Communicated on 15 March 2016

FIFTH SECTION

Application no. 73105/12 Jānis BĒRZIŅŠ and others against Latvia lodged on 7 November 2012

STATEMENT OF FACTS

1. The applicants, Mr Jānis Bērziņš (“the first applicant”), Mr Mārtiņš Bolēvics (“the second applicant”) and Mr Aleksandrs Novikovs (“the third applicant”), are Latvian nationals who were born in 1971 , 1968 and 1965 respectively. The first applicant lives in Katlakalns , and the second and third applicants live in Riga. They are represented by Ms I.Bērziņa .

A. The circumstances of the case

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

1. Acquisition of plot of land

3. On 23 October 1996 and 24 October 2001 the parish of Garkalne (“ Garkalne parish”) designated “ Liezeri ” (a plot of land located within Garkalne parish) for the needs of a farm ( zemnieku saimniecības vajadzībām ).

4. In November 2004 the applicants purchased the plot of land. On 6 January 2005 their property rights over it were recorded in the relevant land register. The first applicant acquired half of the undivided shares in the land and the second and third applicants each acquired one-quarter of the undivided shares in it.

2. Restrictions

5. In the autumn of 2005 the first applicant discovered that a fence had been built around the plot of land and a “no entry” sign placed in front of it.

6. On 17 November 2005 Garkalne parish informed the applicants that in accordance with amendments to the Protection Zone Law ( Aizsargjoslu likums ) a strict protection zone ( stingra režīma aizsargjosla ) had been established around a groundwater reservoir located near the applicants ’ plot of land. The amendments had entered into force on 23 July 2003.

7. On 9 December 2005 Garkalne parish replied to a letter from the first applicant regarding the fence, indicating that it would be removed.

8. On 30 June 2006 the first applicant visited the plot of land, which was still surrounded by the fence. On the same day he requested Garkalne parish to remove it. In the light of the fact that he was still denied access to the plot of land and the possibility of using it, he also asked Garkalne parish to allocate to him a comparable plot of forest land.

9. On 28 August 2006 Garkalne parish wrote to the first applicant, indicating that the questions regarding the fence and an exchange of land were being considered.

10. On 8 June 2007 the first applicant learned that an encumbrance on the plot of land in the form of a strict protection zone around a water supply source ( stingra režīma aizsargjoslas ap ūdens ņemšanas vietām ) had been included in the draft spatial plan for the years 2004-2016 on the basis of a decision adopted by the Garkalne Regional Council on 28 June 2006.

11. On 11 June 2007 the first applicant wrote to the Ministry of Environmental Protection and Regional Development (previously the Ministry of Regional Development and Local Government), stating that the restrictions imposed on the plot of land amounted to an expropriation ( atsavināšana ) of property and that the situation had not been remedied. Furthermore, the restrictions had been imposed in breach of section 33(2) of the Protection Zone Law, as the first applicant had not been involved in the process.

12. On 19 July 2007 the Ministry replied to the first applicant, noting that under section 33(1) of the Protection Zone Law all types of protection zones should be included in the spatial plan of a local government. The protection zone at issue had therefore been mandated by the Law and not by the Garkalne Regional Council. As regards section 33(2), referred to by the first applicant, the Ministry stated that it had entered into force on 15 July 2005 and did not apply retroactively.

3. Court proceedings

(a) First instance

13. On 11 June 2007 the first applicant lodged an application with the Administrative District Court ( Administratīvā rajona tiesa ). He asked the court to quash the Garkalne Regional Council ’ s decision of 28 June 2006 (see paragraph 10 above in fine ) and to oblige the Regional Council to restore the previous designation of the land and to remove the fence; as an alternative, he asked the court to oblige the Regional Council to allocate to him a comparable plot of land. He also asked for compensation for distress ( morālais kaitējums ) in the amount of approximately 71,428 euros (EUR) and for personal harm ( personisks kaitējums ) in the amount of approximately EUR 28,571.

14. On 30 April and 19 May 2009 the third and second applicants respectively were granted the status of parties in the case. They claimed compensation in the same amounts as the first applicant.

15. On 23 November 2009 the Administrative District Court rendered its judgment.

16. It held that the amendments to the Protection Zone Law which had entered into force on 23 July 2003 (see paragraph 6 above) had not established any specific protection zones but had simply laid down the principles for the establishment of such zones. In June 2002 the water supplier for the city of Riga had commenced the procedure for the establishment of a strict protection zone. During April and May 2003 it had obtained authorisation from various authorities. On 26 February 2003 the Garkalne Regional Council had approved the boundaries of the protection zone. It was on this basis that the impugned decision of 28 June 2006 had been adopted.

