CASE OF PAUKŠTIS v. LITHUANIA
Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque
5. The applicant was born in 1937 and lives in Vilnius. 6. In the 1930s the applicant’s father bought a plot of 1.975 ha of land in territory which is now part of the city of Vilnius. The property was nationalised in the 1940s. 7. In 1991 the applicant asked the Lithuanian authorities to restore his rights to his father’s land. In 1992 the Vilnius city authorities restored his property rights by conferring on him a right to obtain a plot no bigger than 0.2 ha to build an individual house (individualaus namo statybai); under the Law on Restitution in force at that time, 0.2 ha was the maximum area of land returnable in natura within the Vilnius city boundaries. 8. On 16 September 1999, the authorities transferred into the applicant’s ownership, without any payment, a plot of 0.18 ha in Vilnius city to build a house. 9. On 2 April 2001 the Constitutional Court held that the limiting of the return of land in natura, if vacant and consequently of no particular societal value, was in breach of Article 23 of Constitution, which protects the right to property. 10. Relying on the Constitutional Court’s ruling, on 4 May 2001 the applicant asked the Vilnius city authorities to stop distributing or selling the land which he claimed to be that of his father, given that he could now claim a bigger portion of that land. He enclosed land registry maps indicating the 1.975 ha plot of land that had previously belonged to his father. 11. The Vilnius city authorities replied on 25 May 2001 that, taking into account the guidelines set out in the Constitutional Court’s ruling, the Law on Restitution had to be amended as regards the restitution of the land within the city limits. Given that the applicant’s request related to the return of a plot of land in Vilnius in the actual place where his father had had his land (perduodant žemės sklypą turėtoje vietoje), his request could only be examined after the aforementioned legislation had been amended. 12. Following another unrelated request for restitution, by a decision of 30 May 2001 the Vilnius County Administration (Vilniaus apskrities viršininko administracija) transferred part of the disputed land, specifically plot no. 171 comprising 0.09 ha, to M.P. to build an individual house. M.P. later resold that plot to third parties. 13. On 2 April 2002, the Law on Restitution was amended to the effect that the maximum area of land returnable in Vilnius city, provided that that land was not State redeemable, was 1 ha. 14. Relying on the amended Law of Restitution, on 21 June 2002 the applicant asked the Vilnius city authorities to return to him the remaining part of the plot, 0.82 ha (that is to say, 1 - 0.18 ha), in his father’s land. 15. In their internal correspondence of January and October 2003 the Vilnius city authorities concluded that the land could not be returned to the applicant in natura because it had been built upon and it also contained a forest of State importance. The land thus had to be bought by the State and the applicant was to be compensated by other methods as provided for by the Law on Restitution. 16. On 31 July 2003 the National Land Service (Nacionalinė žemės tarnyba) informed the applicant that the land formerly owned by his father was State redeemable land. However, having examined the land registry maps of the land owned by the applicant’s father, the National Land Service also noted that only part of that land had been divided into plots for the construction of houses. In that case, the unoccupied land could thus be returned in natura. The National Land Service thus notified the applicant that it had requested the Vilnius authorities to re-examine the availability of unbuilt land one more time. 17. In August 2003 the Seimas (parliamentary) Ombudsman, the National Land Service (see paragraph 16 above), and in March 2005 a prosecutor, found that the transfer of plot no. 171 to M.P. by the Vilnius authorities had been negligent and in breach of the law, because this had been done after the Constitutional Court’s ruling of 2001; it was the applicant who had priority rights to that plot. However, given that the third parties who had acquired plot no. 171 had done so in good faith, the prosecutor ruled that the plot could not be taken away from them and returned to the applicant. 18. In January 2004 the Vilnius county authorities informed the applicant that his father’s land was to be bought by the State. The applicant was also informed that he could receive securities to the value of 9,984 Lithuanian litai (LTL, approximately 3,180 euros (EUR)) for each hectare of his father’s land as compensation. 