SECOND SECTION
CASE OF PUIŠYS v. LITHUANIA
(Application no. 58166/18)
 
 
 
 
 
 
JUDGMENT
 
STRASBOURG
19 January 2021
 
This judgment is final but it may be subject to editorial revision. In the case of Puišys v. Lithuania,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
 Aleš Pejchal, President,
 Egidijus Kūris,
 Carlo Ranzoni, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to:
the application (no. 58166/18) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Lithuanian national, Mr Tadas Puišys (“the applicant”), on 27 November 2018;
the decision to give notice to the Lithuanian Government (“the Government”) of the complaint under Article 1 of Protocol No. 1 to the Convention concerning the applicant’s house and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 15 December 2020,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The application concerns construction of a house which was carried out after obtaining the relevant permits but later declared to be partly unlawful. THE FACTS
2. The applicant was born in 1968 and lives in Netoniai, in the Kaunas region. He was represented by Mr P. Čerka, a lawyer practising in Kaunas. 3. The Government were represented by their Agent, Ms K. Bubnytė-Širmenė. Construction of the applicant’s house
4. In 2003 the applicant bought 0.1 hectares of land in Netoniai. 5. On 5 May 2004 the Kaunas Region Municipality (hereinafter “the Municipality”) approved a detailed plan of the applicant’s plot. According to the detailed plan, any buildings constructed on the plot had to be a minimum distance of 3.5 metres from the neighbouring plots. 6. On 13 May 2004 the Kaunas County Administration (hereinafter “the KCA”) defined the geographic coordinates of the plot. They were registered in the Real Estate Register. 7. In December 2004 the applicant prepared a blueprint (techninis projektas) for the construction of a house on the plot. That same month the Municipality issued a construction permit, allowing him to build a two‑storey residential house in accordance with the blueprint. 8. In January and July 2005, at the applicant’s request, the Municipality approved certain amendments (korektūros) to the blueprint. The amendment of July 2005 added a covered parking space, the roof of which was held by metal columns on one side and one of the walls of the house on the other side. 9. In March 2006 the KCA inspected the construction site and did not indicate any violations of the planning documents. 10. On 30 October 2007 the KCA amended the geographic coordinates of the plot (see paragraph 6 above). The data of the Real Estate Register was updated accordingly. 11. On 12 February 2008 the KCA inspected the house built by the applicant and concluded that it was “suitable for use” (pripažintas tinkamu naudoti). The house was registered in the Real Estate Register. 12. On 2 April 2009 the authorities carried out another inspection of the house. It was found that the columns near the house (see paragraph 8 above) had been built outside of the plot’s boundaries. 13. On 7 April 2009 the KCA annulled its earlier decision to amend the geographic coordinates of the plot (see paragraph 10 above), thereby restoring the coordinates which had been defined in 2004 (see paragraph 6 above). The data of the Real Estate Register was updated to reflect that. 14. On 18 November 2009 the KCA inspected the house again and found that the columns had been built 0.58 metres outside of the plot’s boundaries, on a planned public road. It informed the Kaunas regional prosecutor’s office (hereinafter “the prosecutor”) of its findings and asked it to institute proceedings for the elimination of the unlawful construction. 15. In 2010 the applicant’s wife instituted civil proceedings in which she claimed that when defining the land coordinates (see paragraph 6 above), the KCA had incorrectly included a planned public road in the planning documents. She asked that the boundaries of her and the applicant’s plot be amended and that the territory of the supposed public road be joined to their plot. The claim was dismissed. In a final decision adopted in November 2012, the Supreme Court held that the public road had been included in the planning documents in accordance with the law, and that the applicant and his wife had been informed of its presence when the coordinates of their plot had been defined and that they had not lodged any complaints at the time. Proceedings concerning the lawfulness of the constructionClaim lodged by the prosecutor

