CASE OF BARTULIENĖ v. LITHUANIA
No violation of Article 1 of Protocol No. 1 - Protection of property;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;Iulia Motoc;Paulo Pinto De Albuquerque
4. The applicant was born in 1938 and lives in Kaunas. 5. In October 1991 the applicant asked the authorities to establish that her father had had 7.06 hectares of land in Kaunas Region before nationalisation. The applicant indicated that she and her sister were their father’s heirs. It was indicated in her request that she and her sister would accept land in another location. A document proving that their father had owned 6.79 hectares of land was also attached to the request. 6. It appears that the applicant and her sister agreed that the applicant had a right to have her property rights to 3.40 hectares of their father’s land restored. 7. On 3 March 1993 the authorities issued a document containing a decision to return 0.66 hectares to the applicant in natura and to return the remaining 2.74 hectares to her by paying compensation. 8. On 16 March 1993 the Ministry of Agriculture repeated the authorities’ decision of 3 March 1993 (see paragraph 7 above). 9. In December 1993 and April 1994 the authorities decided to give the applicant eleven plots, each measuring 0.06 hectares. 10. In February 2003 the Kaunas Land Reform Division informed the applicant that she could, before 1 April 2003, declare or change her intentions regarding the method by which her property rights would be restored. She was informed that property rights to land that had been an urban area were to be restored by: giving plots of land to the citizens who had buildings on those plots – the maximum plot size was limited to a 0.2 hectares; giving plots of land in cities and rural areas where a citizen did not have land, except for the cities of Vilnius, Kaunas, Klaipėda, Šiauliai, Panevėžys, Alytus, Marijampolė, Druskininkai, Palanga, Birštonas and Neringa; legally voiding a citizen’s liabilities to the State; and paying compensation in securities. 11. In March 2003 the applicant asked the authorities to pay her monetary compensation “in a convertible currency at world market prices” (konvertuojama valiuta pasaulinėmis kainomis) for the remaining 2.74 hectares of land. 12. In January 2007 the applicant asked the authorities to pay her monetary compensation for the remaining 2.74 hectares of land or return a part of the land in natura. The applicant specified that monetary compensation should be paid in a “convertible currency at market prices”. 13. In September 2007 the authorities informed the applicant that they had addressed the Kaunas municipality regarding vacant plots of land in the area where her father had had the land, and had been told that the restitution process had to be carried out in accordance with the detailed plan for restitution approved in 1991. 14. In July 2008 the applicant complained to the authorities that her previous requests (see paragraphs 11 and 12 above) had gone missing. 15. In November 2008 the applicant asked the authorities not to give her any land burdened by any kind of easement. 16. In August 2009 the applicant wrote a letter to the authorities and stated that, in accordance with the Constitution, not only did she have a right to receive fair compensation for the land, but a vacant plot of land situated in the same area where her father’s land had been had to be returned to her. She stated that she had to be paid compensation at market prices and in accordance with the land value map for 2009. She also wrote that if the land returned to her was burdened by any kind of easement, the authorities would have to pay her compensation at full market value for her inability to use it. It appears from the Kaunas Regional Administrative Court’s decision that the authorities indicated in August 2009 that compensation at market prices was not possible (see paragraph 33 below). The value of 2.5469 hectares of land was assessed at 20,167 Lithuanian litai (LTL – approximately 5,841 euros (EUR)) if the applicant preferred to acquire land in another area, and at LTL 32,267 (approximately EUR 9,345) if the applicant preferred compensation in securities (see paragraph 36 below). 17. On 21 October 2009 the Kaunas County Administration changed the decision of 16 March 1993 on the restoration of the applicant’s property rights (see paragraph 8 above) and decided that her property rights to the remaining 2.74 hectares of land would be restored at a later date. By that order, the applicant’s property rights were restored by giving her two plots of land measuring 0.0807 hectares and 0.1124 hectares respectively. 18. It appears from the courts’ decisions that in June 2010 the authorities asked the applicant to make a decision regarding the method of restitution in respect of the remaining plot of land (see paragraphs 35 and 36 below). 19. In June 2010 the applicant asked the authorities to pay her monetary compensation for the remaining 2.5469 hectares of land, plus 15% interest because she was the daughter of a military volunteer. 