BEINAROVIC AND OTHERS v. LITHUANIA - 70520/10 (Judgment : Pecuniary damage - award : Fourth Section) [2019] ECHR 490 (25 June 2019)

In the case of Beinarovič and Others v. Lithuania ,

The European Court of Human Rights (Fourth Section) , sitting as a Chamber composed of:

Jon Fridrik Kjølbro , President,
Paulo Pinto de Albuquerque,
Faris Vehabović ,
Egidijus Kūris ,
Carlo Ranzoni ,
Georges Ravarani ,
Péter Paczolay , judges,
and Marialena Tsirli , Section Registrar ,

Having deliberated in private on 23 April 2019 and 14 May 2019 ,

Delivers the following jud gment, which was adopted on the last-mentioned date:

PROCEDURE

1 . The case originated in three applications (nos. 70520/10, 21920/10and 41876/11) 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 four Lithuanian nationals, Ms Bronislava Beinarovič ("the first applicant"), Ms Janina Kšivanskienė ("the second applicant"), Ms Monika Korkuc ("the third applicant") and Ms Sabina Dviliova ("the fourth applicant"), on 15 November 2010 (the first two applicants), 2 April 2010 (the third applicant) and 30 May 2011 (the fourth applicant). On 7 October 2015 the first applicant die d and t he second applicant, her daughter and legal heir, expressed the wish to pursue the proceedings on her behalf.

2 . In a judgment delivered on 12 June 2018 ("the principal judgment"), the Court declared that the second applicant had standing to continue the proceedings in the first applicant ' s stead ( Beinarovič and Others v. Lithuania , nos. 70520/10and 2 others , § 105 and point 2 of the operative provisions, 12 June 2018). I t held that there had been a violation of Article 1 of Protocol No. 1 to the Convention in respect of the first, second and third applicants, in view of the excessive length of the restitution process and the fact that their property rights had still not been fully restored. The Court also concluded that there had been no violation of Article 1 of Protocol No. 1 to the Convention in respect of the fourth applicant ( ibid. , § 164 and point s 4 and 5 of the operative provisions ).

3 . Under Article 41 of the Convention, the applicants sought just satisfaction . The Court awarded the second applicant , who wa s also the first applicant ' s heir, 7,000 euros (EUR), plus any tax chargeable, in respect of non-pecuniary damage , and EUR 894, plus any tax chargeable, in respect of costs and expenses. It also awarded the third applicant EUR 3,000, plus any tax chargeable, in respect of non-pecuniary damage. The Court dismissed the remainder of the applicants ' claim as regards non-pecuniary damage.

4 . The Court considered that the question of the application of Article 41 of the Convention was not ready for decision as regards pecuniary damage . It therefore reserved that question and invited the Government and the applicants to submit, within three months from the date on which the judgment became final in accordance with Article 44 § 2 of the Convention , their written observations on that issue and, in particular, to notify the Court of any agreement they might reach (ibid., § 171 and point 7 of the operative provisions).

5 . The applicants and the Government failed to reach an agreement and filed observations concerning the question of pecuniary damage.

THE LAW

I. AS CONCERNS THE FIRST AND SECOND APPLICANTS

6 . T he Government submitted that even though the first and second applicants ' property rights had not been fully restored to date, the value of the land which had already been provided to them was higher than the value of the land which had been taken from them previously . The Government therefore argued that the first and second applicants had been fully compe nsated for any pecuniary damage which they might have sustained.

7 . On 3 January 2019 the Court received a letter from the secon d applicant stating that she was withdraw ing her claim in respect of pecuniary damage.

8 . Article 37 of the Convention provides:

"1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a) the applicant does not intend to pursue his application; or

(b) the matter has been resolved; or

(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.