16. In January 2010 the prosecutor lodged a civil claim against the applicant and the State Inspectorate of Territorial Planning and Construction (the institution which had taken over certain functions of the KCA after an administrative reform – hereinafter “the Inspectorate”). The claim was amended in December 2010 and March 2011, and the Municipality was included as a co-defendant. 17. The prosecutor submitted that the applicant’s house had been built on a different location than indicated in the planning documents, which constituted a serious breach of the law. He asked the court to order the applicant to alter the house in accordance with the planning documents. 18. The prosecutor also asked the court to order the applicant to remove a fence and a paved road which had been built on public land. 19. The applicant contested the prosecutor’s claim. He submitted that the impugned columns were not part of the house but actually part of an annex which had been built near the house in order to create a covered parking space. He also submitted that the inspection of 2 April 2009 (see paragraph 12 above) had been carried out in his and his wife’s absence and that the measurements taken during that inspection had been inaccurate. However, even assuming that the columns had been built outside of the plot’s boundaries, the margin of 0.58 metres was insignificant. 20. The applicant also pointed out that the construction had been carried out with all the relevant permits and the house had been declared suitable for use, so if any mistakes had been committed, the burden of correcting them should be borne by the authorities. Decision of the Kaunas District Court of 19 October 2012
21. On 19 October 2012 the Kaunas District Court allowed the prosecutor’s claim (see paragraphs 17 and 18 above). 22. The court rejected the applicant’s submissions that the columns were not part of the house (see paragraph 19 above). Moreover, it found that the amendments to the blueprint approved by the Municipality (see paragraph 8 above) had not been in compliance with the detailed plan of the plot and therefore they had to be annulled. The findings of the KCA regarding the unfinished house (see paragraph 9 above) had been based on those unlawful amendments and therefore had to be annulled as well. 23. Relying on the findings of the inspection of 2 April 2009 (see paragraph 12 above), the court held that the columns were located 0.58 metres outside of the plot’s boundaries, on a planned public road, and would preclude the owners of neighbouring plots from using that road. Accordingly, the decision to declare the house suitable for use (see paragraph 11 above), which had been adopted despite that clear deviation from the planning documents, had to be annulled. 24. The court considered that the house could be brought into compliance with the planning documents by removing the columns and altering the house so that it fell within the boundaries of the plot. It ordered the applicant: (1) within six months after the court decision became final, to prepare a new blueprint in accordance with the detailed plan of the plot or with a new territorial planning document; (2) within three months after getting the new blueprint approved by the relevant authorities, to obtain a new construction permit; and (3) within six months after obtaining the new construction permit, to alter the building accordingly. 25. The court also ruled that the applicant had built a fence and a paved road on public land without having obtained relevant permission, and ordered him to demolish them. Adjournment of the civil case pending administrative proceedings
26. The applicant lodged a complaint with the administrative courts, seeking the annulment of the KCA’s decision of 7 April 2009 which had amended the geographic coordinates of the plot (see paragraph 13 above). 27. The civil proceedings (see paragraphs 16-25 above) were adjourned while the administrative proceedings were pending. 28. On 12 February 2013 the Kaunas Regional Administrative Court upheld the applicant’s complaint. It noted that the coordinates of the plot had been defined on 13 May 2004 (see paragraph 6 above) and amended on 30 October 2007 (see paragraph 10 above). The decision of 7 April 2009 had violated the rights of the owners of the plot because, following that decision, parts of the house which had already been built on it had become situated outside of the plot’s boundaries. The court also emphasised that that had been done without informing the applicant and his wife and without indicating any legal grounds for the decision. Therefore, that decision had to be declared unlawful and annulled. 29. On 9 December 2013 the Supreme Administrative Court upheld the decision of the first-instance court. 30. Following the decision of the Supreme Administrative Court, in January 2014 the data of the Real Estate Register was updated to reflect the land coordinates of 30 October 2007 (see paragraph 10 above). 31. The applicant’s neighbour, N.P., instituted proceedings before the administrative courts, asking them to change the coordinates of the applicant’s plot in the Real Estate Register. He submitted that the coordinates of 30 October 2007 (see paragraph 10 above) had been approved unlawfully and that they hindered his access to his plot. In December 2014 the Kaunas Regional Administrative Court allowed his claim, but in February 2016 the Supreme Administrative Court quashed that decision. It held that, following the annulment of the decision of 7 April 2009 (see paragraph 29 above), the Real Estate Register had acted lawfully by restoring the coordinates of 30 October 2007. Decision of the Kaunas Regional Court of 21 February 2018
32. The civil proceedings were resumed after the conclusion of the administrative proceedings (see paragraphs 26-29 above). 33. On 20 October 2016 the Kaunas Regional Court upheld the decision of the Kaunas District Court (see paragraphs 21-25 above). However, on 24 May 2017 the Supreme Court quashed that decision and remitted the case to the Kaunas Regional Court for fresh examination. The Supreme Court held, in particular, that even though the amendment to the land coordinates of 7 April 2009 had been annulled by the administrative courts (see paragraphs 28 and 29 above), the Kaunas Regional Court had not explained whether that had affected the lawfulness of the construction of the applicant’s house. 34. During the fresh examination of the case by the Kaunas Regional Court, the applicant repeated his previous arguments (see paragraphs 19 and 20 above). 