CASE OF IGARIENE AND PETRAUSKIENE v. LITHUANIA
Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
4. The applicants were born in 1938 and 1968 respectively and live in Kaunas. 5. On 17 November 1992 the Kaunas City Board restored the applicants’ property rights to part of a building in Kaunas. In particular, it restored in kind the applicants’ property rights to the flats in which they lived. The property restitution decision specified that the property rights to the uninhabited part of the building (hereafter “the disputed premises”) would be restored in accordance with the procedure and terms fixed by the Government. 6. On 15 October 1993 the Kaunas City deputy mayor and the applicants signed a statement of transfer acceptance (priėmimo-perdavimo aktas), by which the disputed premises were transferred to the applicants. On 21 December 1993 the applicants registered their title to the premises. 7. By a decision of 21 March 1994, the Kaunas City mayor declared the statement of transfer acceptance unlawful and consequently null and void. By a decision of 31 May 1994 the Kaunas City Board supplemented the decision of 17 November 1992 with a clause which specified the form in which the property rights were to be restored. Therein it was decided to pay compensation for the disputed premises, at that time occupied by a pharmacy, after the Government had determined the means and the procedure by which compensation was to be paid. 8. By a decision of 14 June 1994, the Kaunas City Board transferred the disputed premises from the balance sheet of one State-run company to the balance sheet of the State-run company of Kaunas area pharmacies. Subsequently, by a decision of the Kaunas City Board of 14 June 1996, the disputed premises were transferred into the private ownership of the closed-stock company, Šlamučio vaistinė. 9. On 3 June 1994 the applicants, together with other persons in a similar situation, brought a civil claim, challenging the local authorities’ decisions of 21 March 1994 and 31 May 1994. It was dismissed as unsubstantiated by the Kaunas City District Court on 4 July 1994. 10. On 22 August 1994 the Supreme Court quashed the lower court’s decision and remitted the case for a fresh examination. The Supreme Court noted that the lower court had not examined all the relevant circumstances. In particular, it had not taken account of the fact that, at the time of the adoption of the impugned decisions, the applicants had already been recognised as the owners of the entire building. The Supreme Court observed that only a court and not a local authority could have annulled the applicants’ ownership rights. 11. On 7 October 1994 the Kaunas City District Court decided to suspend the civil proceedings further to a request by V.A., one of the plaintiffs in the case, on account of the illness of one of his relatives, who also was a plaintiff in that case. The court ordered V.A. to inform it when his relative’s state of health would allow her to participate in the proceedings. 12. On 1 July 1999 the Kaunas City District Court of its own motion resumed the civil proceedings. 13. On 9 September 1999 the Kaunas City District Court granted the applicants’ claim. It declared the local authority’s decisions of 21 March 1994 and 31 May 1994 null and void, restoring the applicants’ title to the premises occupied by the pharmacy. 14. On 28 February 2000 the Kaunas Regional Court upheld that decision. 15. On 12 September 2000 the Supreme Court quashed the lower courts’ decisions and returned the case to the Kaunas City District Court for an examination de novo. The Supreme Court considered that the lower courts had again failed to assess all the relevant circumstances – even those to which attention had been drawn in its decision of 22 August 1994 – and that they had erred in law. 16. On 18 February 2004 the Kaunas City District Court dismissed the applicants’ action. The court observed that the law had not provided for restitution in kind of immovable property if it had been occupied by public-interest institutions, such as a pharmacy. The court further interpreted the decision of 17 November 1992, noting that it could not have been read as guaranteeing restitution in kind of the entire building, but only of the unoccupied part. The court annulled the ambiguous phrasing of the decision, leaving it to the local authorities to determine how to remedy the situation, either by pecuniary compensation or by the transfer of an equivalent property. 17. On 23 September 2004 the Kaunas Regional Court upheld the decision of the first-instance court. 18. On 26 January 2005 the Supreme Court dismissed a cassation appeal by the applicants. 19. On 25 May 2005 certain parties to the case, including the applicants, submitted a request to the Kaunas City District Court to interpret its decision of 18 February 2004. Their request was dismissed on 21 June 2005. 