Last Updated on August 22, 2019 by LawEuro
FOURTH SECTION
DECISION
Application no. 66803/17
Kęstutis MOZERIS and “EUGENIJOS IR LEONIDO PIMONOVŲ ALZHEIMERIO LIGOS PARAMOS FONDAS”
against Lithuania
The European Court of Human Rights (Fourth Section), sitting on 2 April 2019 as a Chamber composed of:
Jon Fridrik Kjølbro, President,
Paulo Pinto de Albuquerque,
Egidijus Kūris,
Iulia Antoanella Motoc,
Carlo Ranzoni,
Georges Ravarani,
Marko Bošnjak, judges,
and Marialena Tsirli, Section Registrar,
Having regard to the above application lodged on 6 September 2017,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. Mr Kęstutis Mozeris (“the first applicant”) is a Lithuanian national who was born in 1959 and lives in Vilnius. “Eugenijos ir Leonido Pimonovų Alzheimerio ligos paramos fondas“ (“the applicant company”) is a legal entity registered under Lithuanian law. The applicant company’s activities are mainly related with providing support to people who have Alzheimer’s disease. The applicants were represented before the Court by Mr E. Baranauskas, a lawyer practising in Vilnius.
2. The Lithuanian Government (“the Government”) were represented by their Agent, most recently Ms L. Urbaitė.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Restoration of L.P.’s property rights to land
4. In October 1996, with the first applicant acting as his representative, L.P. asked the Vilnius County Administration (hereinafter “the VCA”) to restore his property rights to 16.51 ha of his mother’s land (further in the text “L.P.’s property rights” and “L.P.’s mother’s property rights” will be used interchangeably). When he filled in the relevant form, he had to strike out the form of restitution that he did not wish to have. He underlined “return of land in natura”, “[receipt of] a plot of land of equivalent value”, and “compensation by other means”.
5. In October 1997 L.P. made a will and indicated that he would leave 60% of all his property to the applicant company and 40% to the first applicant.
In March 2000 L.P. died. In October 2000 the first applicant was issued with a certificate of inheritance.
6. In April 2001 the applicant company asked the VCA to return L.P.’s land, to stop the sale, lease and distribution of plots situated on L.P.’s land, and to allow the applicant company to access a plan of the land and information about who was using the land at that time.
7. In May 2001 the VCA informed the applicant company that the Constitutional Court had adopted a ruling in April 2001 by which parts of the Law on the Restoration of Citizens’ Ownership Rights to Existing Real Property (hereinafter “the Law on Restitution”) had been found to be contrary to the Constitution. The issue of the return of the applicant company’s property could only be dealt with after certain provisions of the Law on Restitution and other regulations had been amended. The VCA did not address the applicant company’s issues.
8. In September 2001 the applicant company sent the VCA a request which was very similar to that of April 2001 (see paragraph 6 above).
9. On 30 October 2001 the first applicant asked the Vilnius city land division to map a certain plot of land in Vilnius.
10. On 31 October 2001 the VCA replied to the applicant company’s request (see paragraph 8 above) by essentially providing the same information as that put forward in May 2001 (see paragraph 7 above).
11. In October 2002 the VCA mapped the boundaries of the land L.P.’s mother used to have.
12. On 5 February 2003 the VCA asked the Vilnius municipality to establish, among other issues, whether the land to be returned to L.P. was State redeemable (see, for instance, Nekvedavičius v. Lithuania, no. 1471/05, § 28, 10 December 2013). A reply was received on 24 February 2003 stating that the land was State redeemable and that the property rights had to be restored by other means rather than in natura.
13. On 5 March 2003 the VCA informed the first applicant that he could, before 1 April 2003, change his mind as regards the method of restitution. He could choose a plot of land of equivalent value in a rural area, his liabilities to the State could be discharged, or he could receive compensation in securities.
14. In April 2003 the applicants started court proceedings, and they specified their claim in November 2004 and April 2005. They asked for the authorities to be obliged to prepare the plans for seven plots of land to be returned in natura within three months of the relevant court decision becoming final.
