ARBACIAUSKIENE v. LITHUANIA - 2971/08 (Judgment (Merits and Just Satisfaction) : Court (Fourth Section)) [2016] ECHR 232 (01 March 2016)

In the case of Arbačiauskienė v. Lithuania,

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

          András Sajó, President,
          Vincent A. De Gaetano,
          Boštjan M. Zupančič,
          Paulo Pinto de Albuquerque,
          Krzysztof Wojtyczek,
          Egidijus Kūris,
          Gabriele Kucsko-Stadlmayer, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 9 February 2016,

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

PROCEDURE

1. The case originated in an application (no. 2971/08) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Lithuanian national, Ms Marija Arbačiauskienė (“the applicant”), on 9 January 2008.

2. The applicant was represented by Ms R. Narbutienė, a lawyer practising in Vilnius. The Lithuanian Government (“the Government”) were represented by their Agent, Ms K. Bubnytė.

3. The applicant alleged that the domestic authorities had failed to enforce the judgment of the Supreme Administrative Court of 5 May 2007, which had confirmed her right to buy a plot of land from the State. She also alleged that she had not had an effective remedy against the lengthy non-enforcement of that judgment.

4. On 13 June 2014 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1957 and lives in Buivydiškės, Vilnius Region.

A. Proceedings concerning the allocation of land to the applicant

6. In 1991 the Lithuanian Parliament enacted the Law on Land Reform which provided that residents of rural areas had the right to acquire land for individual farming (asmeninio ūkio žemė) from the State, in accordance with the requirements set out in the relevant legal instruments (see “Relevant domestic law” below).

7. On 2 May 1992 the applicant’s husband submitted a request to the Zujūnai District Land Council of the Vilnius Region to buy from the State two hectares of land for individual farming in the village of Zujūnai.

8. On 29 October 1993 the Government adopted a decision establishing, inter alia, the order of allocation of land for individual farming. The decision instructed regional and municipal authorities to delimit plots of land to be assigned for individual farming and to prepare the necessary documents for their allocation to individual claimants.

9. On 17 October 1994, in court proceedings instituted by the Government, the Vilnius Region District Court ordered the Buivydiškės District Council of the Vilnius Region to implement the aforementioned decision of the Government.

10. On 16 March 1995 the Buivydiškės District Council adopted a decision on the allocation of 1,520 hectares of land for individual farming in the Vilnius Region. The decision provided a list of individuals who were entitled to buy plots of land from the State. It indicated the amount of land to which each listed individual was entitled but did not specify actual plots. The applicant was included in that list and entitled to buy two hectares of land.

11. On 20 June 1995 the Convention entered into force in respect of Lithuania.

12. On 25 September 2000 the Vilnius County Administration (hereinafter “the VCA”) approved the land allocation plan (žemės reformos žemėtvarkos projektas) for the Buivydiškės cadastral area (this area comprised several villages in the Vilnius Region). The VCA approved the delimitation of plots of land in that territory (patvirtino suformuotų žemės sklypų plotus bei ribas) and instructed Matininkai, a surveyor company, to prepare the necessary documents in order to allocate the plots to individual claimants and to formalise their rights of land ownership or use.

13. In January 2001 the applicant and her husband submitted a request to the VCA to consider as valid their previous request of 2 May 1992 (see paragraph 7 above) and to allocate a plot of land in the village of Zujūnai to them, for the nominal price of 1,884 Lithuanian litai (LTL, approximately 546 euros (EUR)).

14. On 28 January 2002 the VCA approved a list of individuals who were using land for individual farming in the Buivydiškės cadastral area. The applicant was included on the list as using two hectares of land in the village of Buivydiškės. However, as submitted by the applicant and not disputed by the Government, the applicant had not been using this land since no land had been provided to her at that time.

15. In June 2002 the VCA decided that it was necessary to amend the land allocation plan of the Buivydiškės cadastral area in order to take into account requests for restitution in natura which had been submitted in respect of land there. It ordered Matininkai to amend the delimitation and allocation of plots accordingly and to prepare all the necessary documents by 15 October 2002.

16. In July 2002, April 2004, April and November 2006 and February 2007 the applicant and her husband petitioned the VCA and the National Land Service (hereinafter “the NLS”), stating that they had still not received the land to which they were entitled, and requesting that such land be provided to them without further delay. They were informed that the preparation of the land allocation plan in the area was ongoing.

17. In 2006 the applicant and her husband lodged a claim against the VCA before the Vilnius Regional Administrative Court. They complained that the two hectares of land assigned to them in 1995 had still not been provided, that they had been unable to receive any information from the VCA about the ongoing land reform in the Vilnius Region, and that they had not been given the opportunity to participate in the planning of the reform, unlike other residents of the region. They requested that the court oblige the VCA to enforce the decision of the Buivydiškės District Council of 16 March 1995 (see paragraph 10 above) without further delay.

18. On 13 October 2006 the Vilnius Regional Administrative Court dismissed the claim. However, on 5 May 2007 the Supreme Administrative Court upheld the applicant’s appeal and annulled the judgment of the first-instance court. The Supreme Administrative Court noted that the applicant had been entitled to buy two hectares of land by the decision of 16 March 1995 and that she had been included on the list of land users in January 2002 (see paragraphs 10 and 14 above), so on these grounds the VCA was obliged to allocate a specific plot of land to the applicant. The court ordered the VCA to carry out the necessary administrative procedures to identify and delimit a plot of land for the applicant (atlikti administracines procedūras, susijusias su žemės sklypo suprojektavimu bei jo ribų nustatymu). However, the Supreme Administrative Court denied the applicant’s request to set a precise deadline for the VCA to carry out said actions, noting that no such deadlines were provided in the legislation and that there was no objective possibility to do so due to the complexity of the land reform.

