Communicated on 19 January 2017

FOURTH SECTION

Application no. 10462/10 Nataliya BYKOVA and Larisa MAKHOTKINA against Lithuania lodged on 3 February 2010

STATEMENT OF FACTS

The first applicant, Ms Nataliya Bykova, was born in 1959. The second applicant, Ms Larisa Makhotkina , was born in 1958. Both applicants are Russian nationals and indicate in their applications that they are living in Juodkrant Ä— , a settlement in the Curonian Spit National Park in Lithuania.

A. The circumstances of the case

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

Between 1999 and 2004 the municipality of Neringa adopted a number of territorial planning decisions and issued permits for building “boatels” ( boteliai ) – housing and infrastructure for yachting purposes and fishermen ’ s needs – in Preila (hereinafter – “the Preila project”). Preila is a small settlement within a strictly protected territory, the Curonian Spit National Park. The building permits were issued to a Lithuanian private company, Sabonio klubas ir partneriai (hereinafter – “the company”). Later on, the administration of the Curonian Spit National Park would hold that, after the initial planning permits were granted, the construction was significantly expanded, and in fact summer houses were erected under the guise of “boatels”.

In December 2004 and February 2005 respectively the first and second applicants concluded preliminary agreements with the company. Under those preliminary agreements, the company undertook to build a couple of summer houses in Preila as part of the above-mentioned project, and then transfer ownership of those summer houses to the applicants on the basis of sale agreements to be signed in future. Directly after signing the preliminary agreements the first applicant transferred the sum of 298,863 Lithuanian litai (LTL – approximately 86,550 euros (EUR)) to the company, which was 30% of the value of the summer houses she intended to buy. The second applicant transferred the sum of LTL 1,654,000 (approximately EUR 479,000), which was the total value of the summer houses she intended to buy. The applicants state that they considered the company to be a respectable business partner, and that they therefore decided to sign up for the project in Preila .

In 2006 a prosecutor started court proceedings, arguing that the territorial planning decisions and building permits issued by the Neringa municipality were in breach of territorial planning laws. Among other things, he asked that the summer houses built in Preila by the company be demolished.

The Neringa municipality and the company were the defendants in those civil proceedings.

The first and the second applicants, the State Service for Protected Territories ( Valstybin ė saugojam ų teritorij ų tarnyba ), the State Territorial Planning and Building Inspectorate ( Valstybin ė teritorij ų planavimo ir statybos inspekcija ), the administration of the Curonian Spit National Park ( Kur š i ų nerijos nacionalinio parko direkcija ), and the Department of Cultural Heritage ( Kult ū ros paveldo departamentas ) took part in those proceedings as third-party interveners.

On 24 October 2008 the Klaip ė da Regional Court dismissed the prosecutor ’ s action. It considered, inter alia , that the prosecutor had missed the statutory deadline in relation to some of his claims. Some of the other claims were declared unfounded, because the prosecutor had not proved a breach of public interest. The first-instance court also considered that it would not be fair and just to order the company to demolish the summer houses, worth LTL 23,132,000 (approximately EUR 6,700,000) overall, because the company was an honest builder ( s ąžiningas statytojas ). Therefore, applying the sanction provided for in Article 4.103 of the Civil Code would not be a proportionate solution.

By a ruling of 19 October 2009 the Court of Appeal granted appeals by the prosecutor, who was the plaintiff in the case, and by the administration of the Curonian Spit National Park, which was a third-party intervener in the proceedings. The appellate court annulled a number of territorial planning decisions made by the Neringa municipality, because the municipality had issued them in breach of the Curonian Spit National Park Planning Scheme, which had been approved by the Government in 1994. The Neringa municipality ’ s planning decisions had also gone against the public interest in protecting the environment. Furthermore, the permits for construction had been issued without the involvement of the Curonian Spit National Park ’ s administration, which was responsible for safeguarding protected territories. The court thus annulled the legal registration with the Real Estate Registry of the summer houses built by the company, which at that time was the legal owner of those summer houses. The appellate court also ordered the company to demolish the summer houses in Preila within six months. For the court, the aim of protecting the historic landscape of the Curonian Spit National Park was more important than the company ’ s investment in the construction of summer houses in Preila .