15. On 7 July 2005 the Vilnius Regional Administrative Court held that it was for municipalities to establish whether land was State redeemable. The court also stated that there were heating pipes, sewerage systems and other pipes on some of the seven plots of land in question. Some territory on other plots had been approved as being for the needs of society. However, the court found that the authorities had no legal grounds to conclude that the land on six out of the seven plots of land was State redeemable. The court thus decided to oblige the Vilnius municipality to map plans of six plots of land to be returned to L.P. within three months of the court’s decision becoming final. The remainder of the applicants’ claim was dismissed.
16. The applicants appealed and asked for their claims to be granted in full. On 18 November 2005 the Supreme Administrative Court upheld the first-instance decision. The court held that one of the seven plots of land was to be provided to foreign embassies and consulates, and this plot was State redeemable.
17. By an order of 27 October 2006 the authorities approved the plans of six plots of land to be returned to L.P. in natura, and transferred the requisite documents to the VCA in November 2006.
18. In December 2006 the first applicant submitted the certificate of inheritance and L.P.’s birth certificate to the authorities. The copies of both documents were approved by a notary.
19. On 12 January 2007 the VCA asked the first applicant to provide a copy of L.P.’s mother’s death certificate. It had to be approved by a notary.
20. On 15 January 2007 the first applicant asked the Vilnius municipality to submit the document (see paragraph 19 above) to the VCA, and on 18 January 2007 the Vilnius municipality provided a copy of L.P.’s mother’s death certificate and a document concerning L.P.’s mother’s burial, both translated from French.
21. On 25 January 2007 the VCA issued a document proving that L.P. had a right to have his property rights restored in respect of the following: 10.51 ha of land, 3.5 ha of forest and 2.5 ha of water bodies, 16.51 ha in total.
22. On 6 February 2007 the VCA restored L.P.’s property rights in natura to six plots of land measuring 1.8232 ha in total. It was indicated that his property rights to 8.6868 ha of land, 3.5 ha of forest and 2.5 ha of water bodies would be restored at a later date. In March 2007 the applicant company was issued with a certificate of inheritance, where it was indicated that it inherited three fifths of six plots of land in respect of which L.P.’s property rights had been restored.
23. In February 2012 the National Land Service (hereinafter “the NLS”) informed the first applicant that as of 1 February 2012 it was possible to receive monetary compensation for State redeemable land, and offered him this method of restoring his property rights. He had from 1 February to 1 June 2012 to make a choice in this regard. It appears that the first applicant did not reply to this letter.
24. In December 2012 and August 2014 the NLS asked the Vilnius municipality to provide information about free plots of land previously owned by L.P.’s mother that could be returned in natura. In April 2013 and September 2014 the NLS received a reply stating that the land previously owned by L.P.’s mother, except for the six plots of land that had already been returned in natura, was State redeemable.
25. In November 2014 the NLS informed the first applicant that as of 1 November 2014 it was possible to receive a plot of forest in a rural area for land that was State redeemable. The first applicant was invited to make a choice in this regard before 1 March 2015. It appears that he did not reply to this letter.
26. On 3 June 2015 the applicant company asked the NLS to immediately restore its property rights to 8.6868 ha of land, 3.5 ha of forest and 2.5 ha of water bodies in natura, or to apply the principles established in the Law on Restitutionif return in natura was not possible. On 16 June 2015 the NLS replied to both applicants and informed them that one possible means of restoring their property rights was transferring to them a new plot of land in Vilnius for construction of an individual home. L.P. was the 2,159th person on the list of people waiting for this form of restitution. The NLS also stated that, in accordance with domestic law, if a citizen did not express his or her will as to the manner of restitution before 1 April 2003, it was for the authorities to make the choice. The NLS held that in his first request of 1996 L.P. had asked to have his property rights restored in natura, by being provided with a plot of land of equivalent value and compensation by other means, and he had not changed his mind before his death. In addition, his heirs had not expressed their wish to change the manner of restitution. In these circumstances, L.P.’s property rights to his mother’s land could be restored by the transfer of a plot of land for construction of an individual home, and monetary compensation had to be paid in respect of 8.5668 ha of land, 3.5 ha of forest and 2.5 ha of water bodies.
