The Role of the Lithuanian Judge in the European Court of Human Rights

The Non-Return of Real Estate in Lithuania and the Role of the Lithuanian Judge in the European Court of Human Rights

A.

1. As far as the return of real estate to the original land owners in Lithuania is concerned, it is important to stress that the situation differs completely from the way in which this problem is being dealt with in the other „Reform States” of Eastern Europe. In Latvia, for example, all the land was quite simply returned to the original owners respectively to their heirs. Even in those cases, where buildings had been erected – on the plots owned by the original owners – during the period of the Russian occupation, the bare land was returned anyway, which procedure left the occupants of such buildings with only one option ” to purchase the land from the land-owners for the real market price.

2. Quite contrary, a so-called „lex specialis” was passed in Lithuania, which, although theoretically aimed at a return of landed property in natura, was in striking contrast to both the Lithuanian Constitution and the statutes of the Lithuanian Civil Code as well as contradicting the preamble of the above law.

This preamble in the „Law for the restoration of property rights to the remaining landed property” (so-called „Lex specialis”) reads as follows:

” …when restoring the independence of the Republic of Lithuania all the laws, by means of which the occupational power had confiscated the landed property of the citizens of the Republic of Lithuania, having been forced upon by a foreign state, became invalid „…the property rights having been acquired by citizens prior to the occupation have not been abolished and continue to exist …remaining landed property will be returned to the citizens of the Republic of Lithuania …”

(Lithuanian original text: ” … atkūrus Lietuvos Respublikos nepriklausomybę, nustojo veikę svetimos valstybės primesti įstatymai, kuriais okupacinė valdžia iš Lietuvos Respublikos piliečių neteisėtai atėmė jų turėta turtą … piliečių prieš okupacijos įgytos nuosavybės teisės nepanaikintos ir turi testinumą … Lietuvos Respublikos piliečiams grąžinamas išlikęs nekilnojamasis turtas …”)

3. Interestingly enough the further text of this „lex specialis” goes on speaking solely of the „restoration” (from case to case also of the „non-restoration”) of „rights of ownership” and by no means of landed property as such. It is quite obvious that this is impossible in the legal sense. Ownership rights, which have not been abolished and continue to exist, cannot be „restored”.

By this would-be legal trick the ruling members of the post-communist Nomenklatura have created a „as they wish to see it ” „lawful” position to acquire practically all plots of land of higher value in the bigger cities of Vilnius, Kaunas and Klaipeda, by having their dependent administrative authorities for the „re-organization of land holdings” decide not to „restore” the property rights of the original owners to such plots of land in natura.

These plots of lands (about 95% of all plots in the three bigger cities) were allegedly „acquired according to the laws valid during the occupation”according to stereotyped formulas being used by the above-mentioned administrative and/or municipal authorities [(however declared to be null and void from the beginning by the Supreme Council of Lithuania in 1990 and by the Seimas (Parliament)].

Quite evidently, the purchasers of the mentioned landed property were by no means freedom fighters, members of the opposition, people returning from Siberian concentration camps, for these had either been killed or were starving a miserable life, humble peasants sweating away in the gigantic sowkhozes, did, of cause, not have such opportunities either. As a matter of fact, the only people having corresponding sums of money to buy or politically-aided opportunities to „obtain” landed property having been confiscated by the occupational regime from the above regime critic, freedom-fighters etc., were members of the „Nomenklatura”, spies of the Soviet security services, members of the NKWD, MWD, KGB, High Russian officers of the Red Army or the political administration, activists of the Terrorist „destroyer” groups of the MWD („Istrebiteli”), also collaborators-speculators in a wider sense. This makes it perfectly clear, which group of the population the old-new „Nomenklatura” has had in mind by its indeed very-very „special law” meant to protect the would-be owners of the landed property „acquired” by taking an active part either in hunting down and killing freedom fighters, by torturing to death people belonging to the opposition, by carrying off innocent human beings to Siberian concentration camps or by simply collaborating with the occupational regime in prominent positions, from simply returning this stolen landed property to the original owners.

4. There is, however, one exception, the houses for several families, which had also been expropriated in 1940 for the benefit of the municipalities. This special kind of real estate could normally not be acquired by communist criminals and collaborators, as only simple tenants were living in these flats. It was, however, not until now (from 2006 until 2009) that the government is either procuring completely new housing facilities for the tenants of such houses or paying them a compensation according to the market value of the apartments, formerly occupied by them, provided they leave their apartments before a specified date. After the tenants of these multiple dwellings have moved, these building are returned to the original owners, of cause, in a comparatively ramshackle condition or as near-ruins, i.e. practically having hardly any value. It is for the original-new owners to either renovate their property from scratch or tear down the buildings and erect new ones from their own funds, as no rent has been paid to them by their „compulsory tenants”, a kind of „indemnification for use” awarded to the owner by the municipalities, comprising approximately 10% of the market rent.

