ITEMID: 001-114277
LANGUAGEISOCODE: ENG
RESPONDENT: LVA
BRANCH: GRANDCHAMBER
DATE: 2012
DOCNAME: CASE OF VISTIŅŠ AND PEREPJOLKINS v. LATVIA
IMPORTANCE: 2
CONCLUSION: Preliminary objection dismissed (Article 35-3-b - No significant disadvantage);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property);Just satisfaction reserved
JUDGES: Alvina Gyulumyan;András Sajó;André Potocki;Angelika Nußberger;Corneliu Bîrsan;Dean Spielmann;Egbert Myjer;Elisabeth Steiner;Françoise Tulkens;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Julia Laffranque;Karel Jungwiert;Kristina Pardalos;Lech Garlicki;Linos-Alexandre Sicilianos;Luis López Guerra;Nicolas Bratza;Nona Tsotsoria;Peer Lorenzen
TEXT: 10. By contracts signed in 1994, in respect of donations inter vivos, the applicants became the owners of five plots of land on the island of Kundziņsala. This island, situated close to the mouth of the Daugava River, is part of the city of Riga, to which it is connected by a road bridge and a railway line. It mainly consists of port facilities, with a small residential area in its southern part.
11. The first applicant acquired a plot of land of 17,998 sq. m under a contract of donation with Mrs P. dated 21 April 1994. The transfer of title was entered in the land register by the Land Registry Division of the city of Riga (Rīgas pilsētas Zemesgrāmatu nodaļa) on 26 July 1994. The second applicant became the owner of:
(a) a plot of land measuring 11,000 sq. m, under a contract of donation with Mrs J. dated 21 April 1994 (entered in the land register on the same day);
(b) a plot of land measuring 7,150 sq. m, under a contract of donation with Mr O. dated 21 April 1994 (entered in the land register on the same day);
(c) a plot of land measuring 10,970 sq. m, under a contract of donation with the same Mr O. dated 12 September 1994 (entered in the land register on the next day, 13 September 1994); and
(d) a plot of land measuring 18,620 sq. m, under a contract of donation with Mrs D. dated 28 June 1994 (entered in the land register on the same day).
12. The clauses of the contracts in question were practically identical. The contract entered into by the first applicant stipulated that the second applicant was acting as the donor’s representative. Similarly, it was stated in the first three contracts entered into by the second applicant (see points (a), (b) and (c) of the previous paragraph) that the first applicant was acting on behalf of the donors.
13. The donors were all the heirs of the legitimate owners of the land in question, which had been expropriated by the Soviet Union after 1940. They had recovered ownership in the context of the “denationalisation” process in the early 1990s. According to the applicants’ explanations, which were not contested by the Government, the donations had been made in return for certain personal services that the applicants had rendered to the donors. Mrs D. had thus given her land to the second applicant by way of remuneration for having helped her to complete the formalities to obtain restitution of her nineteen properties located throughout Latvia. Mrs J. had apparently been a longstanding friend of the second applicant, whilst the donor of the other two plots, Mr O., had given them to him as a token of gratitude because he had covered the cost of expensive heart surgery. As to the first applicant, he had become the owner of his land in return for undisclosed services rendered.
14. Each of the above-mentioned contracts stipulated that the value of the plots of land in question was fixed at 500 Latvian lati (LVL; about 705 euros (EUR)), except for the plot of 10,970 sq. m, which was valued at LVL 1,000 (about EUR 1,410). The parties agreed that the said value was not the cadastral value of the land in question (that is to say, the reference value for the calculation of land tax), but an indicative sum solely for the purposes of calculating the registration tax, which at the time represented 10% of the property’s value. Indeed, according to the applicants’ explanations, which have not been challenged by the Government, cadastral values did not exist at the relevant time and the sole basis of calculation for the tax was the property’s sale price, in accordance with the applicable law (see paragraph 64 below).
15. In addition, the applicants paid LVL 0.25 in notary’s tax. However, they were not obliged to pay income tax in respect of the transactions, as gifts between individuals were not liable for such tax. Furthermore, in accordance with the law applicable at the time (see paragraph 63 below), they were exempted from the payment of land tax (zemes nodoklis) for a period of six months following the acquisition, that is to say, until the end of 1994.
16. The parties disagreed as to the actual value of the plots of land in question at the time of their expropriation. The Government explained that the use of the land had begun during the Soviet era, in 1980, at the time of the construction of the port infrastructure – storage containers and open-air freight platforms – which can be found there today. In their submission, those port facilities are outside the general property market, with the result that an estimation of their possible market value would be impossible and devoid of purpose.
17. In the applicants’ submission, the five plots of land contained no infrastructure except for concrete blocks. They explained that the latter enabled the land to be used for the storage of shipping containers, but that no other equipment such as railway lines, cranes or warehouses had been installed there. Inventory records of three of the plots of land, to which the applicants referred, indicate that the value of these concrete blocks is LVL 5.28 per square metre.
18. According to the statistical information supplied by the Government, and accepted as accurate by the applicants, 89% of specialised container traffic in and out of Latvia by sea in 1996 passed through the part of the island where the land at issue is located. Nor have the applicants disputed the fact that the first decisions concerning the port area of Kundziņsala were taken during the constitutional transition period, between 1990 and 1991, by the Supreme Council of the Republic of Latvia (the then legislative assembly). In 1992 the authorities initiated proceedings for the purpose of fixing the port’s boundaries and determining the infrastructure to be transferred from the former Soviet Union to the independent Latvian State.
19. On 15 August 1995 the Latvian Cabinet adopted Regulation no. 278 fixing the perimeter of the Port of Riga (Noteikumi par Rīgas ostas robežu noteikšanu). In accordance with that Regulation, all the plots of land owned by the applicants were included within the port’s perimeter. That inclusion was confirmed by the Free Commercial Port of Riga Act (Rīgas tirdzniecības brīvostas likums), enacted on 6 November 1996. Under that Act, all the privately owned land situated within the port’s boundaries became subject to a servitude for the benefit of the public corporation responsible for the port’s management. In return, the corporation was to pay the owners annual compensation of not more than 5% of the cadastral value of the plots of land in question.
