NEKVEDAVICIUS v. LITHUANIA - 1471/05 - Chamber Judgment [2013] ECHR 1257 (10 December 2013)

In the case of Nekvedavičius v. Lithuania,

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

          Guido Raimondi, President,
          Işıl Karakaş,
          Dragoljub Popović,
          András Sajó,
          Nebojša Vučinić,
          Helen Keller,
          Egidijus Kūris, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 19 November 2013,

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

PROCEDURE

The case originated in an application (no. 1471/05) 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 a Lithuanian and German national, Mr Christian Nekvedavičius (“the applicant”), on 10 December 2004.

The Lithuanian Government (“the Government”) were represented by their Agent, Ms E. Baltutytė.

The applicant alleged, in particular, that the Lithuanian authorities’ failure to return his late father’s property, which was nationalised during the Soviet regime, and to execute the final court judgment of 27 November 2001 breached Article 1 of Protocol No. 1 and Article 6 § 1 of the Convention.

Having been informed on 16 January 2008 of their right to submit written observations, the German Government did not express an intention to take part in the proceedings.

On 24 November 2006 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1946 and lives in Münster, Germany.

The applicant’s father owned a plot of land with two houses on it in the centre of the city of Kaunas, Lithuania. The plot was nationalised following the Soviet occupation in the 1940s. Ownership of the houses was attributed to the former wife of the applicant’s father in 1948 and she continued living there. At some time between 1964 and 1968 the title to the buildings was transferred to third persons.

After Lithuania regained its independence in 1990, the applicant applied for the property to be returned to him in natura, pursuant to the 1991 legislation on restitution of property rights. He submitted a complete request to the authorities in 1997 and again in 1999.

1. Administrative proceedings concerning ownership of the houses

In his first court action, the applicant sought to oblige the authorities to restore his property rights to the two buildings.

On 16 October 2000 the Kaunas Regional Administrative Court dismissed his claim on the ground that the houses had never been nationalised and had remained private property; as confirmed by a decision of the court of 1948, they had been owned by his father’s former spouse. Accordingly, the applicant had no entitlement to them under the domestic legislation on restitution of nationalised property.

On 13 April 2001 the Supreme Administrative Court upheld the decision.

2. Administrative proceedings concerning restitution of the plot of land

On an unspecified date the applicant complained to the Kaunas Regional Administrative Court that the local authorities had remained inactive in the restoration of his property rights to the plot of land. He also requested that his father’s original plot be returned to him.

On 27 November 2001 the court allowed the applicant’s complaint in part. It was established that the documents which the applicant had submitted to the local authorities were sufficient for them to adopt a decision on the restoration of his property rights. However, the court held that in 1999-2001 almost the entire disputed plot had already been acquired and was being used by other persons, so it was not possible to return the original plot to the applicant; his property rights would have to be restored by other means provided for under the Restitution of Property Act.

By the same judgment the court noted the inactivity of the administrative authorities. It ordered the Kaunas County Governor to restore the applicant’s property rights in respect of the land which had belonged to his father, in accordance with the provisions of the Restitution of Property Act. No deadline or form of restitution was specified in the court decision. The parties did not appeal and the decision became final.

Following a complaint by the applicant that the authorities had failed to execute the judgment of 27 November 2001, a writ of execution was issued on 27 March 2002.

On 19 April 2002 the Kaunas County Governor rejected the applicant’s request for restitution in natura. The applicant appealed and the refusal was quashed by a final judgment of the Kaunas Regional Administrative Court on 12 February 2004 on the ground of a procedural flaw: the said decision had not been signed by a competent person.

Between 2003 and 2006 the administrative authorities made inquiries about the availability of parcels of land within the original plot owned by the applicant’s father. However, on several occasions it was concluded that no land was available and that the applicant’s rights would therefore have to be restored by other means provided for under the Restitution of Property Act.

