SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 14425/03 by Jonas KALPOKAS and Vaclovas KALPOKAS against Lithuania

The European Court of Human Rights (Second Section), sitting on 6 March 2007 as a Chamber composed of:

Mrs F. Tulkens , President , Mr A.B. Baka , Mr R. Türmen , Mr M. Ugrekhelidze , Mr V. Zagrebelsky , Ms D. Jočienė ,

Mr D. Popović, judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application lodged on 28 April 2003,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The first applicant, Mr Jonas Kalpokas, and the second applicant, Mr Vaclovas Kalpokas, are Lithuanian nationals who were born , respectively, in 1927 and 1919, and live in Gaili ū nai. They were represented before the Court by Mr T. Urbaitis, a lawyer practising in Vilnius . The Lithuanian Government (“the Government”) were represented by their Agent, M s E. Baltutytė .

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicants ’ father owned 31.82 hectares of land. The property was nationalised following the Soviet occupation of Lithuania in 1940. After Lithuania regained its independence in 1990, the applicants applied for the property to be returned to them in kind, pursuant to the 1991 legislation on the restitution of property rights. The applicants were advised that parts of the land which they claimed had been assigned to certain private persons and therefore could not be returned to them.

On 16 August 2001 the applicants applied to a court, alleging that the disputed parts of their father ’ s former land had been occupied unlawfully. They requested restitution in kind of the entire plot.

On 9 September 2002 the Kaunas Regional Administrative Court accepted the applicants ’ action in part. It held that parts of the land were legitimately occupied by other private persons and, under the legislation on the restitution of property, could not therefore be recovered. However, the court ordered that the regional administration adopt, within a period of three months, a decision to restore the applicants ’ property rights to the land which had not been occupied.

On 31 October 2002 that decision was upheld by the Supreme Administrative Court and entered into force.

In execution of the decision, on 18 November 2002 the local authorities commissioned planning experts to delimit the land due to the applicants. That work began on 12 December 2002. The applicants were invited to take part, but they did not do so.

On 22 May 2003 one of the persons occupying part of the former land of the applicants ’ father refused the new plot assigned to him. This development necessitated a fresh delimitation and re-evaluation of the land to be returned to the applicants.

Furthermore, on 9 June 2003 another such refusal was recorded by the administrative authorities, which had to arrange for the land to be delimited and evaluated de novo . The applicants, however, again refused to take part in the delimitation work.

On 10 November 2003 a third person refused a plot located within the original boundaries of the land originally owned by the applicants ’ father; hence, again, delimitation work had to be carried out. The applicants still refused to participate.

On 23 February 2004 a fo u rth person refused a plot located on the original land.

On 2 March 2004 the regional authorities restored the applicants ’ rights to the land. The first applicant was given title to 6.86 hectares of land and 4.85 hectares of the forest area, while the second applicant was entitled to 7.09 hectares of land and 4.86 hectares of the forest area. It appears that the authorities did not add the plot refused by the fourth person to the land due to the applicants. The applicants were repeatedly informed that occupied parts of their father ’ s land could not be returned in kind, and would be compensated subsequently.

On 28 April 2004 the regional administration amended its decision of 2 March 2004, inter alia , reducing the plots assigned to the applicants.

The applicants, dissatisfied with the above decisions, on 5 May 2004 lodged a complaint, requesting their nullification. They also claimed title to their fathers ’ original land in its entirety.

The Kaunas Regional Administrative Court dismissed the applicants ’ action on 8 November 2004. However, on 2 March 2005 the Supreme Administrative Court granted it in part. It was established that the decision of 2 March 2004 to restore the applicants ’ property rights was defective since the administrative authorities had not assessed all the relevant circumstances. While they had tried to remedy the situation by adopting amendments to that decision, they had acted ultra vires , since such a power was not granted to them by the law. The court quashed the decisions of 2 March 2004 and 28 April 2004, and ordered the authorities to adopt a fresh decision regarding the restitution of the applicants ’ property rights.

Neither the Government not the applicants have provided any further information about the actions taken since 2 March 2005 to implement t he decision of 9 September 2002, when submitting their observations (respectively, on 8 December 2005 and 30 January 2006) or thereafter.

B. Relevant domestic law

The Restitution of Property Act 1991 ( Nuosavybės teisių ... atkūrimo įstatymas ) (amended on numerous occasions) provides for two forms of restitution: the return of property in certain circumstances and compensation in other s . Normally, t he land is returned in kind except in cases where , e.g. , it is classified as the S tate ’ s redeemable land. The land is considered to be redeemable if , inter alia , it was allocated to other private persons and is used as a farm.

