CEDH · CASELAW;COMMUNICATEDCASES;ENG — 12 novembre 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 } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }   Communicated on 12 November 2018   FOURTH SECTION Application no. 64249/17 Jonas ČEBELIS against Lithuania lodged on 24 August 2017 STATEMENT OF FACTS The applicant, Mr Jonas Čebelis, is a Lithuanian national, who was born in 1950 and lives in Vilnius. He is represented before the Court by Ms   E.   Bakienė, 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 2000 the applicant bought 1.34 hectares of land in the Aukštadvaris regional park, in the Trakai Region. The land was registered in the Real Estate Register as agricultural. According to relevant legislation, construction on that land was prohibited. In 2012 the State Service for Protected Areas under the Ministry of Environment launched the procedure of amending the territorial plan of the Aukštadvaris regional park. The entity in charge of preparing a new territorial plan was a public institution, Nature Heritage Fund. In May 2013 the applicant submitted a proposal to the Nature Heritage Fund to change the purpose of his land to recreational and to allow him to build a summer house. In February 2014 the applicant submitted an additional proposal to change the purpose of his land to educational in order to use it for environmental research. In May 2014 the Nature Heritage Fund informed the applicant that the purpose of his land could not be changed to either recreational or educational. It stated that the applicant’s land was not suitable for environmental research and that building a summer house would have a negative impact on the fragile surrounding ecosystem. The applicant lodged a complaint before the State Service for Protected Areas, in which he complained that the Nature Heritage Fund had unfairly dismissed his proposals and that it did not have the necessary competence to prepare a territorial plan. However, the State Service for Protected Areas dismissed his complaint, finding that the Nature Heritage Fund had provided adequate reasons for refusing to change the purpose of the land. The applicant then lodged similar complaints with the Minister of Environment and the State Inspectorate of Territorial Planning and Construction (hereinafter “the Inspectorate”) but they were dismissed as well. In September 2014 the applicant lodged a claim before the Vilnius Regional Administrative Court, asking it to annul the decisions taken by the Inspectorate and the Ministry of Environment in response to his complaints. He submitted that the dismissal of his proposals to change the purpose of his land had not been in accordance with the law and had lacked grounds. He asked the court to order an expert examination of his land in order to determine whether changing its purpose would negatively affect the environment. The applicant also submitted that the Nature Heritage Fund lacked the necessary competence to prepare a territorial plan, and asked to refer the matter to the Constitutional Court in order to determine whether its competence was adequate. On 22 December 2014 the Vilnius Regional Administrative Court dismissed the applicant’s claim. It firstly noted that the law did not require the authorities in charge of territorial planning to accept all proposals submitted to them – they were only obliged to provide sufficiently reasoned responses in writing. The court found that the applicant’s proposals had been dismissed by well-reasoned decisions, based on relevant legal instruments. It further held that the responses sent to the applicant by the Inspectorate and the Ministry of Environment had not included any decisions affecting his rights and interests – they had only provided information and thus could not be regarded as administrative acts which could be challenged before a court. The court therefore discontinued the proceedings with regard to the applicant’s request to annul those decisions. It lastly held that there were no grounds to refer the matter to the Constitutional Court. The applicant lodged an appeal against that decision but on 30 July 2015 the Supreme Administrative Court dismissed it. It upheld the lower court’s conclusion that the response sent to the applicant by the Ministry of Environment had only contained information and not any decisions affecting the applicant’s rights and interests, and thus could not be challenged before a court. However, the Supreme Administrative Court considered that the same conclusion could not be made with regard to the decision adopted by the Inspectorate because the law provided for the possibility to appeal against the Inspectorate’s decisions before a court. The Supreme Administrative Court therefore considered that it could examine the Inspectorate’s decision; having done so, it found that the decision had contained sufficient grounds for dismissing the applicant’s proposals. In any event, the court stated that, according to its case-law, the Inspectorate had to assess proposals submitted by the public and the reasons provided by the Nature Heritage Fund for accepting