2. The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course."

9 . In view of the letter sent by the second applicant - who is also the first applicant ' s heir - withdrawing her claim in respect of pecuniary damage (see paragraph 7 above), the Court considers that the applicant does not intend to pursue her application (Article 37 § 1 (a )) . Moreover , taking note of the Government ' s submissions (see paragraph 6 above), it is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the case as regards the reserved Article 41 procedure (Article 37 § 1 in fine ) .

10 . Accordingly, the Court considers it appropriate to strike the remainder of the case concerning the first and second applicants out of the list.

II. AS CONCERNS THE THIRD APPLICANT

11 . 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 . The parties ' submissions

(a) The Government

12 . The Government informed the Court that on 15 November 2018 the relevant domestic authorities had asked the third applicant to indicate her preferred form of restitution. She had been given the following options: (1) she could be assigned one hectare of land in the area of Vaidotai ; (2) she could be assigned a plot of land or forest in a rural area equal in value to the land held previously; (3) she could be provided with monetary compensation. She had been informed that if she chose to receive a plot of land or forest equal in value to the land held previously, she would need to inform the authorities of the area in which she wished to receive it, and a plot in that area would be allocated to her when the land plan was prepared. She had also been informed that if she chose to have her property rights restored by monetary compensation, she would be entitled to compensation of approximately EUR 1,157 for one hectare of land which had not been returned to her (see § 61 of the principal judgment) . On 3 December 2018 the third applicant sent a reply to the authorities. She observed that there was no vacant land in the area of Vaidotai . She further stated that it was unlikely that she would be allocated a new plot in the Vilnius Region because of the large number of candidates who were to receive land there, and it was not clear how long such allocation would take or what the location and actual value of any new plot would be. She therefore wished for her property rights to be restored by monetary compensation.

13 . The Government submitt ed that , according to data provided by the Centre of Registers, the indexed value of one hectare of land in the area of Vaidotai , where the third applicant had the right to have her property rights restored (see §§ 11 and 41 of the principal judgment) , had been EUR 1,282 in 2009, that is to say at the time when the proceedings concerning the annulment of her property rights had begun (see § 42 of the principal judgment). They contended that the compensation of EUR 1,157 which had been offered to the third applicant was "very close to the sustained damage" and that the "slight difference of the value should be considered as compensated by the non-pecuniary damage award".

(b) The applicant

14 . The third applicant submitted that she had chosen to have her property rights restored by monetary compensation because there had been no vacant plots of land which could have covered the pecuniary damage which she had sustained. She had been offered plots of land in protected areas or forests, where the use of land was restricted, and she did not wish to receive such land. She further submitted that the amount of EUR 1,157 to which she was entitled under the domestic law was manifestly insufficient to compensate her for the actual damage which she had sustained. She submitted that the market value of the land was EUR 22,011 (see § 169 of the principal judgment ) , and therefore she claimed EUR 20,854 in respect of pecuniary damage, an amount correspond ing to the market value of the land after subtracting the compensation offered to her by the domestic authorities.

2 . The Court ' s assessment

15 . The Court observes that after the adoption of the principal judgment the domestic authorities asked the applicant to choose her preferred form of restitution from several options provided for by the domestic law (see paragraph 12 above). It is of the view that the third applicant was expect ed to cooperate with the authorities and make a choice - i ndeed, the Court previously found that where the applicants had refused to participate in the restitution process in accordance with domestic law, the delay in the restoration of their property rights could not be considered the responsibility of the authorities (see §§ 162-63 of the principal judgment , and Černiak v. Lithuania [Committee], no. 37723/11, §§ 34-35, 18 December 2018). It also takes note of the third applicant ' s letter to the authorities in which she provided her reasons for choosing to have her property rights restored by monetary compensation rather than by receiving a plot of land; although she had been informed that the amount of compensation for one hectare of land would be EUR 1,157, in that letter she did not explicitly agree to any specific amount (see paragraph 12 above). The Court therefore considers that , in the present situation , it cannot be stated that the third applicant accept ed a sum of compensation offered in settlement of a civil claim and renounce d the further use of local remedies (compare and contrast A.F. v. the United Kingdom ( dec. ), no. 7674/08, § 21, 20 May 2014, and the case-law cited therein). Furthermore, the Court reiterates that an applicant ' s victim status may depend on the level of compensation awarded at domestic level on the basis of the facts about which he or she complains before the Court (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 202, ECHR 2006 - V , and Paplauskienė v. Lithuania , no. 31102/06 , § 28, 14 October 2014 ). Taking note of the amount of compensation which the applicant was entitled to receive at domestic level (EUR 1,157) and the fact that that amount was below the indexed value of one hectare of land in the area where she had the right to have her property rights restored (see paragraph 13 above), the Court considers that it was not sufficient to deprive the third applicant of her victim status (see , mutatis mutandis , Bykova and Others v. Lithuania [Committee], no. 66042/10, §§ 32 and 57 - 59, 18 December 2018) .

