OSIPKOVS AND OTHERS v. LATVIA - 39210/07 (Judgment : No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoymen...) [2017] ECHR 407 (04 May 2017)

In the case of Osipkovs and Others v. Latvia,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

          Angelika Nußberger, President,
          Erik Møse,
          Faris Vehabović,
          Yonko Grozev,
          Carlo Ranzoni,
          Mārtiņš Mits,
          Lәtif Hüseynov, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 4 April 2017,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 39210/07) against the Republic of Latvia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Latvian nationals and two companies registered in Latvia, whose names are listed in the appendix (“the applicants”), on 13 July 2007.

2. The applicants were represented by Ms S. Finka, a lawyer practising in Riga. The Latvian Government (“the Government”) were represented by their Agent, Mrs K. Līce.

3. The applicants alleged that the State authorities had deprived them of their property without the possibility of receiving any compensation.

4. On 19 February 2013 the application with relation to the first five applicants was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. Initial proceedings regarding the restoration of property rights

5. After the regaining of independence, in 1991 property reform legislation came into force in Latvia and provided that former owners or their heirs could reclaim property nationalised in 1940.

6. The second applicant and two other individuals were the heirs of A.S. In 1999 they asked the Riga Regional Court to recognise their title to 30 ha of forest in Jurmala (hereinafter “the contested property”) which had allegedly belonged to A.S. and was nationalised in 1940. They also asked the court to recognise their right to receive a plot of land of the same value in Jurmala, as it had not been possible to establish the precise boundaries of the inherited land.

7. On 7 May 1999 the Riga Regional Court ruled in favour of the claimants. It recognised that there was no question over whether the claimants were the heirs of the late A.S., as that had been established by a court order in 1995. Referring to documents received from the State Archive and the State Land Authority (Valsts Zemes dienests), it also established that A.S. had purchased 30 ha of forest in Jurmala. Referring to section 12 of the Law on Land Reform in the Cities of the Republic of Latvia (Par zemes reformu Latvijas Republikas pilsētās), which provided that any requests after 1 June 1994 for the restoration of property rights should be decided by a court, the Riga Regional Court recognised that the second applicant owned a two-third share of the forest in Jurmala and that the other two claimants owned a sixth each. As there was no evidence of what the precise boundaries of the forest were, the court recognised the claimants’ right to receive a plot of land of the same value elsewhere.

8. Jurmala City Council was a defendant in the above proceedings and a representative of Jurmala City Land Commission contested the claim, arguing that in 1940 the contested property had belonged to several individuals as undivided property, and the archive documents did not show what part of that property each claimant could be entitled to.

9. The judgment was not appealed against and became final on 8 June 1999. In April 2000, at the claimants’ request, the Riga Regional Court adopted an additional decision specifying that the contested property had historically been part of the Bulduri estate forest.

B. Enforcement of the judgment regarding the restoration of property rights

10. After adoption of the above judgment, the Jurmala City Land Commission informed the claimants, the Jurmala City Council and the State Land Authority several times of problems in enforcement of the judgment. The Jurmala City Land Commission maintained that the archive material, which had been obtained after the above judgment had been adopted, did not give information as to the location of the contested property. On those grounds, in October 2000 the State Land Authority asked the Prosecutor General’s Office to lodge an application for supervisory review (protests) asking for the judgment of 7 May 1999 to be quashed.

11. In November 2000 the Prosecutor General’s Office dismissed the request, arguing that reassessment of evidence could not serve as grounds for triggering supervisory review proceedings.

12. On several occasions the second applicant complained to the Jurmala City Council and the Jurmala City Land Commission about delays in the enforcement of the judgment.

13. In order to comply with the judgment, on 6 December 2002 the Jurmala City Land Commission adopted decisions allocating four plots of land to the claimants.

14. On 27 December 2002 the title to the four plots of land was entered in the land register, and on 8 and 9 January 2003 the second applicant and the other two claimants sold their respective plots to the fifth applicant, the limited liability company Bulduru Muiža, the owner and director of which at the material time was the second applicant.

Between January 2002 and October 2003 the first applicant was the president of the fifth applicant, and between October 2003 and August 2007 the first applicant was its chairman of the board.

C. Supervisory review proceedings

15. On 24 October 2003 the President of the Civil Division of the Senate of the Supreme Court lodged an application for supervisory review with regard to the judgment adopted on 7 May 1999 by the Riga Regional Court, arguing that there was a lack of evidence to corroborate that A.S. had owned the property before 1940. As information received from the State Archive had suggested, the contested property had consisted of undivided shares and therefore it could not be concluded that A.S. had been the sole purchaser of 30 ha of a forest.