On 27 May 1994 the Constitutional Court examined the issue of the compatibility of the Constitution with the domestic law on the restitution of property rights. I t held , inter alia , that possessions which had been nationalised by the Soviet authorities since 1940 should be considered as “ pr operty under the de facto control of the State”. The Constitutional Court also stated that, “The rights of a former owner to particular property have not been restored until the property is returned or appropriate compensation is afforded. The law does not itself afford any rights until it is applied to a concrete person in respect of specific property. In this situation the decision of a competent authority to return the property or to compensate has the legal effect that , only from that momen t, does the former owner obtain property rights to the specific property.” Moreover, t he Constitutional Court held that fair compensation for property which could not be returned was compatible with the principle of the protection of property.

In decisions of 15 June and 19 October 1994, the Constitutional Court emphasised that the notion of the restitution of property rights in Lithuania essentially denoted partial reparation. In this respect the Constitutional Court noted that the authorities of Lithuania , as a re-established State in 1990, were not responsible for the Soviet occupation half a century ago ; nor were they responsible for the consequences of that occupation. The Constitutional Court held that , since the 1940s , many private persons had bought, in accordance with the legislation applicable at the material time, various properties which had previously been nationalised. The denial of these factual and legal aspects was impossible, and the domestic legislation on the restitution of property rights duly took into account not only the interests of the former owners, but also the interests of private persons who had occupied or purchased property by way of lawful contracts.

On 20 June 1995 the Constitutional Court held that the choice by Parliament of the partial reparation principle was influenced by difficult political and social conditions, in that “new generations had grown, [and] new proprietary and other socio-economic relations had been formed during the 50 years of occupation, which could not be ignored in deciding the question of the restitution of property”.

COMPLAINTS

1 . Under Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1, the applicants complained about the continued failure of the authorities to execute the decision of the Kaunas Regional Administrative Court of 9 September 2002.

2 . They further complained under Article 1 of Protocol No. 1 about the refusal of the Lithuanian authorities to recognise their right to restitution in kind of the entire plot of land which had belonged to their father.

THE LAW

1. The applicants complained that the court decision of 9 September 2002, ordering the local authorities to return to them the available land of their father, had not been executed, in breach of Articles 6 and 13 of the Convention.

The Court considers that the complaint falls to be examined under Article 6 alone, which reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

The Government submitted that the execution of the decision was prolonged for objective reasons. In particular, the land had had to be delimited and re-evaluated several times because several people had waived their rights to the land sought by the applicants. In this respect, the delay in execution had worked in favour of the applicants, since the area of land which was thereby freed and returnable had expanded.

Furthermore, the Government alleged that the applicants had themselves obstructed a smooth restitution process by consistently refusing to participate in the land-delimitation work. Thus, these delimitations had had to be completed without the applicants ’ consent. By contrast, no lack of diligence had been displayed by the authorities. The Government stressed that the execution process could have been shorter if the applicants had showed their good will and had cooperated with the authorities.

The applicants contested the Government ’ s submissions. They drew the Court ’ s attention to the fact that the restitution orders of the local authorities had been quashed by the Supreme Administrative Court on 2 March 2005, and this had again delayed the possibility for them to exercise their property rights.

The Court recalls the Jasiūnienė v. Lithuania case (no. 41510/98, § 27, 6 March 2003) where it observed that the execution of a judgment given by any court must be regarded as an integral part of the “trial” for the purposes of Article 6 of the Convention. Whilst a delay in the execution of a judgment may be justified in particular circumstances, it may not be such as to impair the essence of the right protected under Article 6 § 1.

The Court notes that the decision of 9 September 2002 of the Kaunas Regional Administrative Court became enforceable as of 31 October 2002. It further notes that on 2 March 2005 the administrative orders regarding the execution of the impugned decision were quashed by the Supreme Administrative Court , and the matter was remitted to the administrative authorities for an examination de novo . Neither the Government nor the applicants have presented any information about further steps taken in the restitution process thereafter . Therefore, the Court will confine its assessment to the period from 31 October 2002 to 2 March 2005, while taking into account that the execution process was still on-going after that date. The Court will assess whether the delay in the execution during the period under consideration – two years and four months - could be justified in the circumstances of the present case.

The Court observes that the decision of 9 September 2002 had guaranteed the applicants the restitution of the original land of their late father, which was not occupied by third parties. The impugned decision did not imply carrying out a one-off measure , but enjoined the local authorities to perform a number of rather complex actions. In particular, the original land of the applicants ’ late father had to be delimited and its value assessed (see, mutatis mutandis , Užkurėlienė and Others v. Lithuania , no. 62988/00, § 35 April 2005).

The Court also notes that the first steps towards execution were taken by the administrative authorities as early as November 2002 (see the “Facts” above). Subsequently – as demonstrated by the Government - the delimitation of land had to be repeated a number of times since several persons refused land, to the applicants ’ advantage. Thus, the repeated delimitation and the resulting delay in the execution process had worked in favour of the applicants who had sought restitution of the whole of the original land of their father.

It appears that the applicants themselves demonstrated passivity, being largely uncooperative with the authorities in their efforts to execute the impugned decision. In particular, the applicants refused to participate in any land-delimitation work, carried out at the initiative of the administrative authorities, which had therefore to be completed without their consent. They then sought to quash the restitution orders of 2 March 2004 and 28 April 2004 s oon after the ir adoption .

While the Court takes into account the fact that the restitution orders were eventually quashed for deficiency, it does not consider that the administrative authorities should bear sole responsibility for the miscalculations and delays in the restitution process. This is particularly so in view of the evidence of the authorities ’ good will throughout and the absence of any substantial period of inactivity on their part, in contrast to the applicants ’ refusal to cooperate (see the Užkurėlienė judgment , cited above, §§ 33-37).

In these circumstances, the Court finds that the delay in the execution of the judgment of 9 September 2002 was not such as to undermine the essence of the applicants ’ right to a court guaranteed by Article 6 § 1 of the Convention (see the Užkurėlienė judgment , cited above, ibid .; also see, by contrast, the Jasiūnienė judgment cited above , where no appropriate executive decision was taken for nearly seven years ; Beshiri and Others v. Albania , no. 7352/03, §§ 60-68, 22 August 2006 and Ioachimescu and Ion v. Romania , no. 18013/03, §§ 21-27, 12 October 2006, where the Court found a violation of Article 6 § 1 on account of delays of , respectively, five and four years because there were no objective obstacles to the execution of judgments).

It follows that this part of the application is manifestly ill-founded, and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

2. The applicants further complained that the failure to execute the decision of 9 September 2002 resulted in a violation of their property rights. They invoked 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.”

The Government argued that the applicants ’ property rights were not infringed, reiterating their arguments, pertaining to Article 6 § 1 of the Convention (see above).

The Court recalls that a “claim” may constitute a “possession” within the meaning of Article 1 of Protocol No. 1 to the Convention if it is sufficiently enforceable (see Jasiūnienė cited above, § 44). The Court has already found in connection with the applicants ’ complaints under Article 6 of the Convention that the decision of 9 September 2002 had placed an obligation on the authorities to return the original land in kind where appropriate (see above). Hence the judgment indeed provided the applicants with an enforceable claim constituting a “possession” within the meaning of Article 1 of Protocol No. 1. However, the Court also found that from 31 October 2002, i.e. the date of entry into force of the decision of 9 September 2002, until 2 March 2005, when the administrative decisions regarding execution were quashed, and the matter was remitted t o the administrative authorities, the authorities had taken all the necessary measures to ensure the enforcement of the impugned decision without serious delays. It follows, therefore, that there has been no interference with the applicants ’ “possessions” in this respect (see, by contrast, Jasiūnienė cited above, §§ 45-47).

Accordingly, this part of the application is also to be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

3 . Finally, the applicants complained under Article 1 of Protocol No. 1 to the Convention about their inability to obtain restitution in kind for the whole of their father ’ s original land.

The Court recalls, however, that an applicant is not the holder of any “possession” if a claim has no basis in domestic law (see, inter alia , Jurevi č ius v. Lithuania , no. 30165/02, § 25, 14 November 2006; see also Jasiūnienė v. Lithuania case, no. 41510/98, §§ 40-43, 6 March 2003). In the present case, the courts ruled that the applicants only had a right to restitution in kind of the land which was free and available. It follows that, insofar as the applicants claimed the unconditional return in kind of the whole of their father ’ s former land, this part of the application is incompatible ratione materiae with the provisions of Article 1 of Protocol No. 1, within the meaning of Article 35 § 3 of the Convention. It must therefore be rejected in accordance with Article 35 § 4.

The Court concludes that the procedure under Article 29 § 3 of the Convention should be terminated, and the application rejected as a whole.

For these reasons, the Court unanimously

Declares the application inadmissible.

S . Dollé F. Tulkens Registrar President