27. On 7 July 2015 the NLS restored L.P.’s property rights to 14.5668 ha of land by the payment of EUR 51,989 in compensation. It was stated that L.P’s property rights to 0.12 ha of land would be restored at a later date. It was also indicated that the decision had been served on L.P.’s heirs.
28. On 6 August 2015 the applicants lodged a claim with domestic courts and asked for the decision of 7 July 2015 (see paragraph 27 above) to be annulled, and for the NLS to be obliged to pay compensation corresponding to the average market value of the land.
29. On 14 March 2016 the Vilnius Regional Administrative Court dismissed the applicants’ claim. The court held that the compensation had been calculated in accordance with domestic law. The court also referred to the case-law of the Court, where it had been held that Lithuania had chosen the principle of partial restitution to rectify old wrongs and that market‑value compensation had never been an option under Lithuanian law (see Paukštisv. Lithuania, no. 17467/07, § 81, 24November 2015). The court thus held that the amount of compensation did bear a reasonable relation to the property in question.
30. The applicants appealed. On 24 May 2017 the Supreme Administrative Court upheld the first-instance decision.
31. In October 2017 the NLS informed the applicants that they had to address a notary and accept the inheritance as regards monetary compensation. The copy of the certificate of inheritance had to be submitted to the NLS. The applicants also had to indicate their account number within twenty days of receiving the NLS’s letter. It appears that at the date of the latest information available to the Court (10 December 2018) the applicants failed to do that.
32. On 26 February 2018 the first applicant’s representative asked the NLS to restore the property rights in natura. He claimed that there was some free land (land which had not been built upon) where L.P.’s mother’s land had been situated. On 21 March 2018 the NLS asked the Vilnius municipality to inform the first applicant’s representative about free land. In July 2018 the Vilnius municipality informed the NLS and the first applicant’s representative that it had been decided that the issue of free land would be re-examined.
33. In August 2018 the NLS informed the notary who had issued the certificate of inheritance (see paragraph 22 above) that the applicant company could not inherit property rights restored to L.P. (see paragraph 38 below).
34. It appears that the NLS informed the prosecutor about the alleged breach of rules of domestic law (see paragraph 33 above). On 9 November 2018 the prosecutor refused to apply any measures against the applicant company to protect the public interest. The prosecutor held that the right to have property rights restored could not be transferred to the applicant company (see paragraph 22 above). Nevertheless, the prosecutor stated that the applicant company’s activities, which were mainly providing support for people who had Alzheimer’s disease, were in accordance with the public interest. Annulling the certificate of inheritance by which the applicant company had inherited three fifths of the land that had been returned to L.P. in 2007 would be contrary to the requirements of proportionality and the principles of reasonableness and integrity. The prosecutor also noted that plots of land were the property of other people and they had a legitimate expectation that the agreements regarding the purchase of the land would not be annulled. The prosecutor also referred to the case-law of the Court (see Papachelas v. Greece [GC], no. 31423/96, ECHR 1999‑II; Pincová and Pinc v. the Czech Republic, no. 36548/97, ECHR 2002‑VIII; Doğrusöz and Aslan v. Turkey, no. 1262/02, 30 May 2006; Valle Pierimpiè Società Agricola S.P.A. v. Italy, no. 46154/11, 23 September 2014), and held that it was necessary to ensure that the rectification of old wrongs did not create disproportionate new wrongs, and that the lasting situation that had been tolerated by the authorities had created a legitimate interest for the applicant company, irrespective of whether that situation was in accordance with the law.
35. According to the information provided by the Government, in March 2018 L.P. was the 1,087th person on the list of people waiting to be provided with a plot of land for construction of an individual home of 0.12 ha, and in October 2018 he was the 940th. It appears that at the time the latest information was made available to the Court (10 December 2018), the first applicant had not yet received that 0.12 ha plot of land.