16. A copy of that application was sent to the second applicant and the other two parties to the initial proceedings, inviting them to submit comments within thirty days of receipt.

17. At a hearing on 17 December 2003 attended by the representative of the claimants in the initial proceedings, the Senate of the Supreme Court quashed the judgment and remitted the case to the Riga Regional Court for fresh consideration. The Senate recognised that there was nothing in the case file to suggest that A.S. had owned the contested property.

18. In January and March 2004 the Bureau for the Prevention and Combating of Corruption (“the KNAB”) asked the Prosecutor General’s Office to initiate proceedings to reclaim the contested property from the applicants.

D. Subsequent transactions involving the contested property

19. The fifth applicant entered into various transactions with the contested property.

20. On 15 and 16 December 2003 part of the property was for a total amount of 7,000 Latvian lati (LVL) (about 10,000 euros (EUR)) sold to A.V. who on 26 and 29 March 2004 sold it for the same amount to the third applicant, the limited liability company Balt Invest Group, the co-owner and representative of which at the material time and until February 2007 was A.V. himself.

On 23 April and 7 May 2004 the third applicant was registered as the owner of the property in the land register.

21. On 12 and 19 February 2004 the fifth applicant sold two other parts of the contested property to the sixth and fourth applicants respectively for about EUR 45,000 per each transaction. The purchase contract of 19 February 2004 provided, inter alia, that the seller, namely the fifth applicant, guaranteed that the property was not subject to any dispute, and that seller would be liable for any third party claims made in respect of the transaction.

22. On 27 February 2004 the fifth applicant sold another part of the property to K.K, who on 18 June 2004 sold it to the first applicant for about LVL 29,000 (about EUR 41,500). The purchase contract of 18 June 2004 provided, inter alia, that the seller guaranteed that the property was not anyhow encumbered.

E. Claim brought by the Prosecutor General’s Office against the applicants

23. On 27 April 2004 and on 16 September 2004 (with regard to the first and the third applicants) the Prosecutor General’s Office, acting on behalf of the Ministry of Finance, lodged a claim against the Jurmala City Council, the applicants, A.V. and the two other claimants in the initial proceedings. The Prosecutor General’s Office relied on the Senate’s judgment (see paragraph 17 above) and the request received from the KNAB (see paragraph 18 above). The claim stated that the second applicant and the two other claimants in the initial proceedings had no legal right of ownership over the contested property. The Riga Regional Court was asked to quash the decisions of Jurmala City Land Commission allocating the four plots of land (see paragraph 13 above). The Prosecutor General’s Office also asked for the relevant Land Registry records to be deleted and the rights of the State to the contested property to be recognised.

24. The claim was based on the section of the Civil Law regulating property claims, such as sections 1041, 1044 and 1063 (see paragraph 37 below).

25. On 30 May 2004 the Riga Regional Court decided to join the claim lodged by the Prosecutor General’s Office and the claim about the restoration of property rights (see paragraph 17 above).

F. Outcome of the joint civil proceedings

26. On 9 September 2005 the Riga Regional Court dismissed the claim lodged by the Prosecutor General’s Office and upheld the decision recognising the second applicant and the two other claimants as owners of the contested property.

27. Both the Prosecutor General’s Office and the Jurmala City Council appealed against that decision.

28. On 22 June 2006 the Civil Division of the Supreme Court partly upheld the appeal lodged by the Prosecutor General’s Office. The court revoked the decisions of the Jurmala City Land Commission allocating the second applicant and the two other claimants the four plots of land, and ordered that the corresponding entries be deleted from the relevant Land Registry records. It established that the lower court had failed to address the fact that until 1937 the contested plots of land had been jointly owned by the former owner A.S. and seventy-six other individuals. Moreover, the joint ownership of the land had ceased after the passing of a decree in 1937, and after that date A.S. had not registered his title to the property with the Land Registry.

The appellate court also dismissed part of the claim of the Prosecutor General’s Office in which it claimed that the State (represented by the Ministry of Finance) had ownership rights over the property in question. The plots of land were returned to Jurmala Municipality in order for it to finalise the land reform.