17. Under section 33(1) of the Protection Zone Law and section 7(6)2) of the Spatial Planning Law ( Teritorijas plānošanas likums ) (effective until 30 November 2011), a spatial plan and restrictions on the use of land had to be approved in the form of a binding local government regulation. In the case at issue this had not been done. The strict protection zone in question had therefore not been established in accordance with the law. In addition, the protection zone was wider than was permitted by law. Therefore, the restrictions could not have been applied to the whole of the plot of land. Accordingly, the Administrative District Court declared the impugned decision in the part concerning the restrictions on the use of the plot of land unlawful.

18. As regards the changes to the use of the land, the Administrative District Court held that they had been made not because of the strict protection zone but because of changes to the spatial planning. While the local government had been entitled to make such changes, it had failed to involve the applicants, contrary to section 62(1) of the Administrative Procedure Law ( Administratīvā procesa likums ). In particular, it had not invited them to take part in the proceedings. They had not been heard and had not been informed of the impugned decision . These procedural irregularities were substantial.

19. In view of the foregoing, the Administrative District Court quashed the impugned decision.

20. As regards the applicants ’ claim for compensation, the Administrative District Court held that the impugned decision had restricted the applicants ’ right to property and had therefore caused them distress. At the same time, the applicants had had no need to access the plot of land on a daily basis as it was located in the forest. There was no evidence that they had been planning to carry out any commercial activity. By quashing the impugned decision, the Administrative District Court had restored the situation which had existed prior to the impugned decision. There was therefore no reason to award the applicants compensation for distress. In respect of their claim for compensation for personal harm, they had not submitted any evidence to the effect that the impugned decision had actually harmed their health.

21. In view of the foregoing, the Administrative District Court dismissed the applicants ’ claims for compensation. It ordered the local government to issue a written apology to them. It further ordered the water supplier to remove the fence.

(b) Application for suspension

22. In the meantime, on 26 January 2009 the first applicant asked the Administrative District Court to suspend the impugned decision.

23. By a final decision of 16 April 2009 the Administrative Regional Court ( Administratīvā apgabaltiesa ) dismissed the application. It held that on the basis of section 185 of the Administrative Procedure Law, the impugned decision had been suspended from the date on which the first applicant had lodged the complaint with the court . In so far as the first applicant submitted that the Garkalne Regional Council had made changes in the draft spatial plan on the basis of the impugned decision, the Administrative Regional Court noted that this could be raised within the framework of spatial planning.

(c) Appeal proceedings

24. The water supplier appealed against the judgment of the Administrative District Court of 23 November 2009 .

25. The applicants each claimed compensation for distress in the amount of approximately EUR 7,143 and for personal harm in the amount of approximately EUR 10,000. They argued that they had relied on the designated use of the plot of land at the time they had purchased it. However, for a period of four years they had been prevented from using it and obtaining any benefit from it.

26. On 2 December 2010 the Administrative Regional Court decided on the appeal and the applicants ’ claims.

27. It held that the local government could have established the protection zone by means of issuing a binding regulation. However, it had established it by means of the impugned decision. Furthermore, it had made changes to the designated use of the plot of land on the basis of a statute which had ceased to be in force and moreover had misapplied it.

28. The Administrative Regional Court quashed the impugned decision as unlawful.

29. With regard to the fence, it held that it had been built prior to the adoption of the impugned decision on the basis of the Garkalne regional spatial plan and a building permit and not on the basis of the impugned decision. This question could not therefore be decided within the present proceedings.

30. As regards the applicants ’ claims for compensation, the Administrative Regional Court held that the restrictions on the plot of land had existed prior to adoption of the impugned decision. They had been established by the Garkalne regional spatial plan which could be challenged before the Constitutional Court ( Satversmes tiesa ). In so far as the impugned decision was unlawful, the shortcomings in its adoption could be remedied by restoring the earlier situation.

31. As a result, the Administrative Regional Court dismissed the applicants ’ claims for compensation.

(d) Cassation proceedings

( i ) The applicants ’ appeal

32. The applicants appealed against the aforementioned judgment to the Administrative Cases Division of the Senate of the Supreme Court ( Augstākās tiesas Senāta Administratīvo lietu departaments ).

