CASE OF PIALOPOULOS AND OTHERS v. GREECE
Violation of P1-1;Violation of Art. 6-1;Not necessary to examine Art. 13;Just satisfaction reserved
András Baka
9. The first applicant is a Greek citizen, born in 1951 and living in Pefki in Attika. The second applicant is also a Greek citizen born in 1930 and living in Filothei in Attika. The third applicant is the first applicant’s stepbrother. He is a Greek citizen, born in 1964 and living in Athens. The fourth applicant is the first applicant’s sister. She is a Greek citizen, born in 1949 and living in Geneva. 10. On 11 February 1987 the first two applicants bought a plot of land in Neo Psihiko of a total surface of 7,723 m2 (block No 16 on the town plan). The first applicant became the owner of 83% of the plot and the second applicant of the rest. On 12 February 1987 the Prefecture (Nomarhia) of Eastern Attika gave the two applicants permission to demolish some old buildings that existed on the plot. 11. On 18 February 1987 the two applicants applied to the Prefecture for a permit to build a multi-storey shopping centre thereon. 12. On 25 February 1987 at a meeting of the Municipal Council of Neo Psihiko the mayor informed the councillors that urgent action had to be taken to block the proposed development and accepted that unusual means were being used to forestall the delivery of the permit. However, a councillor drew the mayor’s attention to the fact that the municipality lacked adequate means to expropriate the applicants’ plot. 13. On 1 June 1987 the Prefect of Eastern Attika decided not to issue any new building permits in respect of commercial premises of a certain size (buildings exceeding 1/4 of the maximum authorised size) in Neo Psihiko for a year (decision no. 10311/1987 published in the Official Gazette on 10 June 1987). He exempted commercial premises for which an application had already been lodged, provided that the file was “complete” in accordance with the presidential decree of 8 September 1983. 14. On 5 June 1987 the Ministry for the Environment, Town Planning and Public Works advised the first two applicants that the file which they had submitted together with their application for a building permit was “complete”. Given the Prefect’s decision of 1 June 1987, the file “would continue to be considered complete pending resumption of the delivery of new building permits”. 15. On 31 July 1987 the Prefect of Eastern Attika decided “to extend the freeze on new building licences in respect of block No. 16 in Neo Psihiko by six months as from 13 September 1987”. 16. On 1 March 1988 the Prefect decided to change the authorised use of the applicants’ plot from development land to park land (decision no. 13580/277/87/1988 published in the Official Gazette on 24 March 1988). Following this decision, the first two applicants requested the town planning authorities of the prefecture to decide who should compensate them for the expropriation of their plot of land. On 16 June 1988 the town planning authorities decided that the applicants should be expropriated by, among others, the Municipality of Neo Psihiko (act no. 51/88). The municipality appealed to the Prefect who, on 26 September 1988, confirmed act no. 51/88 of the town planning authorities and ordered the municipality to compensate the two applicants in respect of 5,697 m2. The municipality appealed against the prefect’s decision of 26 September 1988 to the Secretary General of the Ministry for the Environment, Town Planning and Public Works claiming that it should not bear on its own the cost of compensating the applicants for the 5,697 m2 in question. On 4 January 1989 the Secretary General confirmed the decision of 26 September 1988 of the prefect (decision no. 84888/4910/1989). 17. On 19 January 1989 the first two applicants asked the single-member first instance civil court (monomeles protodikio) of Athens provisionally to determine their compensation. On 16 November 1989 the court decided that the two applicants should receive 732,300,000 drachmas. 18. On 20 February 1989 the Municipality of Neo Psihiko applied to the Council of State (Simvulio Epikratias) for judicial review of decision no. 84888/4910/1989 of the Secretary General of the Ministry for the Environment, Town Planning and Public Works. The first two applicants intervened in favour of the Secretary General. 19. On 28 September 1989 the Secretary General of the Ministry for the Environment, Town Planning and Public Works approved a new town plan for Neo Psihiko, which was published in the Official Gazette on 9 October 1989. 20. On 21 May 1990 the Prefect of Eastern Attika decided to amend the new town plan of Neo Psihiko. It was provided that the applicants’ plot could only be used as a park and for underground parking. The decision was published in the Official Gazette on 5 June 1990. 21. On 31 July 1991 the first two applicants requested the Court of Appeal (efetio) of Athens to declare under Article 17 § 4 of the Constitution and Article 11 of legislative decree no. 727/1971 that the Prefect’s decision no. 13580/277/87/1988 concerning the expropriation had been revoked ipso jure on 16 May 1991 because the compensation fixed provisionally had not been paid within eighteen months from the first instance civil court’s decision of 16 November 1989. The State and the Municipality of Neo Psihiko were parties to the proceedings. On 8 November 1991 the Athens Court of Appeal acceded to the applicants’ request (decision no. 9779/1991). 