20. In January 1996 the applicants requested the Real Estate Valuation Centre of the State Land Authority (Valsts Zemes dienesta Nekustamā īpašuma vērtēšanas centrs) to determine the cadastral value of their respective plots of land for the year 1996. In five letters of 15 January 1996, the Centre certified that the value amounted to LVL 564,410 (about EUR 900,000) for the land belonging to Mr Vistiņš; as to that of Mr Perepjolkins, the cadastral value of the various plots amounted to LVL 285,830, LVL 767,724, LVL 769,824 and LVL 1,303,102 respectively, representing a total of LVL 3,126,480 (about EUR 5,010,000).
21. On 11 June 1997 the administration of the Free Commercial Port of Riga applied, in turn, to the Valuation Centre, requesting it to calculate the amount of compensation that would have to be paid to the applicants in the event of expropriation of their land, in accordance with Article 2 of the Supreme Council’s decision on the conditions of entry into force of the Law on the expropriation of real estate in the public interest (the “General Expropriation Act”, enacted in 1923). That Article – which was applicable inter alia to the applicants – limited the amount of the compensation to be paid to the owners of certain land that was to be expropriated; the compensation could not exceed the cadastral value of the land as fixed on 22 July 1940, multiplied by a conversion coefficient.
22. On 12 June 1997 the Centre issued two certificates stating that the first applicant would receive LVL 548.26 (about EUR 850) for his 17,998 sq. m plot of land, and the second LVL 8,616.87 (about EUR 13,500) for his plots of land, of which the total surface area came to 47,740 sq. m.
23. By Regulation no. 273 of 5 August 1997, which was adopted in the context of delegated legislative authority (see paragraph 41 below) and which entered into force on 9 September 1997, the Cabinet ordered the expropriation of all the land in question for the benefit of the State. On 30 October 1997 the measure was confirmed by Parliament, which enacted a special law for that purpose (see paragraph 54 below). Under that law Mr Vistiņš and Mr Perepjolkins were to be paid compensation for the expropriation, which would be deemed completed once the sums had been paid into their current accounts.
24. On 8 May 1998 the Latvian Land and Mortgage Bank (Latvijas Hipotēku un zemes banka) opened current accounts in the names of each of the applicants. On 14 October 1998 the bank officially certified that the above-mentioned sums of LVL 548.26 and LVL 8,616.87, awarded to the applicants by way of compensation, had actually been paid into the two accounts. The applicants, however, refused to make use of those sums in any way. Following the payments, by two orders of 17 and 20 November 1998 the Riga Land Registry Court (zemesgrāmatu tiesnesis) ordered that the title to the expropriated land be registered in the name of the State. No tax was levied on the above-mentioned sums.
25. In 1998 the second applicant brought two sets of proceedings to obtain rent arrears for the use of his land. In the first set of proceedings, against the Riga Port Authority and the Free Commercial Port of Riga, he requested the payment of sums due under the lease for the period from 21 April 1994 to 31 March 1996. In a judgment of 15 October 1998, upheld in cassation proceedings on 6 January 1999, the Riga Regional Court ordered the Free Port to pay the second applicant LVL 278,175 (about EUR 448,150) for the use of his land during the period in question.
26. The second applicant subsequently filed a new claim against the Free Port, seeking the payment of rent arrears for the period after 1 April 1996, together with compensation for the servitude imposed on his property. On 18 March 1999 the Civil Division of the Supreme Court partly upheld his claim, awarding the applicant the sum of LVL 90,146.84 (about EUR 145,000) on that basis, after fixing the amount of the rent at 2% of the cadastral value of the land at the material time. In fixing that amount the Civil Division particularly took into account the fact that the second applicant had not invested in any development of the land in question. It further indicated that the applicant’s title to the property had ceased on 9 September 1997, when the expropriation had become effective. In a judgment of 12 May 1999 the Senate of the Supreme Court upheld the judgment of the Civil Division.
27. The first applicant, Mr Vistiņš, brought similar proceedings. In a judgment of 9 June 1999 the Civil Division ordered the Free Port to pay him LVL 53,036 (about EUR 85,000) in rent arrears for the period from 1994 to 1997.
28. In January 1999 the applicants sued the Transport Ministry (Satiksmes ministrija) before the Riga Regional Court. In their pleadings they requested the annulment of the cadastral registration of the State’s title, and the restoration, in the land registers, of the previous entries attesting to their ownership of the land in question.
29. In support of their claim, the applicants alleged that the General Expropriation Act provided for a uniform procedure which had not been observed in their case. According to that procedure, after the enactment of the special Law of 30 October 1997, the Transport Ministry was required first to start negotiations with them with a view to reaching a friendly settlement as to the amount of the compensation (section 5 of the General Expropriation Act); if those negotiations failed, the Ministry would have to refer the matter to the competent court for settlement of the dispute (section 9). The applicants particularly emphasised that they were not satisfied with the sums paid by way of compensation and that they were deprived of their right to challenge those sums before a court. In this connection, the applicants pointed out that the orders of the Land Registry Court had been made in the absence of any prior final judgment concerning the amount of the compensation; they thus argued that the orders did not comply with section 18 of the General Expropriation Act. The applicants submitted that the expropriation in general and the transfer of title in particular had been carried out in breach of that Act, thus directly entailing a violation of Article 1 of Protocol No. 1.
30. In a judgment of 29 March 2000 the Regional Court dismissed the applicants’ claims. According to the judgment, the expropriation was not based on the General Expropriation Act, as the applicants had claimed, since the measure in question had been decreed in the context of the Latvian land reform, and thus the special Law of 30 October 1997 was to be applied. Section 4 of the special Law provided that the mere existence of the law and the payment of compensation for the expropriation sufficed for the statutory transfer of title to the State. Noting in the present case that the corresponding sums had been paid into the applicants’ accounts, the Regional Court found that both of those elements were present, and that by registering the State as the new owner of the land in question, the Land Registry Court had acted in accordance with the law.
