CASE OF BARTKUS AND KULIKAUSKAS v. LITHUANIA
No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 of Protocol No. 1 - Positive obligations)
Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani
4. The first applicant was born in 1976 and lives in Žagarė and the second applicant was born in 1957 and lives in Šiauliai. 5. In December 2010 the first applicant bought a house at an auction organised by the State and registered his property rights in the State Property Register. At the time, the former owners of the house, Z.B. and his wife G.B., were living there. The auction was organised as a result of a debt of Z.B. 6. In January 2011 the first applicant lodged a claim with the court, asking to evict Z.B. and G.B. and for an award in respect of pecuniary damage. 7. On 21 December 2011 the Šiauliai District Court held that the first applicant was the lawful owner of the house and that Z.B. and G.B. were unlawfully occupying the premises. The court held that Z.B. and G.B. had to be evicted and decided to award the applicant 1,000 Lithuanian litai (LTL – approximately 289 euros (EUR)) for every month from 28 December 2010 until the eviction of Z.B. and G.B. from the house. It appears that by May 2017 EUR 5,013 had been recovered from Z.B. and G.B. and paid to the first and the second applicants, the remaining amount to be paid being EUR 5,070. 8. On 4 April 2012 the Šiauliai District Court issued a writ of execution and on 5 April 2012 it was received by the bailiff’s office. 9. On 6 April 2012 the bailiff sent a letter to Z.B. and G.B. and asked them to vacate the house, the letter was received by Z.B. on 13 April 2012. 10. In May 2012 G.B. lodged a complaint against the bailiff but on 6 June 2012 the Šiauliai District Court dismissed it. G.B. then lodged a separate complaint which was also dismissed by the Šiauliai Regional Court on 24 September 2012. 11. In October 2012 the first applicant asked the bailiff to ensure that the police were present during the forced eviction; to ensure that the access to the house was not impeded by the dog; the first applicant also asked the bailiff to get the information from the Children’s Rights Protection Service because Z.B. claimed that his minor granddaughter had been living in the house. The first applicant also asked the police to oblige the residents of the house to terminate their unlawful actions; to oblige them to remove their dog from the area; to warn the unlawful residents of the house of their responsibility for material damage and to fine them. 12. In October 2012 the bailiff asked the authorities about the permanent place of residence of Z.B.’s granddaughter. The authorities stated that Z.B.’s daughter and granddaughter were living together in Vilnius. This was later confirmed by Z.B.’s daughter herself. 13. On 13 November 2012 the bailiff informed Z.B. and G.B. that the eviction would take place on 23 November 2012. On 15 November 2012 Z.B. asked the bailiff to suspend the eviction because G.B. was ill. At first the bailiff refused to suspend the enforcement action but on 22 November 2012, after having received medical documents about G.B.’s state of health, he postponed the eviction until 14 December 2012. 14. On 20 November 2012 Z.B. lodged a complaint against the bailiff, also asking the court to apply interim measures – to suspend the eviction proceedings owing to G.B.’s illness and the presence of his minor granddaughter in the house. On 22 November 2012 the Šiauliai District Court decided to apply interim measures and to suspend the eviction proceedings until the complaint against the bailiff was examined. 15. The complaint against the bailiff was examined on 19 December 2012 by the Šiauliai District Court, which decided to dismiss Z.B.’s complaint. The court held that the writ of execution had been issued on 4 April 2012 (see paragraph 8 above) and that the bailiff had urged Z.B. and G.B. to vacate the house before 15 May 2012; thus he had given them thirty-nine days. The court further held that Z.B. had complained about the bailiff’s eviction notice about the forced eviction but had also asked that the execution proceedings be suspended and the eviction postponed. The court held that Z.B. had already asked the bailiff to suspend the eviction but the bailiff had refused to satisfy this request. The court also stated that Z.B. had complained about the bailiff’s eviction notice of 13 November 2012 (see paragraph 13 above). The bailiff had informed the animal shelter, the police and the Children’s Rights Protection Service; he had thus acted in accordance with domestic law. The court decided to annul the interim measures applied by the decision of the Šiauliai District Court (see paragraph 14 above). 16. Z.B. submitted a separate complaint against the decision of the Šiauliai District Court (see paragraph 15 above), complaining that the court had made a purely formalistic assessment of his minor granddaughter’s living arrangements in the house and that it had not commented on the fact that the bailiff had ignored his wife’s illness. On 28 March 2013 the Šiauliai Regional Court held that the illness of G.B. had not come on suddenly, that there were no minors living in the house and that there were no grounds to suspend the execution of the eviction order. 17. The bailiff submitted a separate complaint against the decision of the Šiauliai District Court (see paragraph 14 above). On 25 January 2013 the Šiauliai Regional Court dismissed the bailiff’s complaint holding that G.B.’s illness had been grounds to suspend the eviction proceedings. 18. On 3 April 2013 the bailiff informed Z.B. and G.B. that the eviction would take place on 16 April 2013. On that day Z.B. stated that his mother was living in the house and, because she was not on the list of persons who could be evicted, the eviction could not take place. The bailiff decided to suspend the eviction. 19. On 16 April 2013 Z.B. lodged a complaint with the court, stating that the bailiff’s actions had been arbitrary and asking to remove him from the case. This complaint was dismissed by the Šiauliai District Court on 23 April 2013. 20. On 22 April 2013 the first applicant complained to the bailiff about the latter’s inactivity on 16 April 2013 (see paragraph 18 above). The first applicant claimed that the bailiff had to enter the house and evict Z.B. and G.B. by force and that Z.B.’s mother had to be taken care of by the police or other relevant authorities. 