B. Relevant domestic law and practice
1. Domestic law and case-law concerning general restitution process
36. For relevant domestic law and practice, see Paukštisv. Lithuania, no. 17467/07, §§ 9 and 43, 24November 2015, andGrigolovič v. Lithuania, no. 54882/10, §§ 23-28, 10 October 2017.
37. Article 6.271 § 1 of the Civil Code provides that damage resulting from unlawful acts of institutions of public authority must be compensated for by the State from the State budget, irrespective of the responsibility of a particular public servant or other employee of public authority institutions. Damage resulting from unlawful actions of municipal authority bodies must be redressed by the municipality from its own budget, irrespective of whether an employee is at fault. Article 6.271 § 2 provides that for the purposes of the Article, the notion “an institution of public authority” means any public-law body (a State or municipal institution, official, public servant or any other employee of those institutions, and so forth), as well as a private person executing the functions of a public authority. Article 6.271 § 3 provides that, for the purposes of the Article, the notion “act” means any act (active or passive) by an institution of public authority or its employees, that directly affects people’s rights, liberties and interests (legal acts or individual acts enacted by the institutions of state and municipal authority, administrative acts, physical acts, and so forth, with the exception of court judgments – verdicts in criminal cases, decisions in civil and administrative cases, and orders). Article 6.271 § 4 provides that civil liability on the part of the State or a municipality subject to the Article arises when the employees of public authority institutions fail to act in the manner prescribed by law for those institutions and their employees.
38. Article 2 § 1 of the Law on Restitution provides that property rights can be restored to citizens of Lithuania. The Law on Restitution does not foresee the restoration of property rights to legal entities.
2. Case-law the Constitutional Court concerning compensation for damage caused by the unlawful actions of a public authority
39. On 19 August 2006 the Constitutional Court held that under the Constitution, persons had a right to claim compensation for damage caused by the unlawful actions of State institutions and officials, including when a particular case concerning compensation for damage was not specified in any law. The courts, when ruling on such cases in accordance with their competence, had constitutional powers to award the relevant compensation by directly applying the Constitution and general principles of law.
40. The Constitutional Court has also consistently held that the necessity to compensate for damage caused to a person was a principle stemming from the Constitution (for example rulings of 27 March 2009, 3 February 2010).
3. Case-law of the Supreme Administrative Court concerning civil claims in respect of damage caused by the unlawful actions of a public authority
41. The Supreme Administrative Court examined a number of cases concerning unreasonable protraction of the restitution process, breaches of time-limits established in domestic law, denial of persons’ right to use their property, mistakes made the authorities in the restitution process (cases nos. A-469-1625-05 of 28 October 2005, A-469-653-07 of 26 June 2007, A–556-749-07 of 15 November 2007, A-146-320-11 of 4 April 2010, A–502-99-11 of 13 January 2011, A-575-2188-11 of 13 September 2011, A–146-40-12 of 16 January 2012, A-602-162-13 of 18 February 2013, A-525-1198-14 of 14 January 2015, A-1161-146/2015 of 24 August 2015, A-617-502/2016 of 28 January 2016, A-194-822/2016 of 8 March 2016, A-4125-756/2016 of 22 November 2016). In those cases the court often stated that the claimants had had to repeatedly address the authorities about the same issues and when deciding on compensation assessed their state of health, age, seriousness of the violation of the authorities (cases nos. A-469-1625–05 of 28 October 2005, A-469-653-07 of 26 June 2007, A-556-749-07 of 15 November 2007, A-502-99-11 of 13 January 2011, A-575-2188-11 of 13 September 2011, A-146-40-12 of 16 January 2012). The amount of compensation awarded in respect of non-pecuniary damage ranged between EUR 289 and EUR 2,896 (cases nos. A-575-2188-11 of 13 September 2011 – awarded EUR 289; A-469-1625-05 of 28 October 2005 – awarded EUR 290 each of the claimants; A-556-749-07 of 15 November 2007 – EUR 579; A-146-320-11 of 4 April 2010 – EUR 724; A-469-653 of 26 June 2007 – EUR 869; A-602-162-13 of 18 February 2013 – EUR 869; A-525-1198-14 of 14 January 2015 – EUR 869; A-617-502/2016 of 28 January 2016 – EUR 900; A-194-822/2016 of 8 March 2016 – EUR 1,200; A-4125-756/2016 of 22 November 2016 – EUR 2,000; A-502-99-11 of 13 January 2011 – EUR 2,896; A-146-40-12 of 16 January 2012 ‑ EUR 2,896; A-1161-146/2015 of 24 August 2015 – EUR 2,896).
