CASE OF ARBAČIAUSKIENĖ v. LITHUANIA
Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)
András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
5. The applicant was born in 1957 and lives in Buivydiškės, Vilnius Region. 6. In 1991 the Lithuanian Parliament enacted the Law on Land Reform which provided that residents of rural areas had the right to acquire land for individual farming (asmeninio ūkio žemė) from the State, in accordance with the requirements set out in the relevant legal instruments (see “Relevant domestic law” below). 7. On 2 May 1992 the applicant’s husband submitted a request to the Zujūnai District Land Council of the Vilnius Region to buy from the State two hectares of land for individual farming in the village of Zujūnai. 8. On 29 October 1993 the Government adopted a decision establishing, inter alia, the order of allocation of land for individual farming. The decision instructed regional and municipal authorities to delimit plots of land to be assigned for individual farming and to prepare the necessary documents for their allocation to individual claimants. 9. On 17 October 1994, in court proceedings instituted by the Government, the Vilnius Region District Court ordered the Buivydiškės District Council of the Vilnius Region to implement the aforementioned decision of the Government. 10. On 16 March 1995 the Buivydiškės District Council adopted a decision on the allocation of 1,520 hectares of land for individual farming in the Vilnius Region. The decision provided a list of individuals who were entitled to buy plots of land from the State. It indicated the amount of land to which each listed individual was entitled but did not specify actual plots. The applicant was included in that list and entitled to buy two hectares of land. 11. On 20 June 1995 the Convention entered into force in respect of Lithuania. 12. On 25 September 2000 the Vilnius County Administration (hereinafter “the VCA”) approved the land allocation plan (žemės reformos žemėtvarkos projektas) for the Buivydiškės cadastral area (this area comprised several villages in the Vilnius Region). The VCA approved the delimitation of plots of land in that territory (patvirtino suformuotų žemės sklypų plotus bei ribas) and instructed Matininkai, a surveyor company, to prepare the necessary documents in order to allocate the plots to individual claimants and to formalise their rights of land ownership or use. 13. In January 2001 the applicant and her husband submitted a request to the VCA to consider as valid their previous request of 2 May 1992 (see paragraph 7 above) and to allocate a plot of land in the village of Zujūnai to them, for the nominal price of 1,884 Lithuanian litai (LTL, approximately 546 euros (EUR)). 14. On 28 January 2002 the VCA approved a list of individuals who were using land for individual farming in the Buivydiškės cadastral area. The applicant was included on the list as using two hectares of land in the village of Buivydiškės. However, as submitted by the applicant and not disputed by the Government, the applicant had not been using this land since no land had been provided to her at that time. 15. In June 2002 the VCA decided that it was necessary to amend the land allocation plan of the Buivydiškės cadastral area in order to take into account requests for restitution in natura which had been submitted in respect of land there. It ordered Matininkai to amend the delimitation and allocation of plots accordingly and to prepare all the necessary documents by 15 October 2002. 16. In July 2002, April 2004, April and November 2006 and February 2007 the applicant and her husband petitioned the VCA and the National Land Service (hereinafter “the NLS”), stating that they had still not received the land to which they were entitled, and requesting that such land be provided to them without further delay. They were informed that the preparation of the land allocation plan in the area was ongoing. 17. In 2006 the applicant and her husband lodged a claim against the VCA before the Vilnius Regional Administrative Court. They complained that the two hectares of land assigned to them in 1995 had still not been provided, that they had been unable to receive any information from the VCA about the ongoing land reform in the Vilnius Region, and that they had not been given the opportunity to participate in the planning of the reform, unlike other residents of the region. They requested that the court oblige the VCA to enforce the decision of the Buivydiškės District Council of 16 March 1995 (see paragraph 10 above) without further delay. 18. On 13 October 2006 the Vilnius Regional Administrative Court dismissed the claim. However, on 5 May 2007 the Supreme Administrative Court upheld the applicant’s appeal and annulled the judgment of the first-instance court. The Supreme Administrative Court noted that the applicant had been entitled to buy two hectares of land by the decision of 16 March 1995 and that she had been included on the list of land users in January 2002 (see paragraphs 10 and 14 above), so on these grounds the VCA was obliged to allocate a specific plot of land to the applicant. The court ordered the VCA to carry out the necessary administrative procedures to identify and delimit a plot of land for the applicant (atlikti administracines procedūras, susijusias su žemės sklypo suprojektavimu bei jo ribų nustatymu). However, the Supreme Administrative Court denied the applicant’s request to set a precise deadline for the VCA to carry out said actions, noting that no such deadlines were provided in the legislation and that there was no objective possibility to do so due to the complexity of the land reform. 