CASE OF PALEVIČIŪTĖ AND DZIDZEVIČIENĖ v. LITHUANIA
No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Vincent A. De Gaetano
5. The applicants are sisters, who were born in 1949 and 1950 respectively and live in Vilnius and Varėna. 6. On 23 May 1996 the national authorities issued a decision to restore the applicants’ father’s property rights in respect of a plot of land measuring 9.87 hectares. His property rights were registered on 6 June 1996. 7. Following their father’s death on 23 December 1995, the applicants were issued with a certificate of inheritance on 27 June 1996 and inherited his property in equal parts. Two plots of land measuring 8.93 hectares and 0.94 hectares respectively were returned to them in natura. These plots were marked out in October 1995, but an engineer did not indicate in the plan that there was a house situated on the plot of land of 8.93 hectares that did not belong to the applicants. 8. On 5 July 2001 J.P. bought a house and a storehouse. The cadastral measurements of the house were taken in September 1992, and the building was classified as residential. The plot of land under the house and for residential purposes measured 0.5204 hectares, and although J.P. did not buy the land on which the house stood, he used it. On 4 August 2005 A.P., who was J.P.’s mother, had her property rights restored, and transferred her plot of land of 0.51 hectares to the place where J.P.’s house was located. J.P., as A.P.’s heir, asked for the plot of land of 0.51 hectares to be entered into the land registry in his name. However, his request was refused by the national authorities, because that plot overlapped the applicants’ land. 9. In June 2007 the Alytus County Administration (“the ACA”) stated that the applicants’ father’s rights had been restored in respect of the land under the buildings that did not belong to him. The ACA also explained that, if there was no dispute, the decision of 23 May 1996 (see paragraph 6 above) could be amended and the borders of one of the applicants’ plots of land could be changed as well (see paragraph 39 below). If there was a dispute, the ACA would initiate court proceedings in order to annul part of the decision of 23 May 1996. The applicants were given until 1 August 2007 to reply in writing to the ACA’s proposal. The applicants did not agree with the ACA’s proposal. 10. In December 2007 the National Land Service held that domestic law did not allow the restoration of property rights to land under buildings owned by third parties. As a result, the documents restoring the property rights of the applicants’ father had to be amended. 11. As there was a dispute, the ACA asked a prosecutor to start court proceedings. In April 2008 the prosecutor lodged a claim with the Varėna District Court and asked it to annul part of the decision of 23 May 1996 (see paragraph 6 above) restoring the property rights of the applicants’ father in respect of 0.4863 hectares of land, and the relevant part of the succession document issued to the applicants. 12. On 21 April 2009 the Varėna District Court allowed the prosecutor’s application, indicated that the part of the decision of 23 May 1996 regarding the 0.4863 hectares had to be annulled, and held that a plot of land of 0.51 hectares had to be demarcated for J.P. The applicants’ property rights would be protected by giving them an equivalent plot of land in another area. It appears that the court suggested several times that the parties conclude a friendly settlement agreement, but the applicants refused. 13. The applicants appealed. They claimed, among other things, that the prosecutor had missed the thirty-day time-limit for lodging a claim. 14. On 4 November 2009 the Vilnius Regional Court upheld the decision of the court of first instance. The court held that the prosecutor had only found out about the situation at issue on 31 March 2008, and had lodged the complaint on 30 April 2008, thus the time-limit for lodging a claim had not been missed. The court further held that the plot of land that J.P. had been using had been formed back in 2001 when the buildings had belonged to V.G., and that the applicants had signed the documents and agreed with the borders of the plot under the buildings. The court also held that the restitution of property was a matter of public interest, because it not only related to specific individuals, but to public opinion in general (formuoja visos visuomenės nuomonę). The property rights of land owners were not absolute, and in the case at issue the lawful interests of a third party had to be protected. 15. The applicants submitted an appeal on points of law, and on 19 April 2010 the Supreme Court sent the case back to the Court of Appeal for fresh examination, stating that the lower courts had not examined the factual circumstances regarding how big the plot of land had to be in order for the buildings to be used. The Supreme Court also held that the Vilnius Regional Court should assess the fact that no plot of land under the buildings had been demarcated at the time the applicants’ father’s property rights had been restored. 