20. In September 2010 the applicant asked the authorities to remove all the underground telecommunications cables that were situated on one of the plots of land that had been returned to her. 21. On 4 October 2010 the authorities informed the applicant that the remaining plot of land of 2.5469 hectares was State redeemable, and she could be compensated for it by receiving securities or by a new plot of land of equal value in a rural area being transferred to her. The applicant was asked to inform the authorities about her decision before 18 October 2010. Should she fail to make a decision, the compensation would be paid in securities. 22. On 13 October 2010 the applicant repeated her request to be paid monetary compensation plus 15% interest. Her letter also contained some other requests regarding increasing the size of one plot, transferring a pond (kūdra) to her, and paying her compensation at market prices for another plot of land. 23. The authorities replied in November 2010 that, when deciding on issues of restitution, they were obliged to follow the requirements of domestic law. The applicant was asked to come to the Kaunas City Land Reform Division on 6 December 2010 to deal with the issue of restoring her rights to the remaining part of her father’s land. 24. In December 2010 the Kaunas City Land Reform Division asked the Kaunas Municipal Administration to prepare a plan of vacant land in the area where the applicant’s father’s land had previously been situated. The same month, the Kaunas Municipal Administration replied that it was not possible to prepare additional plans of vacant land, because the schemes relating to vacant plots of land had already been approved, and a similar request submitted by the applicant’s son had already been examined. 25. In November 2014 the authorities informed the applicant that as of 1 November 2014, Article 21 § 4 of the Law on Restitution provided that a citizen who had already asked for his or her property rights to a plot of land to be restored could, by 1 March 2015, express or change his or her wish regarding the form in which the ownership rights to the real property were to be restored, and choose a plot of forest of equal value, provided that a final decision on restitution had not been taken or, if taken, had not yet been executed or had been executed in part. 26. The applicant started court proceedings, demanding compensation in respect of pecuniary damage from the Kaunas municipality. She alleged that the plot of land of 0.1124 hectares which had been returned to her (see paragraph 17 above) had electricity and gas equipment installed on it (see paragraph 20 above), and that she was prevented from using it. The applicant also asked the court to oblige the authorities to remove the underground telecommunications cables installed on her plot within two months of the court decision becoming final. 27. On 22 June 2012 the Kaunas Regional Administrative Court held that the applicant had not complained about the decision of the authorities of 21 October 2009 by which her property rights to the specific plots of land had been restored (see paragraph 17 above). Moreover, the applicant had claimed that she was not able to use the land, more specifically, to construct buildings on it, but she needed to have a detailed plan of the land prepared in order to start any construction on the land, which she had not done. The court further held that the applicant’s request that the authorities be obliged to remove the underground telecommunications cables was unfounded, because the cables had been installed in accordance with the provisions of domestic law. The applicant’s claim was thus dismissed. 28. The applicant appealed, and on 18 December 2012 the Supreme Administrative Court upheld the first-instance decision. The court held that the applicant had signed a document informing her about the borders of the land and restrictions regarding its use. There was no information indicating that either the applicant or her representative had been misled by the authorities regarding the status of the land. Moreover, the State was not obliged to restore her property rights to land with no restrictions regarding its use. 29. It appears that a plot of land measuring 0.0498 hectares which had been situated in the area where the applicant’s father had had his land was sold to R.N. in 1994. In November 2011 the National Land Service informed the applicant’s son that the purchase contract regarding the plot of land sold to R.N. in 1994 had been concluded in breach of the requirements of domestic law, and that the issue would be referred to a prosecutor. 30. In January 2012 the Kaunas Division of the National Land Service informed the prosecutor that, in accordance with domestic law, one family could purchase or rent only one plot of land for construction of an individual home in the absence of an auction. If the family was provided with a plot of land before 15 March 1992, no other member of that family could acquire another plot of land for construction of an individual home without participating in an auction. R.N. had been provided with a plot of land of 0.06 hectares for construction of an individual home in 1992. In 1993 she had purchased that plot from the State. Moreover, in 1994 R.N. had been allowed to purchase another plot of land of 0.0498 hectares in the absence of an auction, which had not been allowed. In 2002 R.N. had sold the plot of land to R.Z. The prosecutor was thus asked to start court proceedings on the matter. 