KOZLOVA and SMIRNOVA v. LATVIA
Inadmissible
The applicants, Oksana Kozlova and Tatjana Smirnova, are “permanently resident non-citizens” of Latvia, born in 1930 and 1946 respectively and living in Riga (Latvia). They were represented before the Court by Mr G. Kotovs, a lawyer practising in Riga. In 1931 the Latvian State sold to a certain O.A.R. a plot of land 3,740 sq. m in area with a semi-detached weekend house, located in Vecāķi (in the suburbs of Riga). After O.A.R.’s death in 1939, the property passed to his daughter, M.R. In 1944 fear of Stalinist persecution forced M.R. to go into exile in the West and abandon her property. The house was also considerably damaged during the 1940s. In a decision of 9 June 1948 the executive committee of the Mangaļi Municipal Council granted the right to use the above-mentioned land to Colonel S. (the applicants’ father) and Lieutenant Colonel B., and calculated the actual value of the building on it. On 27 August 1948 Mr S. and Mr B. purchased the house by paying the tax authorities the sum of 2,080 Soviet roubles. In the following years S. and B. rebuilt the house. In a decision of 4 February 1952 the municipal authorities granted S. and B. the definitive right to use the land. However, on 1 July 1952 those authorities divided the land into three parts, two of which were allocated to S. and B. and the third of which was placed in public ownership. On 25 December 1968 the municipality’s executive council divided the house into two parts and registered them as two separate properties with different numbers. The title to one of the parts was granted to the heirs of S., who had died that year; title to the other half was granted to B.’s former wife. In 1969 the applicants were recognised as the heirs to equal portions of their fathers’ estate. On 30 October 1991 after Latvia had regained its independence, the Supreme Council (Augstākā padome) enacted the Law on the Return of Real Estate to the Legitimate Owners (Likums “Par namīpašumu atdošanu likumīgajiem īpašniekiem”). On 30 May 1995, in response to an application by O.A.R.’s grandson, A.R., Riga Municipal Council restored ownership of the land in issue to A.R. That decision did not, however, cover the buildings erected on the land. In April 1998 A.R. asked the Riga Regional Court to set aside all the decisions taken in relation to the semi-detached house during the Soviet period and recognise him as the legitimate owner. In a judgment of 30 June 1998 delivered after adversarial proceedings the Riga Regional Court allowed A.R.’s application. The Court noted first of all that although the house in issue had never been formally expropriated, it was covered by section 7 of the Law on the Return of Real Estate to the Legitimate Owners, which excluded property abandoned for fear of persecution from the category of res nullius (the property of nobody). The taking of possession of the property by the Soviet local authorities in 1948 had therefore been arbitrary and illegal, especially as it had not been based on any judicial decision. Furthermore, the Regional Court pointed out that section 6 of the aforementioned law precluded the return of items of property sold to private individuals acting in good faith by means of contracts certified by a notary. However, it noted that there had been no such contract in the instant case. Lastly, the Regional Court rejected the applicants’ argument that the disputed house had been completely rebuilt by their father and was in fact a new item of property. In that connection, the Court considered on the basis of the evidence produced that the repairs carried out (the replacement of doors, windows and roofing and repairs to some of the walls) were not sufficient to warrant the assertion that the initial building no longer existed and that S. had built a new house. Consequently, the Regional Court declared the decision of 9 June 1948 and all subsequent measures relating to the building null and void and ordered that it be returned to A.R. The applicants appealed against that judgment to the Civil Division of the Supreme Court, which, in a judgment delivered on 9 December 1998 following adversarial proceedings, dismissed A.R.’s application on the ground that the documents he had submitted were not sufficient to prove O.A.R.’s title to the disputed house. In a judgment of 3 March 1999 the Cassation Division of the Supreme Court, ruling on an appeal on points of law lodged by A.R., quashed the aforementioned judgment and remitted the case to the Civil Division. According to the Cassation Division, as a building was in principle an adjunct to the land on which it was built, the house in question should, in the absence of any evidence to the contrary, have been considered to have belonged to the owner of the land, namely O.A.R. In a judgment of 20 May 1999 the Civil Division of the Supreme Court allowed A.R.’s application. Having established that the semi-detached house had indisputably belonged to O.A.R., the Civil Division ruled as follows: “... Section 7 of the Law on the Return of Real Estate to the Legitimate Owners provides that an item of property abandoned by its owner following the events of the Second World War, particularly in order to avoid