TRUCHANOVIC AND OTHERS v. LITHUANIA - 15708/10 (Judgment : Struck out of the list : Second Section Committee) [2020] ECHR 118 (04 February 2020)

JUDGMENT (Just satisfaction) STRASBOURG 4 February 2020 This judgment is final but it may be subject to editorial revision. In the case of Truchanovič and Others v. Lithuania, The European Court of Human Rights (Second Section), sitting as a Committee composed of: Ivana Jelić, President, Egidijus Kūris, Darian Pavli, judges, and Hasan Bakırcı, Deputy Section Registrar, Having deliberated in private on 14 January 2020, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in four applications (nos. 15708/10 , 15874/10, 25117/10 and 28380/10) 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 eight Lithuanian nationals, Mr Ježi Truchanovič (“the first applicant”), Mr Marjan Truchanovič (“the second applicant”), Ms Marija Butkevič (“the third applicant”), Ms Vaclava Sniežko (“the fourth applicant”), Ms Leokadija Pavlova (“the fifth applicant”), Ms Jelena Dvarionienė (“the sixth applicant”), Ms Marija Narkevič (“the seventh applicant”) and Ms Genoefa Stankevič (“the eighth applicant”) on 10 March 2010 (the first, second and third applicants), 2 March 2010 (the fourth and fifth applicants), 21 April 2010 (the sixth and seventh applicants) and 27 April 2010 (the eighth applicant). 2. In a judgment delivered on 18 December 2018 (“the principal judgment”), the Court declared that the second, third and seventh applicants’ legal heirs had standing to continue the proceedings in those applicants’ stead ( Truchanovič and Others v. Lithuania [Committee], nos. 15708/10 and 3 others, § 29 and point 2 of the operative provisions, 18 December 2018). It held that there had been a violation of Article 1 of Protocol No. 1 to the Convention in respect of all eight applicants, in view of the excessive length of the restitution process and the fact that their property rights had still not been fully restored (ibid., § 44 and point 4 of the operative provisions). 3. The applicants sought just satisfaction under Article 41 of the Convention. The Court awarded them the following amounts (plus any tax chargeable) in respect of non-pecuniary damage: 3,000 euros (EUR) to the first applicant, the second applicant’s heirs and the third applicant’s heirs jointly; EUR 5,000 to the fourth and fifth applicants jointly; EUR 5,000 to the sixth applicant and the seventh applicant’s heir jointly; and EUR 6,500 to the eighth applicant. The Court dismissed the remainder of the applicants’ claims as regards the non-pecuniary damage. 4. The Court considered that the question of the application of Article 41 of the Convention was not ready for decision as regards pecuniary damage. It therefore reserved that question and invited the Government and the applicants to submit, within six months, their written observations on that issue and, in particular, to notify the Court of any agreement they might reach (ibid., § 51 and point 6 of the operative provisions). 5. The applicants and the Government failed to reach an agreement and submitted observations concerning the question of pecuniary damage. THE LAW I. Preliminary question 6. The Court notes at the outset that the eighth applicant died on 30 April 2018. Her legal heir, Mr Česlovas Aranauskas, took over her claims before the domestic authorities and submitted observations to the Court on her behalf. In such circumstances, the Court finds that the eighth applicant’s heir is entitled to pursue the application on her behalf (see, among other authorities, Sargsyan v. Azerbaijan (dec.) [GC], no. 40167/06 , § 51, 14 December 2011, and the case-law cited therein). II. As concerns the first, second and third applicants 7. The first applicant and the second and third applicants’ legal heirs (see paragraph 2 above) did not submit any observations. 8. The Government submitted that steps had been taken at the domestic level in order to fully restore those applicants’ property rights. In October 2018 they had been included in a list of candidates to receive land near Vilnius, and in December 2018 the applicants or their heirs had chosen several plots of equal value to the land previously held, which would be given to them at a later stage. 9. In the present case, the Court considers that the first applicant and the second and third applicants’ legal heirs do not intend to pursue their application (Article 37 § 1 (a)). Moreover, in view of the Government’s submissions (see paragraph 8 above), it is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the case as regards the reserved Article 41 procedure (Article 37 § 1 in fine ). 10. Accordingly, the Court considers it appropriate to strike the remainder of the case concerning the first, second and third applicants out of the list. III. As concerns the remaining applicants 11. 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. Further developments after the adoption of the principal judgment 12. In December 2018 the seventh applicant’s heir participated in a meeting of candidates to receive land in several areas near Vilnius, and chose a plot of 0.25 hectares. 13. In May 2019 the National Land Service (hereinafter “the NLS”) restored the eighth applicant’s property rights by giving her 0.0232 hectares of land. The decision stated that her property rights to the remaining 0.4949 hectares would be restored later. 14. In May 2019 the fourth, fifth and sixth applicants and the eighth applicant’s heir received letters from the NLS, informing them that there was not enough land in the areas in which their previous plots had been located. As a result, the applicants’ property rights could be restored either by providing them with land, located in different areas, which was of equal value to the previously held plots, or by monetary compensation. In June 2019 the applicants informed the NLS that they wished to receive land of equal value to their previous plots. 15. At the date of the latest information provided to the Court (17 September 2019), the remainder of the applicants’ property rights had not been restored. 