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You are here: BAILII >> Databases >> European Court of Human Rights >> PAPAMICHALOPOULOS AND OTHERS v. GREECE - 14556/89 [1993] ECHR 28 (24 June 1993) URL: http://www.bailii.org/eu/cases/ECHR/1993/28.html Cite as: (1993) 16 EHRR 440, 16 EHRR 440, [1993] ECHR 28 |
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In the case of Papamichalopoulos and Others v. Greece*,
The European Court of Human Rights, sitting, in
accordance with Article 43 (art. 43) of the Convention for the
Protection of Human Rights and Fundamental Freedoms ("the
Convention")** and the relevant provisions of the Rules of Court,
as a Chamber composed of the following judges:
Mr R. Bernhardt, President,
Mr F. Gölcüklü,
Mr A. Spielmann,
Mr N. Valticos,
Mr R. Pekkanen,
Mr J.M. Morenilla,
Mr F. Bigi,
Mr L. Wildhaber,
Mr J. Makarczyk,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 1 February and
28 May 1993,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 18/1992/363/437. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since
its creation and on the list of the corresponding originating
applications to the Commission.
** As amended by Article 11 of Protocol No. 8 (P8-11), which came
into force on 1 January 1990.
_______________
PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 25 May 1992,
within the three-month period laid down by Article 32 para. 1 and
Article 47 (art. 32-1, art. 47) of the Convention. It originated
in an application (no. 14556/89) against the Hellenic Republic
lodged with the Commission under Article 25 (art. 25) by fourteen
Greek nationals, Mr Ioannis Papamichalopoulos, Mr Pantelis
Papamichalopoulos, Mr Petros Karayannis, Mrs Angeliki Karayanni,
Mr Panayotis Zontanos, Mr Nikolaos Kyriakopoulos, Mr Konstantinos
Tsapalas, Mrs Ioanna Pantelidi, Mrs Marika Hadjinikoli, Mrs Irini
Kremmyda, Mrs Christina Kremmyda, Mr Athanas Kremmydas,
Mr Evangelos Zybeloudis and Mrs Konstantina Tsouri, on
7 November 1988.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby Greece
recognised the compulsory jurisdiction of the Court (Article 46)
(art. 46). The object of the request was to obtain a decision
as to whether or not the facts of the case disclosed a breach by
the respondent State of its obligations under Article 1 of
Protocol No. 1 (P1-1).
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicants stated
that they wished to take part in the proceedings and designated
the lawyers who would represent them (Rule 30).
3. The Chamber to be constituted included ex officio
Mr N. Valticos, the elected judge of Greek nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the
President of the Court (Rule 21 para. 3 (b)). On 29 May 1992 the
President drew by lot, in the presence of the Registrar, the
names of the other seven members, namely Mr R. Bernhardt,
Mr F. Gölcüklü, Mr A. Spielmann, Mr R. Pekkanen,
Mr J.M. Morenilla, Mr F. Bigi and Mr J. Makarczyk (Article 43 in
fine of the Convention and Rule 21 para. 4) (art. 43).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5) and, through the Registrar, consulted the Agent
of the Greek Government ("the Government"), the Delegate of the
Commission and the applicants' lawyers on the organisation of the
proceedings (Rules 37 para. 1 and 38). Pursuant to the order
made in consequence, the Registrar received the applicants'
memorial on 17 November 1992 and the Government's memorial on
20 November. On 14 December the Secretary to the Commission
informed him that the Delegate would submit his observations at
the hearing.
As Mr Ryssdal was unable to take part in the further
consideration of the case, his place as President of the Chamber
was taken by Mr Bernhardt, the Vice-President of the Court
(Rule 21 para. 5, second sub-paragraph); Mr L. Wildhaber,
substitute judge, replaced Mr Ryssdal as a member of the Chamber
(Rules 22 para. 1 and 24 para. 1).
