CEDH · CASELAW;COMMUNICATEDCASES;ENG — 29 septembre 2018

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }   Communicated on 29 September 2018   FOURTH SECTION Application no. 81624/17 Žilvinas POVILONIS against Lithuania lodged on 30 November 2017 STATEMENT OF FACTS The applicant, Mr Žilvinas Povilonis, is a Lithuanian national, who was born in 1961 and lives in Kaunas. He is represented before the Court by Ms   E. Sutkienė, a lawyer practising in Vilnius. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. In October 2009 R.B. bought a boat rental point and related buildings in Druskininkai. The boat rental point burned down in October 2010. The plot of land of 0.2130 hectares under the boat rental point belonged to the State. By an agreement of February 2010 between R.B. and Druskininkai Land Division R.B. rented out that plot of land. The agreement specified that it was possible to change the purpose of the land. In October 2011 R.B. and the Druskininkai Municipality agreed to prepare a detailed plan and to merge two plots of land: the plot of land of 0.2130   hectares and another plot. The detailed plan was approved on 4   October 2011 and the purpose of the plot of land of 0.2130 hectares was changed from recreational to residential in accordance with the legal regime of the second plot. In March 2012 the National Land Service transferred to the Druskininkai Municipality for ninety-nine years to use without payment a part of the newly formed plot of land (the whole plot was 27.857   hectares). The same month, the Druskininkai Municipality rented out a plot of land of 0.2802 hectares to R.B. for a duration of eighteen years, the purpose of the land was “other” and the manner of use was recreational, residential, common use and public use territories. In December 2013 R.B. was issued with a new permit to build a residential building. In April 2014 the unfinished house was sold to the applicant and his wife. The land under the house was rented out to the applicant and in June 2014 the applicant was issued with a permit to continue the construction of the residential building. The prosecutor lodged a claim with the domestic courts, asking to renew the time-limit to lodge a claim and to annul a number of documents regarding rent of public land and decisions on building permits, as well as to order the applicant to demolish the building within three months. On 19 October 2015 the Vilnius City District Court dismissed the prosecutor’s claim. The court held that the legal requirements had not been breached during the procedure of merging the plots of land. It was possible that the two plots of land had different purposes if it was determined in the detailed plan. Moreover, before the approval of the detailed plan, a number of inspections had been carried out and no violations of domestic law had been found. Also, as long as the plots were of a different use than the territory as a whole, where plots had been located did not exceed twenty percent of the whole area, the general plan of the municipality territory did not have to be changed. The court dismissed as unfounded the prosecutor’s claim that the plot of land of 0.2130 hectares was included in the resort protection zone and it was not possible to construct residential buildings there. The provisions of domestic law provided that there were three different regimes of the resort protection zone and that the plot of land at issue was in the third one, which was the most lenient, and construction of residential buildings was possible there. Also, the court held that it was possible to rent out State land without a public auction if it had buildings that belonged to natural or legal persons. The court noted that although the boat rental point had burned down in 2010, its owner had a right to reconstruct the old building. The court decided that the previous and existing buildings on the plot of land at issue met the definition of a building or other immovable property. The court dismissed the prosecutor’s argument that the rent agreement of March 2012 had not corresponded to the requirements of domestic law because it had not stated the conditions of use of buildings and equipment. The court found that those conditions had been established in the agreement where it was stated that new buildings or equipment could be constructed or existing buildings could be reconstructed if such construction was not contrary to the regime of the territory. Moreover, the laws and other legal acts did not prohibit the person who was renting out the land to construct new buildings if he or she had all the required permits. The applicant was the lawful owner of the building in question and that building could not be demolished. The property rights of the applicant were registered in the State Register. Finally, the court held that the prosecutor had missed the time-limit to lodge the claim, which was one month from the date the prosecutor had found out about the breach of a public interest. In the present case, the prosecutor received the last piece of relevant information on 12 March 2014, thus he had to bring a claim before 12 April 2014. However, he only brought a claim on 3 June 2014. The court stated that a prosecutor was a legal professional and higher requirements of care had to be applied. The prosecutor had done nothing within the time-limit, i.e. almost two and a half months, which was therefore unjustifiably long, and his request to renew the time-limit to lodge the claim was dismissed. The prosecutor appealed. On 23 December 2016 the Vilnius Regional Court overturned the first-instance decision. First of all, the court stated that the prosecutor’s claim was firstly dismissed by civil courts as not being in their jurisdiction. The administrative courts referred the jurisdiction issue to a special panel of judges, which decided that the case had to be examined by the civil courts. The court thus held that the claim was submitted for the first time on 14   March 2014 and further developments regarding jurisdiction, that caused some delays in the proceedings, could not