In 2006 the authorities informed the applicant that, for the purposes of restitution, a new plot of land would be assigned to him. However, in February 2007 they notified him that he would be compensated in the form of bonds. The applicant replied in writing that he would not accept either of those options.

In 13 July 2007 the Kaunas County Governor adopted a decision restoring the applicant’s property rights in respect of the disputed land by awarding him compensation of 23,086 litai (LTL) (approximately 6,690 euros (EUR)) in Lithuanian Government bonds.

The applicant applied to the courts again, asking them to quash the said decision as unlawful and to award compensation amounting to the full market value of the land, as submitted by him.

By a final decision of 30 March 2008 the Supreme Administrative Court granted the applicant’s claim in part and quashed the decision of 13 July 2007. It was established that the authorities’ decision to restore the applicant’s property rights was defective since it had been delivered by the Kaunas County Deputy Governor, who was not competent to adopt such a legal decision.

The waiting list approved on 14 September 2011 by the National Land Service indicated the applicant among those eligible for a new plot of land as compensation for the purposes of restoration of their property rights where the property could not be returned in natura. He has been on that list since 2000.

To date, no information has been submitted by the parties indicating that the applicant’s property rights have been restored.

3. The applicant’s civil claim for ownership

Considering that ownership of the buildings by his father’s former spouse and, subsequently, by third persons, was unlawful, the applicant brought a rei vindicatio action. He requested the return of his houses in natura and the annulment of the land sale agreements concluded by the administrative authorities and the private buyers.

On 3 July 2003 the Kaunas Regional Court dismissed the applicant’s claim. Its decision was upheld by the Court of Appeal on 30 October 2003. The court took the view that the houses were legitimately owned by the buyers.

On 8 January 2004 the Supreme Court refused to entertain a cassation appeal lodged by the applicant on the grounds that it raised no important legal issues and therefore did not meet the requirements of Articles 346 and 347 § 1 (3) of the Code of Civil Procedure. The applicant and his attorney inquired about the reasons and re-submitted the appeal on 9 June 2004.

On 11 June 2004 the Supreme Court refused to accept the latter appeal for examination, observing that it had been submitted after the expiry of the three-month time-limit on 30 January 2004 and no justification had been given for the delay.

II. RELEVANT DOMESTIC LAW AND PRACTICE

The Restitution of Property Act 1991 (Nuosavybės teisių ... atkūrimo įstatymas) (amended on numerous occasions) provides for two forms of restitution: the return of property in certain circumstances and compensation (in the form of money or land) in others. Normally, land is returned in natura, except in cases where, for example, it is classified as the State’s redeemable land. Land is considered to be redeemable if, inter alia, it was allocated to other private persons and is used as a farm.

On 27 May 1994 the Constitutional Court examined the issue of the compatibility with the Constitution of the domestic laws on the restitution of property. In its decision the Constitutional Court held, inter alia, that possessions which had been nationalised by the Soviet authorities after 1940 should be considered as “property under the de facto control of the State”. The Constitutional Court also stated:

“The rights of a former owner to particular property have not been restored until the property is returned or appropriate compensation is afforded. The law does not itself afford any rights until it is applied to a real person in respect of specific property. In this situation the decision of a competent authority to return the property or to compensate has the legal effect that only from that time does the former owner obtain rights to the specific property.”

The Constitutional Court also held that fair compensation for property which could not be returned was compatible with the principle of the protection of property.

In decisions of 15 June and 19 October 1994, the Constitutional Court emphasised that the notion of the restitution of property in Lithuania essentially denoted partial reparation. In this respect the Constitutional Court noted that the authorities of Lithuania, as a State re-established in 1990, were not responsible for the Soviet occupation half a century earlier, nor were they responsible for the consequences of that occupation. The Constitutional Court held that since the 1940s many private persons had bought, in accordance with the legislation applicable at the material time, various properties which had previously been nationalised. It was impossible to deny those factual and legal aspects, and the domestic legislation on the restitution of property duly took into account the interests not only of the former owners, but also of private persons who had occupied or purchased the property by way of legal contracts.