5. In accordance with the decision of the President, who had
given the applicants' lawyers leave to address the Court in Greek
(Rule 27 para. 3), the hearing took place in public in the Human
Rights Building, Strasbourg, on 26 January 1993. The Chamber had
held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr P. Georgakopoulos, Senior Adviser,
Legal Council of State, Delegate of the Agent,
Mr V. Kondolaimos, Adviser,
Legal Council of State, Counsel;
(b) for the Commission
Mr L. Loucaides, Delegate;
(c) for the applicants
Mr G. Vitalis, dikigoros (lawyer),
Mr J. Stamoulis, dikigoros (lawyer),
Member of the European Parliament, Counsel.
The Court heard addresses by Mr Kondolaimos for the
Government, Mr Loucaides for the Commission and Mr Vitalis and
Mr Stamoulis for the applicants, as well as their replies to its
questions.
AS TO THE FACTS
I. The particular circumstances of the case
6. The applicants, who are all of Greek nationality, are the
owners or co-owners of land in the area of Agia Marina Loimikou,
near Marathon, Attica. On 16 March 1963 the Greek Office of
Tourism gave its consent for the construction of a hotel complex
on the site. At the applicants' request, an American firm of
architects drew up plans.
A. The actions for recovery of the land
7. By a Law of 20 August 1967 (anagastikos nomos no. 109 -
"Law no. 109/1967"), which was passed some months after the
dictatorship was established, the Greek State transferred an area
of 1,165,000 sq. m near Agia Marina beach to the Navy Fund (Tamio
Ethnikou Stolou).
Ten of the applicants, who owned part of this land
(approximately 165,000 sq. m), applied to State Counsel at the
Athens Court of First Instance (Isageleas Protodikon), requesting
him to take interim measures and "restore the original position".
On 30 July 1968 State Counsel made three orders granting
the applications, as the land in question was not public forest
but consisted of agricultural land cultivated by the owners. One
of the three orders, however, was revoked by State Counsel at the
Athens Court of Appeal on the ground of "lack of urgency",
following an application by the Navy Fund.
On 12 April 1969 the Minister of Agriculture informed
Navy headquarters that part of the land transferred was not
available for disposal and that it was necessary to take steps
to "restore the rightful position".
8. Far from restoring the land to its owners, however, the
Navy proceeded to construct a naval base and a holiday resort for
officers. A royal decree of 12 November 1969 (published in the
Official Gazette of 15 December 1969) designated the entire Agia
Marina Loimikou region as a "naval fortress".
9. After the fall of the dictatorship in 1974, Mr Petros
Papamichalopoulos, the father of the applicants Ioannis and
Pantelis Papamichalopoulos, commenced proceedings in the Athens
Court of First Instance to establish his title to three parcels
of land. In a judgment (no. 3031/1976) given on 28 February 1976
the court held that in 1964 the plaintiff had indeed acquired
title to 2,500 sq. m of land by a notarially recorded deed; that
the land in question was not public forest but consisted of
parcels which had been cultivated and occupied bona fide by
various individuals successively since 1890; and that the Navy
Fund was therefore obliged to return it.
10. The Athens Court of Appeal upheld this decision on
31 December 1976 (in judgment no. 8011/1976). It considered that
the State had not transferred ownership of the land in question
in 1967 since it had no title and the presumption of ownership
applied only to forests, not to agricultural land.
11. An appeal on points of law by the Navy Fund was dismissed
by the Court of Cassation (Arios Pagos) on 14 June 1978 (in
judgment no. 775/1978), on the ground that Mr Petros
Papamichalopoulos's ascendants had acquired title to their land
by prescription and in accordance with the Romano-Byzantine law
applicable at the time (1860).
12. On 17 July 1978 Mr Petros Papamichalopoulos sent a
bailiff to serve the above-mentioned judgments on the Navy Fund
with a view to their enforcement. On 28 September, accompanied
by a bailiff, he went to the entrance of the naval base and
sought enforcement of the court decisions, but the commanding
officer of the base refused to admit them on the grounds that he
had been ordered not to and that they required authorisation from
Navy headquarters, which was refused. An application to State
Counsel at the Court of Cassation was also unsuccessful.