The Neringa municipality and the company lodged appeals on points of law, supporting the first-instance court ’ s decision. The prosecutor and the State Service for Protected Territories in turn asked the Supreme Court to uphold the appellate court ’ s findings. Among other arguments, the prosecutor submitted that the Curonian Spit, as a cultural landscape, was one of the sites protected by UNESCO.

On 28 April 2010 the Supreme Court left the appellate court ’ s decision unchanged. It supported the appellate court ’ s conclusions about the importance of protecting the Curonian Spit National Park as a unique landscape, taking into account the public interest and the park ’ s value to society. The obligation to preserve the Curonian Spit National Park had been underlined by the Constitutional Court on 27 June 2007 (see the Relevant domestic law and practice part below).

Having concluded that the Neringa municipality had issued the territorial planning decisions and building permits in breach of territorial planning laws, the Supreme Court then relied on the principle ex injuria jus non oritur , and therefore held that the company could not be considered the lawful owner of the summer houses in Preila . Those summer houses therefore had to be demolished, pursuant to Article 4.103 of the Civil Code. Demolition, although it was an extreme measure, was justified in the instant case because the unlawful territorial planning decisions by the Neringa municipality and the ensuing unlawful constructions had seriously breached imperative legal norms protecting the Curonian Spit National Park, and had posed a danger to the park ’ s preservation for future generations. Public interest outweighed the builder ’ s private interest in owning those summer houses.

The Supreme Court lastly noted the company ’ s complaint that it had invested LTL 755,459 in improving the Neringa municipality ’ s public infrastructure, as part of the process of constructing the summer houses in Preila . However, the Supreme Court noted t hat there were more than twenty parties involved in the instant case. Accordingly, for reasons of procedural economy, it was more appropriate to decide that aspect in a separate set of civil court proceedings concerning the consequences of voiding the contract ( gin č as d ė l sandori ų negaliojimo pasekmi ų ) between the company and the Neringa municipality.

According to the information in the press (the Baltic News Service) in spring 2013, the Lithuanian Government agreed that a friendly settlement agreement should be concluded between the Ministry of the Environment and the company, and that the summer houses in Preila should be reconstructed to meet the territorial planning requirements. The Court has no information as to whether such an agreement has ever been concluded, or whether the summer houses have been demolished, as instructed by the Supreme Court.

B. Relevant domestic law and practice

The Civil Code reads as follows:

Article 4.103 – Legal consequences in civil law of violating normative technical construction specifications

“1. Individuals or legal entities which have built, are building, or are reconstructing a building without an appropriate permit or duly agreed and approved project, or with significant deviations from the [original] building project, or with obvious violations of normative technical construction specifications, or with a permit which has been issued illegally, shall have no right to use or dispose of such a building (by selling it, giving it as gift, leasing it, and so on).

2. Persons whose rights and interests are violated in the cases described in paragraph 1 [above] shall have the right to appeal to the court regarding violations of the rules on construction or the issue of construction permits.

3. In giving judgment, the court may

1) demand that the builder, within a specific period of time, have the project duly approved, make the appropriate changes to it, obtain the appropriate permit, or eliminate other violations relating to the appropriate construction specifications;

2) demand that the builder should remodel the construction within a specific period of time (pull down part of the building, reconstruct it, and so on);

3) demand that the builder pull down the building within a specific period of time.

4. If the builder complies with the requirements set out in paragraphs 3.1 and 3.2 of this Article, the institution registering immovable property must legally register the construction.

5. If the builder fails to comply with the requirements set out in paragraph 3.1 and 3.2 of this Article, the construction (or part thereof) may be pulled down by order of the court at the builder ’ s expense.