42. In case no. A-492-60-13 of 9 May 2013 the court found that the authorities had unreasonably prolonged the restitution process, and obliged them to proceed with it within two months of its decision becoming final.
43. Finally, in case no. A-858-1610-12 of 14 June 2012 the court held that decisions to restore a third party’s property rights had been annulled and after the annulment the authorities had to adopt decisions to restore his property rights within reasonable time-limits. The court also noted that the third party had a right to ask the courts to compensate him for damage caused by the adoption of the decisions that had been annulled.
COMPLAINTS
44. The applicants complained under Article 1 of Protocol No. 1 to the Convention that there had been overall delays in completing the restitution process, and that there had been no effective domestic remedy in that regard under Article 13 of the Convention.
THE LAW
45. The applicants complained that the restitution process had been protracted and that there had been no effective domestic remedy in that regard. They relied on Article 13 of the Convention and Article 1 of Protocol No. 1 to the Convention, which read as follows:
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
Article 1 of Protocol No. 1
“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. The parties’ submissions
1. The Government
46. The Government submitted that the applicant company’s complaint was inadmissible ratione materiae. They stated that only individuals could inherit property in respect of which a previous owner’s property rights had been restored. As the applicant company was a legal entity, it could not have such a right. The Government noted that the NLS had applied to the prosecutor in order to have the certificate of inheritance in respect of the applicant company annulled. They noted that the prosecutor had agreed that only an individual could inherit property in respect of which rights had been restored, however, the prosecutor had decided not to apply to the domestic courts.
47. The Government further argued that the applicants had had effective domestic remedies which they had failed to exhaust. Firstly, they could have applied to the domestic courts to ask for compensation in respect of non-pecuniary damage for the alleged delays in finalising the restitution process. Article 6.271 § 4 of the Civil Code provided for the civil liability of the State or a municipality for a failure to act (see paragraph 37 above). The Government observed that the opportunity to claim damages for delays in the restitution process had been and continued to be developed in the case-law of the administrative courts, and that the awards in respect of non-pecuniary damage given by those courts corresponded to those awarded by the Court (see Aleksa v. Lithuania, no. 27576/05, § 95, 21 July 2009; Kavaliauskas and Others v. Lithuania, no. 51752/10, § 74, 14 March 2017; and Bartulienė v. Lithuania [Committee], no. 67544/13, § 84, 24 April 2018). Secondly, the aapplicants could have asked the domestic courts to oblige the relevant authority to act. It was the Government’s view that the applicants had failed to use both of those remedies, and therefore the application had to be dismissed for failure to exhaust effective domestic remedies.
48. In the event that the Court found the application admissible, the Government maintained that L.P. could be considered as having had a legitimate expectation to have his property rights restored in January 2007, when all relevant documents had been provided and his entitlement had been confirmed by the authorities (see paragraph 21 above). L.P.’s property rights to six plots of land had been restored in February 2007. The Government noted that even before all the relevant documents had been submitted, the authorities had been trying to verify, whether restitution in natura was possible (see paragraph 12 above). After L.P.’s property rights to six plots of land had been restored, the authorities could not take any further action, because they could not choose how to restore L.P.’s property rights in the absence of a decision by L.P.’s heirs. The Government stated that the first applicant had been informed as early as 2003 that return of the remaining land in natura was not possible, but he had failed to choose another means of restitution.