13. In August 1977 Mr Karayannis and the other applicants
brought two actions in the Athens Court of First Instance to
establish their title to the land in issue. The State intervened
in the proceedings in support of the Navy Fund.
In two interlocutory decisions of 1979 (nos. 11903 and
11904/1979) the court ordered further inquiries into the facts.
It also held it necessary to commission several experts to
examine the title documents in the applicants' and the Navy
Fund's possession and file an opinion within five months on
whether the land belonged to the plaintiffs or was part of the
public forest transferred by Law no. 109/1967. However, the
proceedings remained pending.
B. The attempt to obtain land of equal value in exchange
14. On 22 July 1980 the Minister of Defence informed the
applicants that the construction of the naval base prevented
return of the land in question, but that proceedings were under
way with a view to a grant of other plots of land to replace
those occupied by the Navy Fund.
15. On 16 October 1980 the Minister of Agriculture requested
the Prefect of East Attica to transfer to the applicants land of
equal value situated in that region. He stated that even though
the court decisions delivered so far related to only some of the
private individuals who had been dispossessed in 1967, future or
pending actions brought by other owners would certainly have the
same outcome.
Notwithstanding a decree of 19 June 1981 regulating
building development within the "Ramnoudos" archaeological site
in the Loimiko valley (in which the disputed land was situated),
the Navy Fund carried on with the construction of a hotel complex
within the perimeter of the naval base.
16. By a joint decision of 9 September 1981 the Minister for
Economic Affairs and the Ministers of Agriculture and Defence set
up a committee of experts to choose certain of the pieces of land
offered in exchange by the Ministry of Agriculture and value
them; among these was a plot at Dionysos in Attica (see
paragraph 27 below). The committee expressed its findings in a
report of 14 January 1982.
17. In section 10 (see paragraph 29 below) of Law
no. 1341/1983, published in the Official Gazette of 30 March
1983, it was expressly acknowledged that private individuals who
were claiming title to land occupied by the Navy Fund were
entitled to apply for other land in exchange, using the procedure
laid down in Article 263 of the Rural Code (see paragraph 30
below); for this purpose it provided for a procedure for
verifying title to the land in accordance with Article 246 of
that code.
The explanatory memorandum on the Law contained the
following:
"[S]ection [10] provides for the possibility of
settling the case of the properties included in the area
... transferred to the Navy Fund under Law no. 109/1967.
This is an area of approximately 165,000 sq. m. It is
claimed by a number of private individuals. Some of
these have brought actions in the civil courts and
obtained from the Court of Cassation a final decision in
which they are acknowledged to be the owners. Having
regard to the fact that the other [pending] cases are
likely to have the same outcome and that paying
compensation would be a solution disadvantageous to the
authorities, an enactment must be passed enabling [the
remaining private individuals] to replace their
properties by others, which belong to the State and are
available, subject to prior verification of the owners'
title.
..."
18. Under this Law the applicants applied to the Athens
second Expropriation Board (Epitropi apallotrioseon), composed
of the President of the Athens Court of First Instance and
civil-service experts. In decision no. 17/1983 of
19 September 1983 the Board acknowledged their ownership of an
area of 104,018 sq. m. It stated the following:
"... it appears from the hearings, written submissions,
oral statements and documents in the case file that the
applicants ... occupied bona fide in continuous and
regular fashion from time immemorial until 1967 an area
of approximately [160,000 sq. m] situate at Agia Marina
Loimikou ...; that the aforesaid area had for a long time
been used for agriculture, as shown by several items of
evidence ..."
19. On 8 December 1983 the Navy Fund appealed to the Athens
Court of First Instance against this decision. The Greek State
joined it by intervening in the proceedings on 25 January 1984.
In a judgment of 31 May 1984 (no. 1890) the Court of
First Instance declared the appeal inadmissible; in the court's
opinion, only the State and the parties concerned had standing
to appeal against the decision in question, and not third parties
such as the Navy Fund.
20. On 29 December 1986 the Athens Court of Appeal upheld
this decision.
