BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST
SECTION
CASE OF TSALAPATAS AND OTHERS v. GREECE
(Application
no. 6667/09)
JUDGMENT
STRASBOURG
18
October 2011
This
judgment is final but it may be subject to editorial revision.
In the case of Tsalapatas and Others v. Greece,
The
European Court of Human Rights (First Section), sitting as a
Committee composed of:
Anatoly
Kovler,
President,
Linos-Alexandre
Sicilianos,
Erik
Møse,
judges,
and André Wampach,
Deputy Section Registrar,
Having
deliberated in private on 27 September 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an
application (no. 6667/09) against the
Hellenic Republic lodged with the Court
under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by six
Greek nationals whose names appear in the annex,
on 13 January 2009.
2. The
applicants were represented by Mr A. Papakonstantinou, a lawyer
practising in Athens. The Greek Government (“the
Government”) were represented by their Agent’s delegates,
Mrs K. Paraskevopoulou, Senior Adviser at the State Legal Council,
and Mr I. Bakopoulos, Legal Representative at the State Legal
Council.
- On
2 September 2010 the
President of the First Section decided to give notice of the
application to the Government. In accordance with Protocol no. 14,
the application was allocated to a Committee of three Judges.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
six applicants were born on the dates listed in
the Annex.
- The
applicants are co-owners of a plot of land in the Volos district. On
26 August 1986 a compulsory
expropriation was declared on their
property according to presidential decree no. 719/1986. Subsequently,
on 1st August
2002, the applicants filed an application with the Ministry of
Environment, Physical Planning and Public Works asking for
the revocation of the blocking of their property as the expropriation
procedure had not been completed and no compensation had been awarded
to them.
- On
18 November 2002 the applicants
lodged a recourse against the Greek
authorities with the Volos First
Instance Administrative Court challenging the implicit refusal of the
authorities to revoke the
expropriation of their property.
7. On
7 July 2005 a preliminary decision was published asking the
authorities to submit additional evidence within twenty days
(decision no. 241/2005). On 13 July 2006 the applicants filed an
application before the
Volos First Instance Administrative
Court asking
for a hearing date to be set as soon as possible.
8. The
hearing took place on 5 March 2009.
- By
judgment dated 25 June 2009 the Volos
First Instance Administrative Court
accepted the applicants’ recourse (judgment no. 144/2009).
- On
22 January 2010 the Government lodged an appeal on points of
law with the Supreme Administrative Court challenging the
abovementioned decision (appeal no. 1099/10).
It transpires from the case file that these proceedings are still
pending.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
following provisions of the Introductory Law (Εισαγωγικός
Νόμος) to the Civil Code (Law no.
2783/41) are relevant:
Section 104
“The State shall be liable in accordance with the
provisions of the Civil Code concerning legal persons, for acts or
omissions of its organs regarding private-law relations or State
assets.”
Section 105
“The State shall be under a duty to make good any
damage caused by the unlawful acts or omissions of its organs in the
exercise of public authority, except where the unlawful act or
omission is in breach of an existing provision but is intended to
serve the public interest. The person responsible shall be jointly
and severally liable, without prejudice to the special provisions on
ministerial responsibility.”
- These sections establish the concept of a special
prejudicial act in public law, creating State liability in tort. This
liability results from unlawful acts or omissions. The acts concerned
may be not only legal acts but also physical acts by the
administrative authorities, including acts which are not in principle
enforceable through the courts (Kyriakopoulos, Interpretation of the
Civil Code, section 105 of the Introductory Law to the Civil Code,
no. 23; Filios, Contract, Special Part, volume 6, Tort, 1977, para.
48 B 112; E. Spiliotopoulos, Administrative Law, 3rd edition, para.
217; Court of Cassation judgment no. 535/1971, Nomiko Vima, 19th
year, p. 1414; Court of Cassation judgment no. 492/1967, Nomiko Vima,
16th year, p. 75). The admissibility of an action for damages is
subject to one condition, namely the unlawfulness of the act or
omission.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants complained that the length of the
proceedings had been incompatible with the “reasonable time”
requirement, laid down in Article 6 § 1 of the Convention, which
reads as follows:
“In the determination of his civil
rights and obligations ..., everyone is entitled to a ... hearing
within a reasonable time by [a] ... tribunal...”