31. Moreover, the Regional Court pointed out that section 3(1) of the Law of 30 October 1997 (on the calculation of compensation) referred to Article 2 of the Supreme Council’s decision on the conditions of entry into force of the General Expropriation Act and that this decision had been declared compliant with Article 1 of Protocol No. 1 by the Constitutional Court.
32. The applicants appealed before the Civil Division of the Supreme Court. They emphasised at the outset that they did not object to the expropriation as such, provided the statutory formalities were observed and the amount of the compensation was reasonable. In their view, this had not been the case, as, in particular, no expert’s report had been ordered for the purpose of determining the actual value of the disputed land (section 16 of the General Expropriation Act). The applicants did not challenge the Regional Court’s finding that the Law of 30 October 1997 constituted a lex specialis in relation to the general law; they argued, however, that the said law could not be construed as derogating from the normal expropriation procedure and that, consequently, by recognising the State’s title without having received a copy of a judgment determining the amount of the compensation, the Land Registry Court had acted illegally.
33. In a judgment of 28 September 2000 the Civil Division dismissed the applicants’ appeal, essentially endorsing the reasoning and findings of the judgment in question. Addressing the applicants’ objection to the compensation awarded, it pointed out that the amounts had been determined in accordance with Article 2 of the above-mentioned Supreme Council decision. If the applicants had considered that the calculation by the State’s Land Authority had been erroneous and that the relevant coefficients had been incorrectly applied, they could have challenged the calculation in separate proceedings, but they had not done so.
34. The applicants lodged a cassation appeal with the Senate of the Supreme Court. In their appeal, they submitted that the direct and immediate object of their claim was not to challenge the calculation of the compensation as such, but rather the fact that they had not been able to have the amount fixed through fair judicial proceedings, as required by the General Expropriation Act. If such proceedings had taken place, they would have been able to provide the court with evidence of their investments in respect of the land in question; they pointed out that they were not entitled to initiate such proceedings themselves, as section 9 of the Act reserved that right for the State authorities.
35. In a judgment of 20 December 2000 the Senate dismissed the applicants’ appeal on the same grounds as the Civil Division.
36. In the meantime, on 17 August 2000, the State had granted the use of all the plots of land in question to a private transport company, B., from which it has been receiving rent to date.
37. On 9 December 1999 the Finance Department of the Riga City Council notified the first applicant of a tax reassessment, requesting him to pay the sum of LVL 18,891 in land tax in respect of the land that had belonged to him, plus penalties, for the period from 1 January 1997 to 30 October 1997, the date of the expropriation. The first applicant challenged this before the Ziemeļu District Court of First Instance, which upheld his claim and annulled the reassessment. The City Council appealed before the Riga Regional Court, which, in a judgment of 10 January 2003, upheld the annulment of the reassessment. In its judgment the court found that, as the land tax was attached to a plot of land and not to a specific individual, it could be paid by someone other than the owner. It noted that the tax had already been paid by the public corporation responsible for the port’s management which was using the land on the basis of a servitude. The City Council lodged a cassation appeal with the Senate of the Supreme Court, which dismissed that appeal in a judgment of 19 March 2003.
38. On 22 January 1999 the Finance Department of Riga City Council notified the second applicant of a tax reassessment for LVL 78,382, including penalties, for the year 1997. The applicant brought annulment proceedings before the court of competent jurisdiction, which upheld his claim. The City Council appealed and on 26 February 2002 the Riga Regional Court annulled the judgment of the Court of First Instance, finding that the second applicant’s land was not part of that for which the public corporation had paid land tax. That judgment was upheld in cassation proceedings. However, in September 2003 the Senate of the Supreme Court reopened the proceedings on account of newly discovered facts. The case file was sent to the Administrative Court of Appeal, which, in a judgment of 15 July 2005, upheld the second applicant’s claim and annulled the disputed reassessment on the ground that the port management company had already paid land tax for the land in question. On 7 February 2006 the Senate of the Supreme Court, ruling on a cassation appeal, upheld that judgment, so the second applicant was not obliged to pay any supplementary tax on the land in question.
39. Adopted in 1922, the Latvian Constitution (Satversme) became fully applicable again in 1993. In 1997, the year when the impugned expropriations took place, it did not yet include a charter of fundamental rights, which were governed by a separate instrument, the Constitutional Law of 10 December 1991 on the rights and obligations of persons and citizens (Konstitucionālais likums “Cilvēka un pilsoņa tiesības un pienākumi”). Section 21 of that Law read as follows:
“The State recognises and protects ownership and the right to inheritance.
An individual may be the owner of property of all kinds, except that which is subject to the restrictions laid down in section 9 [pertaining to natural resources].
Property may be expropriated only as provided for by law and pursuant to a judicial decision. Where property is expropriated for the purpose of public projects, the owner shall be entitled to appropriate compensation.”
40. By a Law of 15 October 1998, which entered into force on 6 November 1998, the legislature inserted into the Constitution a new Chapter VIII on fundamental rights. In that Chapter, the new Article 105 of the Constitution provides as follows:
“Everyone has a right of property. Property may not be used for purposes contrary to the interests of society. Property rights may be restricted only as provided by law. Forced deprivation of property for the needs of society shall be authorised only in exceptional cases, on the basis of a special law and in return for fair compensation.”
41. Article 81 of the Constitution (repealed in 2007) entrusted the Cabinet with delegated and limited legislative power. At the time of the expropriation of the land in question, this provision read as follows:
“Between two legislative sessions, the Cabinet shall be entitled, in cases of pressing need, to adopt regulations with statutory force. Such regulations may not amend either the law on parliamentary elections, the laws on judicial organisation and procedure, the Budget Act or budgetary law, or laws enacted by the sitting legislature; nor may they regulate amnesty, the issuance of Treasury bills, taxes levied by the State, customs duties, railway fares and loans, and they will lapse if they are not submitted to Parliament within three days after the opening of the following legislative session.”