21. The Minister for Economic Affairs lodged an appeal on
points of law, which was declared inadmissible by the Court of
Cassation on 8 January 1988 (in judgment no. 5/1988) on the
following grounds:
"... Law no. 1341/1983 gave third parties ... who claim
ownership of the tract contained within the larger area
transferred to the Navy Fund the possibility of applying
for the claimed land to be exchanged for another plot of
equal value ... . Such exchanges will be effected in
accordance with the procedure laid down in paragraphs 3,
4 and 5 of Article 263 of the Rural Code, that is to say
by a decision of the Minister of Agriculture, after
administrative proceedings before a tripartite board and
in accordance with Article 263 of the Rural Code. ...
In order to ensure that these exchanges are effected
quickly and simply, the legislature has given interested
parties the possibility of using the simple, quick
procedure provided for in Article 246 of the Rural Code
in order to have their [title] acknowledged. In adopting
the aforementioned provision of section 10 of Law
no. 1341/1983, it did not intend to provide, in
accordance with Article 246 of the Rural Code, a solution
for the dispute which might arise if the Navy Fund
claimed against third parties the ownership of the area
transferred by Law no. 109/1967. For that purpose the
Navy Fund will have to use the procedure of ordinary law.
This is apparent not only from the wording and the
grammatical interpretation of the aforementioned
provision ... but also from the purpose that the
legislature sought to achieve ...
... In granting the right to have their title ...
acknowledged only to the `private individuals' (natural
and legal persons) that own [these] areas of land ...,
the legislature did not introduce any unjustified
discrimination against the Navy Fund and did not deprive
it of judicial protection, as it is still open to it,
under ordinary-law procedure, to secure recognition of
its title, which will not, however, enable it to receive
other areas of land as this was not the legislature's
intention ..."
On 24 June 1988 (in judgment no. 1149/1988) the Court of
Cassation dismissed, on the same grounds, an appeal on points of
law that had been brought by the Navy Fund.
22. On 25 July 1984 a further decree extended the
geographical boundaries of the "naval fortress".
Pursuant to section 10 of Law no. 1341/1983, the Prefect
of East Attica informed the Minister of Agriculture and the
applicants on 11 September 1985 that some of the parcels of land
offered in exchange were subject to special rules of ownership,
while others had already been developed, and others again were
protected by the legislation on forests.
In November 1987 the Minister of Agriculture suggested to
the applicants that they should accept land in the prefecture of
Pieria, 450 km from Agia Marina; it asked the Prefect of Pieria
to look for land for this purpose. In view of the authorities'
silence, three Members of Parliament in November 1988 put
questions in Parliament to the Ministers of Defence and
Agriculture asking what action had been taken in the matter. In
a letter of 25 October 1990 the Pieria Agricultural Department
admitted that it had been unable to find suitable land.
C. The actions for damages
23. On 2 December 1979 the applicants had brought two actions
in the Athens Court of First Instance against the Navy Fund and
the Greek State, represented by the Ministry of Finance, for
damages for the loss of use of their property. In two judgments
of 21 June 1985 the court adjourned the cases on the ground that
verification of the applicants' title to the land had not been
completed except in the case of Mr Petros Papamichalopoulos.
24. Earlier, the Navy Fund had asked the Association of Court
Experts to produce a valuation of the property in issue. The
designated expert obtained from the third applicant,
Mr Karayannis, the opinion of all the owners in question on the
documents which the Navy Fund had communicated to him. On
20 June 1986 Mr Karayannis asked the Navy Fund for information
about the nature of the documents made available to the expert.
On 10 March 1987 the Fund refused to provide any on the ground
that the matter was of the nature of an internal procedure and
this ruled out any intervention by third parties.
25. Several other actions for damages brought over a period
up to 1991 were adjourned by the Athens Court of First Instance
or else have not yet been heard.
D. Facts subsequent to the Commission's decision on the
admissibility of the application
26. On 29 October 1991 the Ministry of Economic Affairs wrote
to the State Lands Authority (Ktimatiki Etairia tou Demosiou)
asking them to find land which might be used for the proposed
exchange; it also drew their attention to the State's obligation
to pay the applicants exorbitant sums of money if the exchange
did not take place. In its answer the State Lands Authority
again stated that there was no land available.