19. In May and June 2007 the bailiff in charge of the enforcement of the Supreme Administrative Court’s judgment submitted several notices to the VCA, urging it to enforce the judgment immediately. 20. On 5 June 2007 the VCA approved an amended land allocation plan of the Buivydiškės cadastral area. It ordered Arlitanus, a surveyor company, to mark the delimited plots (paženklinti vietoje) and to prepare the necessary documents for formalising individual rights of ownership or use. 21. In June and July 2007 the applicant and her husband submitted several requests to the VCA and the NLS, inquiring about the enforcement of the judgment of 5 May 2007 and requesting information about the implementation of the land reform in the Buivydiškės cadastral area. 22. On 26 July 2007 the VCA informed the applicant that it had instructed Arlitanus to identify a specific plot of two hectares for the applicant from the stock of available State land by 1 August 2007. 23. In August and October 2007 the applicant submitted complaints to the VCA concerning the continuing non-enforcement of the Supreme Administrative Court’s judgment. She did not receive any response. 24. In August 2007 the applicant asked the Supreme Administrative Court to clarify its judgment of 5 May 2007 and to set a concrete deadline for the VCA to enforce it. However, the court denied the applicant’s request, noting that it was not authorised to clarify its previous judgments in a way that would alter their content. 25. In October 2007 the VCA again amended the land allocation plan of the Buivydiškės cadastral area and instructed Arlitanus to complete the planning by 1 March 2008. 26. In November 2007 the applicant submitted two requests to the VCA, asking to be provided with a plot of land by the end of the year and requesting information as to whether she had been included in the amended land allocation plan as a candidate to receive land. The following month the VCA informed the applicant that the planning in the Buivydiškės cadastral area had to be completed by 1 March 2008 and that the applicant would be included as a candidate of the seventh priority rank to receive land there. 27. In December 2007 the NLS urged the VCA to examine why the list of candidates to receive land in the Buivydiškės cadastral area had not been compiled in time with a view to ensuring the enforcement of the Supreme Administrative Court’s judgment of 5 May 2007. 28. In April 2008 the VCA again amended the land allocation plan in the Buivydiškės cadastral area. It instructed Arlitanus to complete the list of candidates to receive land in that territory by 30 May 2008 and to complete the planning by 1 December 2008. 29. That same month the applicant and her husband requested that the Supreme Administrative Court order interim measures against the VCA to prevent it from distributing land in the Buivydiškės cadastral area to candidates of the eighth and lower priority ranks. The court dismissed their request, noting that interim measures could only be ordered before the court’s judgment is adopted, while after its adoption the VCA was already under an obligation to enforce the judgment and thus interim measures were unnecessary. 30. On 30 May 2008 the Supreme Administrative Court granted the applicant’s request and clarified its judgment of 5 May 2007. The court held that the VCA was under the obligation to include the applicant on the list of candidates to be provided with land in the Buivydiškės cadastral area by 30 June 2008 and to carry out the remaining administrative procedures necessary for the allocation of a specific plot of land of two hectares to the applicant within three months of the completion of the land allocation plan of the Buivydiškės cadastral area. 31. In August 2008 the applicant asked the VCA to inform her whether the Supreme Administrative Court’s judgment of 30 May 2008 had been enforced. She also requested that they provide her with the list of candidates to receive land in the Buivydiškės cadastral area. She did not receive any response. 32. In October 2008 the VCA approved the amended land allocation plan of the Buivydiškės cadastral area and the list of candidates to receive plots of land in that territory. The applicant was not included on that list. 33. Later that month the VCA approved the list of individuals in the eldership (seniūnija) of Zujūnai who were not using the land which had been assigned to them for individual farming. The list indicated that the applicant had been assigned two hectares of land and that she had not been using them. As submitted by the Government, the purpose of that list was to determine the location of the plots to be allocated – those individuals who were not using any specific land would be provided with plots from the State stock of vacant land. 34. In December 2008 the VCA informed the applicant and her husband that the land allocation plan of the Buivydiškės cadastral area was again being amended, and that the list of candidates to receive land in that territory would be compiled after the completion of the planning when the available land has been identified. The