CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 24 octobre 2000

.s800EAC49 { font-size:12pt } .s598389FD { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:16pt } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s23A41E03 { width:36pt; display:inline-block } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sBA8DCCFC { width:35.45pt; display:inline-block } .s31BEBB9E { width:7.26pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sE55CAA3E { width:1.26pt; display:inline-block } .s9872C2C6 { width:15.43pt; display:inline-block } .s76CF415B { page-break-before:always; clear:both } .s29100277 { font-family:Arial; font-weight:bold } .s4D28B2E2 { width:24pt; display:inline-block } .s21B97EC1 { width:25.99pt; display:inline-block } .s3CA22BA { font-family:Arial; text-transform:uppercase } .sEDBAD313 { margin:0pt 33.1pt 0pt 35.45pt } .s7058A54 { width:0.55pt; display:inline-block } .s4B8D41EE { font-family:Arial; font-size:10pt } .sDBCA24BC { margin:0pt 33.1pt 0pt 35.45pt; font-size:10pt } .s13F94BDE { font-family:Arial; letter-spacing:-0.1pt } .sB90861A5 { font-family:Arial; font-style:italic; letter-spacing:-0.1pt } .s3985515B { margin-top:0pt; margin-left:36pt; margin-bottom:0pt } .s75748449 { width:49.89pt; display:inline-block } .s8B1E4AB6 { width:261.17pt; display:inline-block } .s5A65B3DC { width:46.56pt; display:inline-block } .sD49C56F { width:262.16pt; display:inline-block } THIRD SECTION   DECISION   AS TO THE ADMISSIBILITY OF   Application no. 41510/98 by Stasė JASIŪNIENĖ against Lithuania     The European Court of Human Rights (Third Section), sitting on 24 October 2000 as a Chamber composed of     Mr   J.-P. Costa, President ,   Mr   L. Loucaides,   Mr   P. Kūris,   Mrs   F. Tulkens,   Mr   K. Jungwiert,   Mrs   H.S. Greve,   Mr   M. Ugrekhelidze, judges , and   Mrs   S. Dollé, Section Registrar ,     Having regard to the above application introduced with the European Commission of Human Rights on 20 April 1998 and registered on 5 June 1998,     Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,     Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,     Having deliberated, decides as follows: THE FACTS     The applicant is a Lithuanian national, born in 1923 and living in Palanga. She is represented before the Court by Mr A.-P. Zamalaitis, a lawyer practising in Vilnius.   A.   The circumstances of the case     The facts of the case, as submitted by the parties, may be summarised as follows.     Before the Second World War the applicant’s mother occupied a dwelling house on a plot of land measuring 1422 square metres (hereinafter referred to as “the plot”) in the centre of the tourist resort of Palanga on the Baltic Sea coast. Following the Soviet occupation of Lithuania on 15 June 1940, the land was expropriated and the building was demolished.     By an ordinance of 25 September 1992 the Palanga City Council, by reference to the Restitution of Property Act, decided to “restore the property rights” of the applicant and her sister in regard to their late mother’s land. No form of restitution was specified in the ordinance.     The ordinance of 25 September 1992 was not implemented as no land was returned and no compensation was paid. In January 1995 the applicant brought a court action against the local authority, claiming that the plot or part of it should have been returned to her. She also stated that the other part of the plot belonged to her sister.     On 15 December 1995 the Palanga City District Court dismissed the applicant’s action. By reference to Article 5 of the Restitution of Property Act, the court held that the applicant was not entitled to the plot or part of it, but that she should have been offered an alternative parcel in compensation as required by the above law.     The applicant appealed, stating that the plot had to be returned to her.     On 3 April 1996 the Klaipėda Regional Court quashed the judgment of the District Court. The Regional Court found that the ordinance of the Palanga City Council of 25   September 1992 did not comply with Article 19 of the Restitution of Property Act as the local authority had not decided whether land or money and, in either case, which land or what amount of money should have been offered to the applicant. The Regional Court held that the local authority had to resolve these questions. The court required the administration of Klaipėda County to “adopt, by 30 June 1996, a decision on the applicant’s request to restore her property rights”.     However, no such decision was taken as the applicant refused an alternative parcel of land in another area of Palanga. The applicant’s sister accepted an alternative parcel.     On 13 August 1996 the applicant obtained an execution warrant for the judgment of 3   April 1996. She put the matter in the hands of bailiffs who were unable to execute the warrant against the county administration. The executive authorities took no further decision as the applicant had again refused an alternative parcel of land.        By a letter of 15 December 1997, the Klaipėda County Governor stated that the applicant had misinterpreted the judgment of 3 April 1996. In the Governor’s opinion, the Regional Court had only required the county administration to adopt a decision in accordance with the Restitution of Property Act. As the applicant had no buildings or other property on the plot, she was not entitled to its return. The Governor requested the applicant to approach planners at the Palanga City Council to choose an alternative parcel. He warned her that a different parcel would be allotted without her consent in order to comply with the judgment of 3 April 1996.     On 31 December 1997 the applicant wrote to the Prime Minister, stating that she had been entitled to the plot, that the alternative parcels offered by the local authority were located in the outskirts of Palanga, and that their value was thus not equivalent to the plot in the centre of town.     