...

7. Damage sustained due to violations of normative construction technical specifications shall be indemnified in the order established by Section Three of Chapter XXII.”

On 27 June 2007 the Constitutional Court gave a ruling on publishing the Planning Scheme of the Curonian Spit National Park, which was approved by Government Resolution no. 1269 of 19 December 1994 “On the Planning Scheme (General Plan) of the Curonian Spit National Park”.

As to the unique value of the Curonian Spit in Lithuania, the Constitutional Court held:

“11. On 31 March 1992 ... the Republic of Lithuania joined the Convention Concerning the Protection of the World Cultural and Natural Heritage (hereinafter referred to as ‘ the Convention ’ ) ... [and] committed to protect the cultural and natural heritage within its territory, and gained the right to propose that places within its territory be included on the World Heritage List.

By a letter of 21 June 1999 the President and the Secretary General of the Lithuanian National Commission for UNESCO proposed to include the Curonian Spit on the World Heritage List (up to then, it had been included on the Tentative World Heritage List).

On 29 November 2000 ... the Curonian Spit was included on the UNESCO World Heritage List, subject to the following criterion: “The Curonian Spit is an outstanding example of a landscape of sand dunes that is under constant threat from natural forces (wind and tide). After disastrous human interventions that menaced its survival the Spit was reclaimed by massive protection and stabilization works begun in the 19 th century and still continuing to the present day.”

Heed should be paid to the fact that, upon the inclusion of the cultural or natural item of value on the World Heritage List, the State continues to have obligations to protect it and hand it down to future generations with the same qualities which justified its inclusion on the World Heritage List; the State must follow the Convention and the guidelines for implementing the Convention.

12. Summing up, the State of Lithuania treats and has always treated the Curonian Spit as a unique landscape created by nature and man – a territory which should be protected and in respect of which specific legal protection has to be put in place; it is a universally known fact.

Such treatment was determined by the fact that, as noted in the official documents ,in which it was proposed to include the Curonian Spit on the World Heritage List, the landscape of the Curonian Spit was formed not only by natural processes, but also by human activity. Thus, it reflects the interaction of the natural environment with human beings. The Curonian Spit is an excellent illustration of the evolution of a fishing community. The formation of the landscape in the Curonian Spit is still taking place; here, the social role of modern society, which is related to the traditional lifestyle, and in which the evolutionary process is still in progress, is still active. The Curonian Spit reflects the material changes which have been taking place over the course of long decades, and which are closely related to the interaction of natural forces and human beings. In the Curonian Spit, one can still see the remaining landscape where evolutionary processes have ended; here, there is the ethnographic heritage of the Curonian tribe, which lived in the Curonian Spit for a long time (and which is now extinct). In the relevant documents, it is also noted that there are also the following examples of cultural heritage in the Curonian Spit: fishermen ’ s settlements where the interaction of man and nature is, from an ethno-cultural, historical and aesthetic point of view, of exceptional universal value; a wealth of unique works of architecture which, from an artistic and scientific point of view, are of exceptional value; and archaeological sites which are especially significant, owing to villages being swallowed up by moving sand. It must also be noted that the particular importance of the Curonian Spit is also reflected by natural and cultural heritage, which is woven together in a picturesque manner and which is not only related to material or spiritual aspects, but also to the experience gained by every generation of the local people, and this helps to rebuild the lost natural ecosystems of the Curonian Spit.

In its ruling of 13 May 2005 the Constitutional Court held that, under the Constitution, the natural environment, flora and fauna, individual natural objects, as well as areas of particular value, were national items of value of universal significance. Ensuring their protection and reasonable use and the development of natural resources was in the public interest, and guaranteeing this was a constitutional obligation of the State.

13. In the context of the case at issue, which concerns constitutional justice, it also needs to be emphasised that the legal instruments of the Republic of Lithuania (issued by the institutions of the legislative or executive power) enshrined the fundamental provision that the Curonian Spit National Park would be managed according to the Planning Scheme (General Plan) of the Curonian Spit National Park, approved by the Government.