VCA noted that the applicant had been included in the preliminary list as a candidate of the seventh priority rank. 35. In March 2009 the bailiff urged the VCA to immediately enforce the Supreme Administrative Court’s judgment of 30 May 2008. In May 2009 the bailiff concluded that the judgment had not been enforced. In July 2009 the Vilnius City First District Court satisfied the bailiff’s request and ordered the VCA to pay a fine of LTL 400 (EUR 115) for non-enforcement of the court’s judgment, as well as to enforce that judgment within three months. However, in December 2009 the Vilnius Regional Court annulled the first-instance decision, noting that the VCA had already included the applicant on the list of candidates to receive a plot of land (see paragraph 36 below), which meant that the judgment of the Supreme Administrative Court had been partly enforced and thus there were no grounds to order a fine. 36. On 9 August 2009 the VCA approved the list of candidates to receive land in the eldership of Zujūnai, in the Buivydiškės cadastral area. The applicant was included in this list as a candidate of the seventh priority rank. 37. The VCA further amended the land allocation plan in the Buivydiškės cadastral area several times in May to July 2009 and February to June 2010, setting new deadlines for the surveyor company to complete the planning. 38. In June 2010 the bailiff asked the VCA to provide information as to whether the land allocation plan had been completed and whether the necessary administrative procedures had been carried out to provide the applicant with a plot of two hectares. In October 2010 the bailiff declared that the Supreme Administrative Court’s judgment had not been enforced and decided to discontinue the enforcement proceedings. The applicant appealed against the bailiff’s decision and in March 2011 the Vilnius City First District Court allowed the appeal and ordered the bailiff to continue the enforcement. That judgment was subsequently upheld by the Vilnius Regional Court. 39. In July 2010, after an administrative reform, the VCA was abolished and its obligations were transferred to the NLS. 40. In November 2010, during a meeting between Arlitanus and candidates of the seventh priority rank, the applicant was offered two plots of land, amounting to a total of two hectares. She accepted the offer. 41. In June 2012 the NLS approved the plan of the Buivydiškės cadastral area prepared by Arlitanus, which delimited plots of land to be allocated to candidates of the first-to-fourth priority ranks. 42. On 20 May 2013 the NLS held a meeting of candidates of the seventh priority rank. The applicant was offered four plots of land (different from the two which had been previously offered to her – see paragraph 40 above) amounting to a total of two hectares. She confirmed that she was aware of any applicable restrictions on the use of those plots and agreed to the offer. 43. On the same day the applicant submitted a complaint to the NLS, stating that the four plots offered to her were too far from her home, that they could not be reached by road and that they were swampland (užpelkėję), and therefore unsuitable for farming. She requested that the NLS give her the plots of land which were offered to her in November 2010 (see paragraph 40 above) or other plots of equivalent quality. However, a few days later the applicant notified the NLS that she would accept the four offered plots. 44. On 31 December 2014 the NLS approved the land allocation plan of the Buivydiškės cadastral area and a list of over twenty individuals who had been allocated specific plots of land. The list indicated that the applicant had been assigned the four plots of land offered to her on 20 May 2013 (see paragraphs 42 and 43 above). 45. In April 2015 the State Land Fund identified that one of the four plots assigned to the applicant included 0.55 hectares of forestland. As a result, that part of the plot could not be transferred to the applicant and had to be returned to the State. 46. That same month the State Land Fund assessed the value of the four plots (after excluding the 0.55 hectares of forestland). It calculated that their total nominal value, assessed in accordance with the Rules of Land Valuation adopted by the Government in 1999 (see “Relevant domestic law” below), was EUR 627, whereas their total market value was EUR 20,410. 47. In May 2015 the NLS informed the applicant that the preliminary market value of the four plots was EUR 26,740, and that she would subsequently be informed of the final price. 48. In June 2015 the NLS amended the land allocation plan for the eldership of Zujūnai, indicating that the total area which had been allocated to the applicant amounted to 1.45 hectares. 49. In September 2015 the NLS informed the applicant that she had to pay a fee of EUR 157 for registering the four plots in the property register, and that that fee would be subsequently refunded to her in the price of the land. 50. In October 2015 the Government informed the Court that the NLS had identified the remaining vacant State land in the Buivydiškės cadastral area and that the applicant would be included as a candidate to receive 0.55 hectares of farmland in a future land plan. In November 2015 the Government further informed the Court that the NLS had prepared draft agreements to enable the applicant to purchase the aforementioned four plots amounting to 1.45 hectares. 