PODER AND OTHERS v. ESTONIA
Inadmissible
Nicolas Bratza
The applicants, Mr Oskar Põder, Ms Ene Mölder and Ms Maie Raag, are Estonian nationals who were born in 1910, 1943 and 1947 respectively. On 12 August 2002 Mr Põder died and his daughter, Ms Tiiu Kasvand, pursued the application on his behalf. Ms Kasvand and Ms Raag live in Tallinn. Ms Mölder lives in Tartu. The applicants were represented before the Court by Mr H. Vallikivi, a lawyer practising in Tallinn. The respondent Government were represented by Mrs M. Hion, Director of the Human Rights Division of the Legal Department of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 8 October 1991 Mr Põder lodged an application with the Valga County Government (Valga Maavalitsus) for restitution of his family's property, which had been nationalised in 1947 and allocated by the authorities to a third person free of charge since 1970. The property consisted of farmland, a house and farm buildings. By a decision of the Valga County Commission for the Return and Compensation of Unlawfully Expropriated Property (Õigusvastaselt võõrandatud vara tagastamise ja kompenseerimise Valga maakonna komisjon) of 5 May 1994, all three applicants were recognised as the persons entitled to the nationalised property under the property reform legislation. On 9 April 1996 the Õru District Administration (Õru Vallavalitus), relying on section 12(8)(2) of the Property Reform (Principles) Act (Omandireformi aluste seadus), decided not to return the property to the applicants on the ground that it had lost its former distinct character (that is, the form or size of the property, as assessed according to the criteria established by law, had changed significantly). On 28 February 1997 the District Administration decided to award the applicants compensation in respect of the property. The applicants appealed against both of these decisions to the Valga County Court (Valga Maakohus). By a judgment of 23 February 1998, the County Court declared the decision of the Õru District Administration of 9 April 1996 unlawful, finding that the condition of the property had been incorrectly assessed. The judgment was upheld by the Tartu Court of Appeal (Tartu Ringkonnakohus) on 22 June 1998. The courts left unexamined the applicants' complaint concerning the decision on compensation of 28 February 1997 as the complaint did not meet the formal requirements. On 25 August 1998 the Õru District Administration gave a new decision refusing to return the property to the applicants. That decision was also declared unlawful, mainly for lack of reasoning, by the Valga County Court and the Tartu Court of Appeal on 11 June 1999 and 24 September 1999 respectively. The courts also declared unlawful the compensation decision of 28 February 1997, as it had been made on the basis of the unlawful decision of 9 April 1996 to refuse restitution. By a decision of 25 January 2000, the Õru District Administration refused to return the nationalised property to the applicants on the ground that the property was in the possession of a third person who had acquired it in good faith. In particular, that person had not persecuted the applicants or expropriated their property. The District A dministration based its decision on an amended version of section 12(3)(3) of the Property Reform (Principles) Act, which had come into force on 2 March 1997. The applicants lodged a complaint against the decision submitting, inter alia, that, under section 12(3)(3) of the Property Reform (Principles) Act in the version in force until 2 March 1997, a person who had obtained expropriated property free of charge could not be regarded as the bona fide owner of the property. They had lodged an application for restitution at the time when that Act was in force and therefore had a legitimate expectation that their application would be decided according to that Act. By a judgment of 24 April 2000, the Võru County Court (Võru Maakohus) dismissed the applicants' complaint. The judgment was upheld by the Tartu Court of Appeal on 6 September 2000. The Supreme Court (Riigikohus), which initially refused the applicants leave to lodge an appeal with it, subsequently granted them leave and, on 11 June 2001, rendered a judgment upholding the Court of Appeal's judgment. In its judgment the Supreme Court reiterated that one of the purposes of the property reform was to undo the injustices caused by violations of property rights in the past. At the same time, the restitution of property or the payment of compensation to former owners should not prejudice the lawful interests of other persons or cause new injustices. The deprivation of property of new owners who had received it free of charge would create such an injustice. Expropriated property had often been preserved thanks to the efforts of new owners. The provisions of section 12(3)(3) of the Property Reform (Principles) Act, as they had existed until 2 March 1997, were unjust and offered no