FOURTH SECTION
\nDECISION<\/p>\n
Application no. 66803\/17
\nK\u0119stutis MOZERIS and \u201cEUGENIJOS IR LEONIDO PIMONOV\u0172 ALZHEIMERIO LIGOS PARAMOS FONDAS\u201d
\nagainst Lithuania<\/p>\n
The European Court of Human Rights (Fourth Section), sitting on 2\u00a0April 2019 as a Chamber composed of:<\/p>\n
Jon Fridrik Kj\u00f8lbro, President,
\nPaulo Pinto de Albuquerque,
\nEgidijus K\u016bris,
\nIulia Antoanella Motoc,
\nCarlo Ranzoni,
\nGeorges Ravarani,
\nMarko Bo\u0161njak, judges,
\nand Marialena Tsirli, Section Registrar,<\/p>\n
Having regard to the above application lodged on 6 September 2017,<\/p>\n
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,<\/p>\n
Having deliberated, decides as follows:<\/p>\n
THE FACTS<\/strong><\/p>\n 1.\u00a0\u00a0Mr K\u0119stutis Mozeris (\u201cthe first applicant\u201d) is a Lithuanian national who was born in 1959 and lives in Vilnius. \u201cEugenijos ir Leonido Pimonov\u0173 Alzheimerio ligos paramos fondas\u201c (\u201cthe applicant company\u201d) is a legal entity registered under Lithuanian law. The applicant company\u2019s activities are mainly related with providing support to people who have Alzheimer\u2019s disease. The applicants were represented before the Court by Mr E. Baranauskas, a lawyer practising in Vilnius.<\/p>\n 2.\u00a0\u00a0The Lithuanian Government (\u201cthe Government\u201d) were represented by their Agent, most recently Ms L. Urbait\u0117.<\/p>\n A.\u00a0\u00a0The circumstances of the case<\/strong><\/p>\n 3.\u00a0\u00a0The facts of the case, as submitted by the parties, may be summarised as follows.<\/p>\n 1.\u00a0\u00a0Restoration of L.P.\u2019s property rights to land<\/em><\/p>\n 4.\u00a0\u00a0In October 1996, with the first applicant acting as his representative, L.P. asked the Vilnius County Administration (hereinafter \u201cthe VCA\u201d) to restore his property rights to 16.51 ha of his mother\u2019s land (further in the text \u201cL.P.\u2019s property rights\u201d and \u201cL.P.\u2019s mother\u2019s property rights\u201d 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 \u201creturn of land in natura\u201d, \u201c[receipt of] a plot of land of equivalent value\u201d, and \u201ccompensation by other means\u201d.<\/p>\n 5.\u00a0\u00a0In 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.<\/p>\n In March 2000 L.P. died. In October 2000 the first applicant was issued with a certificate of inheritance.<\/p>\n 6.\u00a0\u00a0In April 2001 the applicant company asked the VCA to return L.P.\u2019s land, to stop the sale, lease and distribution of plots situated on L.P.\u2019s 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.<\/p>\n 7.\u00a0\u00a0In 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\u2019 Ownership Rights to Existing Real Property (hereinafter \u201cthe Law on Restitution\u201d) had been found to be contrary to the Constitution. The issue of the return of the applicant company\u2019s 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\u2019s issues.<\/p>\n 8.\u00a0\u00a0In September 2001 the applicant company sent the VCA a request which was very similar to that of April 2001 (see paragraph 6 above).<\/p>\n 9.\u00a0\u00a0On 30 October 2001 the first applicant asked the Vilnius city land division to map a certain plot of land in Vilnius.<\/p>\n 10.\u00a0\u00a0On 31 October 2001 the VCA replied to the applicant company\u2019s request (see paragraph 8 above) by essentially providing the same information as that put forward in May 2001 (see paragraph 7 above).<\/p>\n 11.\u00a0\u00a0In October 2002 the VCA mapped the boundaries of the land L.P.\u2019s mother used to have.<\/p>\n 12.\u00a0\u00a0On 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, Nekvedavi\u010dius v. Lithuania, no.\u00a01471\/05, \u00a7 28, 10 December 2013). A reply was received on 24\u00a0February 2003 stating that the land was State redeemable and that the property rights had to be restored by other means rather than in natura.<\/p>\n 13.\u00a0\u00a0On 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.<\/p>\n 14.\u00a0\u00a0In 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.<\/p>\n 15.\u00a0\u00a0On 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\u2019s decision becoming final. The remainder of the applicants\u2019 claim was dismissed.<\/p>\n 16.\u00a0\u00a0The 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.