27. By decision no. 131 of the Cabinet, published in the
Official Gazette of 17 October 1991, the administrative board of
the Defence Fund had transferred to the Ministry of Economic
Affairs ownership of 470,000 sq. m of land belonging to the
disused Dounis military camp at Dionysos, Attica, in the vicinity
of the land in issue (see paragraph 16 above). This land, which
was intended for sale, was included in the land register and
given the name "Semeli estate". On 31 May 1992 the State Lands
Authority placed advertisements in the press.
On 21 July 1992 the applicants' lawyer wrote to the State
Lands Authority, asking whether it would be possible to allocate
the new estate to his clients; on the following day he sent an
identical letter to all the relevant ministers, the President of
the Legal Council of State and the Director of the Navy Fund.
The applicants have not yet received any response, apart from a
copy of a letter from the Ministry of Economic Affairs department
responsible for public property to the State Lands Authority
asking the latter to take action under its powers and notify the
writer and the other public authorities dealing with the case.
II. Relevant domestic law
A. The Constitution
28. Under Article 17 of the Greek Constitution of 1952, which
applied at the time the Law in issue was passed,
"1. No one shall be deprived of his property unless it
is for the public benefit, which must be duly proved,
when and as specified by law and only after full
compensation. Compensation shall in all cases be
determined by the civil courts. In urgent cases it may
also be determined by the courts on a provisional basis
after the beneficiary has been heard or summoned, and the
court may, at its discretion, require the latter to
provide commensurate security, as provided by law. Until
payment of the final or provisional compensation
determined by the court, all rights of the owner shall be
maintained intact and occupation of the property shall
not be allowed.
...
4. Special status shall govern requisitioning to meet
the needs of the armed forces in the event of war or
mobilisation or to meet an immediate social need that is
likely to jeopardise public order or public health."
Article 17 of the 1975 Constitution currently in force
provides:
"1. Property shall be protected by the State; rights
deriving therefrom, however, may not be exercised
contrary to the public interest.
2. No one may be deprived of his property unless it
is for the public benefit, which must be duly proved,
when and as specified by law and only after full
compensation corresponding to the value of the
expropriated property at the time of the court hearing on
the provisional determination of compensation. In cases
in which an application is made for immediate final
determination of compensation, regard shall be had to the
value at the time of the court hearing of the
application.
3. Any change in the value of expropriated property
occurring after publication of the expropriation decision
and resulting exclusively from it shall not be taken into
account.
4. Compensation shall in all cases be determined by
the civil courts. It may also be determined by the
courts on a provisional basis after the beneficiary has
been heard or summoned, and the court may, at its
discretion, require the latter to provide commensurate
security before receiving the compensation, as provided
by law.
Until payment of the final or provisional
compensation determined by the court, all rights of the
owner shall be maintained intact and occupation of the
property shall not be allowed.
The compensation awarded must be paid within a
year and a half at the latest from the date of
publication of the decision provisionally determining the
compensation payable; in the case of applications for
immediate final determination of compensation, this must
be paid within a year and a half at the latest from the
date of publication of the court ruling, otherwise the
expropriation shall automatically be revoked.
The compensation as such shall be exempt from all
taxes, deductions and rates.
5. The cases in which a compulsory indemnity shall be
payable to the beneficiaries for loss of income from
expropriated property until the time of payment of the
compensation shall be laid down by law.
6. Where works of public benefit or of general
importance to the economy of the country are being
carried out, a law may allow the expropriation by the
State of areas greater than that of the land needed for
the execution of the works. The same law shall lay down
the conditions and terms of such expropriation, as well
as the arrangements for the disposal or use for public or
public-utility purposes in general of expropriated areas
not required for the execution of the proposed works.
..."