On 20 June 1995 the Constitutional Court held that in choosing the partial reparation principle, the Parliament had been influenced by the prevailing difficult political and social conditions: “New generations had grown up, [and] new proprietary and other socio-economic relations had been formed during the 50 years of occupation, which could not be ignored in deciding the question of the restitution of property”.

Under Article 18 of the Restitution of Property Act (all versions until 1999), the authorities were required to obtain written permission from the claimant before determining the appropriate compensation for property which could not be returned. Pursuant to the Restitution of Property Act as amended on 2 June 1999, the executive authorities are now entitled to decide the question of compensation without the claimant’s approval. That decision can be appealed against to a court in accordance with the procedure established in Article 19 of the Act. No stamp duty is required to lodge such an action.

The administrative authorities must examine any requests and adopt decisions restoring ownership rights within six months following the receipt of a request complete with the necessary documents (Article 18 of the Restitution of Property Act).

. In accordance with Article 14 of the Law on Administrative Proceedings, an effective court decision, ruling or order is binding on all state institutions, officers and public servants, enterprises, agencies, organisations, and other natural and legal persons, and must be executed within the entire territory of Lithuania.

Article 346 of the Code of Civil Procedure provides that cassation is possible only if the grounds enumerated in this Article exist. A cassation appeal must contain extensive legal arguments confirming the existence of grounds for cassation (Article 347).

Article 350 § 2 (3, 4) of the Code of Civil Procedure provides that the Supreme Court will refuse to accept a cassation appeal if it does not meet the requirements of Articles 346 and 347 thereof. If the cassation appeal has been rejected for the above reason, a party to the proceedings can rectify the shortcomings and submit a new cassation appeal (Article 350 § 5).

A cassation appeal may be lodged within three months following the date when a disputed judgment or decision entered into force (Article 345 § 1).

. The Civil Code provides that damage caused by unlawful acts of institutions of public authority must be compensated by the State, irrespective of the fault of a particular public servant or other public authority employee (Article 6.271). The State may also be held liable for the unlawful actions of a law-enforcement authority, such as unlawful arrest or detention (Article 6.272).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

The applicant complained under Article 6 § 1 of the Convention that the court judgment of 27 November 2001 ordering the authorities to restore his ownership rights to his late father’s land had not been executed. He also complained that the restitution proceedings had lasted too long.

The relevant provision reads:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by [a] ... tribunal ...”

The Court considers that the issue of lengthy restitution proceedings is directly linked to the complaint of non-enforcement of the judgment. It will therefore take that question into account in assessing the
non-enforcement complaint.

A. Admissibility

The Government submitted that the applicant had failed to exhaust all the effective domestic remedies by not lodging a civil claim under Article 6.271 of the Civil Code against the State for redress in view of
non-enforcement of the judgment.

The applicant contested that argument.

It should be recalled that the only remedies to be exhausted under Article 35 § 1 of the Convention are those which relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain, not only in theory but also in practice (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 142, ECHR 2006-V).

. The Court considers that a claim for damages against the State may sometimes be deemed a sufficient remedy, especially where compensation is the only means of redressing the wrong suffered. In the instant case, however, compensation for the State’s failure to enforce the judgment would not have been a proper alternative to the measures that the Lithuanian legal system should have afforded the applicant in order to obtain the restoration of his ownership rights (see, mutatis mutandis, Dadiani and Machabeli v. Georgia, no. 8252/08, § 32, 12 June 2012; and Iatridis v. Greece [GC], no. 31107/96, § 47, ECHR 1999-II).

. The Government’s objection must therefore be dismissed.

The Court also considers that this complaint raises serious issues under Article 6 § 1 and is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

The applicant submitted that, in failing to execute the binding judgment of 27 November 2001, the domestic authorities had infringed his right to a fair hearing within a reasonable time.