35. In addition, he submitted that the inspection of 2 April 2009 (see paragraph 12 above) had relied not on the coordinates of the plot defined in 2007, which had been registered in the Real Estate Register at the time of the inspection and at the time when the house had been declared suitable for use (see paragraph 11 above), but on the coordinates of 2004, which had been amended and therefore had no longer been correct. As a result, its conclusion that the columns had been outside of the plot’s boundaries had been inaccurate. 36. On 21 February 2018 the Kaunas Regional Court upheld the decision of the Kaunas District Court (see paragraphs 21-25 above). 37. It emphasised that in order to determine whether the applicant’s house had been built in accordance with the planning documents, it was important to determine the exact boundaries of the plot and the location of the house on it. 38. The court found that, according to the data of the Real Estate Register, the coordinates of the plot were those which had been defined in 2004 (see paragraph 6 above). Although in separate proceedings the applicant’s wife had asked the courts to change them, her claim had been dismissed in 2012 (see paragraph 15 above). On those grounds, the Kaunas Regional Court concluded that the land coordinates of 2004 were still valid. 39. It held that, since the inspections of the plot which had been carried out in 2009 (see paragraphs 12 and 14 above) had relied on the same coordinates as those defined in 2004, their findings had to be considered accurate. Thus, the court found it established that the columns of the house had been built without respecting the required minimum distance of 3.5 metres from the neighbouring plots (see paragraph 5 above). 40. The Kaunas Regional Court also upheld the remaining findings of the Kaunas District Court (see paragraphs 22, 23 and 25 above) and ordered the applicant to prepare a new blueprint, to obtain a new construction permit and to alter the building in line with those documents (see paragraph 24 above). Proceedings before the Supreme Court
41. The applicant lodged two appeals on points of law. He submitted, in particular, that the Kaunas Regional Court had disregarded the fact that, after the amendment to the plot’s coordinates adopted in 2009 had been annulled (see paragraphs 26-29 above), the valid coordinates were those which had been approved in 2007 (see paragraph 10 above). They had been registered in the Real Estate Register in 2007 and again in 2014 (see paragraph 30 above). Therefore, the court’s conclusion that the columns had been built on public land had relied on incorrect coordinates. 42. On 30 April and 24 May 2018 the Supreme Court refused to accept the appeals on points of law for examination on the grounds that they did not raise important legal issues. Other relevant proceedings
43. In November 2011 the Kaunas District Court convicted a former official of the Municipality and a former official of the KCA of failure to perform their duties when checking the construction of the applicant’s house. The court found that the accused had acted negligently when signing the decision to declare the house suitable for use (see paragraph 11 above) because they had done so without having properly verified the planning documents and without having inspected the construction on the ground. In April 2012 the Kaunas Regional Court upheld that judgment in its entirety. The applicant and his wife were questioned in those proceedings as witnesses. 44. In 2018 the applicant’s neighbour, N.P., instituted proceedings before the administrative courts, asking them to change the coordinates of the applicant’s plot in the Real Estate Register and to register the coordinates which had been defined in 2004, in line with the latest court decisions (see paragraphs 6 and 38 above). In November 2019 the Kaunas Chamber of the Regional Administrative Court dismissed N.P.’s request. It stated that the land coordinates approved in 2007 had been registered in the Real Estate Register in accordance with the law, following the annulment of the decision of 7 April 2009 (see paragraphs 26-29 above). 45. In June 2018 the applicant asked the NLS to allow him to build a house on his plot without maintaining the minimum distance to the neighbouring plot, thereby legalising the existing house with the columns. The NLS refused on the grounds that the construction did not comply with the detailed plan of the plot (see paragraph 5 above) and that it was necessary to keep sufficient distance from the planned public road so as not to obstruct traffic. 46. In January 2019 the applicant asked the Municipality to amend the detailed plan of the plot in order to allow construction at a minimum distance of three metres from the neighbouring plots (see paragraph 5 above). In March 2019 the Municipality amended the detailed plan in accordance with the applicant’s proposal. 47. In September 2019 he asked the Municipality to issue a new construction permit. In October 2019 the Municipality refused his request, finding, in particular, that the location of the house and the number of storeys did not correspond to the detailed plan (see paragraph 5 above). 48. At the time of the latest information submitted to the Court (7 July 2020), the applicant had demolished the fence and torn up the paved road (see paragraph 25 above) but had not executed the remaining court orders (see paragraph 42 above). RELEVANT LEGAL FRAMEWORK AND PRACTICE
49. At the material time, Article 23 § 1 of the Law on Territorial Planning provided that a detailed plan established the mandatory conditions for the use and management of a plot of land, such as its purpose, the height of buildings which may be built on it, the density of construction, the boundaries of the construction site, among others. 50. In its decision of 15 June 2009 in civil case no. 3K-3-240/2009 the Supreme Court stated that, in cases of unlawful construction, the appropriate sanction had to be determined in the light of the particular circumstances in which the impugned violation had been committed, its seriousness, the importance of the rights which were being defended, and other relevant circumstances. The chosen measure had to be proportionate to the aim pursued. The principle of proportionality required that a fair balance be struck not only between private interests and the public interest, but also between conflicting private interests. Therefore, when deciding on the legal consequences of unlawful construction, the court needed to find such a balance between the interests of the parties. 51. For other relevant domestic law and practice, see Tumeliai v. Lithuania (no. 25545/14, §§ 29-32 and 54-55, 9 January 2018). THE LAW
ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
52. The applicant complained that the decisions to declare the construction of his house partly unlawful restricted his property rights. He relied on 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.”
AdmissibilityAbuse of the right of application