B. Law no. 1341/1983 of 30 March 1983
29. Under section 10 of Law no. 1341/1983,
"Land of which third parties have claimed ownership and
which forms part of the area at Agia Marina Loimikou in
Attica which was transferred to the Navy Fund under Law
no. 109/1967 ... may, on application by the persons
concerned, be exchanged for land of equal value,
dedicated for public use (koinokhristes) or available
under the legislation on land use, in accordance with the
procedure provided for in paragraphs 3, 4 and 5 of
Article 263 of the Rural Code.
In order to have their ownership of the said land
acknowledged, the persons concerned may follow the
procedure laid down in Article 246 of the Rural Code ..."
C. The Rural Code
30. The relevant paragraphs of Articles 246 and 263 of the
Rural Code provide:
Article 246 (amended by section 27 of Law no. 3194/1955)
"Acknowledgment of title
1. Where an application is made to it by the parties
concerned, the appropriate Expropriation Board shall
determine title to the expropriated land in accordance
with Law no. 4857 and Article 242 of the present code.
Within not more than three months from the
notification of the decision, the State and the parties
concerned may challenge the decision in the Court of
First Instance that has jurisdiction, which shall make a
final ruling in accordance with the procedure laid down
in the following Articles.
2. Against judgments given by the courts of first
instance under Article 246 of the Rural Code before the
present Law comes into force an appeal shall lie within
not more than one year from the date of commencement of
this Law to the Court of Appeal that has jurisdiction ...
..."
Article 263
"...
4. Persons acknowledged as owners of expropriated
land shall be invited by the Minister of Agriculture ...
to lodge a notarially recorded certificate in which they
declare that they accept the exchange of land effected
under the preceding paragraph and waive any claim for
compensation.
5. The aforementioned allocation of land belonging to
the State, to a municipality or to a cooperative shall
take effect by decision of the Minister of Agriculture in
lieu of a title deed, which shall be entered in the land
register.
..."
PROCEEDINGS BEFORE THE COMMISSION
31. The applicants applied to the Commission on
7 November 1988. They relied on Article 1 of Protocol No. 1
(P1-1), alleging that their land had been unlawfully occupied by
the Navy Fund since 1967 and that to date they had not been able
either to enjoy their possessions or to obtain compensation.
32. The Commission declared the application (no. 14556/89)
admissible on 5 March 1991. In its report of 9 April 1992 (made
under Article 31) (art. 31) it expressed the unanimous opinion
that there had been a violation of Article 1 of Protocol No. 1
(P1-1). The full text of the Commission's opinion and of the two
concurring opinions contained in the report is reproduced as an
annex to this judgment*.
_______________
* Note by the Registrar: for practical reasons this annex will
appear only with the printed version of the judgment
(volume 260-B of Series A of the Publications of the Court), but
a copy of the Commission's report is available from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT
33. The applicants asked the Court to rule
"that the Greek State be ordered to recognise [their]
title as owners or co-owners of the area mentioned ...
and the shares of each of [them] expressed in square
metres; that it be ordered to return this land to each of
[them], as set out in decision no. 17/1983 of the Athens
Expropriation Board;
alternatively, that the Greek State be ordered to pay
[them] the sum of 11,639,547,000 drachmas by way of
compensation to be distributed to each of [them] as owner
or co-owner according to his share.
This sum shall be paid together with interest at the
statutory rate provided by Greek law, from the date of
publication of [the Court's] decision up to the date of
payment."
34. The Government asked the Court for "the appeal of Ioannis
Papamichalopoulos and thirteen others against the Hellenic
Republic [to] be totally rejected".
AS TO THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS
35. The Government alleged that the applicants, other than
the heirs of Mr Petros Papamichalopoulos, could not claim to be
"victims" within the meaning of Article 25 para. 1 (art. 25-1);
nor had they exhausted domestic remedies as required by
Article 26 (art. 26). In respect of both points, they relied on
the fact that the applicants' actions to establish title remained
pending in the Athens Court of First Instance (see paragraph 13
above).
36. In respect of these two preliminary objections there is
an estoppel. The Government never raised the first objection
before the Commission, and they made the second only in respect
of the compensation proceedings (see paragraphs 23-25 above); the
Delegate of the Commission rightly noted this.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 (P1-1)
37. In the applicants' submission, the unlawful occupation of
their land by the Navy Fund since 1967 contravened Article 1 of
Protocol No. 1 (P1-1), which provides:
"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."