19. In May and June 2007 the bailiff in charge of the enforcement of the Supreme Administrative Court’s judgment submitted several notices to the VCA, urging it to enforce the judgment immediately.

20. On 5 June 2007 the VCA approved an amended land allocation plan of the Buivydiškės cadastral area. It ordered Arlitanus, a surveyor company, to mark the delimited plots (paženklinti vietoje) and to prepare the necessary documents for formalising individual rights of ownership or use.

21. In June and July 2007 the applicant and her husband submitted several requests to the VCA and the NLS, inquiring about the enforcement of the judgment of 5 May 2007 and requesting information about the implementation of the land reform in the Buivydiškės cadastral area.

22. On 26 July 2007 the VCA informed the applicant that it had instructed Arlitanus to identify a specific plot of two hectares for the applicant from the stock of available State land by 1 August 2007.

23. In August and October 2007 the applicant submitted complaints to the VCA concerning the continuing non-enforcement of the Supreme Administrative Court’s judgment. She did not receive any response.

24. In August 2007 the applicant asked the Supreme Administrative Court to clarify its judgment of 5 May 2007 and to set a concrete deadline for the VCA to enforce it. However, the court denied the applicant’s request, noting that it was not authorised to clarify its previous judgments in a way that would alter their content.

25. In October 2007 the VCA again amended the land allocation plan of the Buivydiškės cadastral area and instructed Arlitanus to complete the planning by 1 March 2008.

26. In November 2007 the applicant submitted two requests to the VCA, asking to be provided with a plot of land by the end of the year and requesting information as to whether she had been included in the amended land allocation plan as a candidate to receive land. The following month the VCA informed the applicant that the planning in the Buivydiškės cadastral area had to be completed by 1 March 2008 and that the applicant would be included as a candidate of the seventh priority rank to receive land there.

27. In December 2007 the NLS urged the VCA to examine why the list of candidates to receive land in the Buivydiškės cadastral area had not been compiled in time with a view to ensuring the enforcement of the Supreme Administrative Court’s judgment of 5 May 2007.

28. In April 2008 the VCA again amended the land allocation plan in the Buivydiškės cadastral area. It instructed Arlitanus to complete the list of candidates to receive land in that territory by 30 May 2008 and to complete the planning by 1 December 2008.

29. That same month the applicant and her husband requested that the Supreme Administrative Court order interim measures against the VCA to prevent it from distributing land in the Buivydiškės cadastral area to candidates of the eighth and lower priority ranks. The court dismissed their request, noting that interim measures could only be ordered before the court’s judgment is adopted, while after its adoption the VCA was already under an obligation to enforce the judgment and thus interim measures were unnecessary.

30. On 30 May 2008 the Supreme Administrative Court granted the applicant’s request and clarified its judgment of 5 May 2007. The court held that the VCA was under the obligation to include the applicant on the list of candidates to be provided with land in the Buivydiškės cadastral area by 30 June 2008 and to carry out the remaining administrative procedures necessary for the allocation of a specific plot of land of two hectares to the applicant within three months of the completion of the land allocation plan of the Buivydiškės cadastral area.

31. In August 2008 the applicant asked the VCA to inform her whether the Supreme Administrative Court’s judgment of 30 May 2008 had been enforced. She also requested that they provide her with the list of candidates to receive land in the Buivydiškės cadastral area. She did not receive any response.

32. In October 2008 the VCA approved the amended land allocation plan of the Buivydiškės cadastral area and the list of candidates to receive plots of land in that territory. The applicant was not included on that list.

33. Later that month the VCA approved the list of individuals in the eldership (seniūnija) of Zujūnai who were not using the land which had been assigned to them for individual farming. The list indicated that the applicant had been assigned two hectares of land and that she had not been using them. As submitted by the Government, the purpose of that list was to determine the location of the plots to be allocated - those individuals who were not using any specific land would be provided with plots from the State stock of vacant land.

34. In December 2008 the VCA informed the applicant and her husband that the land allocation plan of the Buivydiškės cadastral area was again being amended, and that the list of candidates to receive land in that territory would be compiled after the completion of the planning when the available land has been identified. The VCA noted that the applicant had been included in the preliminary list as a candidate of the seventh priority rank.

35. In March 2009 the bailiff urged the VCA to immediately enforce the Supreme Administrative Court’s judgment of 30 May 2008. In May 2009 the bailiff concluded that the judgment had not been enforced. In July 2009 the Vilnius City First District Court satisfied the bailiff’s request and ordered the VCA to pay a fine of LTL 400 (EUR 115) for non-enforcement of the court’s judgment, as well as to enforce that judgment within three months. However, in December 2009 the Vilnius Regional Court annulled the first-instance decision, noting that the VCA had already included the applicant on the list of candidates to receive a plot of land (see paragraph 36 below), which meant that the judgment of the Supreme Administrative Court had been partly enforced and thus there were no grounds to order a fine.

36. On 9 August 2009 the VCA approved the list of candidates to receive land in the eldership of Zujūnai, in the Buivydiškės cadastral area. The applicant was included in this list as a candidate of the seventh priority rank.

37. The VCA further amended the land allocation plan in the Buivydiškės cadastral area several times in May to July 2009 and February to June 2010, setting new deadlines for the surveyor company to complete the planning.

38. In June 2010 the bailiff asked the VCA to provide information as to whether the land allocation plan had been completed and whether the necessary administrative procedures had been carried out to provide the applicant with a plot of two hectares. In October 2010 the bailiff declared that the Supreme Administrative Court’s judgment had not been enforced and decided to discontinue the enforcement proceedings. The applicant appealed against the bailiff’s decision and in March 2011 the Vilnius City First District Court allowed the appeal and ordered the bailiff to continue the enforcement. That judgment was subsequently upheld by the Vilnius Regional Court.

