Resolution CM/ResDH(2011)217

Execution of the judgments of the European Court of Human Rights
Azas, Athanasiou and others, Biozokat A.E., Efstathiou and Michailidis and Cie Motel Amerika, Interoliva A.B.E.E., Konstantopoulos A.E. and others, Organochimika Lipasmata Makedonias A.E., Ouzounoglou and Zacharakis 
against Greece

(See details in Appendix)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violations of the Convention found by the Court in these cases concern the applicants’ right to the peaceful enjoyment of their possessions in the context of land expropriation proceedings (violations of article 1 of Protocol No. 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, the respondent state paid the applicants the just satisfaction provided in the judgments (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of
- individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

- general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination of these cases.

Appendix to Resolution CM/ResDH(2011)217

Information on the measures taken to comply with the judgments in the cases of Azas, Athanasiou and others, Biozokat A.E., Efstathiou and Michailidis and Cie Motel Amerika, Interoliva A.B.E.E., Konstantopoulos A.E. and others, Organochimika Lipasmata Makedonias A.E., Ouzounoglou and Zacharakis against Greece

Introductory case summary

The cases concern various violations of the applicants’ right to the peaceful enjoyment of their possessions in the context of land expropriation proceedings.

In particular, the European Court identified the following shortcomings:

a) lack of a procedure which could include an overall assessment of the consequences of an expropriation (cases of Azas, Biozokat A.E., Efstathiou and Michaïlidis and Cie Motel Amerika, Interoliva A.B.E.E., Konstantopoulos A.E. and others, Organochimika Lipasmata Makedonias A.E.);

b) although, in conformity with previous case-law of the Court (cases Tsomtsos and Katikaridis), the presumption that the benefit deriving from road improvements amounted to sufficient compensation for the expropriation of adjacent property was no longer irrebuttable; there had been no significant improvement in the system for compensating landowners in such cases, due to multiplication of proceedings in order to obtain full compensation (cases of Azas, Biozokat A.E., Efstathiou and Michaïlidis and Cie Motel Amerika, Interoliva A.B.E.E., Konstantopoulos A.E. and others, Organochimika Lipasmata Makedonias A.E.);

c) no special compensation was awarded in respect of the depreciation in value of the unexpropriated portion of the property resulting from the works carried out (cases of Athanasiou and others and Ouzounoglou);

d) failure to reassess the compensation award to take into account the depreciation caused by the lengthy gap between the provisional assessment and the final assessment (Zacharakis case);

e) limitations regarding the amount to be reimbursed for legal costs (Azas case) (violations of Article 1 of Protocol No. 1).

I.	Payments of just satisfaction and individual measures

a. 	Details of just satisfaction

Name and application number	Judgment of	Final on	Pecuniary damage	Non-pecuniary damage	Costs and expenses	Total	
Azas (50824/99)	19/09/2002	21/05/2003	-	20 000 EUR	20 000 EUR	40 000EUR
	
Paid on 11/08/2003	
Athanasiou and others (2531/02)	09/02/2006	09/05/2006	181 300 EUR		2 289 EUR	183 589 EUR
	
Paid on 16/05/2006	
Biozokat A.E. (61582/00)	09/10/2003	09/01/2004	-	-	-		
Efstathiou and Michailidis and Cie Motel Amerika (55794/00)	10/07/2003	10/10/2003	20 000 EUR			20 000 EUR
	
Paid on 30/01/2004	
Interoliva A.B.E.E.
(58642/00)	10/07/2003	10/10/2003	-	-	-		
Konstantopoulos A.E. and others (58634/00)	10/07/2003	10/10/2003	-	-	-		
Organochimika Lipasmata Makedonias A.E. (73836/01)	18/01/2005	18/04/2005	10 000 EUR 		587 EUR	10 587 EUR
	
Paid on 06/07/2005	
Ouzounoglou (32730/03)	24/11/2005	24/02/2006					
Zacharakis (17305/02)	13/07/2006	11/12/2006	40 000 EUR 		3 000 EUR	43 000 EUR
	
Paid on 23/03/2007	

The just satisfaction was paid in conditions apparently accepted by the applicants.

b) Individual measures

The European Court awarded just satisfaction to the applicants who claimed it. In the cases Biozokat, Interoliva A.B.E.E., Konstantopoulos A.E. and others and Ouzounoglou, the European Court considered that it was not necessary to award just satisfaction in respect of pecuniary damages, as the applicants did not submit, or did not duly submit a relevant claim

The proceedings initiated by some of the applicants in the Azas case against the Thessaloniki Court of Appeal’s judgment 362/2004, awarding the applicants the sum of 457 435 euros with interest, were closed by the Court of Cassation’s judgment 54/2006 rejecting the appeal as inadmissible. In the case of Athanasiou and others, the European Court awarded the applicants just satisfaction covering their pecuniary damage. In addition, three of the applicants have been awarded compensation by domestic courts for the fact that they can no longer build on the unexpropriated part of the land following its division.
Consequently, no other individual measure was considered necessary by the Committee of Ministers.