42. The first sub-section of section 12 of the Latvian Cities Land Reform Act of 20 November 1991 (Likums “Par zemes reformu Latvijas Republikas pilsētās”) originally read as follows:
“In all ... cases, where the original owner’s land has [in the meantime] been built upon, or where, in accordance with urban planning and construction projects it is intended to erect thereon constructions necessary to satisfy the needs of society, the former owners of the land or their heirs shall be entitled, as they choose:
to claim restitution of their title to the property and to obtain from the owner of the building or construction ... the payment of rent, of which the maximum amount shall be fixed by the Cabinet ...; or
to request that they be granted the right of ownership or use of another plot of land of the same value, situated within the administrative boundaries of the same town, depending on the intended use of such land; or
to receive compensation in accordance with the statutory conditions.”
43. A Law of 31 March 1994 imposed restrictions on the restitution of land on which certain constructions or facilities had been erected. It thus amended the above wording as follows:
“Former property owners or their heirs shall recover their title to land that previously belonged to them, except:
...
(3) Where, on the land of the former owners, there can be found ... civil engineering and transport facilities or infrastructure ..., [for example] of ports. The title to the land is then registered in the name of the State or the local authority concerned; as to the former owners and their heirs, they shall be entitled, as they choose, to request that they be granted title to another plot of land of the same value and situated within the administrative boundaries of the same town, or otherwise to receive compensation in accordance with the statutory conditions.”
44. A Law of 24 November 1994 amended that provision as follows:
“Former property owners or their heirs shall recover their title to land that previously belonged to them, except:
...
(3) Where, on the land in question, there can be found ... civil engineering and transport facilities or infrastructure ..., [for example] of ports. The title to the land is then registered in the name of the State or the local authority concerned, after the former owners or their heirs have, as they choose, and in accordance with the statutory conditions, received land of the same value situated elsewhere ... or compensation. If it is impossible to reach an agreement with the former owners of the land, or their heirs, as to compensation or the allocation of another plot of land of the same value, the land shall then be expropriated in accordance with the conditions laid down in the law on the expropriation of real estate on public-interest grounds.”
45. The Law of 12 October 1995 reformulated the above provision, deleting the last sentence concerning the expropriation of land. The Law of 8 May 1997, which entered into force on 6 June 1997, added to the subsection in question a note that read as follows, having the same statutory force as section 12 itself:
“Note: Where the former owners of the land or their heirs possess dwellings on the territory of a port, they are entitled to recover title to that land to the extent that they have the lawful use thereof; [the surface area of such land] must not, however, exceed 1,200 square metres, unless the land in question is situated within the residential area of Kundziņsala Island, including on the territory of the Free Commercial Port of Riga, where the former owners and their heirs may be granted restitution of their title in respect of the entire surface area of the land that belonged to them.”
46. At the same time a new subsection was inserted into section 12. It reads as follows:
“Where the former owners of the land or their heirs have recovered title to land on which are erected any facilities referred to in point 3 of the first subsection hereof ..., the annual amount of rent payable for the land shall not exceed five per cent of its cadastral value.”
47. At the material time, section 19(4) of the Ports Act of 22 June 1994 (Likums par ostām) read as follows:
“Only the State and local authorities acting through the intermediary of a port authority shall be entitled to purchase land within the territory of a port. It shall be prohibited for a port authority to sell land situated within the territory of a port.”
48. Section 19(5) of that Act, as amended by a Law of 24 October 2002, which entered into force on 28 November 2002, reads as follows:
“Former owners (or their heirs) who, as at 21 July 1940, possessed land situated on the current territory of the port, and whose title to the land has been recognised ... but has not been restored on account of the statutory restrictions, shall be entitled to receive land of the same value or to be compensated in the form of compensation certificates, the number of which shall be calculated according to the updated cadastral value of the land in question. If the persons concerned have received compensation certificates corresponding to the cadastral value of the land for 1940, they will granted an additional number of ... certificates corresponding to the difference between the cadastral value of 1940 and the updated cadastral value.”
49. Regulation no. 171 of 6 May 1997 on the calculation of compensation to be awarded to former landowners or their heirs, and on the determination of the value of land of which ownership has been transferred in cities (Noteikumi par kompensācijas aprēķināšanu bijušajiem zemes īpašniekiem vai viņu mantiniekiem un maksas noteikšanu par īpašumā nodoto zemi pilsētās) was adopted on the basis of the Latvian Cities Land Reform Act. Article 8 of the Regulation reads:
“Where persons claiming compensation are not satisfied with the compensation amount calculated [by the State Land Authority], they shall be entitled to submit their complaint to the courts.”
50. At the material time, and up to 1 January 2011, expropriation was governed by the Expropriation (Public Interest) Act (Likums “Par nekustamā īpašuma piespiedu atsavināšanu valsts vai sabiedriskajām vajadzībām” – the “General Expropriation Act”), which was first enacted in 1923 and which re-entered into force on 15 September 1992. The relevant sections of that Act read as follows:
“Expropriation of real estate in the public interest shall be authorised only in exceptional cases, always with payment of compensation and on the basis of a special law.”
“The proposal to expropriate ... shall be made by the government on the basis of an opinion by the relevant administrative body or local authority, where the institution in question is unable to acquire the real estate by means of an agreement with the owner. The proposal must include information about the real estate to be expropriated and the justification for the expropriation.”
“After the [expropriation] law has been enacted, the institution that proposed the expropriation shall approach the owner with a view to reaching a [friendly] agreement for the transfer of the real estate, and, as the institution sees fit, shall either offer compensation or propose to exchange [the real estate] for property of the same value.”
“Where compensation [for the expropriation] is determined by friendly agreement, or where the value of the expropriated real estate is compensated for by the exchange thereof for other property, the parties shall enter into a contract ...”
“Where [the parties] fail to reach an agreement, the case shall be examined by a court upon an application by the expropriating institution.
After receiving the application, the court shall assign a bailiff to assess the value of the real estate, in the presence of the representative of the expropriating institution, together with the owner and three experts chosen by joint agreement between the parties ...”