39. In July 2010, after an administrative reform, the VCA was abolished and its obligations were transferred to the NLS.

40. In November 2010, during a meeting between Arlitanus and candidates of the seventh priority rank, the applicant was offered two plots of land, amounting to a total of two hectares. She accepted the offer.

41. In June 2012 the NLS approved the plan of the Buivydiškės cadastral area prepared by Arlitanus, which delimited plots of land to be allocated to candidates of the first-to-fourth priority ranks.

42. On 20 May 2013 the NLS held a meeting of candidates of the seventh priority rank. The applicant was offered four plots of land (different from the two which had been previously offered to her - see paragraph 40 above) amounting to a total of two hectares. She confirmed that she was aware of any applicable restrictions on the use of those plots and agreed to the offer.

43. On the same day the applicant submitted a complaint to the NLS, stating that the four plots offered to her were too far from her home, that they could not be reached by road and that they were swampland (užpelkėję), and therefore unsuitable for farming. She requested that the NLS give her the plots of land which were offered to her in November 2010 (see paragraph 40 above) or other plots of equivalent quality. However, a few days later the applicant notified the NLS that she would accept the four offered plots.

44. On 31 December 2014 the NLS approved the land allocation plan of the Buivydiškės cadastral area and a list of over twenty individuals who had been allocated specific plots of land. The list indicated that the applicant had been assigned the four plots of land offered to her on 20 May 2013 (see paragraphs 42 and 43 above).

45. In April 2015 the State Land Fund identified that one of the four plots assigned to the applicant included 0.55 hectares of forestland. As a result, that part of the plot could not be transferred to the applicant and had to be returned to the State.

46. That same month the State Land Fund assessed the value of the four plots (after excluding the 0.55 hectares of forestland). It calculated that their total nominal value, assessed in accordance with the Rules of Land Valuation adopted by the Government in 1999 (see “Relevant domestic law” below), was EUR 627, whereas their total market value was EUR 20,410.

47. In May 2015 the NLS informed the applicant that the preliminary market value of the four plots was EUR 26,740, and that she would subsequently be informed of the final price.

48. In June 2015 the NLS amended the land allocation plan for the eldership of Zujūnai, indicating that the total area which had been allocated to the applicant amounted to 1.45 hectares.

49. In September 2015 the NLS informed the applicant that she had to pay a fee of EUR 157 for registering the four plots in the property register, and that that fee would be subsequently refunded to her in the price of the land.

50. In October 2015 the Government informed the Court that the NLS had identified the remaining vacant State land in the Buivydiškės cadastral area and that the applicant would be included as a candidate to receive 0.55 hectares of farmland in a future land plan. In November 2015 the Government further informed the Court that the NLS had prepared draft agreements to enable the applicant to purchase the aforementioned four plots amounting to 1.45 hectares.

B. Other civil and administrative proceedings against the VCA

51. In July 2007 the applicant and her husband submitted a complaint against the VCA to the Vilnius Regional Commission of Administrative Disputes (hereinafter - “the Commission”). They complained that they had not received any response to their repeated requests for information, sent in June and July 2007 (see paragraph 21 above). The Commission partly upheld the complaint and ordered the VCA to respond within five days to two requests submitted in June 2007.

52. On 25 September 2007 the applicant and her husband submitted a complaint to the Vilnius Regional Administrative Court, requesting that it order the VCA to comply with the Commission’s decision. They also claimed non-pecuniary damages resulting from the VCA’s deliberate refusal to fulfil its obligations.

53. On 12 December 2007 the Vilnius Regional Administrative Court dismissed the complaint. However, on 20 November 2008 the Supreme Administrative Court quashed the first-instance judgment and ordered the VCA to provide the applicant and her husband with a satisfactory response to their request of June 2007. The court also noted that the applicant and her husband had repeatedly asked the VCA for information about the implementation of the land reform and about the plot assigned to them, that they had petitioned several State institutions (see paragraphs 54-57 below), and that the lengthy non-enforcement of the Supreme Administrative Court’s judgment of 5 May 2007, as well as the VCA’s evasiveness concerning their requests, had caused them inconvenience and negative feelings. Thus, the court awarded the applicant and her husband non-pecuniary damages of LTL 1,500 (EUR 430) each.

C. Complaints to other State institutions

54. In April 2006 the applicant and her husband submitted a complaint to the Parliamentary Ombudsperson, stating that they still had not been given the land assigned to them in 1995. In June 2007 the Ombudsperson concluded that the complaint was well-founded, and recommended the Ministry of Agriculture provide assistance to the VCA in enforcing the decision of the Buivydiškės District Council of 16 March 1995.

55. In November 2007 the applicant’s husband again petitioned the Ombudsperson, stating that her previous recommendation had not been implemented. He noted that the Ministry of Agriculture had passed on the Ombudsperson’s conclusion to the NLS, but the latter institution had stated that it was not allowed to influence the decisions of county administrations. The applicant’s husband also complained that he and the applicant still had not been included on the list of candidates to receive land in the Buivydiškės cadastral area and that the land in that territory was being distributed to candidates of lower priority ranks.

56. That same month a group of residents of Buivydiškės, including the applicant’s husband, submitted a complaint to the parliamentary subcommittee on the rule of law, complaining about the actions of the VCA in the implementation of the land reform. The residents claimed that the only individuals who had received land in the Buivydiškės cadastral area had been employees of local institutions and that the land was not being distributed in compliance with the approved priority ranks.

57. Later that month the applicant’s husband also petitioned the Ministry of Agriculture, asking what assistance had been provided to the VCA following the Parliamentary Ombudsperson’s recommendation (see paragraph 54 above).