51. In July 2007 the applicant and her husband submitted a complaint against the VCA to the Vilnius Regional Commission of Administrative Disputes (hereinafter – “the Commission”). They complained that they had not received any response to their repeated requests for information, sent in June and July 2007 (see paragraph 21 above). The Commission partly upheld the complaint and ordered the VCA to respond within five days to two requests submitted in June 2007. 52. On 25 September 2007 the applicant and her husband submitted a complaint to the Vilnius Regional Administrative Court, requesting that it order the VCA to comply with the Commission’s decision. They also claimed non-pecuniary damages resulting from the VCA’s deliberate refusal to fulfil its obligations. 53. On 12 December 2007 the Vilnius Regional Administrative Court dismissed the complaint. However, on 20 November 2008 the Supreme Administrative Court quashed the first-instance judgment and ordered the VCA to provide the applicant and her husband with a satisfactory response to their request of June 2007. The court also noted that the applicant and her husband had repeatedly asked the VCA for information about the implementation of the land reform and about the plot assigned to them, that they had petitioned several State institutions (see paragraphs 54-57 below), and that the lengthy non-enforcement of the Supreme Administrative Court’s judgment of 5 May 2007, as well as the VCA’s evasiveness concerning their requests, had caused them inconvenience and negative feelings. Thus, the court awarded the applicant and her husband non-pecuniary damages of LTL 1,500 (EUR 430) each. 54. In April 2006 the applicant and her husband submitted a complaint to the Parliamentary Ombudsperson, stating that they still had not been given the land assigned to them in 1995. In June 2007 the Ombudsperson concluded that the complaint was well-founded, and recommended the Ministry of Agriculture provide assistance to the VCA in enforcing the decision of the Buivydiškės District Council of 16 March 1995. 55. In November 2007 the applicant’s husband again petitioned the Ombudsperson, stating that her previous recommendation had not been implemented. He noted that the Ministry of Agriculture had passed on the Ombudsperson’s conclusion to the NLS, but the latter institution had stated that it was not allowed to influence the decisions of county administrations. The applicant’s husband also complained that he and the applicant still had not been included on the list of candidates to receive land in the Buivydiškės cadastral area and that the land in that territory was being distributed to candidates of lower priority ranks. 56. That same month a group of residents of Buivydiškės, including the applicant’s husband, submitted a complaint to the parliamentary subcommittee on the rule of law, complaining about the actions of the VCA in the implementation of the land reform. The residents claimed that the only individuals who had received land in the Buivydiškės cadastral area had been employees of local institutions and that the land was not being distributed in compliance with the approved priority ranks. 57. Later that month the applicant’s husband also petitioned the Ministry of Agriculture, asking what assistance had been provided to the VCA following the Parliamentary Ombudsperson’s recommendation (see paragraph 54 above). 58. In August 2007 the applicant and her husband requested that the police of the Vilnius Region launch a criminal investigation into the actions of the VCA. They alleged that the VCA had deliberately refused to enforce the Supreme Administrative Court’s judgment of 5 May 2007 (piktybiškai nevykdė teismo sprendimo), in violation of Articles 228, 229 and 294 of the Criminal Code, and that the land in the Buivydiškės cadastral area had been distributed to civil servants working at the VCA and its subordinate institutions, contrary to approved land allocation plans. 59. Subsequently the applicant and her husband requested that the district prosecutor of the Vilnius Region suspend any further actions of the VCA concerning the allocation of land in the Buivydiškės cadastral area, but their request was denied. 60. In December 2007 the district prosecutor of the Vilnius Region decided to discontinue the criminal investigation into the VCA, concluding that no crime had been committed. The applicant and her husband appealed against that decision. The Prosecutor General satisfied their appeal and ordered a different prosecutor in the Vilnius Region to continue the investigation. 61. In March and April 2008 the applicant and her husband submitted written testimonies to the district prosecutor and were recognised as victims. 62. In June 2009 the district prosecutor decided to discontinue the criminal investigation against the VCA on the grounds that no crime had been committed. The prosecutor held that the land reform in the Buivydiškės cadastral area had been prolonged due to reasons outside the control of the VCA, such as requests of former owners of land to receive restitution in natura. The decision also stated that the preparation of the land plan was ongoing and the applicant had been included in the preliminary list of candidates. Lastly, the prosecutor did not find any evidence that the land had been unlawfully distributed to candidates of lower priority ranks.