(a)   The parties’ submissions
53. The Government submitted that the applicant had abused the right of individual application because he had failed to disclose all the relevant information and had attempted to mislead the Court. In particular, in his application he had not mentioned the civil proceedings instituted by his wife in an attempt to “seize State-owned land” (see paragraph 15 above) or the criminal proceedings against several former officials (see paragraph 43 above). Furthermore, he had attempted to mislead the domestic courts that he had built a road on public land for the convenience of the neighbourhood, while in reality his neighbours had complained that that road had hindered their access to their plots. He had also attempted to mislead the Court that he had had the required permits for building such a road, which was not true. 54. The applicant disputed the Government’s submissions. (b)   The Court’s assessment
55. The Court reiterates that an application may be rejected as an abuse under Article 35 § 3 of the Convention if it was knowingly based on untrue facts or if incomplete and therefore misleading information was submitted to the Court (see Gogitidze and Others v. Georgia, no. 36862/05, § 76, 12 May 2015, and the cases cited therein). However, not every omission of information will amount to an abuse; the information in question must concern the very core of the case (see Gross v. Switzerland [GC], no. 67810/10, §§ 35-36, ECHR 2014, and Mitrović v. Serbia, no. 52142/12, § 33, 21 March 2017). 56. In the present case, the applicant complained about the court proceedings in which the construction of his house had been declared partly unlawful. While in his application he did not mention the proceedings indicated by the Government (see paragraph 53 above), the Court does not consider that they concerned “the very core of the case”.
57.

Outcome for Article P1-1: violation