“The expropriating institution shall submit to the court a statement indicating and justifying its assessment of the value of the real estate to be expropriated. Copies of the statement shall be served on the owner of the real estate and on any mortgage creditors of the owner ...”
“The value shall be assessed according to local prices and the state of the relevant property. Should the owner so request, the assessment shall also take into account its profitability.
The profitability of real estate shall be assessed on the basis of information supplied by its owner. When the value of the property is determined in accordance with the income generated by the latter, it shall correspond to the average net income from the real estate over the past five years increased by five per cent, or, where the owner has held it for less than five years, over the entire period of possession, increased by five per cent.”
“Before examining the case, the court shall summon the owner, the representative of the expropriating authority and any mortgage creditors.
The court shall determine the compensation to be paid on the basis of experts’ opinions, either according to local prices or, where the owner so requests and the court finds such request reasonable, according to the profitability [of the property].
The court’s decision may be appealed against in accordance with the statutory procedure.”
“After the court’s decision pertaining to the expropriation of the real estate takes effect, the owner shall be paid the compensation determined and any interest at the rate fixed by the court; the interest rate shall not be lower than 6 per cent per annum from the date of transfer of the property until the date of payment.”
“After the payment of compensation ..., the institution concerned shall transmit to the Land Registry Division a copy of the court’s decision together with a description of the real estate, for the purposes of its registration in the name of the State or local authority.”
51. A Law of 19 December 1996 inserted certain provisions into Article 2 of the Supreme Council’s decision of 15 September 1992 on the conditions of the entry into force of the 1923 General Expropriation Act (Lēmums “Par Latvijas Republikas likuma ‘Par nekustamā īpašuma piespiedu atsavināšanu valsts vai sabiedriskajām vajadzībām’ spēkā stāšanās kārtību”); the relevant parts of those provisions read as follows:
“Where, in the course of the land reform, an expropriation ... concerns real estate that is necessary for ... the maintenance or operation of ... transport infrastructure, [and where the object of the expropriation] has been or is to be restored to the former owner (or to the heirs thereof), the amount of the compensation shall be determined as a sum of money, according to the statutory procedure; however, it shall not exceed the value of the said real estate as fixed by the land registers or by cadastral records drawn up before 22 July 1940 and including an indication of the property’s value ... The conversion coefficients to be applied to the value of the property, converting the prices from 1938-1940 (in pre-war lati) into current prices ..., shall be determined by the State Land Authority.
Where, after the restitution of title, the owner has increased the value of the real estate, any investments related to the increase in value must also give rise to compensation. Similarly, compensation must be paid for any expenses reasonably incurred by the owner (or heirs) related to the restitution of title (surveying, obtaining of information from records, etc.). Any expenses incurred in respect of the services of a representative must be reimbursed within the limits of the amounts actually paid; however, they must not exceed the scales of lawyers’ fees.
The expropriation procedures laid down by the present Article shall apply also to owners who have acquired property from the former owner (or heirs thereof) by way of donation.”
52. On 1 January 2011 the 1923 Act was superseded by a new Expropriation (Public Interest) Act (Sabiedrības vajadzībām nepieciešamā nekustamā īpašuma atsavināšanas likums), enacted on 14 October 2010. Under section 4 of that new Act, expropriation of real estate can take the form of a friendly settlement between the State and the owner of the property in question, or of “forced” expropriation ordered on the basis of a special law.
53. The use of the term “special law” in Article 105 of the Constitution and in section 1 of the 1923 Act indicates that each individual expropriation measure falls within the exclusive remit of the legislature, that is to say, Parliament. As the Constitutional Court observed in its judgment of 16 December 2005, this is a specific feature of the Latvian legal system in comparison with that of other countries (see paragraph 62 below). In this system any expropriation is always based on two legislative instruments: the general law, determining the rules of expropriation in general, and a special targeted law by which Parliament orders the expropriation of designated property in a specific case. As to the sum to be paid in compensation, it is fixed by friendly settlement or, failing that, by the courts (section 9 of the 1923 General Expropriation Act).
54. Regulation no. 273 of 5 August 1997 on the expropriation of land for the needs of the State within the Free Commercial Port of Riga was promptly submitted to Parliament, as required by Article 81 of the Constitution (as then in force). On 30 October 1997 Parliament enacted a law on expropriation for the needs of the State of land within the Free Commercial Port of Riga (Likums “Par zemes īpašuma atsavināšanu valsts vajadzībām Rīgas tirdzniecības brīvostas teritorijā”), which used almost the exact same wording as the Regulation. The relevant parts of that law read as follows:
“The expropriation, for the needs of the State, shall concern land belonging to Mr Genādijs Perepjolkins within the territory of the Free Commercial Port of Riga, on Kundziņsala, along the bank of the Daugava, for respective surface areas of 1.8620 hectares ..., 1.1000 hectares ..., 1.0970 hectares and 0.7150 hectares ..., together with land in the same sector belonging to Mr Jānis Vistiņš for a surface area of 1.7998 hectares ...”
“The Transport Ministry shall be responsible for having the land referred to in section 1 hereof ... entered in the land register in the name of the State.”
“(1) A current account shall be opened with the public corporation Latvijas Hipotēku un zemes banka [Latvian Land and Mortgage Bank] in the name of each of the landowners referred to in section 1 hereof; the compensation shall be paid into such accounts in accordance with Article 2 of the Supreme Council’s decision on the conditions of the entry into force of the Expropriation (Public Interest) Act.
(2) The number of the current account shall be notified, by registered letter, to each of the beneficiaries of the compensation payment.”
“The land referred to herein shall be entered in the land register in the name of the State on the basis of the present Act and following confirmation from the Latvijas Hipotēku un zemes banka that the sums determined as compensation for the value of the properties have [actually] been paid into the accounts of the persons mentioned in section 1 hereof.”