be attributed to the prosecutor. The court decided to renew the time-limit to submit a claim because the time-limit was missed due to jurisdictional issues. As regards the merits of the claim, the court noted that the order of 4   October 2011 of the Director of Druskininkai municipality administration No. V35-632, by which two plots of land were joined and another free plot of land of 0.0673   hectares was also joined to them, was of major significance. From the beginning, the purpose of the plot of land of 0.2129   hectares was for the construction of long-term recreational buildings and the plot of land of 27.857 hectares had other purposes, including that of territories of common use, recreational territories and urbanised territories’ public spaces. In the middle of the plot of land of 27.857 hectares, there were two plots of land of 0.2129 hectares and of 0.0673 hectares respectively. It was decided to join those two plots and also join them to the 27.857 hectares plot and to form new plot of land totalling 28.1372   hectares, part of which was transferred for use for ninety-nine years to the Druskininkai municipality and the remaining part was rented out to R.B. The court noted that the plot of land of 0.0673 hectares was not registered in the Register of immovable property and thus legal acts were breached as the owner’s agreement to join that plot was not received. The court also noted that before and after the joining of the plots of land the Druskininkai municipality could use the 27.857   hectares plot for ninety-nine years without payment, and that the only party affected by the joining of the plots was R.B., who was renting out 0.2129 hectares before the merge and 0.2802   hectares. It was obvious to the court that the purpose of joining was not at all related to the interests of Druskininkai municipality and/or public interest. Moreover, it was specified in the documents that the plot of land of 0.0673 hectares had certain limitations pertaining to its use, namely it was in the resort protection zone. The need to start the process of joining the plots of land in question and preparation of the detailed plan had to be reasoned. Such need could be explained by making the use of a plot of land more convenient or to carry out an activity beneficial to society. However, in the present case only R.B.’s private interest had been satisfied. The court further held that the order of the Government of 12 May 1992, No. 343 “On the approval of the special conditions of use of land and forest” (the Order) was also important. The Order’s XVI section, establishing resort protection zones, provided that those zones had three sections: strict regime, limitations and supervision. All versions of the Order, in force between 14   July 1992 and 29 September 2015, established the existence of the resort protection zones. On 23   September 2015 the Government adopted Order No. 1025 regarding the amendment of the Order by which section XVI was annulled. On 2 May 2016 the Government adopted another order (Order No.   438), by which it annulled Order No. 1025. The court held that the annulment of the resort protection zones was cancelled by Order No.   438. By the notice of the Constitutional Court of 18 March 2016, No. 2B-23P it was stated that from the date of the official publication of that notice, the validity of Order No.   1025 was suspended. It meant that section XVI of the Order was not valid between 30 September 2015 and 18 March 2016. Order No.   343 provided that special conditions of use of land and forests had to be included in the Register of immovable property. The court also observed that as regards the plot of land of 28.1372   hectares, it had special conditions for its use and the plot of land of 0.2129   hectares was in the resort protection zone as well as the newly formed plot of land rented out to R.B. The resort protection zone had to be established in the detailed plan. Also, the plot of land in question had to be attributed to the second protection zone, which meant that construction except for those necessary for the purpose or development of the resort or management of the environment was prohibited. It was the court’s view that the respondents were trying to prepare the detailed plan in question in order to avoid the limitations established in law. Moreover, the main purpose of the boat rental point was to be used as services and not the construction of residential buildings. The court thus held that the detailed plan did not satisfy the requirements of limitations of resort protection zone, applicable to the territory of the Park of Vijūnėlė, where the plot of land at issue was situated. Therefore, the Order of 4 October 2011 of the Director of Druskininkai municipality administration, No. V35-632, to join the plots of land had to be annulled. Also, the subsequent agreement on the rent of the land, concluded with R.B., and the agreement on the use of land, concluded with the Druskininkai municipality, had to be annulled ab initio . The court further noted that the rent agreement concluded with R.B. on 23 March 2012 did not specify that the plot of land was rented out in order to use the buildings on it. When the boat rental point burned down and was demolished, there was no need to use or maintain that building anymore. The plot of land in question thus could not be rented out without a public auction. As regards the applicant, the court held that because the legal acts concerning the construction of the house were annulled, the purchase agreement of the house, made by the applicant, had to be annulled ex officio as well as the agreement by which the applicant had rented out the land under the house. The good will of the applicant was not important because it would be against the lawful creation of property. The court held that the legal consequences of the annulment of the agreements could be examined in a separate case, should the applicant bring a claim. The court obliged the applicant and his wife to demolish the buildings within six months from the date the decision became final. R.B., the