The Government rejected this submission but the
Commission accepted it.
38. The Government disputed that the applicants - other than
the heirs of Mr Petros Papamichalopoulos - had the status of
owners, since this had not been acknowledged in any judicial
decision and the proceedings brought by the applicants in 1977
had still not ended (see paragraph 13 above). The Government
held the applicants responsible for the delay, attributing it to
their refusal to facilitate the preparation of the expert opinion
commissioned in 1979 (see paragraph 13 above).
39. The Court does not share this view.
As early as 1968 State Counsel at the Athens Court of
First Instance allowed the applications made by some of the
applicants for interim measures (see paragraph 7 above).
Furthermore, the Minister of Agriculture, in his letter of
12 April 1969, asked Navy headquarters to take steps to "restore
the rightful position". Lastly, the authorities' conduct during
1980 (see paragraphs 14-15 above) and especially the passing of
Law no. 1341/1983 (see paragraph 17 above), together with the
decision of the Athens second Expropriation Board (see paragraph
18 above), tell in favour of the applicants' submission.
For the purposes of the present dispute, the applicants
must therefore be regarded as the owners of the land in issue.
40. The breach claimed by the applicants began in 1967 with
the passing of Law no. 109/1967 (see paragraph 7 above). At that
time Greece had already ratified the Convention and Protocol
No. 1 (P1), on 28 March 1953; they had already come into force
in respect of Greece, on 3 September 1953 and 18 May 1954
respectively. Greece denounced them on 12 December 1969 with
effect from 13 June 1970 (under Article 65 para. 1 of the
Convention) (art. 65-1) but was not thereby released from its
obligations under them "in respect of any act which, being
capable of constituting a violation of such obligations, [might]
have been performed by it" earlier (see Article 65 para. 2)
(art. 65-2); it ratified them again on 28 November 1974 after the
collapse of the military dictatorship established by the coup
d'état of April 1967.
Admittedly, Greece did not recognise the Commission's
competence to receive "individual" petitions (under Article 25)
(art. 25) until 20 November 1985 and then only in relation to
acts, decisions, facts or events subsequent to that date
(Yearbook of the European Convention, volume 28, p. 10), but the
Government did not in this instance raise any preliminary
objection in this regard and the question does not call for
consideration by the Court of its own motion. The Court notes
merely that the applicants' complaints relate to a continuing
situation, which still obtains at the present time.
41. The occupation of the land in issue by the Navy Fund
represented a clear interference with the applicants' exercise
of their right to the peaceful enjoyment of their possessions.
The interference was not for the purpose of controlling the use
of property within the meaning of the second paragraph of
Article 1 of Protocol No. 1 (P1-1). Moreover, the applicants
were never formally expropriated: Law no. 109/1967 did not
transfer ownership of the land in question to the Navy Fund.
42. Since the Convention is intended to safeguard rights that
are "practical and effective", it has to be ascertained whether
the situation complained of amounted nevertheless to a de facto
expropriation, as was argued by the applicants (see, among other
authorities, the Sporrong and Lönnroth v. Sweden judgment of
23 September 1982, Series A no. 52, p. 24, para. 63).
43. It must be remembered that in 1967, under a Law enacted
by the military government of the time, the Navy Fund took
possession of a large area of land which included the applicants'
land; it established a naval base there and a holiday resort for
officers and their families.
From that date the applicants were unable either to make
use of their property or to sell, bequeath, mortgage or make a
gift of it; Mr Petros Papamichalopoulos, the only one who
obtained a final court decision ordering the Navy to return his
property to him, was even refused access to it (see
paragraphs 11-12 above).
44. The Court notes, however, that as early as 1969 the
authorities had drawn the Navy's attention to the fact that part
of the land was not available for disposal (see paragraph 7
above). After democracy had been restored, they sought means of
making good the damage caused to the applicants. Thus in 1980
they recommended, if not returning the land, at least exchanging
it for other land of equal value (see paragraphs 15-16 above).