29. In relation to the applicants’ argument that they had all acted in good faith when acquiring their part of the contested property, the court at the outset noted that such criteria as the date of conclusion of a contested transaction and the nature of the infringed property rights have to be considered when assessing the protection of bona fide acquirers. The court also observed that after the second applicant had sold the contested property to the fifth applicant, the owner of which was the second applicant himself, all the transactions involving the contested property (see paragraphs 19-22 above) had been concluded after the Senate of the Supreme Court had revoked the final judgment in the initial proceedings. It also noted that K.K. had sold his respective parts of the property to the first applicant despite the fact that the civil proceedings initiated by the Prosecutor General’s Office had been pending. On those grounds and on the basis of section 1055 of the Civil Law (see paragraph 38 below), the applicants were not recognised as having acted in good faith.

30. The first, second, fourth and fifth applicants lodged an appeal on points of law. Following an application dated 14 August 2006, the third applicant joined the cassation appeal lodged by the first applicant. The sixth applicant did not lodge an appeal on points of law.

31. The five appellants complained, inter alia, that the State did not have sufficient interest in the property to justify the fact that the Prosecutor General’s Office had lodged a property claim on behalf of the State.

32. By a final decision of 17 January 2007, the Senate of the Supreme Court upheld in essence the appellate court’s judgment. With respect to the property claim brought by the Prosecutor General’s Office, the Senate noted that even if the State’s property rights had not been infringed, that did not prevent the court from finding that the second applicant and the two other claimants in the first set of proceedings had had no rights to the contested property. The Senate also upheld the appellate court’s conclusions about the applicants acting in bad faith.

33. After the above judgment took effect and at Jurmala Municipality’s request the applicants’ entries were deleted from the relevant Land Registry records.

G. Other relevant information regarding the third applicant

34. On 16 October 2012 the third applicant was declared insolvent and the Riga District Court appointed E.K. as its insolvency administrator who replaced the former board members of the third applicant. On 19 February 2013 the insolvency proceedings were terminated and on 14 May 2013 the third applicant was deleted from the company register.

35. On 12 April 2013 A.V., who until June 2012 had been a board member of the third applicant, on its behalf designated a legal representative in the proceedings before the Court (see paragraph 2 above).

II. RELEVANT DOMESTIC LAW AND PRACTICE

Civil Law and Civil Procedure Law

36. Sections 910-918 of the Civil Law (Civillikums) set out the types of possession and their protection. Section 910 provides that a possession can be obtained either in good faith or bad faith. A good faith possessor is one who is sure that no one is more entitled to possess the property. A bad faith possessor is aware that he or she does not have the right to possess the property in question, or is aware of someone else having more rights to the property. Each type of possession is protected by law (section 912) and every possession is considered as being in good faith, unless proved otherwise (section 918).

37. The Civil Law provides that owners may claim property from any possessor by way of a property claim (section 1041). Owners may bring such a claim against any person who has illegally retained their property with a view to recognising their property rights and regaining possession (section 1044). Property shall be returned to its owner without compensation; even a possessor in good faith does not have the right to require that an owner provide compensation for the sum paid for the property, but may only bring such claim against the person from whom such possessor acquired it (section 1063).

38. Section 1055 of the Civil Law provides that if property is alienated pending the completion of proceedings, each defendant shall be liable in the same way as a bad faith holder. If the alienation was not necessary, such as for example to prevent damage to a property, the claimant need not be satisfied only with recovery of the payment received for the property, but may also claim recovery of the property itself and its appurtenances, or for compensation for the value of the property and its appurtenances, and for all losses and expenses.

39. Under sections 483 and 484 of the Civil Procedure Law, an application for supervisory review to a final court decision may be lodged within ten years of it becoming final by the chairman of the Supreme Court, the chairman of the Civil Department of the Senate of the Supreme Court or the Prosecutor General in cases of serious violations of substantive or procedural law. An application for supervisory review may only be lodged in cases that were heard by a first-instance court and where no appeal was made because of circumstances outside the parties’ control, or in which the judgment in question infringed the interests of State or municipal bodies or of third persons who were not parties to the original case.

III. RESERVATION SUBMITTED BY THE GOVERNMENT

40. The instrument of ratification of the Convention and its Protocols deposited by the Government on 27 June 1997 contains the following reservation:

“In accordance with Article 64 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, the Republic of Latvia declares that the provisions of Article 1 of the First Protocol shall not apply to the laws on property reform which regulate the restoration or compensation to the former owners or their legal heirs of property nationalised, confiscated, collectivised or otherwise unlawfully expropriated during the period of Soviet annexation; and privatisation of collectivised agricultural enterprises, collective fisheries and of State and local self-government owned property.

The reservation concerns the Law On Land Reform in the Republic of Latvia Rural Regions (published in Zinotajs [The Bulletin] 1990, No. 49; 1991, No. 41; 1992, No. 6/7; 1992, No. 11/12; 1993, No. 18/19; Latvijas Vestnesis [The Latvian Herald] 1994, No. 137), Law On Privatisation of Agricultural Enterprises and Collective Fisheries (Zinotajs 1991, No. 31; 1992, No. 40/41; 1993, No. 5/6; Latvijas Vestnesis 1995, No. 90; 1996, No. 177), Law On Land Reform in the Republic of Latvia Cities (Zinotajs 1991, No. 49/50; Latvijas Vestnesis 1994, No. 47; 1994, No. 145; 1995, No. 169; 1997, No. 126/127), Law On Land Privatisation in Rural Regions (Zinotajs 1992, No. 32; 1993, No. 18/19; Latvijas Vestnesis 1993, No. 130; 1994, No. 148; 1995, No. 162; 1996, No. 111; 1996, No. 225), Law On Privatisation of Property in Agroservice Enterprises (Zinotajs 1993, No. 14), Law On Privatisation Certificates (Latvijas Vestnesis 1995, No. 52), Law On the Privatisation of Objects of State and Municipal Property (Latvijas Vestnesis 1994, No. 27; 1994, No. 77; 1996, No. 192; 1997, No. 16/17/18/19/20/21), Law On Privatisation of Co-operative Apartments (Zinotajs 1991, No. 51; Latvijas Vestnesis 1995, No. 135), Law On the Privatisation of State and Local Self-Government Apartment Houses (Latvijas Vestnesis 1995, No. 103; 1996, No. 149; 1996, No. 223), Law On Denationalisation of Real Estate in the Republic of Latvia (1991, No. 46; Latvijas Vestnesis 1994, No. 42; 1994, No. 90; 1995, No. 137; 1996, No. 219/220), Law On the Return of Real Estate to the Legitimate Owners (Zinotajs 1991, No. 46; Latvijas Vestnesis 1994, No. 42; 1996, No. 97) and their wording being in force at the moment the Law On Ratification entered into force.”

41. Annex to instrument of ratification provides a brief summary of the laws concerned. The summary of the laws relevant to the present cases are as follows:

“The aim of the Law On Land Reform in the Republic of Latvia Cities, during the gradual process of State property denationalisation, conversion, privatisation and the return of unlawfully expropriated land, is to restructure the legal, social and economic relations between city land owners and users in order to promote the respective city’s construction, land protection and its rational utilisation in accordance with the interests of society.

The Law On Denationalisation of Real Estate defines the real estate which can be denationalised, fixes the terms and procedure of denationalisation, the form of compensation and social guarantees of present tenants.

The Law On the Return of Real Estate to the Legitimate Owners guarantees that the real estate which has been expropriated by the State in the 1940s-1980s without compensation will be returned to the former owners or their legal heirs.

Period covered: 27/06/1997 - .”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION

42. The applicants complained that by quashing a final judgment the State authorities had deprived them of their property without the possibility of receiving any compensation. They alleged a violation of 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.”

A. Admissibility

1. As regards the sixth applicant

43. The Court notes at the outset that the sixth’s applicant’s complaint was not communicated to the Government.

Having noted that the sixth’s applicant had not submitted an appeal on points of law (see paragraph 30 above), the Court considers that he has not exhausted the domestic remedies.

44. It follows that the complaint lodged by the sixth applicant is inadmissible under Article 35 §§ 1 and 4 of the Convention.

2. As regards the other applicants

45. The Government made separate submissions on inadmissibility in relation to each of the remaining applicants.

46. The applicants did not submit observations.

(a) Compatibility ratione personae

(i) The third applicant

47. The Government argued that the third applicant had been liquidated after the application had been communicated to the Government. As a result it had lost victim status.

48. The Court points out that it is essential for representatives to demonstrate that they have received specific and explicit instructions from the alleged victim within the meaning of Article 34 on whose behalf they purport to act before the Court (see, mutatis mutandis, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 102, ECHR 2014). The Court observes in this regard that the question of successor of the third applicant was not clear. Between 16 October 2012, when the third applicant was declared insolvent, and 14 May 2013, when it was deleted from the company register, the sole authority eligible to act on behalf of the third applicant was its insolvency administrator E.K. (see paragraph 34 above).