- The
Government contested that argument.
- The
period to be taken into consideration began on 18 November
2002 when the applicants lodged a recourse with the Volos First
Instance Administrative Court, and has not yet
ended as, according to the case file, the proceedings are still
pending before the Supreme Administrative Court. It has thus lasted,
to date, more than eight years and
[eight
months]
for two levels of jurisdiction.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicants and the relevant authorities and what
was at stake for the applicants in the dispute (see, among many other
authorities, Frydlender v. France
[GC], no. 30979/96, § 43, ECHR 2000-VII).
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Frydlender, cited above).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court considers
that in the instant case the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
II. OTHER
ALLEGED VIOLATION OF THE CONVENTION
20. The
applicants also complained that their right to property under
Article 1 of Protocol No. 1 of the Convention had been violated as,
despite the passage of a long time from the declaration of the
expropriation on their property, no compensation had been awarded to
them for its blocking.
- The
Court observes that the applicants could have lodged a civil action
for damages against the State under sections 104 and 105 of the
Introductory Law to the Civil Code, asking for compensation for loss
of income due to the blocking of their property and consequently the
lack of its peaceful enjoyment (see, Roussakis
and others v. Greece (dec.),
no. 15945/02, 8 January 2004 and Amalia
S.A. & Koulouvatos S.A. v. Greece (dec.),
no. 20363/02, 28 October 2004). In this connection, the Court
observes that the applicants did not make any submissions concerning
the availability of this remedy.
- Therefore,
in view of the above, this complaint should be rejected under
Article 35 §§ 1 and 4 of the Convention for
non-exhaustion of domestic remedies.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- In
respect of pecuniary damage, the applicants claimed (a) 1,010,000
euros (EUR) jointly concerning damage they had allegedly suffered
because of the deprivation of their property for twenty-five years
without compensation and (b) EUR 4,920 jointly for costs concerning
the preparation of a report by a property valuation company assessing
the value of their plot. Further, they claimed EUR 45,000 each for
non-pecuniary damage.
- The
Government contested the applicants’ claims for
pecuniary damage. They stressed that these
claims, as long as they were connected with a violation of property
rights, fell outside the Court’s examination of the case under
Article 41 of the Convention and should be rejected. Further,
regarding the applicants’ claim for
non-pecuniary damage, they considered
the amount claimed exorbitant and submitteds
that if the Court considered that an award should be made, an amount
of an amount of EUR
6,000 to each applicant would be adequate and reasonable.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects these claims.
On the other hand, ruling on an equitable basis and taking into
account all the circumstances of the case, it awards jointly to the
first three applicants EUR 7,000 and, further,
EUR 7,000 to each of the other applicants in respect of non-pecuniary
damage, plus any tax that may be chargeable on
this amounts.
B. Costs and expenses
- The
applicants claimed EUR 2,214 jointly for the costs and expenses
incurred before the Court. They produced an
invoice for that amount.
-
The Government contested this claim and submitted
that the amount claimed was not reasonable.
- Regard being had to the
documents in its possession and to its case-law,
the Court considers it reasonable to award the
applicants jointly the sum of EUR 1,500
plus any tax that may be chargeable to
the applicants..
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicants, within three months,
the following amounts:
(i) jointly
to the first three applicants, Spyridonas Tsalapatas, Chariklia
Tsalapata and Aikaterini Tsalapata EUR 7,000 (seven thousand euros)
plus any tax that may be chargeable, in respect of non-pecuniary
damage;
(ii) to
the other three applicants Maria Nikoloutsou, Achilleas Tsalapatas
and Ioannis Tsalapatas, EUR 7,000 (seven thousand euros) each,
plus any tax that may be chargeable, in respect of non-pecuniary
damage;
(iii) EUR
1,500 (one thousand five hundred euros) jointly to the applicants,
plus any tax that may be chargeable, in
respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 18 October 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Anatoly Kovler
Deputy
Registrar President
ANNEX
Spyridonas
TSALAPATAS, born in
1966
Chariklia TSALAPATA,
born in 1967
Aikaterini
TSALAPATA, born in 1946
Maria NIKOLOUTSOU,
born in 1946
Achilleas
TSALAPATAS, born in
1947
Ioannis TSALAPATAS,
born in 1949