22. On 21 and 26 February 1992 the Municipal Council of Neo Psihiko discussed the future of the applicants’ plot. On the second occasion, the mayor stated that he had been unable to conclude a loan in order to compensate the applicants in full. He also stated that the owners of neighbouring plots of land had informed him that they lacked the funds to pay part of the applicants’ compensation. Some councillors made proposals which would have lowered the value of the applicants’ plot. 23. On 4 March 1992 the first two applicants received a letter from the Municipality of Neo Psihiko referring to negotiations which had been conducted with them. The two applicants were invited to agree to a plan for the development of the plot. According to the plan, the municipality would acquire part of the plot and transform it into a park. The applicants would be allowed to construct a building with a two-storey underground garage. There would be shops on the ground floor and offices on the other floors. 24. On 23 March 1992 the Legal Council of State (Nomiko Simvulio tu Kratus) decided not to appeal in cassation against the decision of the Court of Appeal. On 13 May 1992 it informed the Prefecture of Eastern Attika and the Ministry for the Environment, Town Planning and Public Works accordingly and requested them to take the necessary steps to give effect to that decision. 25. On 6 July 1992 the Municipal Council of Neo Psihiko discussed the outcome of the negotiations with the first two applicants. The mayor invited the members of the council not to lose sight of the fact that the municipality risked finding itself in a position where it would be unable to pay full compensation to the two applicants for the expropriation of their plot. In the end, the council decided to request the prefecture to expropriate the plot (decision no. 96/92). It proposed the creation of a park, an underground garage and a public building. The two applicants protested. 26. On 8 July 1992 the first two applicants requested the Prefect of Eastern Attika formally to revoke decision no. 13580/277/87/1988, as he was required to do by the law. 27. On 30 November 1992 the Council of State examined the Municipality of Neo Psihiko’s application for judicial review of decision no. 84888/4910/1989 of the Secretary General of the Ministry for the Environment, Town Planning and Public Works. The first two applicants, who had intervened in favour of the Secretary General, claimed that this decision did not produce any legal effects because on 8 November 1991 (decision no. 9779/1991) the Court of Appeal had declared that it had been ipso jure revoked. However, the Council considered that, the decision of the appeal court notwithstanding, the administration was under an obligation formally to revoke decision no. 13580/277/87/1988 expropriating the plot. As long as this had not happened, decision no. 84888/4910/1989 could be judicially reviewed. Moreover, the Council considered that the Secretary General of the Ministry for the Environment, Town Planning and Public Works had illegally ordered the Municipality of Neo Psihiko to bear on its own the cost of compensating the applicants for the 5,697 m2 in question. The owners of other neighbouring property were liable as well. The Council of State, therefore, decided to quash decision no. 84888/4910/1989 (decision no. 3730/1992). 28. On 3 December 1992 the town planning authorities of the Prefecture of Eastern Attika asked the Municipality of Neo Psihiko whether it wished to expropriate the applicants’ plot again and drew its attention to the conditions for doing so. On 19 February 1993 the town planning authorities informed the municipality that, if it wanted the plot to be expropriated, a decision by the municipal council concerning the necessary funds should be adopted before 26 April 1993. On both occasions the town planning authorities informed the municipality that, if it did not take the necessary measures for a fresh expropriation, the prefecture would proceed to the revocation of the first expropriation as it was required to do by law. 29. On 23 March 1993 the first two applicants applied to the prefecture for a building permit. 30. On 12 April 1993 the Ministry for the Environment, Town Planning and Public Works informed the Prefecture of Eastern Attika that, decision no. 3730/1992 of the Council of State notwithstanding, the prefecture had to comply with decision no. 9779/1991 of the Athens Court of Appeal and officially revoke the expropriation decision. The ministry also considered that the amendment of the town plan of 21 May 1990 amounted to a new expropriation. According to the case-law of the Council of State, this would be lawful only if there was a serious town-planning need and the money for the compensation was readily available. 31. On 25 May 1993 the Municipal Council of Neo Psihiko requested the Prefect of Eastern Attika to re-issue act no. 51/88 on the persons liable to pay compensation taking into consideration decision no. 3730/1992 of the Council of State or else to adopt a new decision expropriating the applicants’ plot of land. The municipal council declared that it was ready to pay the compensation required in order for the expropriation to be completed (decision no. 87/1993). 32. On 17 June 1993 the first two applicants, with a view to reaching a friendly settlement, applied for a building permit offering, at the same time, to construct at their expense a public building for the municipality. 33. On 19 August 1993 the Prefect of Eastern Attika considered that the municipality’s case for a new expropriation was not convincing and decided to free part of the applicants’ plot for development (decision no. 26224/839/1993 published in the Official Gazette on 3 September 1993). On 20 October 1993 the Municipality of Neo Psihiko applied to the Council of State for judicial review of this decision. The first two applicants intervened in the proceedings in favour of the Prefect. 