Druskininkai municipality and the applicant submitted appeals on points of law. On 22 June 2017 the Supreme Court agreed with the appellate court’s decision that the building had to be demolished and that the purchase, rent agreements and the detailed plan had to be annulled. The court again ruled on the time-limit to submit a claim and held that the prosecutor lodged a claim within two days from the reception of necessary documents, however, the process was protracted because of jurisdictional issues. The court thus held that the time-limit to submit the claim was renewed lawfully by the appellate court. As regards the rent of the land without a public auction, the court held that the Supreme Administrative Court had noted that in order to rent out a plot of land without public auction or to buy a plot of State land, the necessary precondition was presence of buildings on that land owned by a person who wanted to rent out or buy that land. In another case, the Supreme Court held that a person’s expectation that he or she could rent a plot of land without a public auction if the purpose of that land was changed to a residential one was not lawful and could not be legitimate. In the present case, the court did not agree with the arguments of the appeals on points of law that the detailed plan had been approved by the relevant authorities. The court stated that these arguments did not mean that no violations of legal acts had been made. As regards the arguments of the appeals on points of law that the appellate court referred to, the Order of the Government that had not been valid at the material time. The court held that Order No. 438 annulled Order No.   1025, it did not explicitly refer to the Order’s XVI section. As to Order No. 438, the Constitutional Court held that Order No. 438 had been adopted to eliminate doubts as to the validity of Order No. 1025. The Constitutional Court held that Order No. 1025 had been eliminated from the legal system. In the present case, the Supreme Court thus decided that Order No. 438 had to be assessed as annulling Order No. 1025 and its consequences, i.e., the annulment of the Order’s XVI section. In other words, upon the entry into force of Order No. 438 the validity of the Order’s XVI section had been restored. However, the court observed that the appellate court had erred in establishing that the Order’s XVI section had not been valid until 18   March 2016. On that day, the Constitutional Court accepted the President’s request to examine whether Order No. 1025 was in accordance with the rule of law and good governance and suspended the validity of that order until the adoption of the decision by the Constitutional Court. It meant that during that period the Order’s XVI section had not yet been valid, thus the Order’s XVI section was not valid until the entry into force of the decision of the Constitutional Court of 5 May 2016. However, it had no effect on the decision of the Vilnius Regional Court because it had examined the case on 23   December 2016, when the Order’s XVI section had already been valid. As regards the elimination of consequences of illegal construction, the Supreme Court held that it was not possible to eliminate them without demolishing the building. In such cases, the person who had constructed the building had to demolish it and to tidy the construction site, irrespective of any illegal actions of that person. The Supreme Court further held that the Vilnius Regional Court, without informing parties of the proceedings concerning an intention to overstep the margins of examination of the case, ex officio found that the agreements of 10 April 2014 between the National Land Service and the Druskininkai Municipality and of 25 April 2014 between R.B. and the applicant, had been invalid from the moment of their conclusion. The Supreme Court thus decided that this part of the decision of the Vilnius Regional Court had to be annulled. On 11 September 2017 the Chancellor of the Parliament sent a response to an enquiry by the Druskininkai municipality administration, where it noted that the annulment of a legal act (action) meant that the legal situation that existed before the adoption of the legal act (action) had to be restored but the validity of a legal act that was in force before the annulled act could not be restored. In that connection, the Chancellor of the Parliament stated that the decision of the Supreme Court of 22 June 2017 could not be considered as a legal act restoring the validity of the provisions of the annulled legal act. B.     Relevant domestic law and practice Article 1.80 § 1 of the Civil Code provides that any transaction which fails to comply with mandatory statutory provisions is null and void. Article 4.96 § 2 of the Civil Code provides that the State may confiscate immovable property from a person who acquired such property in good faith only if the rightful owner lost such property as a result of a crime. Article 4.103 § 1 provides that if a building (or its part) is or has been constructed arbitrarily, or not arbitrarily but in breach of the building plans or legal requirements, the person that constructed the buildings cannot use such a building himself or sell it, gift it, rent it, and so on. Article 6.551 § 2 of the Civil Code provides that State land can be rented out without an auction if constructions owned by private or legal persons have been built on it and in other cases provided for by law. Article 33 § 1 of the Law on Administrative Proceedings provided at the time that a complaint had to be brought before an administrative court within a month of the disputed act being carried out or served on an interested party. Article 3 § 2 of the Law on Territorial Planning provides that when determining purposes of specific territory planning, public interest, particularities of scenery of a territory, geographical situation, geological conditions, urbanistic, architecture, environmental protection, heritage protection, requirements for use of farming land have to be taken into account. Article 12 § 6 of the Law on Territorial