2. The parties’ submissions (a) The applicants 16. The fourth and fifth applicants claimed EUR 24,000 jointly for the land which had not been returned to them. 17. The sixth applicant and the seventh applicant’s heir claimed EUR 22,866 jointly for the land which had not been returned to them. 18. The eighth applicant’s heir claimed EUR 12,594 for the land which had not been returned to him. 19. All the applicants submitted that the aforementioned amounts corresponded to the value of the land which had been taken away from them, established by the Centre of Registers. They stated that if they were awarded those amounts, they would withdraw any further claims before the domestic authorities. (b) The Government 20. The Government firstly submitted that the most appropriate form of satisfaction would be the restoration of the applicants’ property rights in kind in domestic proceedings. However, they acknowledged that, in view of the lack of available land in the relevant areas, it was not clear how long any further restitution process might take. 21. The Government did not dispute that the applicants had sustained the damage which they had claimed, as their claims were based on the value of the land which had been taken away from them and not returned, as established by the Centre of Registers (see paragraphs 16-19 above). At the same time, the Government pointed out that the applicants were still entitled to have their property rights restored by means of monetary compensation in the domestic restitution proceedings and that to date, they had not withdrawn their claims in those proceedings. It was therefore important to avoid any unjust enrichment. 22. Lastly, the Government drew the Court’s attention to the fact that, under Lithuanian law, restoration of property rights by means of monetary compensation and awards in respect of pecuniary damage were made by different State institutions from different budgetary funds. They asked the Court to take the domestic administrative peculiarities into account when making its award. 3. The Court’s assessment 23. The Court reiterates that a judgment in which it finds a breach imposes on the respondent State a legal obligation to put an end to the breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (see Brumărescu v. Romania (just satisfaction) [GC], no. 28342/95 , § 19, ECHR 2001-I). . It also reiterates that, subject to monitoring by the Committee of Ministers, the respondent State remains free to choose the means by which it will discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court’s judgment (see, among other authorities, Sejdovic v. Italy [GC], no. 56581/00 , § 119, ECHR 2006‑II, and Andrejeva v. Latvia [GC], no. 55707/00 , § 110, ECHR 2009). 25. In the principal judgment the Court found a violation of Article 1 of Protocol No. 1 to the Convention on account of the fact that the applicants’ property rights had not been restored with regard to the following plots (see §§ 26 and 44 of the principal judgment): - the fourth and fifth applicants - 0.52 hectares; - the sixth and seventh applicants - 1.22 hectares; - the eighth applicant - 0.5181 hectares. 26. The Court notes that to date, the applicants’ property rights have been restored only in part (see paragraphs 12-15 above). The documents submitted to it by the parties indicate that in view of the lack of available land in relevant areas, any further domestic restitution process is likely to take a long time and entail further uncertainty for the applicants. In such circumstances, the Court considers that the applicants should be awarded compensation for the pecuniary damage sustained. 27. The applicants claimed pecuniary damage corresponding to the value of the land which had been taken away from them and not restored to date, as established by the Centre of Registers. The Government did not dispute the fact that the applicants had sustained pecuniary damage or the accuracy of the amounts claimed. Taking into account the parties’ submissions and the documents in its possession, the Court awards the applicants the following amounts in respect of pecuniary damage: - EUR 24,000 jointly to the fourth and fifth applicants; - EUR 22,866 jointly to the sixth applicant and the seventh applicant’s heir; - EUR 12,594 to the eighth applicant’s heir. 28. The Court reiterates that if the applicants bring any related claims before the domestic authorities, the latter will be entitled to take into account the awards made by the Court in this judgment (see Gladysheva v. Russia , no. 7097/10 , § 104, 6 December 2011, and Nekvedavičius v. Lithuania (just satisfaction), no. 1471/05 , § 23, 17 November 2015). B. Default interest 29. 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 that the eighth applicant’s legal heir has standing to continue the present proceedings in her stead; 2. Decides to strike the remainder of application no. 15708/10 , regarding the reserved Article 41 procedure in respect of the first, second and third applicants, out of its list of cases in accordance with Article 37 § 1 (a) of the Convention; 3. Holds (a) that the respondent State is to pay the applicants, within three months, the following amounts in respect of pecuniary damage: (i) EUR 24,000 (twenty-four thousand euros), plus any tax that may be chargeable, to the fourth and fifth applicants jointly; (ii) EUR 22,866 (twenty-two thousand eight hundred and sixty-six euros), plus any tax that may be chargeable, to the sixth applicant and to the seventh applicant’s heir jointly; (iii) EUR 12,594 (twelve thousand five hundred and ninety-four euros), plus any tax that may be chargeable, to the eighth applicant’s heir; (b) that from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points; 4. Dismisses the remainder of the applicants’ claims for just satisfaction. Done in English, and notified in writing on 4 February 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Hasan Bakırcı Ivana Jelić Deputy Registrar President BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII