Communicated on 22 January 2021 Published on 8 February 2021

THIRD SECTION

Applications nos. 55082/19 and 55095/19 Gunnar LEPASAAR against Estonia and Aneli SMIGELSKITE against Estonia lodged on 17 October 2019 and 17 October 2019 respectively

SUBJECT MATTER OF THE CASE

The applications concern environmental restrictions which limit the use of the applicants ’ land according to its intended purpose ( sihtotstarbeline kasutamine ) and the ( im )possibility under domestic law to obtain compensation for such restrictions.

The applicants bought their land from the State in early 2000s and, according to the sale agreement, have to pay for it by way of instalments until 2050. The land was designated as a “profit yielding land” ( maatulundusmaa ). In 2016, by a regulation of the Minister of Environment, their land was classified as a “species protection site” ( püsielupaik ) for the purpose of protecting flying squirrels ( Pteromys Volans ; lendoravad ). The applicants challenged the incorporation of their land in the protected site and asked the regulation to be annulled ( tühistamiskaebus ). They argued, inter alia, that the land-use restrictions (notably the limitations on the cutting of forest) entailed in the protection regime ( kaitsekord ) led to de facto expropriation of their property and that the domestic law did not provide an adequate compensation scheme for such restrictions. The domestic courts dismissed their action, noting that the relevant restrictions, albeit considerable, did not exclude the intended use of the land and that the applicants could benefit form the reduced land tax ( maamaks ) and Natura 2000 compensation. The Tallinn Court of Appeal noted that the applicants had not requested the State to purchase their land nor had they lodged a compensation claim ( kahju hüvitamise nõue ).

The applicants complain that their rights under Article 1 of Protocol No.1 to the Convention as well as under Article 13 have been violated.

QUESTIONS TO THE PARTIES

1. Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?

In particular, could the annulment action by which the applicants challenged the incorporation of their land in the protected site be considered an effective remedy within the meaning of this provision in respect of the applicants ’ complaint under Article 1 of Protocol no. 1 to the Convention (taking into account that the domestic courts addressed, among other aspects, the questions related to de facto expropriation and adequate compensation) (compare from the aspect of exhaustion of domestic remedies Mahmut Sezer v. Turkey ( dec. ), no. 43545/09 , §§ 17-19, ECHR 23 September 2015; and Varfis v. Greece , no. 40409/08, §§ 20-26, 19 July 2011)?

If the answer to the above question is negative, did the applicants have at their disposal an effective domestic remedy for their Convention complaints, as required by Article 13 of the Convention (see Fizgejer v. Estonia ( dec. ), no. 43480/17 , §§ 69-84, ECHR 2 June 2020)?

In their judgment no. 3-17-131 of 30 October 2018 what kind of compensation claim the Tallinn Court of Appeal referred to? Are there any examples of such compensation claims being successful?

2. Has there been an interference with the applicant ’ s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1? Did the environmental restrictions imposed on the applicant amount to de facto expropriation of their property? Did the interference achieve a “fair balance” between the demands of the general interest of the community and the requirement of protecting the individual ’ s fundamental rights, taking into account the possible compensation measures that the applicants were eligible to? In particular, did that interference impose an excessive individual burden on the applicant?

APPENDIX

Application no 55082/19

No.

Applicant ’ s Name

Birth year

Nationality

Place of residence

1Gunnar LEPASAAR

1964Estonian

Alutaguse

Application no 55095/19

No.

Applicant ’ s Name

Birth year

Nationality

Place of residence

1Aneli SMIGELSKITE

1968Estonian

Alutaguse