The Government contested that argument. They stated that the execution of the decision had been prolonged for objective reasons.

Furthermore, the Government alleged that the applicant had himself obstructed the restitution process by insisting on restitution in natura or pecuniary compensation equal to the market price. The process could have been shorter had he cooperated with the authorities and agreed to other forms of restitution prescribed by law. The applicant’s complaints to the courts had contributed to the delay, as the authorities had been obliged to suspend administrative proceedings pending the outcome of the court proceedings.

The Government also deemed that the judgment of 27 November 2001 had not ordered the unconditional return of the original plot to the applicant, nor had it indicated any particular form of restitution. Besides, the delay in the execution of the said judgment had started on 27 February 2004.

The applicant further claimed that the authorities had deliberately protracted the enforcement of the judgment by making unnecessary and redundant inquiries about possible vacant areas of his original plot of land, despite the fact that they themselves had transferred the last part of the plot to third persons in 2001.

Lastly, the applicant noted that since 1 July 1999 the Restitution of Property Act no longer stated that the authorities must obtain the former owner’s consent to the form of restitution.

2. The Court’s assessment

In the Burdov v. Russia case (no. 59498/00, § 34, ECHR 2002-III) the Court observed that the execution of a judgment given by any court must be regarded as an integral part of the “trial” for the purposes of Article 6 of the Convention. Whilst a delay in the execution of a judgment may be justified in particular circumstances, it may not be such as to impair the essence of the right protected under Article 6 § 1.

The judgment of 27 November 2001 guaranteed the applicant the restoration of his property rights in respect of the plot of land by the means prescribed in the Restitution of Property Act. Although it did not specify the form of restitution, the possibility of returning the original plot was excluded (see paragraph 13 above). It was the duty of the administrative authorities to determine the form and amount of the compensation (see paragraph 32 above).

Given that the administrative authorities were under a legal obligation to take a decision on restitution within six months after a completed request had been submitted, and since such a request had indeed been submitted by the applicant in 1997, the Court considers that that obligation was already pending on the day the judgment in question was adopted. Thus, once it had entered into force, the judgment of 27 November 2001 should have been executed without undue delay. It was not necessary to indicate a precise deadline for execution of the said judgment.

Insofar as the applicant’s complaint under Article 6 § 1 concerns non-enforcement of the court decision, the question is whether the administrative authorities took speedy and necessary measures in a diligent manner to comply with the binding final judgment.

The Court observes that the first attempt to execute the judgment was the decision to reject the applicant’s request to return to him the original plot of land in natura, adopted on 19 April 2002 by the Kaunas County Governor. However, the possibility of restoring the applicant’s right to the original plot had already been excluded by the final judgment of 27 November 2001. The Court thus holds that that decision was superfluous and unnecessarily protracted the execution proceedings. It was also procedurally flawed and, consequently, was declared invalid by the administrative court on 12 February 2004.

On 13 July 2007 the authorities adopted a decision restoring the applicant’s ownership rights by awarding him compensation in the form of Government’s bonds. Without making an assessment of whether that compensation was adequate for the purposes of restitution of the applicant’s property, the Court considers that the said decision was actually designed to enforce the judgment of 27 November 2001. Nonetheless, the authorities’ decision was again declared invalid on the ground that it was procedurally flawed.

The Court reiterates that the administrative authorities form one element of a State subject to the rule of law, and their interests accordingly coincide with the need for the proper administration of justice. Where administrative authorities refuse or fail to comply, or even delay doing so, the guarantees under Article 6 enjoyed by a litigant during the judicial phase of the proceedings are rendered devoid of purpose (see Matache and Others v. Romania, no. 38113/02, § 27, 19 October 2006, and Hornsby v. Greece, 19 March 1997, § 41, Reports of Judgments and Decisions 1997-II).