Planning provided that general plans of a part of municipal territory were not amended if plots of land of other use constituted less than twenty percent of the whole territory. Article 24 § 4 of the Law on Territorial Planning provided that detailed plans could not be prepared if the planning purposes were contrary to the requirements of laws and other legal acts. Article 9 § 6 (1) of the Law on Land Reform provides that State land can be rented out if built upon by constructions owned by private or legal persons (except for temporary constructions, engineering systems and buildings that do not have a clear functional dependency or use, or other constructions designated as dependencies of the main construction). Article 13 of the Law on Land provided that vacant State land fund was administered by the National Land Service and other trustees and, in certain cases – by State Vacant Land Fund. Article 22 § 7 of the Law on Land provides that special conditions on the use of land are applied from their entry into the Register of Immovable Property. Order of the Government of 12 May 1992, No. 343 “On the Approval of Special Conditions of Use of Land and Forest” provided special conditions had to be set upon the approval of general, special and detailed plans (Point   2.2). The order also provided that the resort protection zone had three sections: strict regime, limitations and supervision. The first section included the territory that contained mineral water and healing mud pools, rivers, lakes, sea, beach and dunes and any construction not necessary to the maintenance of mineral water and healing mud pools was prohibited. The second section included the territory, from which surface and groundwater was flowing towards the mineral water and healing mud pools and it construction unrelated to the maintenance of the resort and management of the environment was prohibited. In the third section it was allowed to carry out every activity if it had not had a negative effect on healing resources and hygienic condition of the resort (Section XVI). By the Order of the Government of 23 September 2015, No. 1025, section XVI of the Order of the Government of 12 May 1992 was annulled, which meant the abolishment of the resort protection zones. By the Order of 2 May 2016, No. 438, the Government annulled the Order of the Government of 23 September 2015, No. 1025. Rules on preparation of detailed plans provided that detailed plans that had changed the approved purpose of the land could only be prepared after examining the social, economic and protection consequences of such change. In accordance with the Rules on Cadastre of Immovable Property, a new object of immovable property can be formed by merging objects registered in the Register of Immovable Property (Point 30.4). On 8 July 2016 the Constitutional Court held that the Order of the Government of 2 May 2016, No. 438 was adopted in order to eliminate some doubts regarding the fairness of the Government’s decisions and lawfulness of law making procedures. The Constitutional Court also held that by the Order of the Government of 2 May 2016, No. 438, the Order of the Government of 23 September 2015, No. 1025 was eliminated from the legal system of Lithuania. Domestic courts stated that a plot of land was built upon if it had an object of immovable property on it and that object corresponded to the notion of a building and that plot of land was used to maintain that building (decisions of the Supreme Administrative Court of 14 March 2002, No.   A6 ‑ 64/2002 and of the Supreme Court of 11 July 2006, No.   3K ‑ 3 ‑ 431/2006). The Supreme Court held that not every owner of a building, constructed on a State land had a right to rent out that plot of land without any auction, the owner had to have an aim to use the building for its direct purpose (decisions of the Supreme Court of 1 December 2008, No. 3K-3-577/2008 and of 30 November 2013, No. 3K-3-550/2013). The Supreme Court held that a person, who had constructed a building in breach of the requirements of domestic law, had to demolish that building and to tidy the construction site. It had to be done even if that person had not acted unlawfully and was not responsible for the annulment of the building permit (decision of the Supreme Court of 13 November 2014, No.   3K-3-499/2014). In such a case, the damage suffered from the demolition of the building could be a subject of a separate case (decision of the Supreme Court of 3 April 2013, No. 3K-3-196/2013). COMPLAINTS The applicant complains under Article 1 of Protocol No. 1 to the Convention that he was deprived of his right to peaceful enjoyment of his possessions when he was ordered to demolish the buildings. He also complains under Article 6 § 1 that the order to demolish the buildings breached his right to legal certainty, as he could not have foreseen that decision being adopted. QUESTIONS TO THE PARTIES 1.     Has the principle of legal certainty, guaranteed by Article 6 § 1 of the Convention, been respected with regard to the order of the domestic courts to demolish the applicant’s buildings?   2.     Has there been an interference with the applicant’s right to peaceful enjoyment of his possessions, within the meaning of Article 1 of Protocol   No. 1 to the Convention?   3. If so, was that interference justified under Article 1 of Protocol No. 1 to the Convention (see Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, § 91, ECHR 2005-VI; Immobiliare Saffi v. Italy , [GC], no. 22774/93, § 49, ECHR 1999-V; and Tumeliai v. Lithuania , no.   25545/14, § 72, 9 January 2018)? Particular attention is drawn to the issues arising from the validity of Section XVI of the Government’s Order of 12   May 1992, No.   343.   The parties are requested to inform the Court about any further developments regarding the applicants’ situation, namely, whether the decision of the Supreme Court of 22 June 2017 was executed and if so, the date of the execution.   The Government are requested to provide all relevant information surrounding the present case, including that available in the public domain.