20. On 3 April 2006 V.A. instituted civil proceedings challenging the initial proportions of the applicants’ and other interested parties’ property rights, as set in the decision of 17 November 1992. By a final decision of 5 September 2007 the Kaunas City District Court left V.A.’s request unexamined because V.A., although having been duly informed about the hearing, failed to appear in court. 21. On 11 December 2008 the head of the Kaunas City Municipality issued an order to pay the applicants pecuniary compensation for the disputed premises. The compensation was to be paid in three instalments and on 29 December 2008 the applicants received the first payment due. The two remaining instalments are to be paid in 2009 and 2010. 22. The relevant domestic law and practice concerning the domestic remedies with regard to length of proceedings complaints have been summarised in the judgment of Četvertakas and Others v. Lithuania (no. 16013/02, §§ 19-22, 20 January 2009). In addition, Article 484 of the Civil Code, in force until 1 July 2001, provided that an organisation was to compensate for any damage which its employees had caused while performing their professional duties. 23. The Law on the procedure and conditions for thr restoration of ownership rights to existing real property (Įstatymas dėl piliečių nuosavybės teisių į išlikusį nekilnojamąjį turtą atstatymo tvarkos ir sąlygų), enacted on 18 June 1991 and amended on numerous occasions, provided for two forms of restitution – the return of the property in kind or compensation for it if its physical return was not possible. Pursuant to Article 14 of the Law, if a house had been converted into non-residential premises which had been given to a medical institution or used for medical purposes, those premises were to be bought out by the State. The local authorities were competent to decide on the method of compensation. 24. On 27 May 1994 the Constitutional Court examined the issue of the compatibility of the Constitution with the domestic laws on the restoration of property rights. In its decision the Constitutional Court held, inter alia, that possessions which had been nationalised by the Soviet authorities since 1940 should be treated as “property under the de facto control of the State”. The Constitutional Court 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 provide any rights while it is not applied to a concrete person in respect of a specific property. In such a situation the legal effect of a decision by a competent authority to return the property or to provide compensation is such that only from that moment does the former owner obtain property rights to a specific property.” The Constitutional Court also held that fair compensation for property which could not be returned in kind was compatible with the principle of the protection of property. 25. On 20 June 1995 the Constitutional Court affirmed that the choice by Parliament of the partial reparation principle was influenced by the difficult political and social conditions, in that “new generations had grown, 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 restitution of property”. 26. The Law on the restoration of citizens’ ownership rights to existing real property (Piliečių nuosavybės teisių į išlikusį nekilnojamąjį turtą atkūrimo įstatymas), which was enacted on 1 July 1997 and which repealed the Law on the procedure and conditions for the restoration of ownership rights to existing real property, at the material time read as follows: “1. Ownership rights to residential houses, portions thereof and flats shall be restored to persons specified in Article 2 of this Law by returning them in kind, except for residential houses, portions thereof and flats which are subject to a State buyout pursuant to Article 15 of this Law...” “Residential houses, portions thereof and flats shall be bought out by the State from the citizens specified in Article 2 of this Law, who shall be compensated in accordance with Article 16 of this Law, provided that such residential houses, portions thereof or flats: (1) have been converted into premises unfit for human occupancy and used for educational, health care protection, cultural or scientific purposes, or by communal care residences. The list of such premises shall be approved by the Government...” “1. The State shall compensate citizens for existing real property which is bought out by the State, as well as for real property which existed prior to 1 August 1991 but subsequently ceased to exist as a result of decisions adopted by the State or local authorities. 2. When the State compensates citizens for real property which, in accordance with this Law, is not returned in kind, the principle of equal value shall be applied to both the property that is not returned and other property which is transferred instead of it as compensation for the property bought out by the State. ... 7. Compensation for buildings used for economic and commercial purposes, residential houses, portions thereof and flats which are not returned pursuant to this Law shall be established in accordance with the methods approved by the Government. ...”