D. Criminal investigation against the VCA

58. In August 2007 the applicant and her husband requested that the police of the Vilnius Region launch a criminal investigation into the actions of the VCA. They alleged that the VCA had deliberately refused to enforce the Supreme Administrative Court’s judgment of 5 May 2007 (piktybiškai nevykdė teismo sprendimo), in violation of Articles 228, 229 and 294 of the Criminal Code, and that the land in the Buivydiškės cadastral area had been distributed to civil servants working at the VCA and its subordinate institutions, contrary to approved land allocation plans.

59. Subsequently the applicant and her husband requested that the district prosecutor of the Vilnius Region suspend any further actions of the VCA concerning the allocation of land in the Buivydiškės cadastral area, but their request was denied.

60. In December 2007 the district prosecutor of the Vilnius Region decided to discontinue the criminal investigation into the VCA, concluding that no crime had been committed. The applicant and her husband appealed against that decision. The Prosecutor General satisfied their appeal and ordered a different prosecutor in the Vilnius Region to continue the investigation.

61. In March and April 2008 the applicant and her husband submitted written testimonies to the district prosecutor and were recognised as victims.

62. In June 2009 the district prosecutor decided to discontinue the criminal investigation against the VCA on the grounds that no crime had been committed. The prosecutor held that the land reform in the Buivydiškės cadastral area had been prolonged due to reasons outside the control of the VCA, such as requests of former owners of land to receive restitution in natura. The decision also stated that the preparation of the land plan was ongoing and the applicant had been included in the preliminary list of candidates. Lastly, the prosecutor did not find any evidence that the land had been unlawfully distributed to candidates of lower priority ranks.

II. RELEVANT DOMESTIC LAW

A. Law on Administrative Proceedings

63. In accordance with Article 14 of the Law on Administrative Proceedings, an effective court decision, ruling or order is binding on all state institutions, officers and public servants, enterprises, agencies, organisations, and other natural and legal persons, and must be enforced within the entire territory of Lithuania.

B. Law on Land Reform

64. The Law on Land Reform was enacted on 1 September 1991 and subsequently amended several times. At the material time, Article 4 § 1 of the Law provided that the land reform shall be implemented according to land allocation plans, prepared in line with the rules stipulated by the Government.

65. Article 8 provided that individuals had the right to buy land from the State for individual farming, at a price established by the Government. Article 16 set out the criteria for establishing the categories of persons who had the right to acquire land for individual farming.

66. Article 10 established the order of priority for categories of persons to acquire land from the State. Those persons who had the right to restitution of land were given a higher priority than those who wished to acquire land to which they had had no previous ownership rights.

67. Article 14 provided that all land which had not been restored or sold to individuals shall be included in the State stock of available land.

C. Order on Implementing the Land Reform in Rural Areas

68. The Order on Implementing the Land Reform in Rural Areas, enacted by Government Resolution No. 385 of 1 April 1998, at the material time provided, in point 5, that after the State stock of available land is identified individual plots of land would be delimited in accordance with the order of priority established in the Law on Land Reform, and ownership rights would be recognised only after the county administration had approved the land allocation plan. The county administration must announce the beginning of the preparation of the land allocation plan in the press.

69. Point 6 provided that territorial land reform offices should transfer individual requests to buy or rent land to the surveyor in charge of preparing a land allocation plan within fifteen days of receiving them.

70. Point 8 provided that the surveyor should delimit individual plots in the land allocation plan following consultation with the claimants who had expressed a wish to acquire them. The surveyor should submit a completed land allocation plan within fifteen days of the consultation.

71. Point 9 provided that a county administration, after examining the land allocation plan and the relevant supporting documents, should approve the plan and adopt a decision on the selling of the land. It should enter into sales agreements with individual claimants within three months of adopting that decision.

D. Government Resolution No. 205 on the Rules of Land Valuation

72. On 24 February 1999 the Government passed Resolution No. 205, which approved the Rules of Land Valuation. The latter document set out the rules for assessing the nominal indexed value of land on the basis of its location, purpose, fertility, applicable restrictions, and so forth. At the time it came into force, point 2.1.1 of Resolution No. 205 provided that the Rules would be applied when calculating the value of State land sold to individuals. Point 2.2.1 provided that the value of plots of land in rural areas would be assessed by the surveyor preparing a land allocation plan.

73. On 8 November 2004 the Government amended Resolution No. 205 by adding a new point 5.3, which provided that the value of land for individual farming would be assessed in accordance with land value maps adopted by the Ministry of Agriculture. Land value maps indicated the average market value of land in different territorial zones. However, point 5.3 also provided that if the value assessed in accordance with land value maps had been higher than the one assessed in accordance with the Rules of Land Valuation, then the lower value would be used.

In subsequent amendments, point 5.3 became point 5.5.

74. On 12 December 2012 the Government amended Resolution No. 205 by deleting the second part of point 5.5. The amended version provided that the value of land for individual farming would be assessed in accordance with land value maps.

75. On 10 April 2013 the Government again amended Resolution No. 205. The amended version of point 5.5 reads as follows:

“5.5. The value of land for individual farming, sold without holding an auction, is assessed in accordance with land value maps. Until 31 December 2013, if the value of the land, assessed in accordance with land value maps, is higher than the value assessed in accordance with the rules of land valuation, then that land shall be sold for the price corresponding to the latter value ...”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

76. The applicant complained about the non-enforcement of the Supreme Administrative Court’s judgment of 5 May 2007 which had confirmed her right to acquire two hectares of land assigned to her by the local authorities in 1995. The applicant also complained about the length of the enforcement proceedings. She relied on Article 6 § 1 of the Convention, the relevant part of which reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

77. The Court considers that the issue of lengthy proceedings is directly linked to the complaint of non-enforcement of the judgment (see Nekvedavičius v. Lithuania, no. 1471/05, § 41, 10 December 2013). It will therefore take that question into account in assessing the non-enforcement complaint.