49. The Government submitted that after it had become possible to have one’s property rights restored by receiving monetary compensation, and later by receiving a plot of forest of equivalent value in a rural area, the first applicant had been informed about this, but he had failed to avail himself of such an opportunity (see paragraphs 23 and 25 above). Also, the NLS had verified whether it was possible to return the land in natura, but there had been no free land (see paragraph 24 above). The authorities had ultimately taken the decision to restore L.P.’s property rights by paying monetary compensation, although the compensation had not been transferred to the first applicant because he had believed that it was insufficient (see paragraphs 27 and 31 above). The Government therefore claimed that the first applicant’s actions had protracted the restitution process. As regards the 0.12 ha of land for construction of an individual home, the Government submitted that the first applicant might imminently have a right to choose a plot of land for construction of an individual home in the city of Vilnius.
2. The applicants
50. The applicant company maintained that until 2018 neither the State authorities nor the courts had questioned its status as L.P.’s heir and its right to inherit L.P.’s property rights.
51. The applicants considered that they had exhausted all available domestic remedies. They claimed that they had applied to the courts several times and had thought that a new set of court proceedings would only delay the outcome of the restitution process without bringing any tangible result.
52. As to the merits of the application, the applicants argued that the relevant documents had been submitted in 1996, and because of the authorities’ failure to act the law had changed and they had been asked to submit the same documents again, but this time the documents had to be approved by a notary. The applicants claimed that after L.P.’s rights to six plots of land had been restored, no further action as regards the remaining land had been taken until 2012, when the NLS had suggested the payment of compensation. In 2014 it had been suggested that they could choose a plot of forest of equivalent value in rural area, but the applicants had not considered that the letters informing them of this had constituted specific proposals to restore L.P.’s property rights.
53. Lastly, the applicants claimed that although they had not agreed with the authorities’ proposal to have L.P.’s property rights restored by the payment of monetary compensation, the authorities had had a certain discretion to award monetary compensation without waiting until 2015. The applicants were also concerned that 0.12 ha of land for construction of an individual home had not yet been returned.
B. The Court’s assessment
1. Admissibility ratione materiae
54. The Court will firstly address the Government’s objection as to the inadmissibility of the application ratione materiae as regards the applicant company. In that connection, the Court notes that in L.P.’s will the applicant company was indicated as being the heir to 60% of L.P.’s property (see paragraph 5 above). The applicant company was issued with a certificate of inheritance and was a party to the proceedings before the domestic courts, and correspondence was exchanged between the applicant company and the authorities (see paragraphs 5, 7, 14-16, 28-30 and 31 above). Only in 2018 did the NLS realise that the applicant company could not inherit the right to have property rights restored (see paragraph 33 above). In these circumstances, the Court considers that at least between 2007, when the applicant company was issued with the certificate of inheritance in respect of three fifths of the six plots of land that had been restored to L.P., and 2018, when the NLS started questioning the applicant company’s status as L.P.’s heir, the applicant company had a legitimate expectation to have 60% of L.P’s property transferred into its ownership. The Court thus dismisses the Government’s objection as to incompatibility ratione materiae.
2. Complaint under Article 1 of Protocol No. 1 to the Convention
55. The general principles relating to the rule of exhaustion of domestic remedies are set out in Vučković and Others v. Serbia ((preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014). In particular, States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system. Those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to firstly use the remedies provided by the national legal system. To be effective, a remedy must be capable of remedying directly the impugned state of affairs and must offer reasonable prospects of success. However, the existence of mere doubts as to the prospects of success of a remedy which is not obviously futile is not a valid reason for failing to exhaust that avenue of redress (ibid.).
