CASE OF VASILEVSKA AND BARTOŠEVIČ v. LITHUANIA (European Court of Human Rights)

SECOND SECTION
CASE OF VASILEVSKA AND BARTOŠEVIČ v. LITHUANIA
(Applications nos. 38206/11 and 18054/12)

JUDGMENT
(Just satisfaction)
STRASBOURG
12 May 2020

This judgment is final but it may be subject to editorial revision.

In the case of Vasilevska and Bartoševič v. Lithuania,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Ivana Jelić, President,
Egidijus Kūris,
Darian Pavli, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having deliberated in private on 24 March 2020,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in two applications (nos. 38206/11 and 18054/12) 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 two Lithuanian nationals, Ms LilijaVasilevska and Mr TadeušBartoševič (“the applicants”), on 23 May 2011 and 25 January 2012.

2. In a judgment delivered on 18 December 2018 (“the principal judgment”), the Court held that there had been a violation of Article 1 of Protocol No. 1 to the Convention, in view of the excessive length of the restitution process and the fact that the applicants’ property rights had still not been fully restored (VasilevskaandBartoševičv. Lithuania [Committee], nos. 38206/11 and 18054/12, § 45 and point 3 of the operative provisions, 18 December 2018).

3. Under Article 41 of the Convention, the applicants sought just satisfaction. The Court awarded them 6,500 euros (EUR) jointly, plus any tax that might be chargeable, in respect of non-pecuniary damage, and EUR 427, plus any tax that might be chargeable to them, in respect of costs and expenses. 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 six months, their written observations on that issue and, in particular, to notify the Court of any agreement they might reach (ibid., § 55 and point 5 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

6. 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 applicants

7. The applicants submitted that the authorities had annulled their property rights – inherited from their grandfather – to three plots of land measuring 0.15, 0.87 and 2.50 hectares.

8. As concerns the plots of 0.15 and 0.87 hectares, the applicants’ grandfather had sold them to third parties, and the applicants had been ordered by courts to return to the buyers the sums which those buyers had paid (ibid., §§ 9-18). The applicants submitted that they had paid EUR 73,336 to the buyers, an amount corresponding to the price which the buyers had paid to the applicants’ grandfather, as well as bailiff’s expenses. The applicants submitted that those plots had been sold by their grandfather and they had not benefited from the sale agreements; they had had to sell their own property in order to pay the required amount to the buyers. Therefore, they claimed EUR 73,336 in respect of pecuniary damage for the plots of 0.15 and 0.87 hectares.

9. As concerns the plot of 2.50 hectares, on 16 September 2019 the applicants informed the Court that they did not wish to make any claims in respect of that plot because the domestic restitution proceedings were ongoing and the applicants preferred that their property rights be restored by giving them new plots of land rather than monetary compensation.

(b) The Government

10. The Government submitted that, since the domestic restitution proceedings were still ongoing, it was important to ensure that an award in respect of pecuniary damage did not amount to unjust enrichment.

11. In particular, the Government pointed out that the applicants had already received a plot of 0.23 hectares (ibid., § 27), the value of which was EUR 26,000. In addition, following the adoption of the principal judgment, they had been given another plot of 0.143 hectares, and the value of that plot, established by the Centre of Registers, was EUR 9,440. Lastly, in the restitution process, the plan was to give the applicants 1.5 hectares, whose value was approximately EUR 6,838.

12. The Government stated that the value of the land which had been given to the applicants or would be given to them as planned already exceeded the value of the plot of 2.50 hectares which had been taken from them – according to an assessment by the Centre of Registers, the value of that plot at the time when it had been taken from the applicants had been approximately EUR 9,107. The Government argued that that fact should be taken into account when determining the compensation to be awarded to the applicants in respect of the plots of 0.15 and 0.87 hectares.

2. The Court’s assessment

13. 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).

14. The Court will firstly address the applicants’ claim in respect of the pecuniary damage which they sustained as a result of the annulment of their property rights to the plots of 0.15 and 0.87 hectares (see paragraph 8 above).

15. It observes that in 2005 the applicants’ grandfather sold those plots to third parties for a total amount of approximately EUR 69,000 (see §§ 7, 12 and 16 of the principal judgment). The sale agreements were annulled by domestic courts in 2011, and the applicants, as their grandfather’s heirs, were ordered to return the purchase price to the buyers. According to the documents which they submitted to the Court, the applicants paid a total amount of EUR 73,336, including bailiff’s expenses (see paragraph 8 above). The applicants submitted that they had not benefited from the sale agreements concluded by their grandfather, and that in order to comply with domestic courts’ decisions they had had to sell their own property (see paragraph 8 above). The Court has no reason to doubt the applicants’ statements.

16. Furthermore, the Court points out that neither the courts in the domestic proceedings nor the Government in their submissions claimed that the price for which the applicants’ grandfather had sold the two plots had been excessive or not reasonably related to their value.

17. Accordingly, the Court finds that, in the particular circumstances of the present case, the applicants should be compensated for the pecuniary damage in the amount of EUR 73,336 which they sustained as a result of the annulment of their property rights to the plots of 0.15 and 0.87 hectares.

18. As the applicants did not make any claim in respect of the pecuniary damage sustained as a result of the annulment of their property rights to the plot of 2.50 hectares (see paragraph 9 above), the Court will not make an award in relation to that plot.

19. At the same time, it takes note of the Government’s arguments with regard to the value of the land which had already been given to the applicants at domestic level (see paragraph 11 above) and the importance of avoiding unjust enrichment (see paragraph 10 above). Accordingly, when determining the compensation to be awarded to the applicants, the Court will take into account the extent to which the pecuniary damage sustained by them has been compensated for at domestic level (see Gladysheva v. Russia, no. 7097/10, § 104, 6 December 2011, and Nekvedavičius v. Lithuania (just satisfaction), no. 1471/05, § 23, 17 November 2015).

20. According to the latest information provided to the Court (29 January 2020), the authorities have allocated or planned to allocate to the applicants a total of 1.873 hectares of land, the value of which is EUR 42,278 (see paragraphs 11 above). It also takes note of the fact that that land was given to the applicants with the view of restoring their property rights to the plot of 2.50 hectares, the indexed value of which plot was EUR 9,107 (see paragraph 12 above). In the Court’s view, the difference between the indexed value of the plot of 2.50 hectares and the value of the land which has been allocated to the applicants should be considered as part of the compensation awarded to them at domestic level.

21. Accordingly, the Court finds that the pecuniary damage sustained by the applicants has in part been compensated for at domestic level, in the amount of EUR 33,171.

22. In the light of the above-mentioned circumstances, taking into account the amount of pecuniary damage sustained by the applicants (see paragraph 17 above) and the extent to which it has been compensated for at domestic level (see paragraph 21 above), the Court awards the applicants EUR 40,165 jointly, plus any tax that may be chargeable, in respect of pecuniary damage.

B. Default interest

23. 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. Holds

(a) that the respondent State is to pay the applicants, within three months, EUR 40,165 (forty thousand one hundred and sixty-five euros) jointly, plus any tax that may be chargeable, in respect of pecuniary damage;

(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;

2. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 12 May 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan Bakırcı                     Ivana Jelić
Deputy Registrar                  President

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