5. When „restoring” the property rights of the original owners or rather their heirs, one should have expected the financial compensation will be calculated according to the real market price of the real estate not returned in natura. Far from it. According to the „Methodology approved by the government” they are being „compensated” financially either by a small plot of land in far-away districts that corresponds to roughly 0,01% up to ca. 0.25% of the market value, or else they are awarded shares of ailing state-owned enterprises of even less value. Although some of these enterprises pay a dividend of about 2% p.a., this does not even make up for the current (2007/2008) inflation rate of 12%. Moreover, such „shares” are of the non-marketable type. It should be mentioned that, in earlier years, the original owners had the opportunity to obtain land by way of compensation. One must, however, point out, that this land ” although the Lithuanian laws as well as the Lithuanian Constitution stipulated that original owners must be given land of the same value in the same location or else be paid a compensation according to the real value of the land not returned in natura, such „compensation land” did normally have only a fraction of the market value of the land not returned to the original owners. There are numerous cases that such land, given as a „compensation”, was situated in sandy and/or swampy districts, directly on former refuse dumps, in the neighbourhood of highways with strong road traffic, near factories polluting the environment etc. It is quite obvious that the communist officials of the boards for redistribution of land-holdings were taking the original owners for a ride, resting assured that their government’s „trump card” in the European Court of Human Rights would, as always, be warding off the complaints of the original land-owners, making use of well-known government „arguments”.

6. Although both Lithuanian Constitution and the corresponding paragraphs of the Lithuanian Civil Code, even the said „Special Law” for the return of preserved landed property stipulate a compensation according to the market value, the above-mentioned administrative officials are stubbornly sticking to their method of applying the „Methododology approved by the government”. It is little use turning to the Lithuanian courts, as the judges are also leading the original owners up the garden path by repeating the selfsame formula in „prayer-wheel-style”. Which shows that the judges are neither independent nor are they deciding according to the Lithuanian Constitution and the Civil Code, to say nothing of Human rights. The government are thus „de facto” dispossessing the original owners for a second time, and if not according to the Constitution, then by hook or by crook.

Whereas the original owners ” in the case of financial compensation ” are „awarded” shares of state-owned enterprises of practically no value (their nominal value being about 0,5% of the market price of the real estate not returned to its original owner), the people having „acquired” the owner’s real estate under the soviet-Russian occupational regime and under the above-mentioned circumstances, are free to sell the owner’s plot for its real market price. Say, an original owner is paid 10000 Euros by the post-communist government in compensation, at the same time the person or people using his landed property, can sell the plot of land for 2 Million Euros …

B.

1. Turning to the courts, is completely futile and useless in these cases, unless an original owner has money to burn. Like a lighthouse in tempest-tossed waves the European Court of Human Rights in Strasbourg/France (further „ECHR”) seems to emerge from the dense fog of corruption and governmental crimes. For the maltreated original owners, having been robbed of their property, this institution seems to be a safeguard of justice on a European level. They are, sad to say, cherishing an illusion. When complaining about the violation of their basic Human rights in Strasbourg, they are not aware that, in the second chamber of this court, the Human right to a fair and just court is being disregarded by the legal secretaries, acting as judges, this being an international judiciary scandal.

2. Interestingly enough, ever since 2005, all complaints of original owners, not having been given back their landed property in natura, were not admitted by the ECHR for being „manifestly ill-founded”. This seems strange and inexplicable in the light of the above outlined legal situation. When making use of documents and correspondence of case-files in the ECHR the following astonishing facts could be unearthed, revealing a procedure, at the same time being kept a secret and disregarding basic Human rights and Fundamental rights of the European Union.

3. The man in the street is convinced that the applications submitted to the ECHR by original owners (whose ownership rights, as outlined above in the preamble to the „Special law”, were not abolished and continue to exist), are being examined, dealt with and investigated by the seven judges of the second chamber, just as in all courts of the civilized Western world, even in the European Court in Luxemburg. Alarmingly enough, this is by far not the case. The following procedure casts severe doubts on the respect for Human rights. There are only two persons, who are „de facto” authorized to decide or rather pre-decide applications, and these are the Lithuanian legal secretary, acting as assistant judge, and the former representative of the Lithuanian government in the ECHR, Mrs. Danutė Jočienė, who, as from November 2004, had been nominated judge of the ECHR1 by the parliamentary assembly of the Council of Europe, a nomination however, certainly strongly influenced by the Lithuanian government backing this nomination. The hitherto representative of the Lithuanian government ” now all of sudden being transsubstantiated to the „unbiased” Lithuanian judge in the second chamber of the ECHR, at the age of thirty-three. A person, for some years before having advocated the government’s position, robbing the original owners of their rightful and legal possessions by a judiciary trick. It should be added that Mrs. Jočienė has never before been a judge, to say nothing of having competence for being a judge in supreme courts (as is being stipulated by Article 39 of the Convention of Human Rights).