31. In February 2012 the prosecutor decided that the National Land Service could start court proceedings, and referred the matter to it. Subsequently, the National Land Service lodged a complaint with the Kaunas District Court, asking it to annul the relevant administrative acts by which the plot of land of 0.0498 hectares had been provided to R.N. and to annul the purchase agreements regarding that plot. The complaint was dismissed by the Kaunas District Court on 8 July 2013 because the limitation period had expired (see paragraphs 49 and 51 below). That conclusion was upheld by the Kaunas Regional Court on 14 October 2013. 32. On 13 March and 20 June 2013 the applicant brought a claim and an amended claim for LTL 30,000 (approximately EUR 8,688) in respect of non-pecuniary damage relating to the length of the restitution proceedings. She asked the court to oblige the authorities to restore her property rights within one month of the court decision becoming final, or to pay her fair monetary compensation, calculated in accordance with the land value map for 2013. The applicant also stated that she had sustained pecuniary damage in the amount of LTL 3,616,598 (approximately EUR 1,047,439), but she was not asking for any award in this respect. 33. On 7 October 2013 the Kaunas Regional Administrative Court held that there was no dispute that the applicant’s rights to 2.5469 hectares had not been restored. However, it also held that her request for damages could only be satisfied if the State had acted unlawfully. The court stated that the national authorities had taken various steps: they had provided data about unoccupied land and had asked the applicant to decide how she wished her property rights to be restored. The applicant’s requests submitted to the authorities for compensation “in a convertible currency at world market prices” and for compensation at market prices in accordance with the land value map for 2009 (see paragraphs 11, 12, 16, 19 and 22 above) could not constitute a proper way of expressing her decision, because such methods of compensation had not been defined in the domestic law. The court found that her property rights had not been restored because of her inactivity. As regards her request that the authorities be obliged to restore her property rights within one month, the court noted that she had to use an out-of-court procedure, and left that complaint unexamined. 34. The applicant appealed and also asked to be awarded compensation in respect of pecuniary damage amounting to EUR 1,047,439. On 24 July 2014 the Supreme Administrative Court held that the first-instance court had been obliged to examine the applicant’s request to have her property rights restored, but it had not examined all the documents submitted. It therefore returned the case to the Kaunas Regional Administrative Court for fresh examination. 35. On 24 February 2015 the Kaunas Regional Administrative Court held that on 9 October 1991 the applicant had submitted a request to have her property rights to 7.06 hectares of her father’s land restored (see paragraph 5 above). In 1992 the applicant and her sister had agreed that the applicant had a right to have her property rights to 3.40 hectares of her father’s land restored (see paragraph 6 above). The authorities had restored her property rights to 0.66 hectares of land on 16 March 1993 (see paragraphs 7 and 8 above), and on 21 October 2009 her property rights to another 0.1931 hectares of land had been restored (see paragraph 17 above). The latter decision indicated that the applicant’s property rights to the remaining plot of 2.5469 hectares would be restored at a later date, when the land reform project had been prepared. No land reform project had been prepared, because the land in question was in an area that had been within city boundaries before 1 June 1995, so the indication in the decision about the land reform project being prepared had been a mistake. In June 2010 the applicant had been asked to choose the form of compensation (see paragraph 18 above), but she had sent several letters submitting requests that were not possible under domestic law. The court further held that the authorities had examined numerous complaints submitted by the applicant and her son. The court further referred to the administrative proceedings regarding the applicant’s alleged inability to use one plot of land that had been returned to her (see paragraphs 26-28 above), and the civil proceedings regarding the sale of the plot of land of 0.0498 hectares to R.N., started by the National Land Service (see paragraphs 29-31 above). The court also noted that the applicant had been informed about the possibility of receiving a plot of forest of equal value (see paragraph 25 above). The court held that there was no dispute that the applicant’s property rights to 2.5469 hectares of land had not been restored. However, the applicant’s claims for compensation could only be satisfied if unlawful actions by the authorities had been established. The restitution process was carried out by the National Land Service and its territorial divisions. The court decided that, in the applicant’s case, the authorities had carried out their functions by: sending information about the methods by which the applicant’s rights could be restored; providing information about vacant land; and asking the applicant to express her choice as to the method of restitution. The relevant domestic law valid at the time the applicant had asked for compensation “in a convertible currency at world market