CASE OF JASIUNIENE v. LITHUANIA

Application no. 41510/98 · Delivered 2003-03-06 · ECLI:CE:ECHR:2003:0306JUD004151098 · Languages: EN · EN · LT

Application no.
41510/98
Delivered
2003-03-06
Respondent State
LTU
Conclusion
Violation of Art. 6-1;Not necessary to examine Art. 13;Violation of P1-1 as regards non-execution;No violation of P1-1 as regards other complaints
Convention articles
6, 6-1, 13, 14+P1-1, 14, P1-1, P1-1-1, 41, 35, 35-3
Original
HUDOC ↗
PresidentI. Cabral BarretoJudgeL. CaflischJudgeP. KūrisJudgeR. TürmenJudgeJ. HediganJudgeM. Tsatsa-NikolovskaJudgeH.S. GreveRegistrarV. Berger
Government AgentG. Švedas
Summary
Preparing…

THIRD SECTION

CASE OF JASIŪNIENĖ v. LITHUANIA

(Application no. 41510/98)

JUDGMENT

STRASBOURG

6 March 2003

FINAL

06/06/2003

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Jasiūnienė v. Lithuania,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

Mr I. Cabral Barreto, President,

Mr L. Caflisch,

Mr P. Kūris,

Mr R. Türmen,

Mr J. Hedigan,

Mrs M. Tsatsa-Nikolovska,

Mrs H.S. Greve, judges,

and Mr V. Berger, Section Registrar,

Having deliberated in private on 13 February 2003,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

(“the applicant”), on 20 April 1998.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

by 30 June 1996, a decision on the request by Stasė Jasiūnienė to restore her property rights in regard to the plot of land (iki 1996 m. birželio 30 d. priimti sprendimą pagal Stasės Jasiūnienės prašymą dėl nuosavybės teisės į žemės sklypą atstatymo)”.

II. RELEVANT DOMESTIC LAW AND PRACTICE

2) compensation in other cases (compensation can be made in land or money). On 27 May 1994 the Constitutional Court examined the issue of compatibility of the Constitution with the domestic laws on restitution 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 considered as “property under the de facto control of the State”. The Constitutional Court also 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 item. In this situation the decision of a competent authority to return the property or to compensate therefor has such a legal effect that only from that moment does the former owner obtain property rights to a specific property item.” The Constitutional Court also held that fair compensation for property which could not be returned was compatible with the principle of the protection of property.

In decisions of 15 June and 19 October 1994 the Constitutional Court emphasised that the notion of restitution of property rights in Lithuania essentially denoted partial reparation. In this respect the Constitutional Court noted that the authorities of Lithuania as a re-established State in 1990 were not responsible for the Soviet occupation half a century ago, nor were they responsible for the consequences of that occupation. The Constitutional Court held that since the 1940s many private persons had bought, in accordance with the legislation applicable at the material time, various property items which had been previously nationalised. The denial of these factual and legal aspects was impossible, and the domestic legislation on restitution of property rights duly took into account not only the interests of the former owners, but also the interests of private persons who had occupied or purchased the property under lawful contracts.

On 20 June 1995 the Constitutional Court also said that the choice by the 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”.

On 8 March 1995 the Constitutional Court ruled that a person who qualifies for compensation for property which cannot be returned is entitled to choose the form of compensation (land or money) by giving written permission for the authorities to proceed with the decision. The Constitutional Court also held that the executive authorities have discretion to decide on appropriate compensation in each case, but that a person is entitled to contest that compensation by way of a court action.

Under Article 18 of the Restitution of Property Act (all versions until 1999), the authorities were required to obtain the written permission of the person concerned before they determined the actual compensation for the property which could not be returned.

Pursuant to the version of the Restitution of Property Act as amended from 2 June 1999, the executive authorities are now entitled to decide the question of compensation without the person's approval. That decision can be appealed to a court in accordance with the procedure established in Article 19 of the Act. No stamp duty is required to file such an action.

The Code of Civil Procedure nonetheless requires the individual concerned to obtain an execution warrant (vykdomasis raštas) from the court which has delivered the final judgment; the execution warrant must be presented to bailiffs for immediate enforcement (Articles 372-379). The requirements of the bailiffs are binding on all authorities and subjects (Article 381).