16. On 2 February 2011 the Vilnius Regional Court sent the case back to the court of first instance for fresh examination, stating that the substance of the case had not been examined thoroughly. The court held that one of the buildings belonging to J.P. had previously been a school building, but since 1992 it had been registered in the register of immovable property as a residential building. The court observed that some mistakes had been made in the process of restoring both J.P.’s mother’s and the applicants’ father’s property rights. The court further held that the conclusion of the Varėna District Court that J.P. was entitled to a plot of land measuring 0.51 hectares was unfounded. Although there were some buildings on the land that had been returned to the applicants’ father, the exact size of the plot necessary in order for the buildings to be used had not been determined. Moreover, although the applicants and J.P. had provided some evidence, this was insufficient to prove that the size of the plot of land under the buildings had to be 0.51 hectares. Lastly, the Vilnius Regional Court obliged the parties to the proceedings to provide documents proving how big the plot of land had to be in order for J.P.’s buildings to be used. 17. On 20 February 2012 the Varėna District Court established that J.P.’s buildings were on the plot of land measuring 0.51 hectares. The court also held that J.P. was using the exact plot which had been marked out for V.G., and the plan of the land had been signed by the applicants (see paragraph 14 above). The court considered that the person who had measured the land for the applicants had not marked the house in that area, and had not taken any actions to find out who the owner of the house was; therefore, he was the person who had made a mistake. The court noted that in fact 0.5019 hectares overlapped the applicants’ land, but as J.P. was not asking for this, only 0.4863 hectares of land had to be taken from the applicants. Lastly, although the 0.4863 hectares of land had to be taken away from the applicants, their property rights had to be protected by providing them with a new plot of land of equivalent value in another place. 18. The applicants appealed, and on 24 July 2013 the Vilnius Regional Court upheld the decision of the Varėna District Court of 20 February 2012. The court held that, although the applicants claimed that J.P.’s house was not a residential building and thus no land for residential purposes could exist, the data from the register of immovable property and the purchase agreements showed that the building was a residential building. The court also held that the applicants’ father’s property rights to the land under the buildings at issue could not have been restored, as those were not his buildings. In fact, since 1992 the relevant documents had referred to there being a plot of land of 0.5204 hectares near the buildings. 19. The applicants submitted numerous appeals on points of law, but they were dismissed by the Supreme Court on 5 September 2013, 7 and 25 October 2013 and 10 December 2013 as either not raising important legal issues or being repetitive. 20. On 27 January 2014 the National Land Service sent a letter to the applicants explaining that the legal registration in respect of their plot of land of 0.4863 hectares had been annulled following the decisions of the domestic courts, and asked them to choose the means by which they wanted their property rights in respect of the plot of land of 0.4863 hectares to be restored. The National Land Service noted that the restoration of property rights in natura was not possible. 21. In February 2014 one of the applicants wrote to the National Land Service and asked for the return of the plot of 0.4863 hectares in natura. She also claimed that J.P. was using the plot of land for residential purposes unlawfully and that she had sustained damage. 22. In March 2014 the National Land Service informed the applicant that she could start court proceedings for damages. The National Land Service also explained that the purchase agreement in respect of J.P.’s buildings was valid, and that, in accordance with the decisions of the domestic courts, J.P. was entitled to use the plot of land under the buildings. 23. In September 2014 the National Land Service replied to a request by one of the applicants in July 2014 for an explanation of the actions of the Varėna Division of the National Land Service and compensation in respect of pecuniary damage. The National Land Service stated that the applicants were aware of the court proceedings regarding the decision of 23 May 1996 to restore their father’s property rights. It also held that J.P. was entitled to buy the plot of land for residential purposes located under the buildings from the State. 24. In June 2014 J.P. was included into the list of candidates to buy a plot of land of 0.51 hectares and on 18 November 2015, after some measurements had been carried out, the plot of land of 0.5082 hectares was sold to J.P. 25. In March 2015 the National Land Service replied to a complaint by one of the applicants about the restoration of her father’s property rights. Among many other things, the applicant asked for: the process of amending the borders of their plot of land to be terminated; J.P. to be prohibited from constructing buildings and growing plants; his property to be kept on the plot of land at issue; an opportunity to buy the plot of land that had been taken from them; and an easement under J.P.’s buildings to be established. The National Land Service indicated that such a request had already been dismissed by the domestic courts (see paragraph 29 below). It was impossible to allow the applicants to buy the same plot of land that had been taken from them, because that plot of 0.4863 hectares had not belonged to their father in the first place. In addition, J.P. was not stating that he wanted an easement to be established, thus the applicant’s request in this respect was unfounded. 