<\/p>\n 17.\u00a0\u00a0By 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.<\/p>\n 18.\u00a0\u00a0In December 2006 the first applicant submitted the certificate of inheritance and L.P.\u2019s birth certificate to the authorities. The copies of both documents were approved by a notary.<\/p>\n 19.\u00a0\u00a0On 12 January 2007 the VCA asked the first applicant to provide a copy of L.P.\u2019s mother\u2019s death certificate. It had to be approved by a notary.<\/p>\n 20.\u00a0\u00a0On 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.\u2019s mother\u2019s death certificate and a document concerning L.P.\u2019s mother\u2019s burial, both translated from French.<\/p>\n 21.\u00a0\u00a0On 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.<\/p>\n 22.\u00a0\u00a0On 6 February 2007 the VCA restored L.P.\u2019s 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.\u2019s property rights had been restored.<\/p>\n 23.\u00a0\u00a0In February 2012 the National Land Service (hereinafter \u201cthe NLS\u201d) 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\u00a0June 2012 to make a choice in this regard. It appears that the first applicant did not reply to this letter.<\/p>\n 24.\u00a0\u00a0In December 2012 and August 2014 the NLS asked the Vilnius municipality to provide information about free plots of land previously owned by L.P.\u2019s 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.\u2019s mother, except for the six plots of land that had already been returned in natura, was State redeemable.<\/p>\n 25.\u00a0\u00a0In November 2014 the NLS informed the first applicant that as of 1\u00a0November 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.<\/p>\n 26.\u00a0\u00a0On 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.\u2019s property rights to his mother\u2019s 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.<\/p>\n 27.\u00a0\u00a0On 7 July 2015 the NLS restored L.P.\u2019s property rights to 14.5668\u00a0ha of land by the payment of EUR 51,989 in compensation. It was stated that L.P\u2019s 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.\u2019s heirs.<\/p>\n 28.\u00a0\u00a0On 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.<\/p>\n 29.\u00a0\u00a0On 14 March 2016 the Vilnius Regional Administrative Court dismissed the applicants\u2019 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\u2011value compensation had never been an option under Lithuanian law (see Pauk\u0161tisv.\u00a0Lithuania, no. 17467\/07, \u00a7 81, 24November 2015). The court thus held that the amount of compensation did bear a reasonable relation to the property in question.<\/p>\n 30.\u00a0\u00a0The applicants appealed. On 24 May 2017 the Supreme Administrative Court upheld the first-instance decision.<\/p>\n 31.\u00a0\u00a0In 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\u2019s letter. It appears that at the date of the latest information available to the Court (10 December 2018) the applicants failed to do that.<\/p>\n 32.\u00a0\u00a0On 26 February 2018 the first applicant\u2019s 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.\u2019s mother\u2019s land had been situated. On 21 March 2018 the NLS asked the Vilnius municipality to inform the first applicant\u2019s representative about free land. In July 2018 the Vilnius municipality informed the NLS and the first applicant\u2019s representative that it had been decided that the issue of free land would be re-examined.<\/p>\n 33.\u00a0\u00a0In 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).<\/p>\n 34.\u00a0\u00a0It 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\u2019s activities, which were mainly providing support for people who had Alzheimer\u2019s 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.\u00a0Greece [GC], no. 31423\/96, ECHR 1999\u2011II; Pincov\u00e1 and Pinc v. the Czech Republic, no. 36548\/97, ECHR 2002\u2011VIII; Do\u011frus\u00f6z and Aslan v.\u00a0Turkey, no. 1262\/02, 30 May 2006; Valle Pierimpi\u00e8 Societ\u00e0 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.<\/p>\n 35.\u00a0\u00a0According to the information provided by the Government, in March\u00a02018 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\u00a0ha, and in October 2018 he was the 940th. It appears that at the time the latest information was made available to the Court (10\u00a0December 2018), the first applicant had not yet received that 0.12 ha plot of land.