33. They argued that the Garkalne Regional Council had set aside its decision approving the spatial plan for the years 2004-2016 on 19 December 2006. As a result, the impugned decision had determined the restrictions on the plot of land from 19 December 2006 until 8 December 2007, when the spatial plan for the years 2007-2019 had been approved.

34. Furthermore, in accordance with section 1 of the Spatial Planning Law, restrictions on property had to be given in writing as well as graphic form. The plot of land had not been specified in writing in the spatial plan for the years 2004-2016.

(ii) Requests to the Constitutional Court

35. On 10 October 2011 the Senate of the Supreme Court requested the Constitutional Court to assess whether or not the first sentence of section 35(9) of the Protection Zone Law (see paragraph 61 below) was compatible with the fourth sentence of Article 105 of the Constitution ( Satversme ) (expropriation of property).

36. The Senate stated that, given the restrictions on the use of the plot of land, it had de facto been expropriated from the applicants. However, they had not received fair compensation. Section 35(9) of the Protection Zone Law limited the right to compensation. It provided that the owner of an object ( objekts ) in respect of which a protection zone was established could use the protection zone without paying any compensation to the owner of the relevant land for related restrictions placed on the use of that land. While this provision did not limit the right of the property owner to claim compensation for direct pecuniary loss ( tiešie zaudējumi ), in the present case the applicants had not suffered such loss. Their right to use the property had simply been restricted (denied) and the statutory provision did not provide for compensation in this regard.

37. On 4 November 2011 the Constitutional Court refused to open proceedings as the Senate had failed to substantiate its request. It also stated that no restrictions on the right to property could amount to its expropriation. This was irrespective of the nature and scope of the restrictions. The statutory provision at issue could not therefore be examined in the context of the fourth sentence of Article 105 of the Constitution.

38. On 19 December 2011 the Senate of the Supreme Court once again requested the Constitutional Court to assess whether or not the first sentence of section 35(9) of the Protection Zone Law was compatible with Article 105 of the Constitution , reiterating and supplementing its previous reasoning. Referring to the cases of Papamichalopoulos and Others v. Greece (24 June 1993, Series A no. 260 ‑ B) and Frendo Randon and Others v. Malta (no. 2226/10 , § 58, 22 November 2011), i t reiterated that the restrictions on the applicants ’ property rights had been so serious as to have amounted to a de facto expropriation within the meaning of Article 105 of the Constitution. However, although the applicants were therefore entitled to fair compensation, the domestic courts could not decide on any compensation in the light of section 35(9) of the Protection Zone Law.

39. Even if the Constitutional Court were to consider that the present situation did not amount to expropriation, the restrictions preventing the applicants from using their property without compensation or their being allocated a comparable plot of land were disproportionate and therefore in violation of Article 105 of the Constitution. The applicants were not even allowed to access their property. In this connection the Senate noted the Court ’ s findings in the case of Novikov v. Russia (no. 35989/02, § 45, 18 June 2009).

40. On 17 February 2012 the Constitutional Court refused to open proceedings as the Senate had not showed that section 35(9) of the Protection Zone Law was applicable to the case. T he applicants had not referred to it and had not claimed compensation from the water supplier who owned the object in respect of which the protection zone had been established. Moreover, the administrative courts had not invoked that provision in the proceedings. Furthermore, the applicants were entitled to claim compensation for direct pecuniary loss under the second sentence of section 35(9) of the Protection Zone Law.

(iii) Judgment

41. On 8 May 2012 the Senate of the Supreme Court rendered a judgment.

42. It held that the fence had been constructed prior to the adoption of the impugned decision. Even if the applicants had asked for its removal, such a claim would have had little chance of success as long as the property was being used for the supply of water.

43. As the Senate had previously stated, the restrictions on the applicants ’ property rights were serious. At the same time, a claim for compensation for damage caused by a statute could not be decided within administrative proceedings. Such a claim could be lodged before the courts of general jurisdiction. It was also possible for the applicants to ask a public authority to exchange their plot of land for a different one.

44. While the Senate agreed with the Administrative Regional Court that the applicants ’ claim for compensation had to be dismissed, the fact remained that the applicants had complained about the manner in which their property rights had been restricted. The local government had not informed them of the impugned decision and had promised to resolve the issue. It had indicated that it was considering the question of an exchange of land. Moreover, reasons for any unfavourable decision had had to be notified to the parties concerned. The Administrative Regional Court had not examined these procedural aspects.

45. The Senate therefore quashed the judgment of the Administrative Regional Court in the part concerning compensation for distress caused by the procedure leading to the adoption of the impugned decision and remitted the case in that part to the Administrative Regional Court for fresh examination.