55. The Law of 5 February 1997 on the expropriation of land for the needs of the State within the territory of the Riga State Airport Corporation (Likums “Par zemes īpašumu atsavināšanu valsts vajadzībām valsts lidostu uzņēmuma ‘Rīga’ teritorijā”) is almost identical in structure to that of the law mentioned previously. Sections 1 and 2 order the expropriation of the specific plots of land enumerated in the annexes to the law. Section 3 requires the Transport Ministry to have the State’s title entered in the land register, while the last two sections concern the conditions of payment of the compensation and the effective transfer of title.
56. To the extent that it is relevant to the present case, section 6 of the Free Commercial Port of Riga Act of 6 November 1996 (Rīgas tirdzniecības brīvostas likums) provided as follows:
“(1) There shall be established hereby a personal servitude for the benefit of the public corporation ‘Commercial Port of Riga’, affecting the land of natural persons or other legal entities ... that is occupied by the Free Port.
...
(6) The user of the land shall pay to its owner compensation for the use of the servitude; the amount of the compensation shall be determined by joint agreement, but it may not exceed five per cent per annum of the cadastral value of the land.
...”
57. On 9 March 2000 Parliament enacted a new Free Port of Riga Act (Rīgas brīvostas likums). It entered into force on 11 April 2000, superseding the previous Act. Section 4(8) of this new Act is identical to section 6(6) of the old Act.
58. Under Article 994, first paragraph, of the Civil Code (Civillikums), “[o]nly the person who is recorded in the land register as owner of real estate may be recognised as such”. However, Article 1477, second paragraph, stipulates that “[r]ights in rem based on a law shall be effective even in the absence of an entry in the land registers”.
59. The relevant provisions of the Civil Code concerning the validity of contracts and other agreements read as follows:
“An unlawful or immoral act whose aim runs counter to religion, statute law or morality, or which is intended to circumvent the law, cannot give rise to an agreement; any such agreement shall be null and void.”
“An agreement that expresses a genuine intent but has been concealed by another agreement shall be valid, unless it has been entered into with the aim of misleading a third party or, in general, of conducting an unlawful transaction. The visible agreement shall remain valid solely to the extent that this is necessary for the validity of the concealed agreement.”
60. Article 1919 of the Civil Code authorises the revocation of a donation (dāvinājums) on grounds of ingratitude on the part of the donee. Apart from an ordinary donation, the Latvian Civil Code provides for three specific categories of donation: a donation of all the donor’s present property, a donation subject to a condition or obligation, and a donation in consideration of past services (dāvinājums atlīdzības nozīmē), as governed by Article 1933 of the Code, which reads:
“A donation in consideration of past services is a donation agreed in return for services rendered.
Such donations may not be revoked on grounds of ingratitude.”
61. In a judgment of 30 April 1998 given in case no. 09-02(98), the Constitutional Court declared Article 2 of the Supreme Council’s decision on the conditions of entry into force of the General Expropriation Act (see paragraph 51 above) compliant with Article 1 of Protocol No. 1. It observed as follows:
“...
5. Land reform is a continuous and complex process which does not end with the return of the real property concerned to the former owners or their heirs, but with the completion of the restructuring of legal, social and economic relations ...
...
7. The second and fourth paragraphs of Article 2 of the decision do not deprive owners whose property has been expropriated in the public interest of their right to apply to the courts for the determination of compensation. The second paragraph of Article 2 of the decision establishes only the upper limit of such compensation. Therefore, the argument ... that such persons are deprived of their right to judicial protection and to equality before the courts is unfounded. ...”
62. In a judgment of 16 December 2005, given in case no. 2005120103, the Constitutional Court declared unconstitutional, and null and void, the amendments made to the General Expropriation Act in 2005. The relevant parts of that judgment read as follow:
“...
(22) ...
(22-2) The fourth sentence of Article 105 of the Constitution provides that forced deprivation of property is allowed only on the basis of a ‘special law’ enacted in exceptional cases.
The fact that expropriation must be carried out not only on the basis of a law but ‘on the basis of a special law’ is to a certain extent a specific feature of the Latvian Constitution. Most constitutions of European States envisage only that expropriation must be carried out on the basis of a law or in accordance with a procedure established by law.
The aim of Article 105 of the Constitution, pertaining to expropriation on the basis of a special law, is to protect the fundamental rights of the individual against any arbitrariness on the part of the administrative authorities. The word ‘specific’ here must not only be interpreted literally and grammatically, but must primarily be given a substantive meaning. When enacting such a ‘specific’ law, the legislature must‘exceptional’ in nature and whether it serves the needs of State or society; it must also ensure that the expropriation gives rise to fair compensation.
...”
63. Under section 9(1) of the Land Tax Act of 20 December 1990 (Likums “Par zemes nodokli”), as in force at the material time, a person acquiring land was exempt from the payment of land tax in respect thereof for six months from the date of its acquisition.
64. In its version in force in 1994, section 17 of the Law on the reform and the conditions of entry into force of the Land Registry Act of 22 December 1937 read as follows:
“In order to determine the value of property that is liable for tax in respect of the registration of ownership following a contractual transfer of title, the highest of the following amounts shall be used:
(1) the sale price indicated in the contract;
(2) the amount resulting from the land tax assessment;
(3) the amount resulting from the assessment for the purposes of obtaining a mortgage from a lending institution.”
VIOLATED_ARTICLES: P1
VIOLATED_PARAGRAPHS: P1-1
VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-99830
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF DIMAKOS v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 3 (substantive aspect)
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
TEXT: 5. The applicant was born in 1951 and currently lives in Certeze, Satu Mare.
6. On 12 May 1997 the applicant and his associate (“T.L.”), through their company, S.C. Harmony Shipping International S.R.L., made an offer to buy the Romanian Company for Oceanic Fishing Tulcea (Compania Română de Pescuit Oceanic Tulcea, “the company”), a State-owned company specialising in oceanic fishing, which was in the process of being privatised by the Bucharest State Property Fund (Fondul Proprietăţii de Stat, “FPS”). While negotiations were taking place, FPS expressly forbade the sale of the company's ships. The applicant and his associate gave their agreement to the prohibition in a statement signed with FPS on 4 June 1997.
