, consequently, the amount of compensation for long-extinguished property rights could be assessed in accordance with calculation methods established in relevant legislation rather than with the full market value of such property (see Beinarovič and Others , cited above, § 142, and the cases cited therein). In a number of cases against Lithuania, the Court accepted that the payment of compensation corresponding to the indexed value of the property, established by competent public authorities, was in line with the requirement to strike a fair balance under Article 1 of Protocol No. 1 to the Convention (see Paukštis v. Lithuania , no. 17467/07, § 81, 24 November 2015; Valančienė v. Lithuania , no. 2657/10, § 67, 18 April 2017; and Bartulienė v. Lithuania [Committee], no. 67544/13, § 71, 24 April 2018).

57. In the present case, the decision to restore the applicants' property rights by way of monetary compensation indicated that the amount awarded to them (EUR 5,307) corresponded to the indexed value of the land (see paragraph 19 above). However, from the Government's submissions it is apparent that that compensation did not in fact correspond to the indexed value established by the Centre of Registers (EUR 24,432 - see paragraph 45 above). The Government did not provide any explanation as to how the amount of compensation to be awarded to the applicants had been calculated.

58. The Government nonetheless argued that the difference between the value of the land and the compensation awarded to the applicants had been justified by their failure to cooperate with the authorities (see paragraph 45 above). However, the Court has already found the allegation of the applicants' non-cooperation to be unfounded (see paragraph 53 above). It also observes that the Government did not refer to any domestic legal instruments which permit reducing the amount of compensation paid to individuals for their lost property on the grounds of failure to cooperate with the authorities.

59 . Therefore, although in line with its case-law the Court cannot share the applicants' view that they were entitled to compensation corresponding to the full market value of the land (see the references cited in paragraph 56 above), it finds that awarding them compensation which was more than four times lower than its indexed value could not be considered proportionate.

60. Accordingly, the Court concludes that the authorities failed to promptly and adequately compensate the applicants for the loss which they suffered as a result of errors made by the authorities in the process of restoring their property rights. There has therefore been a violation of Article 1 of Protocol No. 1 to the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

61. 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

62. The applicants claimed 88,533 euros (EUR) in respect of pecuniary damage, corresponding to the difference between the market value of the land which had not been restored to them in natura and the amount of compensation which they had received (see paragraph 42 above).

63. The Government argued that the value of the land indicated by the applicants was not properly substantiated. They submitted that it had to be determined in accordance with the estimates provided by the Centre of Registers (see paragraph 45 above).

64. The Court has held that awarding the applicants compensation which was more than four times lower than the value of their land was not proportionate under Article 1 of Protocol No. 1 to the Convention (see paragraph 59 above). It therefore considers that there are grounds to make an award in respect of pecuniary damage. However, the Court reiterates that, in line with its case-law, the applicants were not entitled to compensation amounting to the full market value of their property, and compensation corresponding to the indexed value established by competent public authorities is in principle in line with Article 1 of Protocol No. 1 (see paragraphs 56 and 59 above). With these considerations in mind, having regard to the indexed value of the land established by the Centre of Registers (EUR 24,432) and the compensation awarded to the applicants at the domestic level (EUR 5,307), the Court awards the applicants jointly EUR 19,125 in respect of pecuniary damage.

2. Non-pecuniary damage

65. The applicants claimed 20,000 Lithuanian litai (LTL, approximately EUR 5,792) each in respect of non-pecuniary damage for the stress and inconvenience caused by the prolonged violation of their rights.

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

67. The Court considers that the applicants undoubtedly suffered distress and frustration in view of the prolonged inability to have their property rights restored. However, it considers the amount claimed by them excessive. Making its assessment on an equitable basis, the Court awards the applicants jointly EUR 6,500 in respect of non-pecuniary damage.

B. Costs and expenses

68. The applicants also claimed LTL 6,000 (approximately EUR 1,738) for the costs and expenses incurred before the domestic courts and before the Court. They provided copies of receipts showing that the first applicant's daughter (the seventh applicant) had paid that amount to two lawyers in December 2010, February and May 2012 for "representation, preparation of documents, advice and other legal services".

69. The Government submitted that since the seventh applicant could not be considered a "victim" within the meaning of the Convention (see paragraph 23 above), the legal expenses which she had incurred should not be compensated. They further submitted that the aforementioned amounts had not been paid to the applicants' representative in the present case but to different lawyers, and that no legal services agreements or itemised particulars had been provided.

70. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses 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 receipts provided by the applicants show that EUR 1,738 was paid to two lawyers who had represented the applicants in the domestic proceedings and during the first stages of the proceedings before the Court. Furthermore, the Court sees no reason to doubt that the seventh applicant, who is the daughter of the first applicant and the niece of the remaining applicants (see paragraph 5 above), made those payments on behalf of all the applicants. Accordingly, it grants the applicants' claim in full and awards them EUR 1,738 under this head.

C. Default interest

71. 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 that the second applicant's sister (the third applicant) has standing to continue the present proceedings in the second applicant's stead;

2. Declares the first, second, third, fourth, fifth and sixth applicants' complaints admissible and the seventh applicant's complaint inadmissible;

3. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention in respect of the first, second, third, fourth, fifth and sixth applicants;

4. Holds

(a) that the respondent State is to pay the first, third (who is also the second applicant's heir), fourth, fifth and sixth applicants jointly, within three months, the following amounts:

(i) EUR 19,125 (nineteen thousand one hundred and twenty-five euros), plus any tax that may be chargeable, in respect of pecuniary damage;

(ii) EUR 6,500 (six thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iii) EUR 1,738 (one thousand seven hundred and thirty-eight euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses;

(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;

5. Dismisses the remainder of the applicants' claim 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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You are here: BAILII >> Databases >> European Court of Human Rights >> BYKOVA AND OTHERS v. LITHUANIA - 66042/10 (Judgment : Article 1 of Protocol No. 1 - Protection of property : Fourth Section Committee) [2018] ECHR 1042 (18 December 2018) URL: http://www.bailii.org/eu/cases/ECHR/2018/1042.html Cite as: [2018] ECHR 1042