19. In March and July 2004, the National Land Service confirmed the above value for 1 ha of land in Vilnius as had been established by the Methodology set out by the Government (hereinafter – ‘the Methodology’). It also underlined that in 1998 the Constitutional Court had upheld that Methodology (see paragraphs 45-47 below). The Methodology set out the average price of the land paid in the course of compulsory purchases by the State for the entire territory of a city, taking into account that city’s size and significance. Lastly, the applicant was informed that up to that date 88% of persons had been compensated in accordance with the Methodology set out by the Government. Accordingly, it would be against the principle of equality if others, including the applicant, were to be compensated by changing the Methodology. 20. On 24 March 2005 the applicant asked the authorities to compensate him for 0.73 ha of land (that is to say, 0.82 - 0.09 ha) by allocating another plot in Vilnius city to him. Relying on information from the Real Estate Registry, the applicant noted that the indexed value (indeksuota sklypo vertė) of the 0.09 ha (plot no. 171) sold to M.P. was LTL 22,896 (approximately EUR 7,290). He asserted that the market value of the other plot was even higher. Therefore, it was not fair to conclude that 1 ha of land in Vilnius city could be compensated by a sum of LTL 9,984. The applicant thus asked the authorities to pay him LTL 22,896 for plot no. 171 and “to quickly return him the remaining 0.73 ha of land in another place in Vilnius city or with a decent cash settlement (grąžinti likusią priklausančią man 0.73 ha žemę kitoje vietoje Vilniaus mieste greitu laiku arba užmokėti pinigais žmogišką kainą)”. 21. In reply to the applicant’s complaint, on 3 May 2005 the authorities acknowledged that he was “a candidate (pretendentas) for restoration of the property rights to 1.795 ha of his father’s land”. The authorities underlined the applicant’s preference, as expressed in his request, to obtain compensation in money or to obtain another plot of land in Vilnius [city]. Pursuant to the applicable legislation, the authorities asked the applicant to specify how he wished to proceed with the restitution, given that the land his father had once owned in Vilnius city was to be bought by the State and thus the exact same plot could not be returned to him. According to the domestic law as in force at that time, the applicant could either choose to obtain another plot of land in a rural area or pecuniary compensation (either in securities or by having his liabilities to the State annulled). 22. In reply to another application by the applicant, on 13 October 2005 the Vilnius County Administration reiterated that it was not possible to return the applicant’s father’s exact same land in Vilnius city. The applicant was requested to choose another method of compensation provided for in Article 16 § 9 of the Law on Restitution. He was also notified that information about available plots of land in Vilnius city could be found on the internet site of the Vilnius County Administration. 23. On 1 February 2006, and in reply to another complaint by the applicant, the National Land Service reiterated that he had to choose how he wished to be compensated for the land bought by the State, as provided for in Article 16 § 9 of the Law on Restitution. The National Land Service noted the Ombudsman’s conclusion that land had been transferred to M.P. in breach of the applicant’s rights, as well as the prosecutor’s conclusion that it was not possible to annul that transfer. 24. The applicant then started court proceedings, claiming that the State should pay him the market value for the 0.09 ha plot of land, that had been transferred to M.P., which the applicant noted to have an average market value (vidutinė rinkos vertė) of LTL 162,000 (approximately EUR 46,900) as established in 2001 by the Real Estate Registry (also see paragraph 32 below). He also claimed that the State should pay market-value compensation for the unreturned 0.73 ha of land in Vilnius, which in his view was worth LTL 1,314,000. 25. By a decision of 15 June 2006 the Vilnius Regional Administrative Court dismissed the claim as unfounded. The court acknowledged that on 30 May 2001 M.P. had been granted a 0.09 ha plot of land on the applicant’s father’s former holding in contravention of the law, because this was done after the Constitutional Court’s ruling of 2 April 2001. That being so, the documents in the court’s possession confirmed that the applicant’s father’s land belonged to land destined to be bought by the State, because it contained privately owned plots of land with houses or forests of State importance as provided for in Articles 12 § 6 and 13 of the Law on Restitution. The court did not specify which part of the applicant’s father’s plot belonged to either of those categories. 