7. On 26 November 1997 FPS agreed to sell the applicant and T.L. 51% of the company's stocks.
8. During criminal proceedings against the applicant the courts found that he and his associate had sold five of the company's ships as scrap. They had used part of the money to pay the price asked for by FPS. With the remaining money they had paid some of the company's debts in order to substitute themselves for the company's creditors and thus obtain the remaining 49% of the company's stocks.
9. The applicant was arrested on 10 March 1998 and released from prison on 22 June 2009, after having served his sentence. He described as follows the conditions of detention in the various penitentiaries where he was held. The Government's view, based on the official documents issued by the penitentiaries, is also presented.
10. On 10 March 1998 the applicant was taken to the Constanţa police detention rooms, situated in the basement of the police headquarters. He remained there until 4 June 1998. His pre-trial detention was endorsed and extended on several occasions by the prosecutor attached to the Constanţa Court of Appeal.
11. He claimed that during his detention there he had not been allowed to contact his family, counsel or co-accused either by telephone or in writing. He had not been allowed to have a pen and paper in the cell.
He had shared a cell with ten other detainees. The cell had been equipped with three-tier bunk beds which occupied 12 sq. m. There was no toilet in the cell (the inmates used a bucket for that purpose), no running water or sewerage system, no light and no fresh air.
12. According to the information from the Constanţa police, the cells in the police detention facilities measured 12-15 sq. m with three to four beds each, electric light and one window. The detainees were allowed to walk outside for one to two hours per day. Toilets were in the corridor.
No concrete information about the applicant's contacts with family and counsel or about his correspondence rights was furnished by the police, as, according to the regulations, the relevant documents are only kept by the authorities for five years.
13. In June 1998 the Galaţi County Court ordered the applicant's transfer to Bucharest Jilava Penitentiary, on health grounds. He was detained in this penitentiary on three occasions: from 4 June to 12 August 1998 and from 10 to 21 May 2005 (in the hospital section); and from 9 October to 19 November 2003 (in the penitentiary itself).
14. The applicant claimed that during his first stay in the hospital section, he had been handcuffed to his bed with chains around his legs after attempting suicide. He was awoken from a period of unconsciousness by bites from lice and bedbugs and recollected having been refused water by a warden on one occasion during his recovery.
The applicant also mentioned one week spent in the transit zone in Jilava before his transfer from Poarta Albă to Galaţi Prison. He claimed that he was placed in a dirty cell there and received no food or water.
15. According to the information provided by the Government, the applicant was mainly detained in a 42.08 sq. m cell with eleven beds, a separate toilet and individual heating. The detainees were allowed two showers per week in the common bathroom. They were allowed to walk outside for one hour per day.
The Government also referred to the applicant's telephone conversations, the parcels received from home and a visit from his daughter.
The Government have given no information about the period spent by the applicant in the transit zone.
16. The applicant spent a few weeks in Poartă Alba Penitentiary in Constanţa, from 12 August to 2 September 1998.
17. The applicant alleged that the cells had been overcrowded and had lacked hygiene facilities. The inmates were allowed to walk outside for two to three hours per month and to receive one visit and one telephone call in that time. The applicant was allowed to receive 15 kg of food per month. According to his statement, it was the only time during his detention when he could eat properly. His family brought him medicines and food.
18. The Government stated that the applicant's cell measured 36.35 sq. m and included ten beds, one window, running water, electricity, central heating and a separate toilet room. Seven to ten persons had shared that cell during the applicant's detention. The inmates were allowed to walk outside for thirty minutes to one hour per day. During his stay, the applicant received two visits and two parcels.
19. The applicant was held in this penitentiary on five occasions: from 2 September 1998 to 16 August 2001; from 29 January 2003 to 9 October 2003; from19 November 2003 to 26 February 2004; from 21 April 2004 to 29 June 2006; and from 5 October 2007 to 12 December 2008.
20. He alleged that the first cell where he had been detained was 25 sq. m in size. There were twenty to twenty five detainees in the cell at all times with an average of three persons to one bed. No outdoor exercise was allowed. Water was available two hours per day. No medicines were given and the food was very poor. After eight months, because of the deterioration of his health, the applicant was moved to a cleaner cell.
21. The Government averred that the applicant spent most of his stay in the infirmary in a 24 sq. m cell with six beds, windows, central heating and separate toilets. The detainees were allowed to walk outside for three hours per day. The penitentiary also had a football field for the detainees' use.
22. The applicant was held in Bucharest Rahova Penitentiary on three occasions: from 16 August 2001 to 29 January 2003; from 26 February 2004 to 21 April 2004; and from 29 June 2006 to 5 October 2007.
23. According to his statements, he was entitled to three visits per month and 60 packets of cigarettes and 15 kg of food per month − all provided by his family.
24. The official documents submitted by the Government indicate that the applicant shared a 19.55 sq. m cell with ten bunk beds with a maximum of nine co-detainees. A 5.55 sq. m toilet room with cold water was attached to the cell. Hot water was available twice per week, between 12 midday and 2 p.m. and 5 p.m. to 7 p.m. The cells and the toilets had windows, to allow in air and natural light.
The detainees were allowed to walk outside for one to two hours per day and twice per week they were given access to sports fields.
Three public phones were available and the applicant was allowed two ten-minute phone calls per week.
25. The Government informed the Court that the applicant had been held in Brăila Penitentiary from 12 December 2008 to 22 June 2009. During his stay he received 202 visits and 215 parcels.
26. On 10 March 1998, the applicant gave a statement to the police in the presence of his counsel. The next day he was taken to the prosecutor attached to the Constanţa Court of Appeal, who informed him for the first time that he was accused of having sold ships belonging to the Romanian State.
On 9 October 1998 the applicant received the Greek translation of the indictment.
27. On 8 October 1999 the Galaţi County Court gave judgment in the case, convicting the applicant of bribery, embezzlement (delapidare), forgery and use of forged documents and smuggling (contrabandă) and sentencing him to fifteen years' imprisonment. The County Court awarded damages of 890,284 US dollars (USD) to the company, to be paid by the applicant together with two other convicted persons. It also ordered the applicant to be expelled after having served his sentence.