or rejecting those proposals only at the stage of verification of the territorial plan prepared by the Nature Heritage Fund. As that plan had not been prepared and the Inspectorate had not verified it at that point, the Supreme Administrative Court concluded that the Inspectorate had not at that stage been under an obligation to examine the applicant’s proposals. As a result, the court considered it unnecessary, at that stage, to address the substance of the applicant’s arguments concerning the change of the purpose of his land. The new territorial plan of the Aukštadvaris regional park was prepared by the Nature Heritage Fund on an unspecified date. In May 2016 the Inspectorate verified it and concluded that it had been adopted in accordance with the relevant legal instruments. The Inspectorate’s act of verification did not mention any proposals submitted to the Nature Heritage Fund by the public or reasons for rejecting them. The applicant then lodged a claim before the Vilnius Regional Administrative Court, in which he again argued, inter alia , that his proposals to change the purpose of his land had been dismissed without sufficient grounds. He asked the court to order the Inspectorate to carry out a fresh verification of the territorial plan and to adopt a different conclusion. On 23 June 2016 the Vilnius Regional Administrative Court refused to examine the applicant’s claim. The court considered that by verifying the territorial plan and adopting a conclusion the Inspectorate had not performed such acts of public administration which would affect the applicant’s rights and interests or would oblige him to act in any particular way. Accordingly, his claim could not be examined by a court. The applicant lodged a complaint, in which he referred to the Supreme Administrative Court’s decision of 30 July 2015 (see above), in which that court had held that the Inspectorate would be obliged to address the applicant’s proposals at the stage of the verification of the territorial plan. On 7 September 2016 the Supreme Administrative Court allowed the applicant’s complaint and remitted the case to the lower court for a fresh examination. It stated that the applicant had become entitled to complain to a court only after the Inspectorate had verified the territorial plan, and that there were no grounds to unequivocally conclude that the act of verification had not affected his rights and interests. On 11 November 2016 the Minister of Environment adopted the new territorial plan of the Aukštadvaris regional park. On 27 December 2016 the Vilnius Regional Administrative Court discontinued the examination of the applicant’s claim on the grounds that, after the territorial plan had been adopted by the Minister, the verification act of the Inspectorate, which had been an interim document in the planning process, could no longer be contested because changing or annulling it would not affect the applicant’s rights and interests. The court observed that the applicant, when lodging his claim, had not asked to apply interim measures and to suspend the planning process. The applicant lodged an appeal against that decision. He argued, inter alia , that discontinuing the case breached his right of access to a court. However, on 1 March 2017 the Supreme Administrative Court upheld the findings of the lower court. It also observed that the applicant had been able to lodge complaints before courts during the planning process, so there were no grounds to find that his right of access to a court had been breached. The applicant lodged a request before the Vilnius Regional Administrative Court to annul the Minister’s decision adopting the territorial plan. He submitted, as before, that the territorial plan had been prepared by an entity without necessary qualifications and that his proposals to change the purpose of his land had been dismissed without sufficient grounds. He also argued that the Minister’s decision to adopt the territorial plan had been contrary to various other legal instruments related to planning. On 6 April 2017 the Vilnius Regional Administrative Court refused to examine the applicant’s request, finding that the domestic law did not give him standing to contest administrative acts which were not specifically directed at him. It stated that the applicant could request a court to examine the lawfulness of the Minister’s decision only in the context of an administrative case directly concerning his rights and interests. The applicant lodged a complaint against that decision but on 17   May   2017 the Supreme Administrative Court upheld the findings of the lower court. B.     Relevant domestic law and practice 1.     