persecution or other adverse consequences, cannot be classed as res nullius. It appears from the documents in the case file that in 1944, after the death of his grandmother, the appellant and his family left Latvia to escape potential oppression. The case file does not contain any information attesting to the legal basis for the taking of possession of the property by the executive committee ... . No judgment was adopted regarding a res nullius. ... ... [T]he Civil Division considers that by taking possession of the disputed property without paying any compensation and by making use of it subsequently, the municipality infringed the rights of the legitimate owner and adopted a policy of administrative arbitrariness. Under section 6 of the Law on the Return of Real Estate to the Legitimate Owners, no court order can be made for the return of items of property acquired against payment by natural persons acting in good faith and on the basis of contracts certified by a notary. The file does not contain any evidence that the property came into the ownership of [S.] and [B.] on the basis of an official conveyance certified by a notary. ... That being so, the Civil Division considers that [B.] and [S.] cannot be regarded as purchasers acting in good faith within the meaning of section 6 of the Law on the Return of Real Estate to the Legitimate Owners. ... Since [S.] cannot be deemed to have purchased the house in good faith, the Civil Division considers the certificate of succession to the estate issued to Tatjana Smirnova [and] Oksana Kozlova ... to be null and void ...” The applicants appealed on points of law against the above judgment cited above to the Cassation Division of the Supreme Court. In a judgment of 6 October 1999 the Cassation Division, ruling as an extended bench of seven judges, rejected that appeal, upholding the reasons given by the Civil Division. The relevant provisions of the Law of 30 October 1991 on the Return of Real Estate to the Legitimate Owners (Likums “Par namīpašumu atdošanu likumīgajiem īpašniekiem”) provide as follows: “Title to immovable property of which the State or legal persons took possession without paying compensation during the period between the 1940s and the 1980s, as part of a policy which infringed the rights of owners and was tainted by administrative arbitrariness, shall be restored to the former owners or their heirs irrespective of their present nationality.” “The property rights of former owners or their heirs who have lodged an application shall be restored by a court order in accordance with the provisions of the Latvian Code of Civil Procedure. ...” “... [T]he courts may declare null and void measures taken by administrative authorities putting an end to or restricting a lawful right to property.” “Immovable property that has come into the ownership of natural persons acting in good faith against payment and on the basis of contracts certified by a notary may not be returned ... In this case, the former owner (or his heir) has the right to demand from the vendor who acquired the property compensation up to the price laid down in the contract of sale; compensation corresponding to the real value of the property must be paid as provided by law. ...” “Immovable property which had to be abandoned by its owner following the military operations of the Second World War, particularly in order to avoid potential repression or other adverse consequences, may not be regarded as res nullius. ...” “Where the immovable property eligible to be claimed by means of a judicial remedy has not survived ..., former owners (or their heirs) are entitled to compensation as provided by law. Immovable property which, after 30 October 1991, has been rebuilt in such a way that most of it (more than sixty-five percent) amounts to a new building, shall also be considered not to have survived in substance. Where the construction or reconstruction has been carried out in breach of the requirements of a law or regulation or by an occupier acting in bad faith, that fact may not be relied on to dismiss an application for restitution of the property.” In a judgment of 22 October 1997 (case no. SKC-287) the Cassation Division held that a decision taken by the municipal authorities in the 1940s whereby a private individual was granted title to an expropriated house provided that he paid a sum to the tax authorities corresponding to the value of the building was equivalent to a “contract certified by a notary” within the meaning of section 6 of the Law. The relevant provisions of the Latvian Civil Code (Latvijas Republikas Civillikums) read as follows: “The claimant must prove that he has title. For this purpose, it is sufficient for him to show that he genuinely acquired that title in a legal manner; it is subsequently for the defendant to prove that the claimant is no longer the owner. Where the claimant maintains that he acquired the property from a third party through delivery or inheritance, he must prove that his predecessor was the owner.” “The defendant may have the application dismissed if he proves that he has title to the property or the right to possess it on the basis of a right in rem or a right in personam which the claimant must respect.”