49. It is true that in the absence of a victim’s successor the case before the Court may be pursued where respect for human rights so requires (see Uniya OOO and Belcourt Trading Company v. Russia, nos. 4437/03 and 13290/03, § 260, 19 June 2014, with case-law cited therein). In the present case, however, neither the insolvency administrator, nor its former representative or board of directors had acted on behalf of the third applicant and commented on the Government’s objections about its locus standi. The lack of any observations on behalf of the third applicant does not permit the Court to decide on the existence of any such circumstances which necessitates pursuing the case.

50. In the light of the above, the Court concludes that the application, in so far as it was lodged by the third applicant, is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

(ii) The second and fifth applicants

51. The Government also argued that the second and fifth applicants had sold their properties. As a result they could not claim to be victims of the alleged violation of Article 1 of Protocol No. 1 to the Convention.

52. The Court reiterates that in order for an applicant to be able to claim to be a victim of a violation of the Convention, there must be a sufficiently direct link between him or her and the harm allegedly sustained on account of the alleged violation (see Gorraiz Lizarraga and Others v. Spain, no. 62543/00, § 35, ECHR 2004-III with further references).

53. The Court does not find it established that there existed a link in relation to the second and fifth applicants and the alleged breach of Article 1 of Protocol No. 1. The second applicant had sold his respective part of the contested property before the President of the Civil Division of the Senate of the Supreme Court lodged the application for supervisory review (see paragraph 14 above), whereas the fifth applicant - a legal entity represented by the second applicant, had sold the property while the joint civil proceedings were still pending (see paragraph 19 above). It is not alleged that the final decision in the joint civil proceedings affected the situation of the second and fifth applicants, who either prior to or during the proceedings had not only been fully in control of the contested property, but had also made a profit from its sale.

54. Given that there is no information attesting that the second and fifth applicants suffered any harm as a result of the measures complained of, the Court finds that they cannot claim to be victims within the meaning of Article 34 of the Convention. It follows that the application, in so far as it was lodged by the second and fifth applicants, is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

(b) Compatibility ratione materiae

55. The Government next argued that the Court was precluded from examining the case by virtue of the reservation submitted by the Latvian Government in their instrument of ratification. That reservation, which concerned an ongoing property reform commenced in 1990, had been declared valid by the Court (see Kozlova and Smirnova v. Latvia (dec.), no. 57381/00, ECHR 2001-XI). In the Government’s view, the establishment and restoration of title to the contested property in the present case was governed by the provisions of the legislation covered by the above reservation (see paragraphs 40-41 above).

56. Given its earlier findings (see paragraphs 44, 50 and 54 above), the Court is called upon to examine the Government’s objection in relation to the first and fourth applicants.

57. In order for the Court to conclude that it does not have jurisdiction to decide on a complaint under Article 1 of Protocol No. 1 by virtue of the reservation, it has to be satisfied that the following conditions have been fulfilled: the laws on property reform mentioned in the reservation were applied in the domestic proceedings; the subject matter of the proceedings was the restoration of property rights or compensation; and former owners or their legal heirs were involved in those proceedings (see Liepājnieks v. Latvia (dec.), no. 37586/06, § 49, 2 November 2010).

58. In the case at hand the Court observes that the claim with regard to the first and fourth applicants was not brought under the property reform legislation, and its subject matter was the recognition of the State’s title to the impugned property under the general provisions of the Civil Law (see paragraph 24 above). It therefore did not concern the restoration of property rights under the legislation covered by the reservation.

59. Having regard to the above, the Court finds that the first and fourth applicants’ complaint falls outside the scope of the reservation. It is therefore not precluded from examining it and consequently dismisses the objection raised by the Government in this regard.

60. The Government raised objections on the grounds of non-exhaustion of domestic remedies, arguing that if the applicants had believed that the supervisory review mechanism triggered by the President of the Civil Division of the Senate of the Supreme Court had infringed the principle of legal certainty, they should have contested the constitutionality of section 483 of the Civil Procedure Law (see paragraph 39 above) before the Constitutional Court.