A. Admissibility

78. The Government did not raise a preliminary objection concerning the admissibility of the applicant’s complaint under Article 6 § 1. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

(a) The applicant

79. The applicant submitted that, in failing to enforce the binding and final court judgment of 5 May 2007, the domestic authorities had infringed her right to a fair hearing within a reasonable time. She contended that she had had the right to acquire two hectares of land from the State since 1995, when this right had been recognised by the local authorities. However, to date she had still not been provided with that land, despite her repeated requests and complaints. Thus, the Supreme Administrative Court’s judgment had remained unenforced for eight years and she had been waiting to receive her land for twenty years.

80. The applicant further submitted that the four plots of land allocated to her so far amounted only to 1.45 hectares. She also claimed that they were 9 to 15 kilometres away from her home, which meant that in order to use them for farming, it was necessary to build additional buildings on those plots; however, construction on farmland was prohibited by law. Furthermore, the applicant contended that she had been entitled by law to buy the land for a nominal price; however, the relevant legal acts had expired in 2012, so because of the delays caused by the State institutions, she was required to pay the market price (EUR 26,740), which was many times higher than the nominal price (EUR 627).

(b) The Government

81. The Government submitted that the Supreme Administrative Court’s judgment of 5 May 2007 had been enforced without undue delay: in June 2007 the VCA had instructed the surveyor to identify a specific plot of two hectares for the applicant from the stock of available State land, and in December 2008 the applicant was included in a preliminary list of candidates. The Government stated that the applicant had been duly informed about all the decisions concerning her situation. They also noted that the applicant had been provided with 1.45 hectares of land on 20 May 2013 and that the remaining part would be provided to her in the subsequent stages of the planning process. The Government also stated that the price of the applicant’s land (EUR 20,410, after excluding the forestland) had been assessed in accordance with the land value maps adopted by the State authorities and that it was considerably lower than the actual market value of similar land in the Vilnius Region.

82. The Government further argued that any delays in the enforcement had occurred due to reasons outside their control. They submitted that the land allocation plan of the Buivydiškės cadastral area was of an exceptionally large scope, as it concerned 1,015 individual claimants divided into sixteen priority ranks. Each category of claimants had to meet separately to choose plots of land, and the plan for each group had to be subsequently approved by the competent authorities. The Government also contended that the land reform had been further prolonged by the claims of former land owners to receive restitution in natura, which resulted in the need to amend the land allocation plan several times.

83. Lastly, the Government stated that a certain delay in the allocation of a plot of land to the applicant had been caused by her own failure to request such a plot in 1995. They submitted that the applicant had remained inactive and had not petitioned the competent authorities until 2004, thus contributing to the delay.

2. The Court’s assessment

(a) General principles

84. The Court reiterates that the right to a court protected by Article 6 would be illusory if a Contracting State’s domestic legal system allowed a final and binding judicial decision to remain inoperative to the detriment of one party. Enforcement of a judgment given by any court must therefore be regarded as an integral part of the “trial” for the purposes of Article 6. An unreasonably long delay in enforcement of a binding judgment may therefore breach the Convention (see Hornsby v. Greece, 19 March 1997, § 40, Reports of Judgments and Decisions 1997-II, and Burdov v. Russia (no. 2), no. 33509/04, §§ 65-66, ECHR 2009).

85. The Court further reiterates that the reasonableness of such a delay is to be determined having regard in particular to the complexity of the enforcement proceedings, the applicant’s own behaviour and that of the competent authorities, as well as the amount and nature of the court award (see Raylyan v. Russia, no. 22000/03, § 31, 15 February 2007, and Rafailović and Stevanović v. Serbia, nos. 38629/07 and 23718/08, § 78, 16 June 2015). While the Court has due regard to the domestic statutory time-limits set for enforcement proceedings, non-compliance with them does not automatically amount to a breach of the Convention. Some delay may be justified in particular circumstances but it may not, in any event, be such as to impair the essence of the right protected under Article 6 § 1 (see Burdov (no. 2), cited above, § 67).

86. It is not unreasonable that the authorities request that the applicant produce additional documents (for example, bank details) to allow or speed up the enforcement of a judgment. However, the requirement of the claimant’s cooperation must not go beyond what is strictly necessary and, in any event, does not relieve the authorities of their obligation under the Convention to take timely action of their own motion, on the basis of the information available to them, with a view to honouring the judgment against the State (see Akashev v. Russia, no. 30616/05, § 22, 12 June 2008, and the cases cited therein). The Court thus considers that the burden to ensure compliance with a judgment against the State lies primarily with the State authorities starting from the date on which the judgment becomes binding and enforceable (see Burdov (no. 2), cited above, § 69).

87. Lastly the Court reiterates that the complexity of the domestic enforcement procedure cannot relieve the State of its obligation under the Convention to guarantee to everyone the right to have a binding and enforceable judicial decision enforced within a reasonable time. Nor is it open to a State authority to cite a lack of funds or other resources as an excuse for not honouring a judgment debt. It is for the Contracting States to organise their legal systems in such a way that the competent authorities can meet their obligation in this regard (ibid, § 70, and the cases cited therein).

(b) Application of the above principles in the present case

(i) Whether the judgment of 5 May 2007 was enforced within a reasonable time

88. In the present case, the applicant obtained the right to buy two hectares of land from the State by virtue of the Buivydiškės District Council’s decision of 16 March 1995. The Supreme Administrative Court in its judgment of 5 May 2007 explicitly confirmed that that decision had conferred such a right on the applicant (see paragraphs 10 and 18 above). Therefore, at the time the latter judgment was adopted, the obligation of the State authorities to provide the applicant with a plot of land had already been pending for twelve years. Thus, the Court considers that once that judgment had entered into force, it should have been enforced without any undue delay (see Nekvedavičius, cited above, § 56).