<\/p>\n B.\u00a0\u00a0Relevant domestic law and practice<\/strong><\/p>\n 1.\u00a0\u00a0Domestic law and case-law concerning general restitution process<\/em><\/p>\n 36.\u00a0\u00a0For relevant domestic law and practice, see Pauk\u0161tisv. Lithuania, no. 17467\/07, \u00a7\u00a7 9 and 43, 24November 2015, andGrigolovi\u010d v. Lithuania, no.\u00a054882\/10, \u00a7\u00a7 23-28, 10 October 2017.<\/p>\n 37.\u00a0\u00a0Article 6.271 \u00a7 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 \u00a7 2 provides that for the purposes of the Article, the notion \u201can institution of public authority\u201d 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\u00a06.271\u00a0\u00a7 3 provides that, for the purposes of the Article, the notion \u201cact\u201d means any act (active or passive) by an institution of public authority or its employees, that directly affects people\u2019s 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 \u2013 verdicts in criminal cases, decisions in civil and administrative cases, and orders). Article 6.271 \u00a7 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.<\/p>\n 38.\u00a0\u00a0Article 2 \u00a7 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.<\/p>\n 2.\u00a0\u00a0Case-law the Constitutional Court concerning compensation for damage caused by the unlawful actions of a public authority<\/em><\/p>\n 39.\u00a0\u00a0 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.<\/p>\n 40.\u00a0\u00a0The 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\u00a0March 2009, 3\u00a0February 2010).<\/p>\n 3. Case-law of the Supreme Administrative Court concerning civil claims in respect of damage caused by the unlawful actions of a public authority<\/em><\/p>\n 41.\u00a0\u00a0The 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\u2019 right to use their property, mistakes made the authorities in the restitution process (cases nos.\u00a0A-469-1625-05 of 28 October 2005, A-469-653-07 of 26 June 2007, A\u2013556-749-07 of 15 November 2007, A-146-320-11 of 4 April 2010, A\u2013502-99-11 of 13 January 2011, A-575-2188-11 of 13 September 2011, A\u2013146-40-12 of 16 January 2012, A-602-162-13 of 18 February 2013, A-525-1198-14 of 14\u00a0January 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\u201305 of 28 October 2005, A-469-653-07 of 26 June 2007, A-556-749-07 of 15\u00a0November 2007, A-502-99-11 of 13 January 2011, A-575-2188-11 of 13\u00a0September 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 \u2013 awarded EUR 289; A-469-1625-05 of 28 October 2005 \u2013 awarded EUR\u00a0290 each of the claimants; A-556-749-07 of 15 November 2007 \u2013 EUR 579; A-146-320-11 of 4 April 2010 \u2013 EUR 724; A-469-653 of 26 June 2007 \u2013 EUR 869; A-602-162-13 of 18 February 2013 \u2013 EUR 869; A-525-1198-14 of 14 January 2015 \u2013 EUR 869; A-617-502\/2016 of 28 January 2016 \u2013 EUR\u00a0900; A-194-822\/2016 of 8 March 2016 \u2013 EUR 1,200; A-4125-756\/2016 of 22 November 2016 \u2013 EUR 2,000; A-502-99-11 of 13\u00a0January\u00a02011 \u2013 EUR\u00a02,896; A-146-40-12 of 16 January 2012\u00a0\u2011\u00a0EUR\u00a02,896; A-1161-146\/2015 of 24 August 2015 \u2013 EUR 2,896).<\/p>\n 42.\u00a0\u00a0In 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.<\/p>\n 43.\u00a0\u00a0Finally, in case no. A-858-1610-12 of 14 June 2012 the court held that decisions to restore a third party\u2019s 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.<\/p>\n COMPLAINTS<\/strong><\/p>\n 44.\u00a0\u00a0The 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.<\/p>\n THE LAW<\/strong><\/p>\n 45.\u00a0\u00a0The 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:<\/p>\n Article 13<\/p>\n \u201cEveryone 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.\u201d<\/p>\n Article 1 of Protocol No. 1<\/p>\n \u201cEvery 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.<\/p>\n 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.\u201d<\/p>\n A.\u00a0\u00a0The parties\u2019 submissions<\/strong><\/p>\n 1.\u00a0\u00a0The Government<\/em><\/p>\n 46.\u00a0\u00a0The Government submitted that the applicant company\u2019s complaint was inadmissible ratione materiae. They stated that only individuals could inherit property in respect of which a previous owner\u2019s 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.<\/p>\n