26. The first instance court therefore held that the applicant should be compensated for the remaining part of his father’s land according to the Methodology set out by the Government. That methodology had been upheld by the Constitutional Court in 1998. The domestic law did not provide that the land bought by the State should be compensated by paying Real Estate Registry estimated values. 27. By a ruling of 15 February 2007, the Supreme Administrative Court fully upheld the lower court’s decision. It observed that both the 0.09 ha plot and a 0.73 ha plot were part of land due to be bought by the State. Consequently, the applicant was to be compensated for those plots according to the rules set out in Articles 12 and 16 § 9 of the Law on Restitution. The latter provision listed the ways the applicant had at his disposal to obtain restitution; it was up to the applicant which method to choose. The court observed an abundance of documents in the case file which indicated that the applicant wished to be compensated in cash. However, the court stated that the applicant’s position was not entirely concrete and clear. Accordingly, and given the principle of inseparableness of rights and obligations, the applicant had to submit a request to the State expressing concretely how he wished to be compensated. 28. Lastly, the Supreme Administrative Court underlined that no market-value compensation for land being compulsorily bought by the State had been provided for in the Methodology. 29. In October 2009 the Vilnius County Administration wrote to the applicant stating that his name on the list of persons awaiting plots for building a house in Vilnius had been moved from 228th to 4,864th because he had already been granted a plot of land to build a house in 1999. 30. On 1 February 2012, Article 16 § 9 (6) the Law on Restitution was amended by providing, for the first time, for payment in cash (pinigais) as one of the ways of compensating for land compulsorily bought by the State. 31. Five days later, on 6 February 2012, the National Land Service wrote to the applicant informing him of this new opportunity and asking him to state how he wished to be compensated, until the statutory deadline to express such choice, namely 1 June 2012. 32. On 24 May 2012 the Real Estate Registry issued the applicant with a document to the effect that the average market value (vidutinė rinkos vertė) of plot no. 171 was LTL 162,000, according to its 2001 estimate. 33. On 25 May 2012, the applicant wrote to the Court saying that in April 2012 he was 4,606th on the waiting list of persons whose property rights were to be restored in the city of Vilnius. 34. On 7 June 2012 the Vilnius city authorities informed the applicant that, in accordance with the Methodology approved by the Government, the indexed value (indeksuota vertė) of the 1.795 ha of land to be bought by the State was LTL 17,921. The laws did not allow compensation for this land by market-value payment. The authorities also reminded the applicant that, in accordance with Article 21 § 3 of the Law on Restitution, should a citizen fail to make a choice as to how he or she wished to be compensated for the land bought by the State, or if they favoured a method not provided for by the Law on Restitution, he or she would be compensated in cash (pinigais). 35. In reply to the applicant’s request, on 3 October 2012 the National Land Service confirmed that the unreturned plot of land to which the applicant could still obtain restitution measured 1.795 ha (nustatyta, kad žemės plotas, į kurį liko atkurti nuosavybės teisę, sudaro 1,795 ha). It reiterated to the applicant that his father’s land had been assigned to the land which should be bought out by the State. That notwithstanding, the National Land Service asked the Vilnius city municipality to verify whether there was the possibility to constitute a plot of land within the overall parcel that had belonged to the applicant’s father. Only if there was an unoccupied plot could the National Land Service restore the applicant’s right in natura. 36. In reply to the applicant’s request to grant him a plot of land, if it was possible to delimit one within the territory that had once belonged to his father, on 5 July 2013 Vilnius municipal authorities informed him that the entire plot was already occupied, namely it contained plots of land registered in private ownership, those plots being necessary to use buildings and houses. It also contained some forest land that was listed as being of State importance. For that reason, it was not possible to form a plot within the applicant’s father’s land. In accordance with Articles 12 and 13 of the Law on Restitution, this exact land could not be returned as it was due to be bought by the State.