89. The Supreme Administrative Court’s judgment in question was final and it came into force the same day. It ordered the VCA to carry out the necessary administrative procedures with a view to delimiting and allocating a specific plot of land to the applicant. Even though the judgment did not set a time-limit for its enforcement, this did not absolve the domestic authorities from the obligation to enforce it without an unreasonable delay.

90. The Court notes that the VCA did in fact take certain actions to enforce the Supreme Administrative Court’s judgment: in July 2007 it instructed the surveyor company to identify a suitable plot of land for the applicant (see paragraph 22 above). Nonetheless, and contrary to the Government’s submissions, on 30 May 2008 the Supreme Administrative Court found that the actions of the VCA had not been sufficient to enforce its previous judgment, and declared that that judgment had not been enforced. As a result, the court set time-limits for enforcement: it ordered the VCA to include the applicant on the list of candidates to receive land in the Buivydiškės cadastral area by 30 June 2008, and to carry out the remaining administrative procedures, necessary for the allocation of a specific plot of land to the applicant, within three months after the adoption of the land allocation plan of the Buivydiškės cadastral area (see paragraph 30 above).

91. With regard to the first obligation, the Court observes that the applicant was included in the approved (and not preliminary) list of candidates on 9 August 2009 (see paragraph 36 above). Thus, that part of the Supreme Administrative Court’s judgment of 5 May 2007 was enforced more than two years after its adoption, and more than a year past the deadline set by the same court on 30 May 2008.

92. With regard to the second obligation (to carry out the remaining administrative procedures, necessary for the allocation of a specific plot of land to the applicant), the Court notes that it could only be fulfilled once the land allocation plan of the Buivydiškės cadastral area had been adopted. After a series of amendments, that plan was finally adopted by the NLS on 31 December 2014. In the plan, the applicant was allocated four plots of land, comprising a total of two hectares. However, it was subsequently identified that the total area of farmland on those four plots in fact amounted to 1.45 hectares and, according to the latest information available to the Court, the remaining 0.55 have not been allocated to the applicant (see paragraphs 44, 45 and 50 above).

93. As concerns those four plots of land, the applicant complained that they were too far from her home, and that she was requested by the authorities to pay a price corresponding to their market value (more than EUR 20,000), which was many times higher than the nominal price (EUR 627). The Court firstly notes that in May 2013 the applicant agreed to accept the four plots, and there is no indication that she had not been duly informed about their distance from her home.

94. However, with respect to the price, the Court notes that at the time the judgment of 5 May 2007 was adopted, the relevant domestic regulations entitled individuals to buy land from the State for a nominal price established by the authorities. Those regulations were amended on 12 December 2012 and again on 10 April 2013, and the amendments stipulated that the land should be sold for its market value (see paragraphs 72-76 above).

95. The Court notes that the Supreme Administrative Court’s judgments adopted in the applicant’s case did not explicitly grant the applicant the right to buy the land for a particular price; nor did they order the domestic authorities to enable the applicant to buy the land within a precise period of time, while the aforementioned regulations were still in force. Nonetheless, the Court considers that the judgment of 5 May 2007 - and thus the obligations established therein - must be read in the context of the legal acts which were in force at the time of its adoption. Where enforcement of a judgment is delayed for a substantial period of time, and such a delay is imputable not to the applicant but to the State authorities (see paragraphs 98-105 below), the applicant should not have to bear the additional burden resulting from that delay (see, mutatis mutandis, Gladysheva v. Russia, no. 7097/10, § 80, 6 December 2011). Without suggesting what specific price would be appropriate, the Court nonetheless considers that the market value of the land has increased during the period of the non-enforcement of the judgment, and in 2015 that value was many times higher than the nominal price which the applicant would have paid if the judgment had been promptly enforced. Accordingly, requiring the applicant to pay the market price was not justified in the circumstances of the present case and thus could not be considered proper enforcement of the judgment of 5 May 2007.

In this connection the Court recalls that the State Land Fund, relying on the Rules of Land Valuation, adopted by the Government and applicable to the selling of land for individual farming from 1999 to 2012, had assessed the nominal price of the 1.45 hectares of land allocated to the applicant to be EUR 627 (see paragraph 46 above), and that assessment is of great relevance when determining the price which the applicant should pay for the land allocated to her.

96. The Court reiterates that enforcement of a judgment must be full and exhaustive, and not just partial (see, among other authorities, Sabin Popescu v. Romania, no. 48102/99, §§ 68-76, 2 March 2004). Accordingly, it finds that the judgment of 5 May 2007, granting the applicant the right to buy two hectares of land from the State, has still not been enforced.

(ii) Whether the delay in the enforcement was justified

97. Having found that the Supreme Administrative Court’s judgment of 5 May 2007 has not been enforced to date, the Court will examine whether there were reasons outside the authorities’ control which could have justified the delay.

98. The Court takes note of the Government’s argument that the proceedings in question were complex, as they involved a large area and a high number of applicants with conflicting claims to the land. It has previously held that the enforcement of a judgment concerning allocation of particular property may take a longer time than payment of a sum of money (see Kopnin and Others v. Russia, no. 2746/05, § 33, 28 May 2014, and the cases cited therein), and it is certainly aware of the complexity of implementing large-scale land reforms as the one in the present case (see also Užkurėlienė and Others v. Lithuania, no. 62988/00, § 35, 7 April 2005). Nonetheless, the Court reiterates that the complexity of the domestic enforcement procedure cannot relieve the State of its obligation under the Convention to guarantee to everyone the right to have a binding judicial decision enforced within a reasonable time, and that it is for the Contracting States to organise their legal systems in such a way that the competent authorities can meet their obligation in this regard (see Burdov (no. 2), cited above, § 70, and the cases cited therein).