21. On 2 May 2013 the bailiff decided not to satisfy the first applicant’s complaint. The bailiff held that he could only evict those persons that were listed on the writ of execution, and Z.B.’s mother was not one of them. The bailiff agreed with the first applicant that Z.B. had been avoiding the eviction but stated that he had tried to defend the first applicant’s interests by suggesting to the latter to apply to the Šiauliai District Court so that it broadened the list of persons to be evicted. 22. The first applicant then lodged a complaint before the Šiauliai District Court, complaining about the bailiff’s inactivity. 23. On 14 June 2013 the first applicant sold the house to the second applicant. 24. Consequently, on 19 June 2013 the Šiauliai District Court replaced the first applicant with the second applicant in the proceedings (see paragraph 22 above). 25. On 16 August 2013 the Šiauliai District Court satisfied the second applicant’s complaint. The court held that when the execution actions had been protracted, the interests of a creditor had been breached, and thus the main role in the execution proceedings had been played by the bailiff. Only the persons listed on the writ of execution could be evicted, and any other persons were considered to be only temporarily present and had to immediately leave the premises. Only the court and not the bailiff could postpone the eviction. The court held that the bailiff had failed to perform the execution of the eviction properly and that he had had no grounds to suspend or postpone the execution. The court thus annulled the bailiff’s order of 16 April 2013 to suspend the eviction and the order of 2 May 2013 by which the bailiff dismissed the first applicant’s complaint (see paragraphs 18 and 21 above). 26. Z.B. submitted a separate complaint. On 31 October 2013 the Šiauliai Regional Court dismissed it. 27. On 7 November 2013 the bailiff issued an order for forced eviction. 28. On 18 November 2013 the forced eviction took place, with the participation of the bailiff, the locksmith and two police officers. However, Z.B. and G.B. did not participate in it and when the second applicant entered the house, all their furniture and other belongings were still there. The next day, the bailiff drew up a document by which the second applicant was assigned as the property manager of the goods that had been left in the house and that had been seized. 29. In December 2013 Z.B. lodged a complaint against the bailiff regarding the forced eviction. On 3 January 2014 the Šiauliai District Court held that the eviction had been lawful and that the bailiff had acted in accordance with domestic law. 30. Z.B. submitted a separate complaint, which was dismissed by the Šiauliai Regional Court on 27 March 2014. 31. The Government submitted that on 11 February 2014 the bailiff ordered Z.B. and G.B. to collect their goods that had not been seized (see paragraph 28 above) from the house on 17 February 2014 at the latest. As this order had not been executed, on 26 March 2014 the bailiff issued a property-seizure order with the aim of selling the goods off. 32. Z.B. and G.B. lodged a complaint in respect of the bailiff’s decision to issue the property-seizure order (see paragraph 31 above). On 26 May 2014 the Šiauliai District Court dismissed their complaint, holding that in accordance with domestic law the evicted person had to take his or her property. If he or she failed to collect the property within three months from the date when it had been transferred to the property manager, it could be sold and the income given to the debtor. In the present case, the second applicant had become the property manager on 18 November 2013 (see paragraph 28 above), the property seizure act had been drawn up on 19 November 2013, and the property had to be taken by Z.B. and G.B. before 17 February 2014. After this date the sale of the property would become lawful. 33. On 30 and 31 October 2014 the bailiff announced a public auction concerning the movable property of Z.B. and G.B. It was also suggested to the debtors’ representative that they could approach the second applicant and take back their property that had not been seized. 34. Z.B. applied to the Šiauliai District Court to have interim measures applied to prevent the bailiff from selling their movable property. Z.B. explained that he wanted either to lodge a complaint against the bailiff in accordance with the out-of-court settlement procedure or to lodge a claim with the court. Z.B.’s application was accepted by the Šiauliai District Court on 3 December 2014. Z.B. was also instructed to lodge any such complaint against the bailiff under the out-of-court settlement procedure or a claim with the court before the deadline of 17 December 2014 and to pay the applicable court fees. According to the Government, Z.B. failed to pay the court fees, and the interim measures were therefore annulled on 9 June 2015. 35. On 17 June 2015 the Šiauliai District Court rejected another complaint lodged by Z.B. against the bailiff, the second applicant and third parties regarding the annulment of the negative consequences caused by the unlawful actions of the bailiff and compensation for non-pecuniary damage. The court stated that Z.B. had asked it to rule that some personal belongings could not be sold at auction. The court held that Z.B. and G.B. had not taken advantage of the opportunity to name buyers who might have had an interest in taking part in the auction that had been subsequently carried out. Z.B. had failed to explain why he had not taken his belongings within the threemonth time-limit; moreover, he had not even provided a description of his alleged personal belongings. The court therefore dismissed Z.B.’s complaint. 36. On 8 April 2013 G.B. lodged an application for interim measures, asking to prohibit the use of the house and other buildings in the garden and complaining of the result of the auction – the first applicant purchasing the house (see paragraph 5 above) – and asking for the result of the auction and the purchase agreement to be annulled. 37. On 16 May 2013 this application was dismissed by the Panevėžys Regional Court and on 5 September 2013 by the Court of Appeal. 38. G.B. lodged another application for interim measures, complaining of the results of the auction. Her application for interim measures was dismissed by the Panevėžys Regional Court on 10 September 2013 and her complaint about the result of the auction was dismissed by the Panevėžys Regional Court on 9 December 2013.