CASE OF ŽILINSKIENĖ v. LITHUANIA – Application no. 57675/09 (2015)

Facts:

The case originated with an application against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms by a Lithuanian national, Ms Kostancija Žilinskienė (herein referred to as ‘the applicant’), on 19 October 2009. The case involves a dispute about the restoration of title to land in the Radviliškis area. In 2000 the Radviliškis Land Department of the Šiauliai County Administration recognised L.S.G.’s right to the restoration of title to this 4.07 hectares of land. The plot of land in question had belonged to two other individuals and had been nationalised by the Soviet regime. That same year L.S.G and the applicant, a resident of the Šiauliai Region, signed a notarised agreement by which L.S.G. transferred to the applicant the right to the restoration of title to 2.07 hectares of the above-mentioned plot of land. The agreement did not indicate whether the applicant had given any money to L.S.G. in exchange for this right. However, the applicant subsequently claimed that she had paid approximately 405 Euros.

In 2004 the Special Investigation Service began investigating allegations of fraud, forgery of documents and abuse of office (under Articles 182, 228 and 300 of the Criminal Code) relating to the restoration of property rights by the Radviliškis Land Department. In January 2005 the prosecutor of the Šiauliai Region launched a similar investigation, with the two investigations subsequently being joined. As a result, on 11 November 2008 the Radviliškis District Court granted the prosecutor’s request for an annulment of the agreement between the applicant and L.S.G. The court held that L.S.G. had not been P.M. and E.M.’s relative or heir and thus, under the applicable law, had not been entitled to the restoration of title to their land. Therefore, the court declared the agreement between the applicant and L.S.G. null and void ab initio, confiscated the plot of land from the applicant, and returned it to the State.

During the proceedings the applicant claimed that she had paid LTL 1,400 (EUR 405) to L.S.G. for the right of title to the land, and L.S.G. acknowledged that she had received an unspecified sum of money. However, since no such payment had been mentioned in the text of their agreement, the court held that the right of title had been transferred to the applicant for free and did not award her any compensation. On 17 February 2009 the Šiauliai Regional Court dismissed the applicant’s appeal and upheld the decision of the lower court. The court found that the applicant had not proved that she had paid for the transfer of the right of title. It also noted that under the Civil Code, property which had been unlawfully obtained for free could be confiscated from an owner, irrespective of whether the owner had acquired such property in good faith.

Issue: The applicant complained that she had been deprived of her land, of which she had been a bona fide owner, without receiving any compensation. She relied on Article 1 of Protocol No. 1 to the Convention, which reads 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.”

The Court’s Assessment: In the present case it is not disputed that there has been an interference with the applicant’s property rights. Having found that this interference falls to be considered as “deprivation of possessions” within the meaning of the second sentence of Article 1 of Protocol No. 1, the Court needed to ascertain whether the impugned deprivation was justified under that provision. Considering the lawfulness of the interference, the Court found that the deprivation was in accordance with the law, as required by Article 1 of Protocol No. 1.

The Court was satisfied that the applicant was a bona fide owner, as found by the domestic courts, and that her proprietary interest in the enjoyment of the land had been sufficiently established. As a result, the Court found that the applicant had a “legitimate expectation” of being able to continue to enjoy that possession.

When applying the rule of Article 1 of Protocol No. 1, the Court reiterated that Article 1 of Protocol No. 1 to the Convention, which guarantees in substance the right to property, comprises three distinct rules. The first rule, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of the peaceful enjoyment of property. The second rule covers deprivation of possessions and makes it subject to certain conditions. The third rule recognises that the Contracting States are entitled, among other things, to control the use of property in accordance with the general interest. The second and third rules, which are concerned with particular instances of interference with the right to the peaceful enjoyment of property, must be construed in light of the general principle laid down in the first rule.

The foregoing considerations are sufficient to enable the Court to conclude that the conditions under which the applicant had her title to the plot of land removed imposed an individual and excessive burden on her and that the authorities failed to strike a fair balance between the demands of the public interest on the one hand and the applicant’s right to the peaceful enjoyment of her possessions on the other. There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention.

The Court also emphasised the principle of Proportionality. It was reiterated that any interference with property must, in addition to being lawful and having a legitimate aim, also satisfy the requirement of proportionality. It is necessary that a fair balance be struck between the demands of the general interest of the community and the requirements of the protection of the fundamental rights of the individual in question, the search for such a fair balance being inherent in the whole of the Convention. The requisite balance will not be struck where the person concerned bears an individual and excessive burden.

Decision of the Court:

Holdings: The Court holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention.

Costs and Expenses: The Court ruled that the applicant be paid 405 Euros, plus any tax that may be chargeable to the applicant, in respect of costs and expenses.

Damages:

The applicant made a claim for 405 Euros in pecuniary damages. This was the sum that the applicant claimed to have paid to L.S.G. for the right to the restoration of title to the land. A claim was also made for 5,790 Euros, which she stated was the investment made in improving the land. The applicant also claimed 1,448 Euros in respect of non-pecuniary damage for suffering and emotional distress caused by the violation. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awarded the applicant a lump sum of EUR 2,500 in respect of pecuniary and non-pecuniary damage.