56. In the present case, the Government argued that the applicants had failed to exhaust the available domestic remedies because they had not lodged claims for damages with the Lithuanian courts on the basis of Article 6.271 of the Civil Code. On this point, the Court observes that to date it has examined this argument by the Government in a number of cases against Lithuania and has always rejected it (see Pyrantienė v. Lithuania, no. 45092/07, § 27, 12 November 2013; Albergas and Arlauskas v. Lithuania, no. 17978/05, § 44, 27 May 2014; Tunaitis v. Lithuania, no. 42927/08, § 19, 24 November 2015; Paukštisv. Lithuania, no. 17467/07, § 56, 24November 2015; Valančienė v. Lithuania, no. 2657/10, § 49, 18 April 2017; and Kavaliauskas and Others v. Lithuania, no. 51752/10, § 46, 14 March 2017). The Court has never made a conclusion to the effect that an action for damages under that legal provision can be seen as an effective remedy in respect of complaints regarding overall delays in the restitution process. For example, in Činga v. Lithuania ((merits), no. 69419/13, § 76, 31 October 2017), the Court observed that the Government claiming non-exhaustion of domestic remedies had only provided three examples of domestic court practice, and found that insufficient to constitute well-established case-law. However, the Court has never made a conclusion that an action for damages under Article 6.271 of the Civil Code could not be an effective remedy in the context of delays in the restitution process.
57. In the present case the Government referred to a number of examples of Lithuanian case-law testifying that an effective remedy for delays in restitution process exists (see paragraphs 41-43 above). Having analysed that case-law, the Court notes that, at a claimant’s request, the courts usually award compensation in respect of non-pecuniary damage for authorities’ mistakes and delays in the restitution process (see paragraph 41 above). The courts also state that claimants might start another set of court proceedings asking for compensation for the authorities’ mistakes and delays in the restitution process if they have not yet done so (see paragraph 43 above), and the courts can oblige the relevant authority to act (see paragraph 42 above) when claimants ask them to. The Court also observes that the amount of compensation awarded for delays in the restitution process varies between EUR 290 and EUR 2,896, depending on the length of the period of inaction, the claimants’ state of health, age and other relevant circumstances (see paragraph 41 above).
58. The Court observes that the applicants had already asked the domestic courts to oblige the authorities to act with regard to returning seven plots of land in natura, and that they had been successful in their claims (see paragraphs 15 and 16 above). The applicants did not doubt that remedies were available to them in the domestic system. However, they refrained from having recourse to those remedies, as they considered that they might not be effective in their situation. They considered that new proceedings might protract the process of restitution even more.
59. The Court has long stated that the effectiveness of a remedy does not depend on the certainty of a favourable outcome for the applicant. The Court takes note that the process of restitution took a long time and presented certain difficulties to the applicants. However, the existence of these difficulties cannot be considered legitimate grounds for not exhausting domestic remedies.
60. In view of the above, and having regard to the subsidiary character of the Convention machinery, the Court does not find that there were any special reasons for dispensing the applicants from the requirement to exhaust domestic remedies in accordance with the applicable rules and procedure of domestic law. On the contrary, had the applicants complied with this requirement, it would have given the domestic courts the opportunity which the rule of exhaustion of domestic remedies is designed to afford to States – the opportunity to determine the issue of the compatibility of the impugned national measures or omissions to act with the Convention – and should the applicant have pursued his complaint before this Court nonetheless, the Court would have had the benefit of the views of the domestic courts (see, mutatis mutandis, Vučković and Others, cited above, § 90, and the authorities cited therein).
61. Accordingly, the Court agrees with the Government’s position that the applicants should have started court proceedings concerning the excessive length of the restitution process before addressing the Court, and rejects the complaint for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.
3. Complaint under Article 13 of the Convention
62. In the light of the above considerations and taking into account Article 6.271 of the Civil Code and the extensive domestic case-law with regard to its application (see paragraphs 41-43 and 57 above), the Court cannot come to a different conclusion than that the applicants actually had an effective domestic remedy at their disposal for their complaint under Article 1 of Protocol No. 1 to the Convention.
63. Their complaint under Article 13 must therefore be rejected as manifestly ill-founded under Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 25 April 2019.
Marialena Tsirli Jon Fridrik Kjølbro
Registrar President
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