99. In the present case, the applicant’s right to buy a plot of land from the State was recognised in 1995; thus, her claim to land in the Buivydiškės cadastral area must have been known to the authorities at least since that time. The land reform in that area started in 2000 (see paragraph 12 above). The Court has no reason to doubt that it may have been necessary to amend the land allocation plan in order to take into account the requests for restitution of land. Nonetheless, it reiterates that when the judgment of 5 May 2007 was adopted, the land reform in that area had been going on for seven years, and the applicant’s right to buy land had now been recognised for twenty years. The Court considers that these circumstances both required and enabled the authorities to enforce that judgment without any undue delay.

100. Even though the domestic authorities were not completely inactive, the Court considers that they did not display due diligence in their attempts to enforce the judgment of 5 May 2007. Despite the fact that the applicant had been petitioning the relevant authorities since January 2001 (and not since 2004, as claimed by the Government - see paragraph 83 above), she was included on the list of candidates to receive land only in August 2009, after the deadline set by the Supreme Administrative Court (see paragraphs 30 and 36 above). The first time the applicant was offered a specific plot was in November 2010, and although she agreed to the offer, nearly three years later (in May 2013) she was presented with new plots. It took the authorities another two years (until April 2015) to identify that the plots offered to the applicant were of lesser size than previously determined (see paragraphs 40, 42 and 45 above). Although the Court accepts that Contracting States are in principle justified in prioritising the interests of former owners to restore their property rights (see, among other authorities, Pyrantienė v. Lithuania, no. 45092/07, § 48, 12 November 2013, and Albergas and Arlauskas v. Lithuania, no. 17978/05, § 57, 27 May 2014), in the present case the Government did not demonstrate that any restoration claims had been submitted in respect of the plot allocated to the applicant, nor that in general the former owners’ claims in the Buivydiškės cadastral area had been of such extent as to preclude any possibility of allocating two hectares to the applicant in due time. The Court further notes that at various points the NLS (before it took over the VCA’s functions), the bailiff and the Parliamentary Ombudsperson had unsuccessfully tried to speed up the enforcement of the judgment, with the VCA making little to no effort in that regard (see paragraphs 19, 27, 35, 38 and 54 above).

101. Accordingly, the Court does not share the Government’s view that the delays in the allocation of land to the applicant can be sufficiently explained by the complexity of the proceedings. It notes that it was within the power of the authorities to organise the proceedings related to the land reform in such a manner which would not impair the essence of the applicant’s right to be allocated a plot of land, recognised by a final and binding court judgment (see, mutatis mutandis, Yuriy Nikolayevich Ivanov v. Ukraine, no. 40450/04, § 55, 15 October 2009).

102. The Court also cannot accept the Government’s argument that the applicant contributed to the delay in the enforcement. It notes firstly that the applicant repeatedly requested that the VCA and the NLS include her in the land reform process in the Buivydiškės cadastral area, and that she actively sought the enforcement of the judgment in question (see paragraphs 13, 16, 21, 23, 24 and 31 above). The Court does not see any indication that the applicant presented unreasonable demands or refused to cooperate with the authorities, or in any other way obstructed the enforcement proceedings (see, in contrast, Užkurėlienė and Others, cited above, §§ 33-34, and Nekvedavičius, also cited above, §§ 62-63).

103. In addition, the Court notes that the delays in the enforcement proceedings were recognised several times at the domestic level, and the domestic authorities did not find the applicant in any way responsible in that respect. Contrary to the Government’s submissions, the Supreme Administrative Court in its judgment of 5 May 2007 did not find that any actions or inactivity by the applicant from 1995 until 2007 had affected her right to receive the land (see also Bratanova v. Bulgaria, no. 44497/06, §§ 38-39, 9 June 2015). Furthermore, on 20 November 2008 that same court found that the lengthy non-enforcement of its previous judgment, as well as the VCA’s refusal to respond to the applicant’s requests for information had warranted awarding non-pecuniary damages to the applicant and her husband (see paragraph 53 above).

104. In these circumstances the Court does not see any grounds to find that the applicant was responsible, in whole or in part, for the lengthy non-enforcement of the Supreme Administrative Court’s judgment of 5 May 2007.

(iii) Conclusion

105. In the light of the above, the Court concludes that the actions taken by the domestic authorities to enforce the final and binding judgment of 5 May 2007 cannot be considered sufficiently speedy and falling in line with the principle of the proper administration of justice. It follows that by failing for many years to take the necessary measures to comply with the final judgment in the present case, the Lithuanian authorities impaired the very essence of the applicant’s rights under Article 6 § 1 of the Convention. There has accordingly been a violation of that provision.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

106. The applicant complained that no effective remedy was available to her against the failure of the domestic authorities to comply with the final and binding judgment recognising her right to acquire a plot of land. She relied on Article 13 of the Convention, which reads as follows:

“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.”

107. The Government submitted that a number of effective remedies were available to the applicant at the domestic level. They firstly stated that the applicant could have requested that the administrative courts oblige the relevant local authorities to carry out actions or adopt administrative acts in order to provide her with the land. They further submitted that the applicant had the opportunity to lodge a civil claim against the State for damages.

108. The Court reiterates that Article 13 gives direct expression to the States’ obligation, enshrined in Article 1 of the Convention, to protect human rights first and foremost within their own legal system. It therefore requires that the States provide a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief. The remedy required by Article 13 must be “effective” in practice as well as in law in the sense either of preventing the alleged violation or its continuation, or of providing adequate redress for any violation that has already occurred (see Kudła v. Poland [GC], no. 30210/96, §§ 152 and 157, ECHR 2000-XI). Accordingly, in cases such as the present one, national legislation should provide the individuals with legal means for ensuring that judgments are timely enforced by the authorities.