In a letter of 11 February 1998, the Director of the Land Authority of the Ministry for Agriculture and Forestry stated that on 25 September 1992 the Palanga City Council had decided to restore the applicant’s property rights notwithstanding the fact that there had been a lack of relevant documentation proving her late mother’s ownership of the plot. Moreover, the Director stated that from the ordinance of 25 September 1992 it was “unclear in respect of which owner or land the property rights were restored[;] the form of the restitution of property was also unclear … .” The Director requested the Klaipėda County Governor to re-examine the lawfulness of the ordinance of 25 September 1992.       The applicant has refused three offers by the Klaipėda County Governor for alternative parcels of land in various areas of Palanga.         By a letter of 30 August 1999, the executive authorities informed the applicant that she had not proved her mother’s ownership of the original plot in accordance with the governmental instructions of 13 July 1998, i.e. she had not submitted the original papers confirming the purchase of the plot by her mother, or a court decision proving ownership. The executive authorities held that they could not proceed with a decision on compensation until the applicant presented these papers.   B.   Relevant domestic law and practice     Restitution of property     The Restitution of Property Act ( Nuosavybės teisių … atkūrimo įstatymas ) (versions   of 1991, 1993, 1995, 1997 and 1999) provides for two forms of restitution:     - the return of property in certain circumstances,     - compensation in others (compensation can be made in land or money).     Pursuant to Article 5 of the Restitution of Property Act, Lithuanian nationals owning dwelling houses or other buildings in urban areas may be offered land adjacent to those buildings. In accordance with Articles 5 and 12 of the Act, former owners of other types of land in urban areas may be offered compensation in the form of an alternative parcel or money.       On 27 May 1994 the Constitutional Court found that “the rights of a former owner of a particular property are not restored until the property is in fact returned or appropriate compensation is made. The law does not itself provide any rights until it is applied to a specific person in respect of a particular estate.”   The Constitutional Court also held that the right to compensation for the property, which cannot be returned, does not contradict the principle of the protection of property as “fair compensation also guarantees the restitution of property rights”.       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 Article 19 of the Act, that person could appeal to a court against the compensation award within 30 days of the decision. Pursuant to the version of the Restitution of Property Act in force since 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.     Execution of a judgment     Under Article 372 of the Code of Civil Procedure, a court judgment, which has come into force, is binding and must be executed.     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).     A petition to the Ombudsman and an action for a breach of personal rights     Under Article 1 of the Parliamentary Ombudsmen Act, the Ombudsman can examine individual complaints about the wrongdoing or misuse of office by executive officials. Under Article 14 of the Act, the Ombudsman may not examine allegations the investigation of which falls within the competence of courts. Pursuant to Article 23 § 2 of the Act, the Ombudsman may not revise or revoke the executive decision or act in question. Pursuant to subparagraphs (1) to (3) of Article 23 § 1, the Ombudsman may only refer the results of his investigation to prosecuting authorities for the institution of criminal proceedings, or bring a court action, or recommend an appropriate course of action in connection with any wrongdoing established.     The former provisions of Articles 269-1, 269-2 and 269-5 of the Code of Civil Procedure (in force until 1 May 1999) gave the individual a right to bring an action against public authorities for a breach of personal rights. Identical provisions are now set out in the Code of Administrative Procedure. COMPLAINTS   1.   Under Article 1 of Protocol No. 1 to the Convention, the applicant complains about the nationalisation of the plot and the destruction of her late mother’s house. Under Article 14 of the Convention and Article 1 of Protocol No. 1 to the Convention, the applicant also complains that her late mother’s land was not returned to her and that the ordinance of the Palanga City Council of 25 September 1992 and the judgment of the Klaipėda Regional Court of 3 April 1996 have not been implemented to date. She has allegedly been deprived of her possessions as the authorities have refused to return the plot or part of it, or offer adequate compensation. She asserts that such violations of her property rights happened only because the land in question is in a valuable location in the centre of the resort. Accordingly, the State has allegedly discriminated against her.   3.   Under Articles 6 and 13 of the Convention, the applicant complains about the refusal of the authorities to execute the judgment of the Klaipėda Regional Court of 3 April 1996, whereby the court purportedly ordered the return of the plot or part of it to the applicant. She states that she has had no effective domestic remedy to restore her property rights.     THE LAW   1.   The applicant alleges that the nationalisation of the plot and the destruction of her late mother’s house breached Article 1 of Protocol No. 1 to the Convention. Under that provision she further complains that the authorities’ failed to return the original plot or part of it or offer proper compensation. In this respect she also alleges a breach of Article 14.     Article 1 of Protocol No. 1 and Article 14 of the Convention provide 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 enjoyment of the rights and freedoms set forth in this 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.”     