16 . The Court reiterates that a judgment in which it finds a breach imposes on the respondent State a legal obligation to put an end to the breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (see Brumărescu v. Romania (just satisfaction) [GC], no. 28342/95, § 19, ECHR 2001-I).

17 . 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 § 142 of the principal judgment 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 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).

18 . Accordingly, the Court cannot accept the third applicant ' s claim that s he should be compensated for the ful l market value of the land which ha s not been returned to her (for similar situations, see Nekvedavičius v. Lithuania (just satisfaction), no. 1471/05, § 20, 17 November 2015, and Bykova and Others , cited above, § 59 ). It takes note of the Government ' s submission that the indexed value of that land, as established by the Centre of Registers , was EUR 1,282 (see paragraph 13 above).

19 . At the same time, the Court observes that the amount of compensation offer ed to the third applicant by the domestic authorities (EUR 1,157) fell below the amount established by the Centre of Registers. The Government did not provide any explanation as to how the amount of EUR 1,157 had been calculat ed or what had been the legal basis for awarding the applicant less than the full indexed value of the land which she had been entitled to receive (see paragraph 13 above; see also , mutatis mutandis , Bykova and Others , cited above, §§ 57-58). In the absence of any such explanation, the Court is unable to share the Government ' s view that the applicant has already been compensated for the pecuniary damage which she has sustained. Nor can it accept the Government ' s submission that the award in respect of non-pecuniary damage could have compensated the pecuniary damage sustained by the applicant (see paragraph 13 above), as awards made in respect of pecuniary and non-pecuniary damage serve distinct purposes and are intended to compensate for different types of loss . The Court therefore considers that the circumstances of the third applicant ' s case warrant making an award in respect of pecuniary damage.

20 . The Court further observes that while the indexed value of the applicant ' s land was determined in 2009 (see paragraph 13 above), the compensation was offered to her only in 2018 (see paragraph 12 above), and according to the latest information submitted to the Court by the parties ( submitted on 5 February 2019 by the Government and on 7 February 2019 by the applicant), it is not clear whether that compensation has already been paid to the applicant. In such circumstances, the Court considers it appropriate to take into account the long time that it took the Government to compensate the applicant , and that award ' s loss of value over time (see, mutatis mutandis , Kirilova and Others v. Bulgaria , nos. 42908/98and 3 others, § 108, 9 June 2005; Paplauskienė , cited above , § 69; and Bradshaw and Others v. Malta , no. 37121/15 , § 94, 23 October 2018 ).

21 . In the light of the a b o v e - mentioned circumstances , and making its award on an equitable basis, the Court aw ards the third applicant EUR 1 ,5 00 in respect of pecuniary damage.

B. Default interest

22 . 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

1. Decides , unanimously, to strike the remainder of application no. 70520/10, regarding the reserved Article 41 procedure in respect of the first and second applicants, out of its list of cases in accordance with Article 37 § 1 ( a ) of the Convention;

2 . Holds , by six votes to one ,

(a) that the respondent State is to pay the third applicant , within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1 ,5 00 ( one thousand five hundred euros) in respect of pecuniary damage, plus any tax that may be chargeable;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

3 . Dismisses , unanimously, the remainder of the third applicant ' s claim for just satisfaction.