It is true that in restitution proceedings the executive authorities are required to carry out a complex set of actions under the domestic legislation on restitution of property, rather than to perform a clear one-off act, such as payment of a particular amount of money (as, for example, in the Burdov case, cited above). The applicant’s participation is also required. Although in the present case the applicant did not agree with the executive authorities’ initial proposal as to the form of compensation (see paragraph 18 above), the administrative authorities were not bound by his consent to a particular form of restitution and had the discretion to decide the appropriate compensation (see paragraph 32 above and, mutatis mutandis, Jasiūnienė v. Lithuania, no. 41510/98, § 29, 6 March 2003, and Užkurėlienė and Others v. Lithuania, no. 62988/00, § 31, 7 April 2005).

Consequently, a significant part of the actions taken by the authorities may be considered as ineffective, repetitive and not aimed at restoring the applicant’s property rights. The Court also notes the inconsistency in the authorities’ actions when selecting possible forms of restitution. Even assuming that the applicant himself to a certain extent contributed to the delay in the execution of the judgment, the above circumstances are mainly imputable to the authorities. Furthermore, where a judgment is delivered in favour of an individual against the State, the burden to comply with such a judgment lies primarily with the State authorities, which should use all means available in the domestic legal system in order to speed up the enforcement, thus preventing violations of the Convention (see Stoycheva v. Bulgaria, no. 43590/04, § 58, 19 July 2011). Despite the fact that the applicant was included in a list of those eligible for a new plot of land with a view to the restoration of their property rights, last approved in 2011, it appears that no further steps have been taken.

In view of those circumstances, the Court concludes that the domestic authorities failed to respect the obligations placed on them by the judgment of 27 November 2001 and the principle of the proper administration of justice.

To date, more than eleven years have passed since the adoption of the judgment in question. The Court not only finds this situation regrettable but considers that it also impairs the essence of the right protected under Article 6 § 1 (see Immobiliare Saffi v. Italy [GC], no. 22774/93, § 74, ECHR 1999-V, and Burdov, cited above, § 35).

It follows that by failing for many years to take the necessary measures to comply with the final judicial decision in the present case, the Lithuanian authorities deprived the applicant of protection under Article 6 § 1.

There has accordingly been a violation of Article 6 § 1 of the Convention.

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

The applicant complained that his inability to have returned to him the nationalised plot of land either in natura or in the form of just compensation over a prolonged period amounted to a breach of his rights under Article 1 of Protocol No. 1 of the Convention.

Article 1 of Protocol No. 1 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. The parties’ submissions

The Government submitted that Contracting States were free to choose the scope of property restitution and the conditions under which they agreed to restore the property rights of former owners.

They further submitted that the authorities’ ability to restore the applicant’s rights had been obstructed by the applicant’s actions, such as his persistent requests to have the property returned to him in natura or to receive the market price for it, and his complaints to the courts against the public authorities.

The applicant disagreed. He submitted that since 1997 when he had submitted his request, he had had a proprietary interest to have his ownership rights restored.

2. The Court’s assessment

As concerns the applicant’s complaint that he was unable to recover the original plot in natura, the Court reiterates that the Convention does not guarantee, as such, the right to restitution of property. “Possessions” within the meaning of Article 1 of Protocol No. 1 can be either “existing possessions” or assets, including claims, in respect of which an applicant can argue that he has at least a “legitimate expectation” that they will be realised. The hope that a long-extinguished property right may be revived cannot be regarded as a “possession” within the meaning of Article 1 of Protocol No. 1; nor can a conditional claim which has lapsed as a result of the failure to fulfil the condition (see, as a recent authority, Polacek and Polackova v. the Czech Republic [GC], no. 38645/97, § 62, 10 July 2002).

It follows that the applicant has no “possessions” with regard to his claim to recover the original plot in natura, and this complaint is incompatible ratione materiae with the provisions of Article 1 of Protocol No. 1 within the meaning of Article 35 § 3 of the Convention.