Thus, no decisions relating to the management of the territory of the Curonian Spit National Park (including the detailed planning of settlements, forest management, land management, water economy, countryside regeneration, road and engineering links, and so on) could (or can at present) be adopted without taking account of the scheme approved by the Government, and decisions could not (and cannot at present) be in conflict with the provisions of the scheme. Disregarding these provisions would not be acting in good faith and in compliance with the general principle of law, particularly in the knowledge that the State of Lithuania treats (and has always treated) the Curonian Spit as a unique landscape created by nature and man – a territory which should be protected and in respect of which specific legal protection should be put in place, which is a universally known fact.

Otherwise, not only would the identity and integrity of the Curonian Spit as a unique landscape created by nature and man be violated, a territory which should be protected, but one would also violate the imperatives of Articles 53 and 54 of the Constitution: inter alia , the provision of paragraph 1 of Article 54 of the Constitution that the State shall take care of the protection of the natural environment, wildlife and plants, individual natural objects and areas of particular value, and shall supervise a sustainable use of natural resources, their restoration and development; and the provision of paragraph 3 of Article 53 that the State and each person must protect the environment from harmful influences. One would also clearly violate the international obligations of the Republic of Lithuania.”

COMPLAINTS

Under Article 1 of Protocol No. 1 to the Convention, the applicants complain that the Lithuanian authorities failed to properly formulate and issue territorial planning documents. As a consequence, the construction of summer houses in Preila , although initially permitted by the Neringa municipality, was eventually declared unlawful. The applicants therefore could not use those summer houses, notwithstanding having invested significant sums of money in the project. The two applicants further assert that there is no mechanism in Lithuania for compensating individuals for private buildings which are demolished when the status of those buildings is suddenly declared unlawful. They argue that the Lithuanian courts did not take into account that Neringa municipality has limited resources. If the Preila project is not allowed to continue, the municipality will never be able to compensate them for the demolished buildings.

The applicants acknowledge the exceptional value and nature of the Curonian Spit National Park. However, they argue that the concept of public interest was not properly interpreted by the Lithuanian courts. In particular, those courts erred in giving priority to protection of the landscape, and ignored the outweighing public interest in developing the tourism sector in Preila . In the applicants ’ words, now “ Preila is a dying village, which comes alive only during the summer months”

QUESTIONS TO THE PARTIES

1. Have the applicants Ms Bykova and Ms Makhotkina exhausted the domestic remedies by pursuing , after the Supreme Court ’ s ruling of 28 April 2010, civil proceedings against the Sabonio klubas ir partneriai company and/or the Neringa municipality as regards these applicants ’ complaints under Article 1 of Protocol No. 1 to the Convention?

2. Is Article 1 of Protocol No. 1 to the Convention applicable to Ms Bykova ’ s and Ms Makhotkina ’ s complaints, in particular, since, to the Court ’ s knowledge, they had never been registered as owners of the summer houses in Preila (see, mutatis mutandis , Ceni v. Italy , no. 25376/06 , § § 35 ‑ 45 , 4 February 2014 )?

3. Has there been a breach of Article 1 of Protocol No. 1 to the Convention with regard to Ms Bykova and Ms Makhotkina , on account of the fact that the Supreme Court annulled the legal registration of the summer houses in Preila and ordered their demolition?

4 . The parties are asked to inform the Court of any developments and decisions (court, administrative, Government or other) in this case after the applications have been lodged, and in particular:

a ) whether the summer houses have been demolished, or, alternatively, reconstructed and registered in the Real Estate Registry, and, if so, in whose name the summer houses have been registered;

b ) whether Ms Bykova and Ms Makhotkina were compensated by the Sabonio klubas ir partneriai company and/or the Neringa municipality for the sums they had paid to acquire the summer houses in Preila .