CASE OF VALANČIENĖ 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;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
5. The applicant was born in 1940 and lives in Plungė. 6. The father of the applicant’s husband owned 9.24 hectares of land in Telšiai region. This plot was nationalised in 1940. 7. In 1991 the brother of the applicant’s husband applied to the national authorities for the land to be returned to him and his brothers. In 1993 the three brothers signed an agreement and decided to divide their father’s plot of land into three equal parts of 3.08 hectares and V.V., the applicant’s husband, asked for the return of his plot of land in natura. 8. In November 1999 V.V. participated in a meeting at the Plungė District Land Service of the Telšiai County Administration (hereinafter “the Plungė District Land Service”), where he was informed that all of his father’s land was already being used by others and could not be returned to him in natura. He was offered either monetary compensation, the restoration of his property rights in another cadastral area or a plot of land of equivalent value. V.V. did not agree to any of those offers. 9. In January 2000 the the Plungė District Land Service asked V.V. to choose the form of restitution of his property rights. V.V. replied that he had already chosen the form of restitution in 1991, which was restitution in natura. 10. In April 2002 a meeting was held at the Plungė District Land Service, where V.V. again refused to choose a different form of restitution. V.V. was also offered two plots of land of 2.5 and 0.5 hectares. He stated that he would have to think about the offer and would inform the authorities before 1 May 2002. 11. During a meeting at the Plungė District Land Service in May 2002, V.V. said that he had not been offered any other forms of restitution in writing but acknowledged that the matter had been discussed orally. During a meeting in June 2002, V.V. reiterated his wish to receive the land in natura and when he was asked to choose another form of restitution, he said that he would think about it. 12. In July 2003 the Plungė District Land Service informed V.V. that because it was impossible to restore his property rights in natura, he had to choose either a plot of land or forest of equivalent value, monetary compensation or compensation in Government bonds. V.V. was also informed that if a form of restitution was not chosen, the property rights would be restored in the form determined by the authorities. 13. In November 2003 V.V. was invited to participate in a meeting at the the Plungė District Land Service, concerning the territorial plan of the area and the choice of the form of restitution. V.V. did not take part in the meeting. 14. In May 2005 V.V. asked the authorities whether and when he would be paid damages for the failure to restore his property rights in natura or to provide him with a plot of land of equivalent value. He also suggested that the Lithuanian authorities find out what “a plot of land of equivalent value” meant because the plots offered to him had not been of equivalent value („ir būtų gerai, kad žemėtvarkininkai išsiaiškintų žodžio „lygiavertis“ prasmę ir nesiūlytų įstatymo nuostatų neatitinkančių variantų“). In June 2005 the Plungė District Land Service asked V.V. to submit a written request to obtain a plot of land of equivalent value so that the authorities could prepare a document on the transfer of the land. V.V. replied that he had never been offered any plots of land of equivalent value and would only accept the restoration of his property rights in natura or a plot of land that was truly of equivalent value. V.V. also again refused the plots of land offered to him, stating that they were not of equivalent value. In July 2005 the authorities asked V.V. to choose a form of compensation for the land. He again replied that he had chosen that the land be returned to him in natura in 1991. In August 2005 V.V. reminded the authorities that he wanted the land to be returned in natura or to receive a plot of land of equivalent value. 15. In October 2005 V.V.’s representative participated in a meeting at the Plungė District Land Service, where she was asked to inform the authorities which land V.V. wanted in order to restore his property rights. Two plots of land were shown to the representative and the next day she replied that she refused to accept them. In November 2005 she was informed that because V.V. and she had refused to accept the plots of land, she had to inform the authorities before 1 December 2005 whether V.V. wanted monetary compensation or compensation in Government bonds as the form of restitution. She was also informed that if no response was received, the authorities would choose the form of restitution themselves. 16. On 14 November 2005 V.V. died and the applicant became his heir. In April 2006 the Plungė District Land Service informed the applicant that she had to submit a written request to the authorities for the preparation of a document on the transfer of land and to actively choose a plot of land. The applicant replied that she would not submit any request if the land was not returned to her in natura or a plot of equivalent value was not provided. 17. In October 2006 the applicant sent two letters to the Plungė District Land Service and stated that she would accept a plot of land of equivalent value if such a plot was given to her and a preliminary agreement was prepared on the transfer of such a plot. She also refused to agree to a document on the transfer of land and repeatedly asked to have her property rights restored in natura or to be provided with a plot of land of equal value. 18. In November 2006 the Plungė District Land Service informed the applicant about the procedure for the assessment of the value of land and the calculation methods used, and asked the applicant to agree with the assessment. In December 2006 the Plungė District Land Service informed the applicant that in order to provide her with a plot of land, the authorities had to prepare a document on the transfer of land. The Plungė District Land Service also observed that there was no possibility to conclude the preliminary agreement requested by the applicant because it was not provided for in the domestic law. The Plungė District Land Service repeated that the document on a transfer of the land had already been prepared and the applicant had to sign it and indicate the area where she would like to receive a plot of land of equivalent value. In February 2007 the Plungė District Land Service informed the applicant about the procedure for restitution and reiterated that the applicant had to sign the document on the transfer of land. In May 2007 the applicant asked the authorities when the issue of the restoration of V.V.’s property rights in natura or by providing her a plot of land of equivalent value would be dealt with. In June and July 2007 the Plungė District Land Service repeatedly informed the applicant that she had to sign the document. The Plungė District Land Service also informed the applicant that it was not possible to provide her with the plot of land first. In response, the applicant stated that she would sign the land transfer document after she had been shown a plot of equivalent value. 