61. The Court observes that the first and fourth applicants were not parties to the initial proceedings in which, as a result of the supervisory review, the judgment with regard to the property rights over the contested property was quashed, and the case was remitted for fresh consideration (see paragraph 16 above). The applicants purchased their respective parts of the contested property after the case had been sent for a new examination. That fact was likely to undermine any real possibility for those applicants to rely on an alleged infringement of the principle of legal certainty and to have the constitutional proceedings instituted (compare and contrast Yelverton Investments B.V. and Others v. Latvia, (dec.), 57566/12, 18 November 2014). In any event, even assuming that such proceedings could have been initiated, the Court does not have sufficient information at its disposal to establish that the proceedings on the constitutionality of the supervisory mechanism could resolve the applicants’ property dispute and redress their grievances under Article 1 of Protocol No. 1.

62. On the basis of the above, the Court dismisses the Government’s objection.

(d) Conclusion

63. The Court considers that the complaint by the first and fourth applicants is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, nor inadmissible on any other grounds. It must therefore be declared admissible.

The complaint by the sixth applicant is to be declared inadmissible under Article 35 § 1 (see paragraph 44 above) and the complaints by the second, third and fifth applicants are to be declared inadmissible under Article 35 § 3 (a) (see paragraphs 50 and 54 above), and the complaints must be rejected pursuant to Article 35 § 4 of the Convention.

B. Merits

1. Whether there was an interference with the applicants’ possessions

64. In their initial submissions to the Court the first and fourth applicants (hereinafter “the applicants”) alleged that they had acquired their property rights to the impugned plots of land in good faith and as such had the right to receive compensation in respect of the property of which they had been deprived as a result of the quashing of a final domestic judgment. They did not submit observations in reply to the Government’s observations on the merits.

65. The Government argued, firstly, that none of the applicants could claim to have possessed the contested property because the property title had been acquired unlawfully (prettiesiski), that is to say the second applicant had not had any legal right to acquire the contested property and alienate it further to the other applicants. The fact that their title to the contested property had been entered in the land register did not change that position because under domestic law registration of title to a property did not remedy the internal deficiencies of a transaction.

In the alternative, the Government contended that the only interest, if any, protected by domestic law and the Convention could be the applicants’ entitlement to compensation and costs and expenses related to the contested property.

66. Next, the Government argued that there had been no interference with the applicants’ right to the peaceful enjoyment of their possessions engaging the responsibility of the State. The alleged interference had been the result of unlawful activities by private parties. It therefore could not engage the State’s responsibility, apart from the positive obligation to protect the applicants’ property interests by ensuring adequate remedies in its domestic legal system.

(a) Possessions

67. The Court reiterates that the concept of “possessions” referred to in the first part of Article 1 of Protocol No. 1 has an autonomous meaning. In each case the issue that needs to be examined is whether the circumstances of the case, considered as a whole, conferred on the applicant title to a substantive interest protected by Article 1 of Protocol No. 1 (see, among other authorities, Broniowski v. Poland [GC], no. 31443/96, § 129, ECHR 2004-V).

68. The applicants’ titles to the contested property were registered in an official register, and they were considered as de facto possessors of that property by the Prosecutor General’s Office which, on behalf of the State, brought a property claim against the applicants. Noting that under domestic law any type of possession is protected (see paragraph 36 above), the Court accepts that the applicants held a “possession” for the purposes of Article 1 of Protocol No. 1.

(b) Interference

69. The Court observes that following the final judgment in the claim brought by the Prosecutor General’s Office, the contested property was returned to Jurmala Municipality and the Land Registry deleted the entries relating to the applicants’ titles to the contested property (see paragraph 33 above). Accordingly, that decision led to the applicants being deprived of their property rights within the meaning of the second sentence of Article 1 of Protocol No.1 to the Convention.

2. Whether the interference complied with the conditions set out in Article 1 of Protocol No. 1

70. In order to comply with Article 1 of Protocol No. 1 to the Convention, it must be shown that the measure constituting the interference was lawful, that it was “in accordance with the general interest”, and that there existed a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Vistiņš and Perepjolkins v. Latvia [GC], no. 71243/01, §§ 106 and 108, 25 October 2012).

(a) Lawfulness

71. The Government argued in substance that the interference had been prescribed by law. Any issues with regard to legal certainty caused by the revoked judgment could affect only the parties to the initial proceedings regarding the restoration of property.

72. The applicants in their initial submissions complained about deprivation of their property as a result of quashing of the final domestic court’s judgment.