On 27 November 2001 the Kaunas Regional Administrative Court concluded that all the conditions for restoration of the applicant’s property rights to land by means other than in natura had been met by him. In view of that judgment, the applicant’s claim for restoration of his rights by means other than in natura constituted a “proprietary interest” which has a sufficient basis in domestic law and is covered by the notion of a “possession” under Article 1 of Protocol No. 1 of the Convention (see Kopecký v. Slovakia [GC], no. 44912/98, § 52, ECHR 2004-IX, and Maria Atanasiu and Others v. Romania, nos. 30767/05 and 33800/06, § 146, 12 October 2010).

As a result, the applicant’s remaining complaint about his inability to obtain compensation in the form of land or money is not manifestly
ill-founded within the meaning of Article 35 § 3 of the Convention. It is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

The applicant complained of his continuing inability to receive an equivalent plot of land or adequate compensation corresponding to the market value of the disputed plot.

The Government submitted that the domestic authorities had taken all the necessary steps to restore the applicant’s rights. It was the applicant who had constantly refused to accept the form of compensation proposed by the authorities.

The applicant contested that argument, referring to the amendment of the Restitution of Property Act of 2 June 1999, which no longer required his consent.

Lastly, the Government submitted that the applicant, as a former owner, had been put on a waiting list and would be allocated a new plot of State land in Kaunas city as soon as one became available.

2. The Court’s assessment

The Court reiterates that it has held on numerous occasions in similar cases that non-enforcement of a final and binding court judgment constitutes a violation of Article 1 of Protocol No. 1 to the Convention (see, for example, Burdov, cited above, §§ 40-42; Jasiūnienė, cited above,
§§ 44-47; and Matache and Others v. Romania, no. 38113/02, §§ 38-43, 19 October 2006). The Court sees no reason to depart from its case-law in the case at hand.

The Court notes at the outset that unlike the situation of the applicant in the Broniowski v. Poland case ([GC], no. 31443/96, § 170,
ECHR 2004-V), in the present case the opportunity for the applicant to obtain compensatory property from among the State’s land was not excluded.

However, it should be stressed that to date, it is more than fourteen years since the applicant submitted the request for the restoration of his property rights. He has been waiting more than eleven years for the execution of the judgment of 27 November 2001 which had provided him with an enforceable right to receive compensation in the form of land or money. Moreover, the procedure seemed to be at a standstill, as no decision had been adopted since 2007. In particular, it had not been determined whether and when the applicant will receive a new plot of land or compensation bonds, and for what value.

It follows that the applicant’s inability to have that judgment enforced constituted an interference with his right to peaceful enjoyment of his possessions, as set out in the first sentence of the first paragraph of Article 1 of Protocol No. 1. It remains to be ascertained whether or not that interference was justified.

For the purposes of the above-mentioned provision, the Court must determine whether a fair balance was struck between the demands of the general interest of the community and the protection of the individual’s fundamental rights (see Sporrong and Lönnroth v. Sweden, 23 September 1982, § 68, Series A no. 52). The requisite balance will not be struck where the person concerned bears an individual and excessive burden (see Străin and Others v. Romania, no. 57001/00, § 44, ECHR 2005-VII).

In the context of property rights, particular importance must be attached to the principle of good governance (see Moskal v. Poland, no. 10373/05, § 40, 15 September 2009). The principle of “good governance” requires that where an issue in the general interest is at stake it is incumbent on the public authorities to act in good time, in an appropriate manner and with utmost consistency (see Beyeler v. Italy [GC], no. 33202/96, § 120, ECHR 2000-I), and Megadat.com SRL v. Moldova, no. 21151/04, § 72, ECHR 2008).