protection to new owners of unlawfully expropriated property. The applicants could not reasonably expect that the law would not change. Their expectation that their restitution claim would be decided in accordance with the former law did not outweigh the right of the current owner to the protection of his property and his legitimate expectation that he would not be deprived of his lawfully obtained possessions. The applicants were, however, entitled to claim compensation for property which could not be returned to them. In the meantime, on 28 November 2000 the Õru District Administration decided to award compensation to the applicants in respect of the nationalised property in the form of “privatisation vouchers” to the nominal value of 63,150 Estonian kroons (EEK) for Mr Põder and to the nominal value of EEK 31,575 each for Ms Raag and Ms Mölder. The Government informed the Court that the applicants had received the compensation. There is no indication that the applicants appealed against the size of the award. B. Relevant domestic law The Property Reform (Principles) Act came into force in 1991. It subsequently underwent various substantial amendments. Section 12(3)(3) of the Act in its original wording provided that unlawfully expropriated property was not subject to return if “the property [was] in the possession of a natural person who [had] acquired it in good faith”. Section 12(3)(3) of the Act as in force from 21 June 1993 to 2 March 1997 provided that unlawfully expropriated property was not subject to return if “the property [was] in the possession of a natural person who [had] acquired it in good faith; a person who [had] obtained the property free of charge by a decision of a State authority or who [had] participated in the persecution of the owner of the property or in its unlawful expropriation [could] not be regarded as a bona fide owner”. On 2 March 1997 a further relevant amendment to the Act came into force. Under the new text of section 12(3)(3), unlawfully expropriated property was not subject to return if “the property [was] in the possession of a natural person who [had] acquired it in good faith; above all, a person who [had] participated in the persecution of the owner of the property or in its unlawful expropriation [could] not be regarded as a bona fide owner”. Section 13(1) of the Property Reform (Principles) Act stipulated that if unlawfully expropriated property could not be returned on the basis of section 12 of the Act, the State would pay compensation in respect of the property according to the procedure provided for by law. In accordance with the Regulation on the procedure for the restoration of unlawfully expropriated property enacted by the government on 5 February 1993, as amended, the restitution of property rights was carried out in three stages: (1) the establishment of the unlawfulness of the expropriation and the determination of the persons entitled to restitution of their property rights; (2) the decision as to whether the property was to be returned; (3) the transfer of the property to the eligible persons. The Regulation on the procedure for determining compensation in respect of unlawfully expropriated property enacted by the government on 13 July 1993, as amended, provided that the compensation procedure was initiated where the eligible person had requested compensation, the property in question had been destroyed, or the law did not provide for the return of the property concerned. C. The Estonian reservation in respect of Article 1 of Protocol No. 1 The instrument of ratification of the Convention deposited by the Estonian government on 16 April 1996 contains the following reservation: “In accordance with Article 64 of the Convention, the Republic of Estonia declares that the provisions of Article 1 of the First Protocol shall not apply to the laws on property reform which regulate the restoration or compensation of property nationalised, confiscated, requisitioned, collectivised or otherwise unlawfully expropriated during the period of Soviet annexation; the restructuring of collectivised agriculture and privatisation of state owned property. The reservation concerns the Property Reform (Principles) Act (published in Riigi Teataja [Official Gazette] 1991, 21, 257; RT I 1994, 38, 617; 40, 653; 51, 859; 94, 1609), the Land Reform Act (RT 1991, 34, 426; RT I 1995, 10, 113), the Agricultural Reform Act (RT 1992, 10, 143; 36, 474; RT I 1994, 52, 880), the Privatisation Act (RT I 1993, 45, 639; 1994, 50, 846; 79, 1329; 83, 1448; 1995, 22, 327; 54, 881; 57, 979), the Dwelling Rooms Privatisation Act (RT I 1993, 23, 411; 1995, 44, 671; 57, 979; 1996, 2, 28), the Act on Evaluation and Compensation of Unlawfully Expropriated Property (RT I 1993, 30, 509; 1994, 8, 106; 51, 859; 54, 905; 1995, 29, 357), the Act on Evaluation of Collectivised Property (RT I 1993, 7, 104) and their wording being in force at the moment the Ratification Act entered into force.”