Access to a court Article 30 of the Constitution provides that anyone whose constitutional rights or freedoms are violated shall have the right to apply to a court. The Constitutional Court in its ruling of 13 May 2010 held: “Article 30 § 1 of the Constitution enshrines the constitutional principle of judicial defence. This principle is universal – every person who thinks that his or her rights or freedoms have been violated has the right to judicial defence. The defence of his or her rights in court is guaranteed to everyone regardless of their legal status. An individual’s rights and legitimate interests must be defended in court regardless of whether or not they are directly provided by the Constitution. The right of access to a court is absolute, it may not be limited or denied, or artificially restricted, and exercising it may not be made unreasonably burdensome. If the constitutional right of access to a court was not ensured, the generally recognised legal principle ubi ius, ibi remedium – when there is a certain right (freedom), there must be a measure for its protection – would also be disregarded. A situation when a certain right or freedom may not be defended, including by means of judicial procedure, although the individual himself or herself believes that this right or freedom has been violated, is not allowed or tolerated under the Constitution (see the Constitutional Court’s rulings of, inter alia , 18 April 1996, 8 May 2000, 30 June 2000, 17 August 2004 and 13   December 2004, and its decision of 8 August 2006).” 2.     Territorial planning At the material time, Article 32 § 1 of the Law on Territorial Planning provided that proposals related to territorial planning could be submitted in writing to the entity in charge of preparing a territorial plan during the entire planning process. Article 32 § 2 provided that the entity in charge of preparing the plan had to provide well-reasoned responses in writing to the individuals who had submitted proposals, and those individuals had the right to lodge complaints against the responses to the institution supervising the planning process. Article 32 § 2 also provided that, after the plan was prepared, the entity in charge of preparing it had to forward all the planning documents ‑ including a summary of all the proposals received and the reasons for accepting or rejecting them – to the institution in charge of verifying the plan and co-ordinating it with other relevant authorities. In its decision of 6 February 2012 in the administrative case no.   A 502 ‑ 169/2012 the Supreme Administrative Court held that the law did not oblige the entity in charge of preparing a territorial plan to accept all proposals submitted to it by the public – it was only obliged to provide well ‑ reasoned explanations for rejecting them to the individuals who had submitted such proposals. The proposals submitted by the public and the reasons for accepting or rejecting them had to be assessed not when examining the responses provided by that entity but when the territorial plan was being verified and co-ordinated with other relevant authorities. How the proposals had been considered and whether sufficient explanation for rejecting them had been provided would only be examined at the verification stage of the territorial plan. Article 32 § 4 (1) of the Law on Territorial Planning provided that individuals whose rights and legitimate interests had been breached by an administrative decision had the right to challenge such a decision before an administrative court. It appears that the lodging of a complaint with an administrative court did not suspend the planning process. 3.     Proceedings before administrative courts Article 5 § 1 of the Law on the Administrative Proceedings provides that everyone has the right of access to a court, in accordance with the law, in order to defend his or her rights and legitimate interests. Article 112 § 1 provides that a request before an administrative court to examine whether an administrative act complies with the law may be submitted by Members of the Parliament, various ombudspersons, courts, prosecutors and certain organisations. Article 113 § 1 provides that an individual may request an administrative court to examine whether an administrative act complies with the law when that court is examining a case concerning that individual’s rights and the case is related to the administrative act in question. Article 113 § 2 (1) provides that a court refuses to examine such a request when it is not related to an administrative case under examination. COMPLAINTS The applicant complains under Article 6 § 1 of the Convention and Article 13 of the Convention that his complaint about the unfair dismissal of his proposals to change the purpose of his land was never examined by a court. He submits that it is not clear at which stage of the planning he was supposed to lodge a claim before courts and that he no longer has any possibility to defend his rights once the new territorial plan of the Aukštadvaris regional park has been adopted. QUESTION TO THE PARTIES Has there been a breach of the applicant’s right of access to a court, guaranteed by Article 6 § 1 of the Convention, with regard to his complaint concerning the dismissal of his proposals to change the purpose of his land (see Lupeni Greek Catholic Parish and Others v. Romania [GC], no.   76943/11, §§ 84-90, 29 November 2016; Paliutis v. Lithuania , no.   34085/09, §   47, 24 November 2015; and Fălie v. Romania , no.   23257/04, § 22, 19 May 2015)?