This initiative led to the enacting of Law no. 1341/1983, which
was designed to settle as quickly as possible - in the very terms
of the Court of Cassation's judgment of 8 January 1988 - the
problem created in 1967 (see paragraph 21 above). The Athens
second Expropriation Board having recognised them all in 1983 as
having title (see paragraphs 18-21 above), the applicants
thereafter awaited allocation of the promised land. However,
neither the land in Attica nor the land in Pieria was able to be
used for the proposed scheme (see paragraph 22 above); in 1992
the applicants attempted to secure part of the "Semeli estate"
but again without success (see paragraph 27 above).
45. The Court considers that the loss of all ability to
dispose of the land in issue, taken together with the failure of
the attempts made so far to remedy the situation complained of,
entailed sufficiently serious consequences for the applicants de
facto to have been expropriated in a manner incompatible with
their right to the peaceful enjoyment of their possessions.
46. In conclusion, there has been and there continues to be
a breach of Article 1 of Protocol No. 1 (P1-1).
III. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION
47. Under Article 50 (art. 50),
"If the Court finds that a decision or a measure taken by
a legal authority or any other authority of a High
Contracting Party is completely or partially in conflict
with the obligations arising from the ... Convention, and
if the internal law of the said Party allows only partial
reparation to be made for the consequences of this
decision or measure, the decision of the Court shall, if
necessary, afford just satisfaction to the injured
party."
48. As their main claim, the applicants sought the return of
the disputed land and compensation of 17,459,080,000 drachmas
(GRD) for loss of enjoyment; in the event of the land's not being
returned, they also sought a sum corresponding to the present
value of their properties, which they estimated at
GRD 11,639,547,000. They further appeared to claim
GRD 6,000,000,000 on account of the enormous non-pecuniary damage
that the State's arbitrary conduct had caused them over a period
of twenty-five years. Lastly, they claimed a total of more than
GRD 2,000,000,000 in respect of costs and expenses in the
national courts and before the Convention institutions.
The Government challenged the applicants' method of
calculation, finding it arbitrary and wholly illogical. They
pointed out that if the applicants won their case in the European
Court, the resources of Greek law would afford them a series of
effective remedies that would enable them to secure compensation
for the loss of their properties or of the use of them. As to
their claims for non-pecuniary damage, the Government considered
them quite without foundation as the applicants had themselves
dropped the proceedings they had brought in the Greek courts.
Lastly, the Government described the costs and expenses of which
the applicants were seeking reimbursement as hypothetical.
The Delegate of the Commission considered that the
information provided by the Government and the applicants did not
provide a reliable basis for making an exact assessment of the
damage sustained by the applicants; he thought none of the
methods of calculation used for the purpose was satisfactory.
He accordingly requested the Court to reserve the question and
commission an expert opinion; if, however, it wished to rule in
a single judgment on the existence of a breach and on just
satisfaction, he would suggest awarding a sum of GRD 620,775,840
plus costs and expenses.
49. In the circumstances of the case, the Court considers
that the question of the application of Article 50 (art. 50) is
not ready for decision and that it must be reserved, having
regard to the possibility of an agreement between the respondent
State and the applicants (Rule 54 paras.1 and 4 of the Rules of
Court).
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the Government estopped from pleading the
applicants' lack of victim status and on failure to
exhaust domestic remedies;
2. Holds that there has been and there continues to be a
breach of Article 1 of Protocol No. 1 (P1-1);
3. Holds that the question of the application of Article 50
(art. 50) of the Convention is not ready for decision;
accordingly
(a) reserves it in whole;
(b) invites the Government and the applicants to submit,
within the forthcoming two months, the names and
positions of experts chosen by agreement for the purpose
of valuing the disputed land and to inform it, within
eight months from the expiry of that period, of any
friendly settlement that they may reach before the
valuation;
(c) reserves the further procedure and delegates to the
President of the Chamber power to fix the same if need
be.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on
24 June 1993.
Signed: Rudolf BERNHARDT
President
Signed: Marc-André EISSEN
Registrar