19. In August 2007 during a meeting at the Plungė District Land Service it had been decided to include V.V.’s request to restore his property rights into the preparation of an additional territorial plan of the area. In November 2007 the Plungė District Land Service established that because the applicant had refused to clearly indicate the form of restitution, she would be paid monetary compensation for the land. It gave the applicant ten working days to change the suggested form of restitution. 20. The applicant repeatedly did not choose the form of restitution for the land by the time indicated by the authorities, which is by 7 May 2008, and on 13 May 2008 a decision was taken to restore V.V.’s property rights by paying monetary compensation of 3,437 Lithuanian litai (LTL, approximately 995 euros (EUR)). The compensation was then adjusted (indeksuota) and the final sum to be paid was LTL 5,499 (approximately EUR 1,593). The national authorities indicated V.V. as the person to whom the compensation had to be paid. The applicant was sent the decision on 28 May 2008. In their observations, the Government provided a document to the Court, indicating that the compensation had been paid on 2 December 2008 and 31 December 2008. 21. In June 2008 the applicant started court proceedings. She asked the court to annul the authorities’ decision of 13 May 2008 to restore V.V.’s property rights by paying him monetary compensation and to pay her LTL 3,000 (approximately EUR 869) in respect of pecuniary and nonpecuniary damage. She stated that she wanted the land to be returned in natura or to be provided with a plot of land of equivalent value and she did not understand why the authorities kept asking her to make a new choice on the form of restitution each year. She further asked the authorities to explain why there had been no activity from 1993 to 1999 in the process of the restitution of her property rights. Finally, she complained that compensation calculated at LTL 3,437 (approximately EUR 995) was too low. 22. On 29 September 2008 the Šiauliai Regional Administrative Court established that in 1991 V.V. had asked for his property rights to be restored by being given 3.08 hectares of land in natura and that that had been a proper expression of his will. As the land in question was already being used by other people, V.V. and later the applicant had been asked to choose another form of restitution. However, they had never expressly done so. Moreover, the court held that the applicant had never changed the original wish to have the land returned in natura because she had refused to agree to the document on the transfer of land, which would have allowed her to have a plot of equivalent value returned to her. As a consequence, and in accordance with the domestic law, the national authorities had chosen monetary compensation as the form of restitution, which had not breached any requirements of the domestic law. As for damages, the court held that the authorities had acted correctly and the necessary conditions to pay damages had not been satisfied. 23. In October 2008 the applicant lodged an appeal. She complained that she had chosen the form of restitution because she wanted land of equal value to be returned to her in natura. She also stated that if her choice had been unclear to the authorities, they should have taken action to clarify it. She further complained that the monetary compensation was unjust and too low. 24. On 21 September 2009 the Supreme Administrative Court dismissed the applicant’s appeal. The court stated that V.V. had expressed a wish for his property rights to be restored to him in natura. The court also established that V.V. had been aware of the fact that there was no possibility of returning the land to him in natura because it was already being used by other people. V.V. had been asked several times by the national authorities to choose another form of restitution but he had insisted on restitution in natura. The court held that the national authorities had failed to inform V.V. about the time-limit for choosing the form of restitution, as the domestic law provided for such information to be sent before 1 March 2003 and the letter had only been sent to V.V. on 27 March 2003. The court however observed that that circumstance was not of major significance because V.V. had written on 1 March 2003 that he would never change his mind about the form of restitution. After V.V. had died, the applicant had been asked to choose the form of restitution but had persisted in asking to have the land returned to her in natura or to be provided with a plot of equivalent value. The court also held that the applicant had misinterpreted the provisions of the domestic law because she had required that she be provided with a plot of land of equivalent value and a preliminary agreement, and had stated that only then would she sign a document on the transfer of land. That had been contrary to the procedure established in the domestic law. The court also considered that although at some point the applicant had indicated that providing her with a plot of land of equivalent value was an alternative way to restore her property rights, she had tied that form to her own rules and requirements, which were not possible under the domestic law. The court further observed that the national authorities had decided to pay the applicant monetary compensation as the form of restitution. Lastly, the court held that the applicant’s argument as to the amount of compensation was unsubstantiated because she had not provided specific arguments proving that the amount of compensation had been determined in breach of domestic requirements. 25. On 12 September 2016 the applicant started court proceedings for debt and interest over the failure of the national authorities to pay her monetary compensation. 26. In reply to the request by the authorities, on 29 September 2016 the notary dealing with the inheritance procedure for V.V.’s property stated that after V.V.’s death she had issued the applicant with certificates of the right to inheritance with regard to movable and immovable property. However, she had not issued the applicant with the document allowing the applicant to get the monetary compensation paid to V.V. because the applicant had not provided her with the decision of the national authorities of 13 May 2008 to restore V.V.’s property rights. 27. In their comments to the applicant’s reply to the Government’s observations, the Government acknowledged that the monetary compensation had never been transferred to the applicant “due to human error”. The national authorities could not transfer the monetary compensation to the applicant because of the absence of the document proving that she was an heir of V.V. and the absence of the applicant’s account number. The applicant submitted the relevant documents together with her account number and the compensation was transferred to her account on 14 November 2016.