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SECOND
SECTION
CASE OF VORONA AND VORONOV v. LITHUANIA
(Application
no. 22906/04)
JUDGMENT
STRASBOURG
7
July 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Vorona and Voronov v. Lithuania,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens,
President,
Ireneu
Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė
Jočienė,
Dragoljub
Popović,
András
Sajó,
Nona
Tsotsoria,
judges,
and Françoise
Elens-Passos, Deputy
Section Registrar,
Having
deliberated in private on 16 June 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 22906/04) 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 two Lithuanian nationals, Mr Aleksandr Voronov and Mr Sergej
Vorona (“the applicants”), on 2 June 2004.
- The
applicants were represented by Mr Leonidas Zubanovas, a lawyer
practising in Klaipėda. The
Lithuanian Government (“the Government”) were represented
by their Agent, Ms E. Baltutytė.
- On
11 May 2006 the Court
decided to give notice of the application to the Government. It was
also decided to examine the merits of the application at the same
time as its admissibility (Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
first applicant, Mr Aleksandr Voronov, was born in 1958. The second
applicant, Mr Sergej Vorona, was born in 1966. Both of them live in
Klaipėda.
- On
3 December 1993 the applicants concluded agreements with the Klaipėda
city council whereby each applicant would acquire an apartment in a
building that the local authority was obliged to build by 1 May
1994. The applicants undertook to cover the costs of construction by
paying the sums specified in the agreement. They paid their
respective contributions by the date agreed in the contract.
- On
25 July 1994 the applicants brought a court action, alleging that the
local authorities had failed to complete the construction in time.
They requested an order obliging the defendant to complete the works
and provide them with property certificates. After the completion of
the construction works on 20 October 1994, the applicants withdrew
the former claim.
- The
Klaipėda city
council lodged a counter-claim, requesting annulment of the
agreements concluded with the applicants, claiming that its
administrative division had lacked competence to enter into a
contract with the applicants and that the costs of the construction
had been incorrectly estimated. The local authority did not request
restitution, but suggested that the applicants should cover the
additional building costs.
- On
11 October 1995 the Klaipėda City District Court dismissed the
applicants' case.
- On
7 December 1995 the Klaipėda Regional Court quashed the
decision, returning the case for a fresh examination. It was noted
that the lower court had failed to summon all the parties and that
not all the relevant circumstances of the case had been properly
established.
- On
1 August 1997 the court ordered an expert examination (documentary
audit) regarding the municipality's actions when accepting the
contributions from the applicants for the construction of the
apartments.
- On
6 April 2000 one of the applicants addressed the Klaipėda
City District Court requesting it to urge the experts to finish the
examination and produce their conclusions.
- The
expert examination was completed on 20 September 2000. The next
hearing took place on 13 February 2001.
- On
11 February 2003 the Klaipėda City District Court allowed the
counter-claims of the local authorities in part. The applicants were
ordered to cover the additional construction costs. Upon receipt of
the payment, the Klaipėda
city council was obliged to issue the applicants the documents
allowing them to register their titles to the apartments.
- On
22 May 2003 the Klaipėda Regional Court partly amended the
decision.
- On
10 December 2003 the Supreme Court amended the decisions of the lower
courts, fully allowing the applicants' claims. It was established
that the Klaipėda
city council was not entitled to require the applicants to cover the
additional costs. It was ordered to perform the agreement by issuing
the applicants the documents which would allow them to register the
apartments in their names.
- On
31 December 2003 and on 13 January 2004 the Klaipėda
city municipality issued the documents attesting that the applicants
had paid the full amount for the apartments constructed under the
agreement
of 3 December 1993.
- On
19 January and 13 February 2004 the applicants registered their
titles to the apartments and, under domestic law, became their
owners.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Article
149 § 1 of the Civil Code, in force until 1 July 2001,
stipulated that, subject to any contrary legal provision, the
purchaser acquired the right of ownership to property from the time
of transfer. As regards real estate, the transfer agreement had to be
registered in the Real Estate Register and the time of registration
was regarded as the time from which the acquirer acquired title to
the property.
- Article
6.246 of the Civil Code, in force since 1 July 2001, provides
that civil liability arises from non-performance of a statutory duty
or from a violation of the general duty of care. The remaining
relevant domestic law as concerns domestic remedies for the excessive
length of civil proceedings is reproduced in the judgment of
Četvertakas and Others v. Lithuania
(no.