The Court has already found in the present case that the Government did not demonstrate the existence of any exceptional circumstances capable of justifying the delay in enforcing the said judgment and enacting the restitution laws (see paragraphs 58-64 above). Although it is true that the State faces various legal and factual issues of certain complexity when resolving such questions, in the present case the hindrance to the peaceful enjoyment of the property is mainly attributable to the respondent State.

As to the Government’s argument that the applicant is on a waiting list for allocation of an equivalent plot of land (last approved in 2011), the Court notes that there is still no certainty as to when that new plot will be awarded to him. In that context, it should be stressed that uncertainty - be it legislative, administrative or arising from practices applied by the authorities - is a factor to be taken into account in assessing the State’s conduct (see Broniowski, cited above, § 151).

Having regard to the circumstances of the case, the Court concludes that the domestic authorities did not act in line with the principle of good governance to ensure that the applicant’s property rights were protected.

By failing to execute the judgment of 27 November 2001, the respondent State prevented the applicant from having his property rights restored for a prolonged period of time. Thus, the applicant’s legitimate expectation to receive compensation, as determined in accordance with the applicable domestic law (see paragraph 55), was unjustifiably affected. As a result, the balance which had to be struck between the general interest and the applicant’s personal interest was upset, and he has had to bear an individual and excessive burden, which is incompatible with Article 1 of Protocol No. 1 to the Convention.

Accordingly, there has been a violation of that provision in the present case.

III. OTHER ALLEGED VIOLATIONS

The applicant complained about the civil proceedings concerning ownership of the houses and the original plot. He relied on Article 6 § 1 and Article 1 of Protocol No. 1, alleging that his access to court and right to recover his property from third persons had been restricted. The applicant argued that on 8 January 2004 the Supreme Court had unlawfully refused to examine his cassation appeal. He also complained of the unfairness of the civil proceedings concerning the ownership. Lastly, he complained that his property rights to the houses had been violated, arguing that the decision of 13 April 2001 by the Supreme Administrative Court was unlawful.

The Government contested the applicant’s right to recover the houses and the original plot of land.

The Court observes that the ownership proceedings lasted until 8 January 2004, when the Supreme Court refused to entertain a cassation appeal lodged by the applicant against the decision of the appellate court of 30 October 2003.

The applicant, with legal assistance, later submitted a second cassation appeal, which the Supreme Court refused to accept on 11 June 2004 as unjustifiably lodged outside the time-limit. The Court concludes that the latter refusal cannot be considered as a final decision for the purposes of Article 35 § 1 of the Convention, because only remedies that are normal and effective can be taken into account.

Therefore, the final effective decision in the ownership proceedings is that of the Supreme Court of 8 January 2004. It follows that this part of the application, which was submitted on 10 December 2004, is inadmissible as being lodged out of time. Accordingly, it must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

For the same reasons the applicant’s complaint concerning the court proceedings that resulted in the adoption of the decision of 13 April 2001 by the Supreme Administrative Court is also inadmissible. It must also be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

Lastly, the applicant complained under Article 14 of discrimination against him in view of the partial compensation to which he was entitled under the domestic legislation. He also claimed that he had been discriminated against on the basis of his non-resident status, as the Restitution of Property Act that was in force until 1 July 1997 recognised the right to restitution only for residents of the country.

Finally, the applicant alleged that the non-discrimination principle had been infringed by the Supreme Court’s refusal to renew the deadline for submitting his cassation appeal in the ownership proceedings.

The Court has so far considered that the right under Article 14 not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is violated when States treat differently persons in analogous situations without providing an objective and reasonable justification (see Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV, and Wessels-Bergervoet v. the Netherlands, no. 34462/97, § 46, ECHR 2002-IV).

Given that in the present case the applicant has not yet obtained either pecuniary compensation or a new plot of land for the purposes of restoration of his property rights, their adequacy cannot be assessed. In this connection the Court reiterates that the States have freedom to determine the scope of property restitution and to choose the conditions under which they agree to restore property rights of former owners (Kopecký, cited above, § 35).