THE LAW

I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION

Article 6 provides, insofar as relevant, as follows:

“1. In the determination of his civil rights and obligations ... everyone is entitled to a fair hearing ... by a[n] tribunal ... .”

Article 13 states:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

of 25 September 1992, the Palanga City Council had decided to restore the applicant's property rights to half of her late mother's property. According to the Government, “restitution of property rights” within the meaning of that decision in fact denoted compensation in land to be offered to the applicant, in accordance with Articles 5 and 12 of the Restitution of Property Act. The Government contended that the decision of 25 September 1992 was defective in domestic law as it had neither resolved the question of the location of a plot to be offered to the applicant in compensation, nor referred to the procedure whereby that offer should have been effected. According to the Government, the Regional Court identified these flaws in its judgment of 3 April 1996, requiring the authorities to resolve those questions.

Nevertheless, the Government also submitted that to date the applicant had not proved that she qualified for any compensation, within the meaning of the governmental regulations of 13 July 1998, because she had not submitted documentation proving that the original plot had been owned by her mother. Therefore, according to the Government, the judgment

of 3 April 1996 should have been interpreted not only as placing certain obligations on the authorities, but also as requiring the applicant to prove her legal claims under domestic law. In the Government's view, in order to have her property rights restored within the meaning of the domestic legislation, the applicant should have applied to a court, requesting the establishment of the fact that her mother had indeed owned the plot.

The Government concluded therefore that the judgment of 3 April 1996 did not confirm the applicant's entitlement to benefit from the domestic legislation on restitution of property rights as the applicant had not proved that her mother had owned the plot.

The Government further stated that the authorities were in any event precluded by Article 18 of the Restitution of Property Act from implementing the judgment of 3 April 1996 as the applicant had refused three offers to have her property rights restored, i.e. parcels of alternative land offered to her in compensation.

§ 1 (see Hornsby v. Greece, no. 18357/91, 19 March 1997, § 40, ECHR 1997-II; also see, as a recent authority, the Burdov v. Russia judgment, no. 59498/00, 7 May 2002, §§ 34-35).

3 April 1996 remains valid to this date, placing the obligations on the executive, not on the applicant (also see § 28 above).

II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1, TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION

Article 1 of Protocol No.1 provides as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

Article 14 of the Convention states:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

of 3 April 1996 was not executed.

The Government further stated that the applicant had not proved her entitlement to benefit from the domestic legislation on restitution of property rights in regard to the plot as the applicant had not shown that her mother had owned the plot (also see § 25 above). According to the Government, the applicant thus had no “possessions” with regard to her claims to return the plot in kind or to be compensated therefore under the domestic legislation on restitution of property rights.

(see §§ 24-32 above, also see § 44 below). It follows that the applicant has no “possessions” in regard to her claim to recover the plot in kind, and this complaint is incompatible ratione materiae with the provisions of Article 1 of Protocol No. 1 within the meaning of Article 35 § 3 of the Convention.

§ 40). The Court has already found in connection with the applicant's complaint under Article 6 of the Convention that the judgment of 3 April 1996 had placed on the authorities an obligation to afford the applicant compensation in land or money in connection with the plot in accordance with the domestic legislation on restitution of property rights (see §§ 28-30 above). The Court considers therefore that the judgment, which was never revoked, provided the applicant with an enforceable claim to constitute a “possession” within the meaning of Article 1 of Protocol No. 1.

2 June 1999 the non-execution could be attributed solely to the authorities (also see § 29 above). It follows that the impossibility for the applicant to obtain the execution of the judgment constituted an interference with her right to peaceful enjoyment of possessions, as set out in the first sentence of the first paragraph of Article 1 of Protocol No. 1 (see the aforementioned Burdov judgment, § 40).

§§ 28-30 above).

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

3 April 1996, as a result of which the applicant was deprived of the possibility to obtain compensation she could reasonably expect to get

(see §§ 24-32, 44-47 above). Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant the total sum of 9,000 euros (EUR) for pecuniary and non-pecuniary damage.

B. Costs and expenses

C. Default interest

FOR THESE REASONS, THE COURT UNANIMOUSLY

6. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, EUR 9,000 (nine thousand euros) for damages and EUR 3,365 (three thousand three hundred sixty five euros) for legal costs and expenses, plus any tax that may be chargeable on these amounts;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 6 March 2003, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Vincent Berger Ireneu Cabral Barreto

Registrar President

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