73. The Court reiterates that when assessing whether the alleged interference was prescribed by law, it looks at the legal norms upon which the deprivation of property is based (see among other authorities, Vistiņš and Perepjolkins, cited above, § 97). In other words, there should be a connection between the invoked legal provision and the alleged breach.

74. In the present case the interference with the applicants’ possession was a result of a property claim brought by the Prosecutor General’s Office under the general provisions of the Civil Law (see paragraphs 24 and 37 above). It is not disputed that in this connection the above domestic rules of establishing and on invalidating ownership had been sufficiently clear and foreseeable.

75. On the question of legal certainty linked with the supervisory review mechanism, the Court refers to its findings (see paragraphs 60-62 above) and observes that with regard to the first and the fourth applicants no final judgment in their favour had been revoked (contrast with the case of Brumărescu v. Romania [GC], no. 28342/95, § 77, ECHR 1999-VII). The applicants purchased the contested property while the dispute over it had been pending, therefore in the particular circumstances of the case the applicants’ own conduct prevented them from relying on the principle of legal certainty.

76. In the light of the above the Court therefore concludes that the interference was “prescribed by law”.

(b) Legitimate aim

77. The Government argued that the compulsory transfer of a property title to a legitimate owner was primarily intended to ensure compliance with domestic law and therefore served a public interest.

78. The Court has held that, as a general principle, public authorities should not be prevented from correcting their mistakes, even those resulting from their own negligence; holding otherwise would be contrary to the doctrine of unjust enrichment (see, mutatis mutandis, Moskal v. Poland, no. 10373/05, § 73, 15 September 2009). The Court accepts the existence of a legitimate aim and proceeds by examining the latter element.

79. The Government argued that the contested measure had not failed to strike a fair balance, given the general background and the applicants’ conduct.

80. As stated above, the “good governance” principle should not prevent public authorities from correcting their mistakes, Nonetheless, the above general principle cannot prevail in a situation where the individual concerned is required to bear an excessive burden (see, Vukušić v. Croatia, no. 69735/11, § 64, 31 May 2016, with case-law cited therein). The search for a balance is reflected in the structure of Article 1 of Protocol No. 1 as a whole, regardless of which paragraphs are concerned in each case; there must always be a reasonable relationship of proportionality between the means employed and the aim pursued. Ascertaining whether such a balance existed requires an overall examination of the various interests in issue (see Perdigão v. Portugal [GC], no. 24768/06, §§ 67-68, 16 November 2010), which may call for an analysis of such elements as the terms of compensation and the conduct of the parties to the dispute, including the means employed by the State and their implementation, such as the requirement for the authorities to act in good time, in an appropriate manner and with utmost consistency (see, mutatis mutandis, Beyeler v. Italy [GC], no. 33202/96, §§ 114 and 120, ECHR 2000-I).

(i) The conduct of the authorities

81. The Court observes that there were certain flaws attributable to domestic authorities with regard to the property restitution proceedings. At the same time the Court takes note of the initial action taken by Jurmala City Land Commission to prevent the unlawful restoration of the property rights (see paragraphs 8 and 10 above). It also notes that the authorities acted with the requisite promptness to rectify its errors. Nevertheless, that action could not restrain the original owners from selling the contested property to the applicants before the property dispute was settled in court despite an explicit liability clause to that effect enshrined in domestic law (see paragraph 38 above).

(ii) The conduct of the applicants

82. The Government in essence argued that the applicants had not acted in good faith when they had purchased the contested property in relation to which ownership dispute proceedings were still ongoing. According to the Government, the protection of bona fide owners did not apply in respect of them.

83. When faced with the argument that a property was acquired in bad faith, the Court looks closely at the adequacy of the domestic authorities’ reasoning to that effect (see Vistiņš and Perepjolkins, cited above, § 120, and Misiukonis and Others v. Lithuania, no. 49426/09, § 61, 15 November 2016).

84. In the present case, the domestic courts established that when the first and fourth applicants had purchased their respective parts of the contested property, the Senate of the Supreme Court had already quashed the judgment of May 1999 on the restoration of property rights, and the dispute over the contested property had been pending before the domestic court (see paragraph 29 above). In view of the documents before it, there is no reason for the Court to reach a different conclusion on the characteristics of the applicants’ conduct (see to the contrary Albergas and Alrauskas v. Lithuania, no. 17978/05, §§ 66-67, 27 May 2014). In addition, when in April 2004 the Prosecutor General’s Office lodged a property claim against, inter alia, the company Bulduru Muiža (also the fifth applicant in the present case), the first applicant had been acting as a representative of that company. Thus, when the first applicant four months later purchased the same property, he should have been clearly aware of the ongoing property dispute (see paragraph 22 above) and the ensuing risks.