16013/02, §§ 21-22, 20 January 2009).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants complained that the length of the civil proceedings had
been incompatible with the “reasonable time” requirement,
laid down in Article 6 § 1 of the Convention, which reads as
follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
Admissibility
1. The parties' submissions
- The
Government argued that the applicants had failed to exhaust all
effective domestic remedies as they had not applied to the domestic
courts claiming redress for the length of the civil proceedings under
Articles 6.246 and 6.272 of the Civil Code. Relying on the Ruling of
the Constitutional Court of 19 August 2006, the Government also
argued that, even assuming that specific redress had not been
enshrined in any law, the applicants could have claimed redress by
relying directly on the Constitution. Moreover, having regard to the
fact that the Convention was a legal act of direct applicability and
had precedence over Lithuanian laws, the applicants could have relied
on it, alleging the unlawfulness of the State authorities' inaction
and requesting redress at the domestic level. The Government
maintained, lastly, that the length of the civil proceedings had been
reasonable and therefore this complaint was manifestly ill-founded.
- The
applicants contested these submissions.
2. The Court
- As
to the Government's plea concerning exhaustion of domestic remedies,
the Court refers to its conclusion in the case of Baškienė
v. Lithuania (no. 11529/04, §§ 68-72, 24 July
2007), where it decided that a claim for damages under Article 6.272
of the Civil Code did not satisfy the test of “effectiveness”
in contexts of the present kind. The
Court finds no reason to depart from its existing case-law in this
regard. It remains unconvinced that the possibility of claiming
damages for the excessive length of proceedings under Article 6.272
of the Civil Code had – at the time of introduction of the
present application – had already acquired a sufficient degree
of legal certainty requiring its exhaustion for the purposes of
Article 35 § 1 of the Convention.
- Next,
whereas the Government argued that the applicants could have brought
a claim based on Article 6.246 of the Civil Code or the Constitution,
they have not adduced any evidence to demonstrate that such a remedy
had any reasonable prospect of success, especially before the ruling
of the Constitutional Court on 19 August 2006. Neither have the
Government provided the Court with practical examples showing that
the applicants could have relied effectively on the Convention at the
domestic level.
- It
follows that the Government's objection as to non-exhaustion of
domestic remedies must be dismissed.
- The
Court also considers that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
27. As regards the period to be taken into consideration, the
Court observes that the civil proceedings were instituted on 18 July
1994. However, the period to be taken into consideration only began
on 20 June 1995, when the recognition by Lithuania of the right
of individual petition took effect. It ended on 10 December
2003, when the Supreme Court took its decision. It therefore lasted
nearly eight years and six months at three levels of jurisdiction.
However, in assessing the reasonableness of the length of the
proceedings, the Court also takes into account that, before the
Convention came into force with regard to Lithuania, they had been
pending for almost a year.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicants and the relevant authorities and what
was at stake for the applicants in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- The Court has frequently found violations of Article 6
§ 1 of the Convention in cases raising issues similar to the one
in the present case
(see Krzewski v. Poland, no.
11700/04, 2 December 2008).
- Turning
to the case at hand, the Court cannot hold that the proceedings were
particularly complex or that the applicants' conduct contributed to
their length. At the same time the Court finds that extensive delays
in the proceedings were occasioned by mistakes or inertia on the part
of the domestic authorities. In particular, the case was returned for
re-examination by the Klaipėda Regional Court on 7 December 1995
because the lower court had failed to summon all the parties and had
not properly established and assessed all the circumstances of the
case
(see paragraph 9 above). Neither can the
Court overlook the fact that it took more than three years for the
experts to produce their conclusions
(see paragraphs 10-12
above).
- In
the light of the criteria laid down in its case-law and having regard
to all the circumstances of the case, the Court considers that the
length of the proceedings complained of was excessive and failed to
satisfy the reasonable-time requirement. There has accordingly been a
violation of Article 6 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE
1 OF PROTOCOL No. 1 TO THE CONVENTION
- In
their original application of 2 June 2004 the applicants also
submitted that, having no documents attesting their property rights
in the course of the impugned civil proceedings, they were prevented
from selling or letting their apartments or from exercising their
property rights in any other form. On 8 November 2006, replying
to the Government's observations as to the admissibility and the
merits, the applicants expanded that claim, arguing that due to the
length of the proceedings they could not enjoy either the apartments
or the money they had paid for them. They contended that the length
of the proceedings complained of had infringed their right to the
peaceful enjoyment of their possessions, as guaranteed by Article 1
of Protocol No. 1, 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
Government noted at the outset that this complaint was inadmissible
as incompatible ratione materiae since, during the civil
proceedings, the applicants had not been the owners of the apartments
at issue, as their title had been recognised only on 19 January and
13 February 2004, whereas the civil proceedings had ended on
10 December 2003. Next, even assuming that there had been a
certain degree of interference with the applicants' property rights,
the Government nonetheless maintained that it had been proportionate
in view of the general interest in protecting the right of the public
to certainty that the local authorities had acted responsibly and
within their powers.