. As concerns the applicant’s non-resident status, he has not presented any arguments capable of showing that application of the provisions of the legislation in force until 1 July 1997 adversely affected his rights and interests. It follows that the applicant was not treated differently or unfavourably by the national authorities in view of his non-resident status or the alleged inadequacy of the compensation.

With regard to the applicant’s complaint about the Supreme Court’s refusal to renew the deadline for lodging his cassation appeal, the Court observes that the applicant presented no evidence that other persons in similar situations had been treated more favourably.

The above considerations are sufficient for the Court to conclude that there is no appearance of a violation of the applicant’s rights.

Consequently, this complaint should be dismissed as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

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

The applicant claimed 920,702 euros (EUR) in respect of pecuniary damage, representing the market value of the nationalised property as established by a property expert in 2007, plus an increase in value of 30%.

He further claimed EUR 72,000 in respect of non-pecuniary damage.

The Government contested the applicant’s claim.

With regard to the pecuniary damage alleged, the Government submitted that in the absence of a violation of the applicant’s rights and taking into account the administrative authorities’ intention to award the applicant a new plot of land, the claim for pecuniary damage must be dismissed in its entirety. Besides, there was no causal link between the damages claimed and the alleged violations of the Convention. The Government stressed that the applicant could not require from the State more than the latter had assumed in the restitution laws concerning the form and size of compensation.

As to the non-pecuniary damage claimed by the applicant, the Government argued that it was excessive and unsubstantiated. In their view, the finding of a violation would constitute sufficient just satisfaction.

In the circumstances of the case, as concerns the claim for pecuniary damage arising from the authorities’ failure to enforce the court judgment, the Court considers that the question of the application of Article 41 is not ready for decision. Seeing that the Government did not contest, in principle, its obligation to transfer to the applicant a new plot of land, the Court takes note of the possibility of an agreement between the respondent State and the applicant (Rule 75 § 1 of the Rules of Court). Accordingly, the Court reserves this question and invites the Government and the applicant to notify it, within six months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, of any agreement that they may reach.

On the other hand, the Court considers that the applicant suffered distress and frustration in view of the violations it has found of Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention resulting from the continuous inability to have his property rights restored. However, it finds the amount claimed by the applicant excessive. Making its assessment on an equitable basis, the Court awards the applicant EUR 7,800 in respect of non-pecuniary damage, plus any tax that may be chargeable on this amount.

B. Costs and expenses

The applicant also claimed EUR 10,299 for the costs and expenses incurred before the domestic courts and EUR 11,313 for those incurred before the Court.

The Government contested the claim on the basis that the sums indicated were excessive and not properly substantiated.

According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. However, they cannot be awarded in full as the Court has dismissed the applicants’ complaints in part. Regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 8,770, covering costs under all heads.

C. Default interest

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 the complaints concerning non-enforcement of the court decision of 27 November 2001 and non-restitution of the applicant’s property rights in respect of the plot of land admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;

4. Holds that, the question of the application of Article 41 is not ready for decision in so far as pecuniary damage resulting from the violations found in the present case is concerned and accordingly,

(a) reserves the said question;

(b) invites the Government and the applicant to notify the Court, within six months from the date of which the judgment becomes final in accordance with Article 44 § 2 of the Convention, of any agreement that they may reach;

5. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Lithuanian litas at the rate applicable at the date of settlement:

(i) EUR 7,800 (seven thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 8,770 (eight thousand seven hundred and seventy euros), plus any tax that may be chargeable to the applicant, 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;

6. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 10 December 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley Naismith Guido Raimondi
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> NEKVEDAVICIUS v. LITHUANIA - 1471/05 - Chamber Judgment [2013] ECHR 1257 (10 December 2013) URL: http://www.bailii.org/eu/cases/ECHR/2013/1257.html Cite as: [2013] ECHR 1257