prices” in March 2003 had provided that, before 1 April 2003, a citizen could declare or change the method of restitution. If no method was chosen, the authorities could choose for the citizen. The relevant domestic law valid at the time the applicant had asked for compensation at market prices and in accordance with the land value map for 2009 had provided that, before 31 December 2005, a citizen could change the method of restitution and choose compensation in securities instead of monetary compensation. The relevant domestic law valid at the material time when the case had been examined had provided that, until 1 March 2015, citizens could change the method of restitution and ask to have their property rights restored by being provided with a plot of forest of equal value in a rural area. If no method was chosen, property rights were restored by means of monetary compensation. The court held that the authorities could only choose the method of restitution for a citizen if he or she had not expressed his or her decision before 1 April 2003. In the applicant’s situation, the National Land Service had not issued any decision within the required six-month time-limit, and thus the applicant had a right to receive compensation in respect of non-pecuniary damage. The court held that the applicant’s right to have her property rights to 2.5469 hectares restored had not been denied, and decided to award her EUR 600 in respect of non-pecuniary damage. The remaining part of the applicant’s complaint was dismissed as unfounded. 36. The applicant, the National Land Service and the State, represented by the National Land Service, appealed. On 10 July 2015 the Supreme Administrative Court held that it was clear from the case material that there was no more vacant land in the area where the applicant’s father had had his land. For this reason, the applicant’s demand that the authorities be obliged to return her father’s land in natura within one month of the court’s decision becoming final (see paragraph 32 above) was unfounded. As regards the applicant’s argument that her father’s plot of land of 0.0498 hectares had been sold to R.N. owing to unlawful actions by the National Land Service, the court held that this argument had been rebutted by the decisions issued by the domestic courts in other proceedings (see paragraph 31 above). As regards the length of the restitution process, the court decided that there was no information indicating that the authorities had acted unlawfully, and thus the firstinstance decision to award the applicant compensation of EUR 600 had been unfounded. In 1991 the applicant had expressed her wish to have her father’s land returned to her in natura (see paragraph 5 above). In 2003 she had asked for compensation “in a convertible currency at world market prices” (see paragraph 11 above); in 2009 she had asked for compensation at market prices in accordance with the land value map for 2009 (see paragraph 16 above); in 2010 she had asked for compensation at market prices plus 15% interest (see paragraphs 19 and 22 above); and in 2015 she had stated that her choice as to the method of restitution had been expressed in 1991, and she was not going to change her mind (see paragraph 37 below). The authorities had informed the applicant several times that her requested methods of compensation were not possible under domestic law. In 2003 the applicant had been informed that if a citizen did not express a decision as to a method of restitution before 1 April 2003, the authorities had to issue decisions taking into account the method indicated in the citizen’s last request (see paragraph 10 above). In June 2009 the authorities had indicated the method by which the compensation would be calculated and had stated that the value of the 2.5469 hectares of land which had to be restored to the applicant would be LTL 20,167 (approximately EUR 5,841) if the applicant preferred to acquire the land in another area, and LTL 32,267 (approximately EUR 9,345) if she preferred compensation in securities (see paragraph 16 above). In June 2010 the authorities had asked the applicant to choose the method of restitution: receiving either an area of land, forest or water of equal value (see paragraph 18 above). In October 2010 the authorities had repeatedly explained that the applicant could receive either a plot of land of equal value or compensation in securities, and should she fail to make a decision then she would be paid compensation in securities (see paragraph 21 above). In November 2010 the applicant had been asked to come to the Kaunas Division of the National Land Service to discuss the issue of restitution (see paragraph 23 above). In November 2014 the authorities had informed the applicant that it had become possible to have a plot of forest of equal value in a rural area (see paragraph 25 above). The court further held that the actions of the National Land Service had been lawful, considering that the applicant’s requests had not been possible under domestic law. Moreover, the authorities had stated that a decision to pay the applicant monetary compensation would be issued. The court therefore decided to change the first-instance decision and not award the applicant any compensation in respect of non-pecuniary damage. 