- The
Court notes that, according to Lithuanian law, the applicants indeed
became the owners of the apartments in question only after the civil
proceedings had terminated (see paragraph 17 above).
Consequently, the Court accepts the Government's objection to the
effect that the applicants cannot allege a violation of their
property rights as the owners of the apartments. However, the Court
notes that the applicants could be understood as having complained of
their inability to enjoy their possessions in the form of the money
which they had paid for those apartments. Indeed, they explicitly
raised this aspect of the complaint in their reply to the
Government's observations as to the admissibility and merits. It
follows that the applicants' complaint falls within the Court's
competence ratione materiae.
- The
Court further observes that the complaint under Article 1 of
Protocol No. 1 is linked to the complaint concerning the
excessive length of proceedings examined above, and must therefore
likewise be declared admissible.
- However,
the Court notes that the applicants obtained their title to the
apartments only a month and two months respectively after the
impugned civil proceedings were over. In such circumstances the Court
considers that, having found a violation of the applicants' right to
a hearing within reasonable time, no separate issue on the merits
arises in respect of the complaint regarding the peaceful enjoyment
of possessions and that it must be regarded as having been absorbed
by the preceding complaint.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicants also complained under Article 6 § 1 of the
Convention that the domestic courts were biased, and that the
Klaipėda City District Court had neglected the relevant
circumstances of the case.
- On
the basis of the materials submitted by the applicants, the Court
notes that the decisions of the Lithuanian courts do not appear
arbitrary. It follows that the complaint about the alleged
partiality of the domestic courts is unsubstantiated and must be
rejected as being manifestly ill-founded, pursuant to Article 35 §§
3 and 4 of the Convention.
- As regards the second part of the complaint, it should
be noted that on 10 December 2003 the Supreme Court allowed the
applicants' property claims in full (see paragraph 15 above).
Accordingly, in respect of their complaint of an unfair hearing, the
applicants can no longer claim to be victims within the meaning of
Article 34 of the Convention and this part of the application
must be rejected for being incompatible ratione personae,
pursuant to Article 35 §§ 3 and 4 of the Convention.
- Finally,
the applicants alleged that their freedom of movement was restricted
on account of the fact that they could not leave Lithuania without a
“registration” stamp attesting their permanent place of
residence in their passports. In this respect the applicants invoked
Article 2 of Protocol No. 4 to the Convention.
- In
the context of the present case the Court notes that the applicants
failed to produce any proof that they had ever attempted to leave
Lithuania, had been prevented from doing so because they had no
“registration” stamp or had complained about it on the
domestic level. Moreover, the civil proceedings lasted more than
eight years in all and it can be presumed that during that time the
applicants had a place of residence which they could have used for
the purposes of obtaining such a stamp. It follows that this
complaint is manifestly ill-founded and must be rejected pursuant to
Article 35 §§ 3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- The
applicants claimed 100,000 euros (EUR) each in respect of
non-pecuniary damage.
- The
Government contested these claims as unsubstantiated and excessive.
- The
Court considers that the applicants have suffered certain
non-pecuniary damage as a result of the excessive length of the
civil proceedings, which is not sufficiently compensated by the
finding of a violation. Making its assessment on an equitable basis,
the Court awards each of the applicants EUR 3,000 under this head.
B. Costs and expenses
- The
first applicant claimed 234 Lithuanian litas (LTL; approximately
EUR 68) for costs and expenses in respect of the Convention
proceedings. The second applicant claimed LTL 303.25 (approximately
EUR 88).
- The Government contested these
claims.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to grant the applicants' claims in full.
C. Default interest
- The
Court considers it appropriate that the default interest 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
- Declares admissible the applicants' complaints
concerning the excessive length of civil proceedings and
an inability to enjoy their possessions;
2. Declares the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
4. Holds that no separate issue arises under Article 1 of
Protocol No. 1 to the Convention;
- Holds
(a) that
the respondent State is to pay, within three months from the date on
which the judgment becomes final according to Article 44 § 2 of
the Convention, the following sums, to be converted into the currency
of the respondent State at the rate applicable on the date of
settlement:
(i) EUR
3,000 (three thousand euros) to each applicant, plus any tax that may
be chargeable, in respect of non-pecuniary damage;
(ii) EUR
68 (sixty-eight euros) to the first applicant, plus any tax that may
be chargeable to this individual, in respect of costs and expenses;
(iii) EUR
88 (eighty-eight euros) to the second applicant, plus any tax that
may be chargeable to this individual, in respect of costs and
expenses;
(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;
- Dismisses
the remainder of the applicants' claims for just satisfaction.
Done in English, and notified in writing on 7 July 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise
Elens-Passos Françoise
Tulkens
Deputy
Registrar President