II.	General measures

Extensive legislative changes have been adopted. The case-law of the Court of Cassation is now in line with the Court’s requirements. In particular:

1) Reform of the law on expropriation: A new Code of Expropriation was adopted (Law 2882/2001, amended by Law 2985/2002 and by Article 33 of Law No. 2971/2001) following the present judgments, providing strict deadlines in proceedings and the possibility of additional compensation in cases of delay. The new Code also provides that the presumption that the benefit deriving from road improvements amounted to sufficient compensation for the expropriation of adjacent property was no longer irrebuttable. Moreover, legal costs incurred in expropriation proceedings now fall under the state’s responsibility and are no longer deemed to be part of compensation for expropriation.

2) Development in domestic case-law on expropriation: The Court of Cassation, in several judgments from 2004 to date, has aligned itself with the European Court’s findings (since a decision of the Court of Cassation No. 10/2004 that now constitutes standard case-law, cf decisions Nos.781/2010, 591/2009):
(i) regarding the European Court’s requirement of an overall assessment of the consequences of an expropriation, one court is now competent to rule, in the same proceedings, on the following matters:
-	the overall amount of compensation to be awarded for the value of the expropriated land, (cf. Court of Cassation, Plenary Session No 10/2004, as well as decisions Nos1060/2008, 627/2007, 641/2004);
-	the award of compensation for the depreciation of unexpropriated land (cf. Court of Cassation, plenary session No 31/2005, as well as Nos 431/2008, 1054/2008, 2/2007, Athens Court of Appeal Nos 2472/2005, 1333/2005);
-	the recognition of the status of the owner;
-	the question as to whether or not the landowner of property adjacent to a new road benefits from its construction;
-	the amount to be awarded for legal costs and expenses. These may be estimated at up to 4% of the compensation awarded for the expropriation and are no longer restricted to a fixed amount.

 (ii) The prior jurisprudence of the Court of Cassation, according to which landowners were not awarded special compensation for the depreciation of the value of unexpropriated property resulting from the works, has been totally abandoned. Courts now award full compensation for this aspect, even if the unexpropriated part is very small (cf. Court of Cassation decision No. 31/2005 and subsequently standard case-law, cf. e.g. Court of Cassation decisions Nos 389/2009, 985/2009, 1425/2009, 1681/2009).
(iii) Amended Article 13§1 of Law 2971/2001 provides that "if the court hearing for the final award of compensation takes place more than a year after the hearing on the provisional award, account is taken when awarding compensation of the value of the expropriated land at the time when the hearing for the final award takes place". This provision is endorsed by constant jurisprudence, as well as the Court’s findings (Court of Cassation Nos 721/2009, 997/2009).

3) Publication and dissemination: The European Court’s judgments, translated into Greek, have been sent by the Ministry of justice to the competent judicial authorities and are available on the internet site of the Legal Council of the State (www.nsk.gr).

4) Recent relevant case-law of the European Court: In its recent decision Zizitis against Greece (No. 52283/08, of 04/10/2011), the Court rejected the application, which was introduced by a number of applicants who were the same as the applicants in the Azas case, as inadmissible in accordance with Article 35 par. 2b of the Convention (application substantially the same as a matter that has already been examined by the Court and contains no relevant new information). In particular, the Court noted that in the Azas case it had found a violation of Article 1 of Protocol No. 1 on the following grounds: (1) the presumption that the profit for the owners of expropriated properties adjacent to a road constructed amounted to sufficient compensation for the expropriation, (2) the multiplication of procedures necessary to receive compensation that corresponds to a fair property value and (3) limitations imposed on reimbursement of judicial costs. The Court subsequently considered that the Court of Cassation, by its judgment No. 10-11/2004, rendered in a different case than that of the applicants, complied with these three aspects identified in the Azas case.

III.	Conclusions of the respondent state

The government considers that no individual measures are required apart from the payment of the just satisfaction, that the general measures adopted will prevent similar violations to those found in this specific group of cases and that, in this respect, Greece has complied with its obligations under Article 46, paragraph 1, of the Convention.