109. In the circumstances of the present case, the Court does not share the Government’s view that the applicant should have started new proceedings before the administrative courts and asked them to oblige the local authorities to enforce the judgment in question. On the one hand, the Court notes that such an obligation had already been imposed on the local authorities by the Supreme Administrative Court’s judgment of 5 May 2007, and on 30 May 2008 that court set specific time-limits for enforcement. Nonetheless, to date the local authorities have failed to comply with those judgments. Accordingly, the Court considers that in the light of the non-cooperative attitude of the domestic authorities in this particular case, new court proceedings to the same effect would have been redundant and would not have constituted an effective remedy against non-enforcement of a judgment adopted by the Supreme Administrative Court in the applicant’s case. On the other hand, the Court reiterates that, in any event, in cases concerning non-enforcement of final decisions, where such a decision is delivered in favour of an individual against the State, the former should not, in principle, be compelled to bring separate enforcement proceedings (see, mutatis mutandis, Metaxas v. Greece, no. 8415/02, § 19, 27 May 2004).

110. With regard to the Government’s argument that the applicant should have lodged a civil claim for damages, the Court recalls, mutatis mutandis, its judgment in Nekvedavičius (cited above, § 45, and see the cases cited therein), where it held that while compensation may sometimes be deemed a sufficient remedy for the State’s failure to enforce a judgment, it could not be considered a proper alternative to the measures that the domestic legal system should have afforded the applicant in order to obtain the restoration of his ownership rights. In the light of all the essential elements of the present case, the Court is of the view that a civil claim for damages could not be considered an effective remedy against the lengthy non-enforcement of a judgment granting the applicant the right to acquire property.

111. In the light of the foregoing, the Court considers that in the circumstances of this particular case the applicant did not have an effective remedy enabling her to secure the enforcement of her right to acquire a plot of land, recognised by a final and binding court judgment. Accordingly, in the present case there has been a violation of Article 13 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

112. Article 41 of the Convention provides:

“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

1. The parties’ submissions

113. The applicant claimed 760,092 euros (EUR) in respect of pecuniary damage, consisting of:

(a) EUR 748,378 corresponding to the market value of two hectares of land in the Buivydiškės cadastral area, assessed by the Centre of Registers;

(b) EUR 11,714 corresponding to the income which the applicant would have received from agricultural activities on the plot of land until 2015.

114. The applicant also claimed EUR 50,000 in respect of non-pecuniary damage for the distress, inconvenience and negative emotions suffered due to the lengthy non-enforcement of the judgment.

115. The Government contested those amounts. They submitted that the value of the land, provided by the applicant, was unsubstantiated because it had not been assessed in accordance with the land value maps adopted by the State authorities. They further submitted that the allegedly lost income was not related to the violations of the applicant’s rights under Articles 6 and 13 of the Convention. The Government argued that the applicant’s claim for pecuniary damage would be best satisfied by the complete enforcement of the judgment of 5 May 2007.

116. The Government also considered the applicant’s claim for non-pecuniary damage excessive and unsubstantiated.

2. The Court’s assessment

117. The Court reiterates that the principle underlying the provision of just satisfaction for a breach of Article 6 of the Convention is that the applicant should as far as possible be put in the position he or she would have enjoyed had the proceedings complied with the Convention’s requirements. The Court will award financial compensation under Article 41 only where it is satisfied that the loss or damage complained of was actually caused by the violation it has found, since the State cannot be required to pay damages in respect of losses for which it is not responsible (see Kingsley v. the United Kingdom [GC], no. 35605/97, § 40, ECHR 2002-IV, and the cases cited therein).

118. The Court also reiterates that the most appropriate form of redress in cases which concern non-enforcement of domestic judgments is to ensure full enforcement of those judgments (see, among many other authorities, Đurić and Others v. Bosnia and Herzegovina, nos. 79867/12, 79873/12, 80027/12, 80182/12, 80203/12 and 115/13, § 36, 20 January 2015).

119. In the present case the Court has found a violation of Article 6 § 1 of the Convention on account of the lengthy non-enforcement of a domestic judgment. The Court notes that to date that judgment has been partly enforced: 1.45 hectares of land have been allocated for the applicant to buy. In such circumstances, the Court considers that the applicant’s claim for just satisfaction would be best satisfied by the full enforcement of said judgment, in accordance with the findings of the present judgment (see paragraphs 88-96 above). Accordingly, the Court dismisses the applicant’s claim in respect of pecuniary damage.

120. However, the Court considers that the applicant undoubtedly suffered distress and frustration because of the violations of her rights under Article 6 § 1 and Article 13 of the Convention, found in the present case. Making its award on an equitable basis, the Court awards EUR 7,000 under this head.

B. Costs and expenses

121. The applicant did not submit a claim for the costs and expenses incurred before the domestic courts and before the Court. Accordingly, the Court makes no award under this head.

C. Default interest

122. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3. Holds that there has been a violation of Article 13 of the Convention;

4. Holds

(a) that the respondent State is to enforce the judgment of 5 May 2007 in the applicant’s favour, in full satisfaction of her claim of pecuniary damage, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention;

(b) that the respondent State is to pay the applicant, within the same three-month period, EUR 7,000 (seven thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(c) 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.

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 1 March 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı András Sajó
Deputy Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> ARBACIAUSKIENE v. LITHUANIA - 2971/08 (Judgment (Merits and Just Satisfaction) : Court (Fourth Section)) [2016] ECHR 232 (01 March 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/232.html Cite as: [2016] ECHR 232