26. The applicants complained to a member of the Seimas, who sent their complaint to the Varėna Division of the National Land Service. The member of the Seimas asked for explanations about the procedure for restoring the applicants’ property rights and why their property rights to the 0.4863 hectares of land had not been restored. In May 2015 the Varėna Division of the National Land Service explained that the applicants’ property rights to the plot of land of 0.4863 hectares had been annulled in accordance with the decisions of the domestic courts (see paragraphs 17-19 above). In January 2014 the applicants had been asked to choose the means by which they wished their property rights in respect of the 0.4863 hectares of land to be restored (see paragraph 20 above), but they still insisted on having the land returned in natura (see paragraph 21 above), which was not possible. The Varėna Division of the National Land Service also provided detailed information about monetary compensation as a means of restoring the applicants’ property rights. The monetary compensation procedure could be started after the applicants submitted a request for their property rights to be restored by means of monetary compensation. As a preliminary estimate, the value of the plot at issue was estimated at 217 euros (EUR). 27. In June 2015 the Varėna Division of the National Land Service once again informed the applicants that returning the 0.4863 hectares of land in natura was not possible and that they could have monetary compensation. The applicants were also informed that the procedure could be started after a request to restore their property rights by means of monetary compensation was received by the authorities (see paragraph 42 below). The preliminary estimate as to the value of the plot was also indicated as being EUR 217. It appears that the applicants did not reply to this letter, nor did they submit a request for monetary compensation, but the National Land Service calculated the compensation at EUR 433 after having adjusted it in line with the inflation index, and on 12 July 2017 invited the applicants to come and discuss the restoration of their property rights. The meeting was adjourned once until 25 July 2017 because the applicants’ lawyer had holidays planned. On 24 July 2017 the applicants’ lawyer asked to adjourn the meeting again because one of the applicants was ill, but she did not provide any documents confirming this. The National Land Service decided to hold a meeting as planned on 25 July 2017, and issued a decision to restore the applicants’ property rights to the 0.4863 hectares of land by paying them monetary compensation of EUR 433.60. One of the applicants collected the decision on 8 September 2017. The decision was not appealed against. 28. In 2010 one of the applicants asked a prosecutor to start a pre-trial investigation into J.P.’s actions. According to her, J.P. was using land to which he had no rights. In November 2010 the prosecutor decided to terminate the pre-trial investigation, as there was no evidence of a criminal act. That decision was upheld by a higher prosecutor in December 2010 and by the Varėna District Court and the Vilnius Regional Court in January 2011. 29. In 2011 the applicants asked for interim measures to be applied and for J.P. to be prohibited from constructing buildings, temporary constructions and roads, and from growing plants and farming on the plot of land at issue. Their application was dismissed by the Varėna District Court and Vilnius Regional Court in May 2011 and November 2011 respectively. 30. On an unspecified date one of the applicants started court proceedings regarding the cadastral measurements of the land. The applicant also claimed that J.P. had acquired his building unlawfully and that he had been using her land without any legal grounds. On 6 May 2014 the Kaunas Regional Administrative Court held that the applicant’s allegations had already been rejected by the decision of the Varėna District Court of 20 February 2012 (see paragraph 17 above). The court also stated that the cadastral plan proposed by the applicant was not approved, because she had included J.P.’s land on it and marked it as hers. As a result, the applicant’s complaint was dismissed. 31. In 2015 the applicants initiated civil proceedings regarding the change of purpose of one of the buildings belonging to J.P. They claimed that J.P.’s house had previously been a school, and thus its purpose was communal and not residential. In November 2015 the Varėna District Court dismissed their claim. In April 2016 the Kaunas Regional Court upheld the first-instance decision, and in July and August 2016 the Supreme Court dismissed appeals by the applicants on points of law.