(iv) Information to the Cabinet of Ministers

46. On the same day the Senate decided to draw the attention of the Cabinet of Ministers to the lack of statutory provisions concerning compensation in the case of a de facto expropriation of property and to the possible incompatibility of the first sentence of section 35(9) of the Protection Zone Law with Article 105 of the Constitution and Article 1 of Protocol No. 1 to the Convention.

(e) Subsequent proceedings

47. On 24 April 2013 the Administrative Regional Court rendered a judgment.

48. It held that the Garkalne Regional Council had failed to inform the applicants of the impugned decision, in breach of section 70(1) of the Administrative Procedure Law. Furthermore, it had established the restrictions on the use of the plot of land by means of an earlier decision of 26 April 2006, of which it had also failed to inform to the applicants. In addition, the Garkalne Regional Council had not invited them to the meeting at which it had decided on the restrictions and had not heard them in this regard, in breach of section 62 of the Administrative Procedure Law. However, these procedural violations were not substantial as they had not affected the outcome. The restrictions on the plot of the land “followed from the statutory provisions”.

49. The Administrative Regional Court further held that in its letters to the applicants concerning an exchange of land and the fence, the Garkalne Regional Council had not undertaken to reach a decision favourable to them.

50. It therefore decided to dismiss the applicants ’ claim for compensation for distress.

4. Constitutional Complaint

51. In the meantime, the applicants lodged a complaint before the Constitutional Court.

52. They argued that ( i ) sections 33(2) and 39(1) of the Protection Zone Law, (ii) paragraphs 9) and 11) of Cabinet of Ministers Regulation no. 43 (2004) entitled “ Methodology for the Establishment of Protection Zones around Water Supply Sources ” ( Aizsargjoslu ap ūdens ņemšanas vietām noteikšanas metodika ) (see paragraph 64 below), and (iii) Garkalne Regional Council Binding Regulation no. 23 (2009) entitled “Rules for the Use of and Construction on the Land” ( Teritorijas izmantošanas un apbūves noteikumi ) – in so far as they provided for the strict protection zone for the whole of the plot of land – were incompatible with Article 105 of the Constitution.

53. On 13 June 2011 the Constitutional Court refused to open a case.

54. The Constitutional Court found that in so far as the applicants challenged the relevant provisions of the Protection Zone Law and Cabinet of Ministers Regulation no. 43 (2004), they had failed to substantiate their complaint. In so far as they challenged Binding Regulation no. 23 (2009), their complaint was out of time.

5. Request for exchange of land

55. On 15 May 2012 the applicants wrote to the water supplier for the city of Riga stating that the latter had been using their plot of land since 2005 and that they had been prevented from accessing it. Referring to the judgment of the Senate of the Supreme Court of 8 May 2012, the applicants asked the water supplier to exchange their plot of land for a different one.

56. On 4 July 2012 the city of Riga wrote to the applicants. It indicated that the Ministry of Environmental Protection and Regional Development had been tasked to draw up a draft statute supplementing the Protection Zone Law with provisions on compensation in the case of a de facto expropriation of property . While the city of Riga agreed with the Senate of the Supreme Court and the Cabinet of Ministers that a person was entitled to compensation in the case of a de facto expropriation of property, it could not examine the matter until such time as the amendments to the Protection Zone Law in this regard were adopted.

B. Relevant domestic law

1. Constitutional provisions

57. Article 105 of the Constitution provides as follows:

“Everyone has the right to property. Property may not be used for purposes contrary to the public interest. Property rights may be restricted only in accordance with law. Expropriation of property in the public interest may be permitted only in exceptional cases, on the basis of a special law and in return for fair compensation.”

2. Provisions concerning protection zones

(a) Protection Zone Law

58. Section 9(2) provides that a strict protection zone shall be established around water supply sources. Section 33(1) states that protection zones shall be marked in spatial plan in accordance with the law.

59. Section 33(2) (as in force from 15 July 2005 to 9 June 2009) provided that when initiating the construction of an object used for water supply the creation of the relevant protection zone had to be coordinated with the owners of the properties concerned.

60. Under section 35(1) general restrictions in protection zones are determined by statutes and by regulations issued by the Cabinet of Ministers. They may also be determined by binding regulations of local governments.

61. Section 35(9) (as in force from 1 July 2009 until the present) reads as follows:

“The owner ... of an object in respect of which a protection zone has been established may use that protection zone without paying any compensation for restrictions on the right to use the respective property. This provision does not limit the right of the property owner ... to claim compensation for direct pecuniary loss caused to him or her.”