37. In February 2015 the applicant sent a letter to the authorities stating that she had expressed her decision on the method of restitution in 1991 when she had asked for the return of her father’s land in natura. She also stated that she was not going to change her mind and would require her father’s land to be returned to her. In March 2015 the authorities replied that the remaining part of the land to which the applicant’s property rights had to be restored was State redeemable and could not be returned in natura. The authorities further stated that the applicant would be paid monetary compensation. The applicant replied to this letter in April 2015 and accused the authorities of unlawfully expropriating property. The authorities replied in May 2015 and repeated that it was not possible to return the applicant’s father’s land in natura. The applicant replied, stating that the authorities’ letter contained no substantive reasons and could not be taken into account. The applicant stated that the issue of restitution in her case would be considered in the courts, and asked the authorities not to bother her with letters containing no substantive reasons. 38. In November 2016 the authorities asked the applicant to come to a meeting on 5 December and familiarise herself with the draft decision restoring her property rights. 39. On 6 December 2016 the National Land Service issued a decision to restore the applicant’s property rights to 2.5469 hectares of land by paying her monetary compensation of EUR 9,359. 40. In March 2017 the applicant asked the authorities to provide her with copies of plans of vacant land plots situated in the area in which her father had had his land, and to explain how and when her father’s land had been used. The authorities replied in April 2017 that the Kaunas Municipal Administration provided information in map form about vacant land that was not State redeemable. The relevant Kaunas division had to mark the borders of land which an owner had owned before 1940 in accordance with the information received from the Kaunas Municipal Administration. In the applicant’s case, the Kaunas Municipal Administration had provided the relevant Kaunas division with information about vacant land plots. The Kaunas land reform division had then asked the Kaunas Municipal Administration to prepare land plans. Two plots of land had been returned to the applicant in natura in 2009. In 2010 the Kaunas land reform division had asked the Kaunas Municipal Administration to additionally examine whether there was vacant land in the area where the applicant’s father had owned land before 1940, but it had been established that there was no more vacant land. 41. The applicant lodged a claim with the domestic court, asking it to annul the decision of the National Land Service of 6 December 2016 by which her property rights to 2.5469 hectares of land had been restored and it had been decided that she would receive monetary compensation of EUR 9,359 (see paragraph 39 above). The applicant thought that the land that had not been returned to her had not been used for public use, and that the National Land Service had not provided any information as to why all of her father’s land had not been returned in natura. 42. On 21 August 2017 the Kaunas Regional Administrative Court rejected the applicant’s complaints. The court held that her father’s land was not vacant, as it was occupied by cadastral areas with or without buildings, areas containing infrastructure that was relevant for roads, side roads, underground infrastructure and the protective zones surrounding them, and recreational areas. There was a public interest in using that land, thus the land was State redeemable and compensation had to be paid for it. The court further assessed the actions of the National Land Service and held that the authorities’ actions had been lawful. This was because the applicant had not agreed with the information indicating that her father’s land was not vacant, and because on one hand she had asked for her property rights to be restored in natura, and on the other hand had asked for compensation at “market” and “world market” prices, although there was no such possibility under domestic law. Fair compensation was also a way to restore property rights, as confirmed by the Constitutional Court (see paragraph 53 below). The value of the land had been calculated in accordance with the method approved by the Government (see paragraph 52 below), and the amount calculated for the applicant had been in accordance with that method. Moreover, the court referred to the case-law of the Court, where it had been established that no right to receive a higher amount of compensation was guaranteed under the applicable domestic law or by a decision of the domestic court (see paragraph 54 below). The compensation calculated for the applicant was in line with domestic law and the practice of the Court. 43. In October 2017 the authorities asked the applicant to provide them with her account number so they could pay her the monetary compensation of EUR 9,359. In the event that the applicant failed to do that, the monetary compensation would be transferred to a notary’s deposit account. 44. In November 2017 the applicant sent a letter to the National Land Service stating that she would not give the authorities her account number. Should the compensation be transferred to her or the notary’s account nevertheless, it would be transferred back to the authorities.