The Government state that the deprivation of the property in question was carried out by the Soviet authorities before 24 May 1996, which is the date of entry into force of Protocol No. 1 to the Convention with respect to Lithuania, and that the Court has no competence ratione temporis to examine this part of the application.     The Government further state that, by virtue of the ordinance of 25 September 1992, the Palanga City Council 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 the ordinance 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 contend that the ordinance was defective in domestic law as it 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. The Regional Court identified these flaws in its judgment of 3 April 1996, requiring the authorities to resolve these questions.     Nevertheless, the Government also submit that to date the applicant has not proved that she qualifies for any restitution, within the meaning of the governmental regulations of 13 July 1998, because she has 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 be 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 apply to a court, requesting the establishment of the fact that her mother was indeed the owner of the plot. The Government argue that this part of the application should therefore be rejected under Articles 34 and 35 of the Convention.     The applicant argues that the expropriation and destruction of her mother’s property were flagrant and continuous breaches of her property rights. She claims that the ordinance of 25 September 1992 and the judgment of 3 April 1996 restored her property rights and entitled her to the return of the plot, or part of it, or proper compensation. According to the applicant, it is now up to the authorities, not her, to take steps to comply with the requirements of Article 1 of Protocol No. 1 to the Convention.       The Court has had regard to the parties’ observations. It considers that this part of the application raises complex questions of fact and law, the determination of which should depend on an examination of the merits. This part of the application cannot therefore be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. 2.   The applicant also complains about the failure of the authorities to execute the judgment of 3 April 1996, in breach of Articles 6 § 1 and 13 of the Convention, which provide, insofar as relevant, as follows:   “In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing … by … [a] tribunal … .”     “Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority … .”     The Government submit that the applicant failed to sue the bailiffs by way of an action for a breach of personal rights under the provisions of Articles 269-1, 269-2 and 269-5 of the Code of Civil Procedure, or to complain to the Ombudsman about the non-execution of the court judgment of 3 April 1996. According to the Government, the applicant thus failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention.       The Government also state that the Klaipėda County Governor is in any event precluded by Article 18 of the Restitution of Property Act from implementing the judgment of 3 April 1996 as the applicant has refused three offers to have her property rights restored, i.e. parcels of alternative land offered by the authorities in compensation. The applicant’s complaints are therefore unsubstantiated.       The applicant argues that neither a complaint to the Ombudsman nor a court action for a violation of personal rights are effective remedies within the meaning of Article 35 § 1 of the Convention. On the merits of the complaint, the applicant claims that the judgment of 3   April 1996 constituted an order to return the plot in whole or in part, or to offer her adequate compensation. The authorities’ failure to act accordingly breached her rights under Articles 6 and 13 of the Convention.     The Court recalls that Article 35 § 1 of the Convention requires exhaustion of domestic remedies, but there is no obligation under this provision to have recourse to remedies which are inadequate ( see Valašinas v. Lithuania , no. 44558/98, 14.3.2000 (dec.)) . In the Valašinas case the Court found that a petition to the Ombudsman did not constitute an effective remedy within the meaning of Article 35 § 1 ( ibid .).     As regards the purported remedy against the bailiffs for a breach of personal rights due to the non-execution of the judgment of 3 April 1996, the Court notes that the applicant does not complain about any act of a bailiff but about the refusal of the executive authorities to act upon the court and bailiffs’ orders. Therefore, such an action would not meet the applicant’s interest in obtaining the execution of the favourable court judgment. Furthermore, the Court notes that the applicant obtained an execution warrant in respect of the judgment of 3 April 1996, in accordance with the requirements of domestic civil procedure, but was unable to have bailiffs enforce it. Even assuming that the applicant could have brought an action for a breach of personal rights and obtained a decision confirming that the non-execution had been unlawful in domestic law, the outcome of such an action would only have produced repetitive results, namely a warrant enabling the bailiffs to proceed with the execution of the judgment of 3 April 1996. Consequently, the Court concludes that such an action would have been ineffective and that this part of the application cannot be rejected for non-exhaustion of domestic remedies.     The Court has had regard to the parties’ other observations on the complaint. In the light of their submissions, the Court considers that this part of the application raises complex questions of fact and law, the determination of which should depend on an examination of the merits. This part of the application cannot therefore be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.   For these reasons, the Court, [unanimously,] [by a majority,]   DECLARES THE APPLICATION ADMISSIBLE , without prejudging the merits of the case.         S. Dollé   J.-P. Costa   Registrar   President