Under the transitional provisions, the first sentence of section 35(9) applies to those legal relations which were e stablished subsequent to 1 July 2009.

62. Section 39 provides for restrictions in respect of protection zones around water supply sources. Its paragraph 1) prohibits any business activity in strict protection zones, except for activities related to water extraction.

63. Under section 60(1), if a protection zone is established in respect of a plot of land, any restrictions on the related property rights must be recorded in the land register.

(b) Cabinet of Ministers Regulation no. 43 (2004), entitled “ Methodology for Establishment of Protection Zones around Water Supply Sources ”

64. Paragraph 9) provides that in a strict protection zone established in respect of a water supply source it is prohibited to carry out the activities listed in paragraph 1) of section 39 of the Protection Zone Law (see paragraph 62 above). It is also prohibited to construct new residential buildings in such a zone, and persons not engaged in activities related to water extraction are prohibited from entering.

Under paragraph 11) a protection zone around a water source shall be surrounded by a fence, which may not be lower than 1.5 meters and a “no entry” sign must be placed on it.

65. Paragraph 10) sets out activities which may not be carried out in a bacteriological protection zone ( bakterioloģiskā aizsargjosla ) ; those activities include wood cutting.

3. Provisions concerning spatial planning

66. Under section 1 of the Spatial Planning Law (in force from 26 June 2002 until 30 November 2011), a spatial plan had to contain the present and planned (permitted) use of an area and any restrictions on its use; such information was to be indicated both in writing and graphically.

Under section 9 of the law natural and legal persons had the right to express their opinion and submit their proposals regarding the spatial plan.

67. On 2 March 2005 amendments to section 7(6)2) came into force requiring a local government to approve a spatial plan in the form of a binding regulation.

4. Provisions concerning administrative procedure

68. Section 62(1) of the Administrative Procedure Law (in force since 1 February 2004) provides that when a public authority decides on an administrative act which may be unfavourable to the addressee ( adresāts ) or a third person it shall hear their opinion and arguments in the case.

69. In accordance with section 70(1) an administrative act takes effect at the time the addressee in question is notified of it, unless otherwise provided by law or by the administrative act itself.

70. Section 185(1) provides that the lodging of a complaint against an administrative act shall suspend it from the moment the complaint is received in court.

5. The right to receive compensation

71. Article 92 of the Constitution provides, inter alia , that “any person whose rights are violated without justification has a right to commensurate compensation”.

72. As regards domestic legal provisions pertaining to compensation for pecuniary and non-pecuniary damage under the Civil Law ( Civillikums ), see Elberte v. Latvia (no. 61243/08 , § 57, ECHR 2015, with further references).

73. The provisions of the Administrative Procedure Law regarding compensation for pecuniary and non-pecuniary damage caused by an administrative act or an action of a public authority have been described in Elberte (ibid., § 58).

In addition, section 94(4) of the Administrative Procedure Law provides that the relevant public authority may comply with the obligation to compensate ( atlīdzināšanas pienākums ) by restoring the situation which existed before the damage was caused, or if this is not fully or partly possible or adequate, by paying appropriate monetary compensation ( atlīdzinājums naudā ).

74. The amount of compensation and the procedure for claiming compensation from a public authority for damage arising from an unlawful administrative act or an unlawful action of a public authority are prescribed by the Law on Compensation for Damage Caused by Public Authorities ( Valsts pārvaldes iestāžu nodarīto zaudējumu atlīdzināšanas likums ) (in force since 1 July 2005) (see ibid., § 59).

COMPLAINT

75. The applicants complain under Article 1 of Protocol No. 1 to the Convention that they have not been able to access or use their plot of land since 2005. They have not received any compensation or a comparable plot of land. This interference with their property rights amounts to a “deprivation” of property within the meaning of Article 1 of Protocol No. 1 to the Convention and it is in violation of this provision as it is disproportionate in that an excessive burden has been imposed on them.

QUESTIONS TO THE PARTIES

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

2. Has there been an interference with the applicants ’ peaceful enjoyment of possessions, within the m eaning of Article 1 of Protocol No. 1? Did it involve a deprivation of possessions, within the meaning of the second sentence of that provision?

3. If so, did that interference (deprivation) impose an excessive individual burden on the applicants (see Immobiliare Saffi v. Italy, [GC], no. 22774/93, § 59, ECHR 1999-V)?