(iii) Compensation

85. In any event any doubts as to the applicants’ good faith cannot automatically lead to their exemption from the protection provided under Article 1 of Protocol No. 1 to the Convention, even though in the balancing exercise such circumstances do not weigh in favour of the applicants (see, Ivanova and Cherkezov v. Bulgaria, no. 46577/15, § 75, 21 April 2016; see also, mutatis mutandis, Moskal, cited above, § 73). It is true that where the correction of errors caused by State authorities results in an interference with the right to the peaceful enjoyment of the property, bona fide holders of such property enjoy particular protection (see Gladysheva v. Russia, no. 7097/10, § 80, 6 December 2011 and the case-law cited therein). Nevertheless, if there is a mechanism which allows any claimant, whether bona fide or mala fide, to claim reimbursement of sums paid under the purchase contract, that mechanism should be effective (compare and contrast with Buciaş v. Romania, no. 32185/04, § 43, 1 July 2014).

86. In this connection the Government argued that under domestic law the applicants could have sued the previous owners for pecuniary damages. They could have also brought proceedings against Jurmala City Council for the damage caused by the adoption of the unlawful administrative decision which was later quashed.

87. The Court notes that even if the previous owners, that is the fifth applicant and K.K., were not considered by the domestic court as having acted in good faith (see paragraph 29 above), these findings did not automatically affect the validity of the purchase contracts signed between the applicants and the previous owners of the contested property. On the basis of the terms of the purchase contracts (see paragraphs 21-22 above) and noting the general legal provisions of the Civil Law for claiming damages (see to that effect, for example, Zavoloka v. Latvia, no. 58447/00, §§ 15-19, 7 July 2009), the Court considers that the applicants could have sought damages from the persons who had sold them the contested property.

88. The Court observes that the applicants did not use the above compensatory mechanisms and did not put forward any reasons contesting their effectiveness. Moreover, this situation should be distinguished from those cases in which a requirement to bring separate compensation proceedings against former owners was considered too formalistic and excessive burden in circumstances where the buyers and the seller had acted in good faith (contrast, for example, Gladysheva, cited above, § 81) or where the compensation mechanism had been either exhausted or devoid of effectiveness (see, mutatis mutandis, B.K.M. Lojistik Tasimacilik Ticaret Limited Sirketi v. Slovenia, no. 42079/12, § 50, 17 January 2017). Given the above considerations, the Court does not find that an obligation to bring separate proceedings with a claim for compensation would have constituted an excessive burden on the applicants in the particular case.

89. The foregoing considerations are sufficient to enable the Court to conclude that the Latvian authorities did strike a fair balance between the demands of the general interest and the rights of the first and fourth applicants.

90. There has accordingly been no violation of Article 1 of Protocol No. 1 to the Convention.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaints brought by the first and fourth applicants admissible, and the remainder of the application inadmissible;

2. Holds that there has been no violation of Article 1 of Protocol No. 1 to the Convention.

Done in English, and notified in writing on 4 May 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan Blaško Angelika Nußberger
Deputy Registrar President

APPENDIX

1. Aleksandrs Osipkovs is a Latvian national who was born in 1960 and lives in Rīga;

2. Vano Razmadze is a Latvian national who was born in 1970 and lives in Rīga;

3. Balt Invest Group was a limited liability company registered in Latvia. At the time of submitting the application it was represented by its board of directors V.Mjačina and A.Mjačins;

4. Mārtiņš Ādminis is a Latvian national who was born in 1974 and lives in Jūrmala;

5. Bulduru Muiža is a limited liability company registered in Latvia. It is represented by its managing director, Mr. A. Osipkovs (the first applicant);

6. Egits Kraulis is a Latvian national who was born in 1968 and lives in Jūrmala.

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You are here: BAILII >> Databases >> European Court of Human Rights >> OSIPKOVS AND OTHERS v. LATVIA - 39210/07 (Judgment : No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoymen...) [2017] ECHR 407 (04 May 2017) URL: http://www.bailii.org/eu/cases/ECHR/2017/407.html Cite as: CE:ECHR:2017:0504JUD003921007, [2017] ECHR 407, ECLI:CE:ECHR:2017:0504JUD003921007