28. On 9 March 2001 the Constanţa Court of Appeal rejected an appeal lodged by the applicant and upheld the judgment. According to the applicant, the Court of Appeal refused to hear evidence from him, claiming lack of time, and asking him to send his defence statement in writing, from prison.
29. On 27 September 2002 the Supreme Court of Justice upheld that decision, which became final.
30. On 7 November 2005 the Galaţi County Court declared inadmissible a request by the applicant for revision of the above decisions. The judgment was upheld in a final decision of 2 October 2006 by the High Court of Cassation and Justice.
31. The domestic legislation on the execution of sentences, in particular Law no. 23/1969, Emergency Ordinance no. 56/2003 (“Ordinance no. 56/2003”) and Law no. 275/2006 are described in Petrea v. Romania, no. 4792/03, §§ 21-23, 29 April 2008.
32. The relevant findings and recommendation of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) are described in Bragadireanu v. Romania, no. 22088/04, §§ 73-75, 6 December 2007, and Artimenco v. Romania (no. 12535/04, §§ 22-23, 30 June 2009). The Court notes, in particular, that in a report on visits made by them between 2002 and 2003, the CPT expressed concern about the restricted living space both actually available to prisoners and provided for by the regulations in place at that date. It also noted that prisoners were sometimes obliged to share a bed and that the toilets were not adequately separated from the living space in the cells.
33. During its 1999 visit to Romania, the CPT found that the Jilava transit area was the most overcrowded prison facility at that time − the number of detainees exceeding more than twice its capacity.
VIOLATED_ARTICLES: 3


ITEMID: 001-77683
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: KUNKOV AND KUNKOVA v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicants, Ms Tatyana Aleksandrovna Kunkova and Mr Anton Valeryevich Kunkov, are Russian nationals who live in Arkhangelsk. They are represented before the Court by Mr I. Yu. Teliatyev, a lawyer practising in Arkhangelsk.
The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
In May 1984 the first applicant’s husband, Mr V. Kunkov, was enrolled in reservist training, although he had two minor children and his wife was pregnant. On 4 June 1984 he was found hanged.
On 23 November 1998 the second applicant, the first applicant’s son, born in 1980, passed a medical examination and was found fit for military service. However, he was permitted to postpone his military service until 30 June 1999 on account of his studies. On 5 October 1999 the draft board decided to draft him. However, that decision was reversed and another suspension was granted until 2000. On 20 April 2000 the draft board again decided to draft him into military service. The decision was again reversed on 3 July 2000. On 5 October 2000 the second applicant was granted another suspension of the military draft.
The applicants instituted proceedings against the draft board and the Ministry of Finance. They claimed compensation for the non-pecuniary damage caused by Mr V. Kunkov’s death during reservist training. They also claimed compensation for the non-pecuniary damage caused by the draft board’s failure to exempt the second applicant from military service, which allegedly impeded him from finding employment, continuing his studies and starting a family. They argued that he should have been exempted from service because his father had died during reservist training.
The first hearing was scheduled to take place on 12 April 2001. The applicants submitted that they had applied to have the hearing postponed since their representative could not participate in the proceedings on that date. Nevertheless, the hearing took place. The Government submitted that the applicants had failed to submit an appropriate power of attorney for their representative. It is not clear whether the hearing concerned the merits of the claim or was confined to procedural matters.
The next hearing on the merits was due to be held on 28 May 2001. The applicants were duly summoned to it. However, they did not appear and asked the court to examine the claim in their absence. Before the hearing they submitted to the court a power of attorney for their representative which did not comply with the statutory requirements.
On 28 May 2001 the Solombalskiy District Court of Arkhangelsk dismissed the claim. The court found that the Civil Code of 1964, in force at the time of Mr V. Kunkov’s death, did not provide for compensation for non-pecuniary damage, while subsequent legislation had no retrospective effect. Accordingly, the claim had no basis in domestic law. Inasmuch as the claim concerned the second applicant, the court noted that section 23 § 2 (e) of the Law on Military Service provided for exemption from military service in event of a parent’s death in the course of performing military duties, whereas the applicant’s father had committed suicide. The court found that the second applicant had failed to submit any evidence that he was entitled to be exempted from military service under the effective legislation. Furthermore, he had submitted no evidence of any non-pecuniary damage caused to him by the draft board. The court noted that the second applicant had admitted in the courtroom that he had no proof of ever having been refused employment in connection with the requirement to join military service. With regard to his allegations that the failure to exempt him from military service had prevented him from planning further studies and starting a family, the court found no direct link between the alleged failure and the alleged damage which, furthermore, was unsubstantiated.
The applicants appealed. The appeal was to be lodged with the first-instance court for further transmittal to the appeal court. The applicants submitted an appeal statement themselves and another through their representative. The latter was returned without examination by the Solombalskiy District Court on 19 June 2001 on the ground that the representative had failed to submit an appropriate power of attorney. On the same date, having regard to the appeal statement submitted by the applicants, the court stayed the appeal proceedings on the ground of procedural inaccuracies, such as a failure to pay the court fees and to submit two copies of the appeal statement. The court ordered them to correct the inaccuracies by 28 June 2001. Since the applicants failed to do so, their appeal statement was returned without examination.
Article 46 of the Constitution of the Russian Federation provides that decisions and actions or inaction by State bodies, bodies of local self-government, public associations and officials may be appealed against in court.
Article 53 of the Constitution provides for the right to be compensated by the State for the damage caused as a result of the unlawful actions (inaction) of State bodies and their officials.
Under Article 151 of the Civil Code, compensation for non-pecuniary damage is payable only if physical or moral prejudice has been inflicted on a person through actions violating his or her rights.
Section 23 § 2 (e) of the Law on Military Service as in force at the material time provided for exemption from military service for those whose father, mother, brother or sister had died in the course of performing military duties.