( 1 (in this connection cf. the interview, given by the former Lithuanian judge at the ECHR, Mr. Pranas Kūris (the last Lithuanian soviet commissary of justice, currently a judge of the European Court in Luxemburg) to the Lithuanian news agency ELTA; Source: Magazine XXI amZius 11.8.2004., Nr. 15 (84) „Unlike the procedure at the Supreme European Court in Luxemburg, where each single action is being carefully examined by all judges and, after that, discussed in a public hearing, the judges at the ECHR do not even have a staff of their own and there is only one secretary for all judges of one section. Normally, there is no public hearing at all, except for about 2% of the cases, mostly applications pending before a Grand Chamber (coÄnsisting of all court judges). On the arrival of an application versus Lithuania, it is being handed over to the Lithuanian legal secretary, who gets in personal contact with the judge-reporter to discuss, how to handle this application.”)

C.

An application to the ECHR versus Lithuania by an original owner will be dealt with according to the following secret procedure:

1. The Lithuanian legal secretary (performing his duties in accordance with „Instructions of the Registry for the work of the legal secretaries”, being kept strictly secret, as it allows him/her to disregard the stipulations of the Rules of Court, just as he/she thinks is necessary) is closely cooperating with his/her superior, the Lithuanian judge and former Lithuanian government representative, nominated to be the judge-reporter, of all persons. This former government representative, having all the while ever since her university years in Vilnius, advocated the opinion of her supervisor, Vilenas Vadapalas (first communist professor of law, then general director of the Institute of European Law at the Lithuanian government, currently judge at the European Court in Luxemburg), that the first protocol of the Convention is not applicable for the process of restoring „rights of ownership” (rather than landed property as such) in Lithuania, striving hard to ward off the complaints of original owners versus Lithuania (up to November, 2004), draws up a paper suggesting not to admit this complaint ” this paper being based on the „legal findings” and „Statement of Facts” and „Recommendations” drawn up by the Lithuanian legal secretary (normally a young and unexperienced lawyer, doing his/her best to satisfy the expecations of the communist Lithuanian government in order to be recommended for a higher post within the legal framework of the Council of Europe in the future). In case they suspect that an original owner might have backing from third persons or the press, they will „in close co-operation²- prepare this so-called „Statement of facts”, which, together with a covering letter and the original application, will then be sent to the Lithuanian government for submitting their „Observations” (i.e. comments).

( 2). D. Jočienė in an Interview with Milda Å eškuvienė, Magazine „Laikas”, 3.9.2005: „Currently D. Jočienė as one of the first to do this, looks through all the cases having arrived in Strasbourg from Lithuania, and investigates, whether Human rights of the plaintiffs were violated „¦”)

Although the original owner is entitled to correct a wrong „Statement of Facts” according to the „Practice Directions” of the „Rules of Court”, in practice both the Lithuanian legal secretary and his superior, the Lithuanian judge-reporter, can simply and just as they wish, withhold such corrections as well as any other decisive document from the judges of the second chamber, as their work is not to be controlled by anyone, to say nothing of a supervisory instance. They other judges will not even learn that such decisive documents are arbitrarily being withheld from them, as they do not even know that such documents exist.

2. At the appropriate time Mrs. Jočienė and her assistant, the Lithuanian legal secretary, formerly Mr. Dovydas Vitkauskas, after he got sacked in May 2007, Miss Agnė Glodenytė, will have prepared a suggestion for the decision of the other

judges, which, together with the above-mentioned „Statement of Facts”, manipulated according to the requirements of the Lithuanian government, if needs be, and a formal decision text, also prepared in advance, is forwarded to everyone of the chamber judges for signing the decision. As the judges, one at a time in his/her private office, are being faced with a huge quantity of such „prepared” decisions at the same time, besides, being urged by their secretary to sign at once, every decision being very „urgent”, are not interested in studying several dozens of case-files, which would take months, they simply sign paper after paper, being drafted by the former Lithuanian government representative, of all persons, and this is what calls itself „The ECHR has decided” …

It is quite obvious that such a procedure is absolutely not in accordance with the Human rights and the requirements of Article 6 of the Convention of Human Rights („Right to a fair hearing before a just and unbiased court”), to say nothing of the International Covenant on Civil and Political Rights, having been ratified by Lithuania in 1992.

The Lithuanian government, on the other hand, as well as the Lithuanian judges, can be completely at ease, as concerns pending decisions of the ECHR regarding complaints by original owners of landed property, knowing they have a „trump card” (the Lithuanian judge-reporter) and a secret „Joker” (the Lithuanian legal secretary acting as a judge) up their sleeve in Strasbourg …

Christian Nekvedavicius

2009-02-09