Done in English, and notified in writing on 25 June 2019 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena Tsirli Jon Fridrik Kj ø lbro
Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Ranzoni is annexed to this judgment.

J.F.K .
M.T.

PARTLY DISSENTING OPINION OF JUDGE RANZONI

23 . In accordance with Article 37 § 1 (b) of the Convention, the Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that the matter has been resolved. To my mind, this provision should have been applied to the third applicant in the present case.

24 . In its principal judgment ( Beinarovič and Others v. Lithuania , nos. 70520/10and 2 others, 12 June 2018) the Court held, inter alia , that there had been a violation of Article 1 of Protocol No. 1 to the Convention in respect of the third applicant in view of the fact that her property rights had still not been fully restored. It considered that the question of the application of Article 41 of the Convention was not ready for decision as regards pecuniary damage and therefore reserved that question (see paragraphs 2 and 4 of the present judgment).

25 . Subsequently, the relevant domestic authorities asked the third applicant to indicate her preferred form of restitution. She had been given three options: (1) she could be assigned one hectare of land in the area of Vaidotai ; (2) she could be assigned a plot of land or forest in a rural area equal in value to the land held previously; or (3) she could be provided with monetary compensation in the amount of 1,157 euros (EUR). In her reply, she observed that there was no vacant land in the area of Vaidotai and that it was unlikely that she would be allocated a new plot in the Vilnius Region. Therefore, she wished for her property rights to be restored by means of monetary compensation (see paragraph 12 of the present judgment).

26 . The authorities made an offer for compensation amounting to EUR 1,157, which the third applicant accepted without any indication that she disputed the specified amount or that her acceptance only referred to the question of compensation in principle, but not to the amount offered. She neither requested, nor tried to negotiate, a higher amount.

27 . Against this background, I cannot help but notice that the third applicant at domestic level accepted the authorities ' offer of compensation in the amount of EUR 1,157 and that the matter has thus been resolved.

28 . The majority, in holding that the third applicant had not been deprived of her victim status, first referred to and distinguished the case of A.F. v. the United Kingdom (( dec. ), no. 7674/08, § 21, 20 May 2014 - see paragraph 15 of the judgment). However, I fail to see the relevance of that decision, taken in a different context, to the situation in the present case.

29 . Secondly, the majority referred to case-law stating that an applicant ' s victim status may depend on the level of compensation awarded (see paragraph 15). While I agree with this case-law, it is not applicable to the present context. None of the cases of Scordino v. Italy (no. 1) ([GC], no. 36813/97, ECHR 2006 - V), Paplauskienė v. Lithuania (no. 31102/06 , 14 October 2014) or Bykova and Others v. Lithuania ([Committee], no. 66042/10, 18 December 2018) concerned applicants who had accepted the compensation offered. Instead, they related to situations where amounts of compensation had been awarded in domestic decisions with which the applicants had clearly disagreed by using domestic remedies. In contrast, the third applicant in the instant case did accept the compensation offered.

30 . What is more, in the above-mentioned cases the Court held that the amounts of compensation awarded had been "manifestly unreasonable" or "manifestly insufficient". For example, in Scordino the award amounted to only 10% of the sum usually awarded by the Court, and in Bykova and Others the compensation was more than four times lower than its indexed value. In the present case, however, the award offered (EUR 1,157) amounted to 90% of the indexed value (EUR 1,282), which cannot be regarded as "manifestly" unreasonable within the meaning of the Court ' s case-law.

31 . Consequently, to my mind, the third applicant ' s acceptance of the compensation offered should have been validated. The matter would thus have been resolved, and her application should have been struck out of the list pursuant to Article 37 § 1 (b) of the Convention.

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