34. On 10 July 1995 the Council of State considered that its previous decision no. 3730/1992 could not affect the obligation of the Prefect of Eastern Attika to comply with decision no. 9779/1991 of the Athens Court of Appeal of 8 November 1991 and officially revoked the first expropriation decision. The Council of State found that the Prefecture of Eastern Attika had complied with the above-mentioned decision of the Court of Appeal by issuing decision no. 26224/839/1993. However, this decision had not taken into consideration the fact that the Municipality of Neo Psihiko had fully cooperated in the first expropriation procedure. Neither had it taken into consideration the fact that the main reason for the non-completion of the first expropriation procedure had been the dispute which had arisen as to who should have compensated the first two applicants. In the light of all the above, the Council found that the Prefect of Eastern Attika’s decision not to accede to the municipality’s request for a second expropriation did not contain adequate reasons. The Council of State, therefore, quashed decision no. 26224/839/1993 of the Prefect of Eastern Attika (decision no. 3927/95). 35. On 2 May 1996 the second applicant requested the Mayor of Neo Psihiko to provide him with a certified copy of the municipality’s budget and of the minutes of the meeting of the municipal council at which the budget had been approved. 36. On 9 May 1996 the town planning authorities of the Prefecture of Athens, which had taken over the functions of the Prefecture of Eastern Attika, informed the Municipality of Neo Psihiko that, since decision no. 26224/839/1993 of the Prefect of Eastern Attika had been quashed, it was still under an obligation to comply with decision no. 9779/1991 of the Athens Court of Appeal. It also invited the municipality to inform it within 30 days whether there existed a serious town-planning need for the expropriation of the applicants’ plot of land and whether there existed sufficient funds in the municipality’ budget for compensating the applicants. Finally, the prefecture warned the municipality that, in the absence of a prompt reply, it would change the authorised use of the applicants’ plot to development land. 37. The Mayor of Neo Psihiko replied to the Prefecture of Athens on 9 July 1996 requesting that the applicants’ plot should be expropriated for the following reasons. On the one hand, a number of supermarkets and banks had been recently built in the area, which attracted 5,000 persons and a lot of traffic every day. On the other hand, there were no parks or parking space. As a result, if a new development were authorised, the situation would become intolerable. The mayor referred to the Prefect of Eastern Attika’s decision of 21 May 1990 according to which the applicants’ plot could only be used as a park and for underground parking. The mayor also informed the prefecture that provision had been made for 450,000,000 drachmas in the municipality’s budget for 1996 and an additional sum would be made available in 1997. 38. On 27 September 1996 the Prefecture of Athens asked the municipality to clarify within ten days whether the sum of 450,000,000 drachmas had been earmarked for the expropriation of the applicants’ plot, what was the estimated total cost of the expropriation, whether the additional sum required existed and, if not, which were the sources from which it could be obtained and what were the prospects of obtaining it. The municipality was again threatened with a decision changing the authorised use of the applicants’ land. 39. On 16 November 1996 the first two applicants invited the Prefect to comply with decision no. 3927/1995 of the Council of State and decision no. 9779/1991 of the Athens Court of Appeal. 40. Having received no reply, on 6 February 1997 the second applicant requested the Prefecture of Athens to inform him of the conditions for the development of his plot in Neo Psihiko. On 14 February 1997 the Prefecture of Athens informed the second applicant that, according to the decision of the Prefect of Eastern Attika of 21 May 1990, the plot could only be used as a park and for underground parking. Decision no. 26224/839/1993 of the Prefect of Eastern Attika had been quashed by the Council of State. When the two applicants had originally applied for a building permit there were no restrictions on their plot of land. However, on 1 June 1987 and 31 July 1987 the prefect of Eastern Attika had decided to suspend the delivery of building permits of the kind requested by the two applicants. 41. On 14 October 1997 the second applicant applied to the town planning authorities of the prefecture for permission to construct an open-air parking area on his plot. The authorities turned his application down referring, inter alia, to the decision of the Prefect of Eastern Attika of 21 May 1990. On 17 October 1997 the second applicant applied to the town planning authorities for permission to construct an underground garage. On 4 November 1997 the authorities replied that the garage would be built by the appropriate organ after the conclusion of the expropriation. 42. Following a further query by the first two applicants, on 11 December 1997 the Prefecture of Athens informed them that, according to the decision of the Prefect of Eastern Attika of 21 May 1990, their plot of land could only be used as a park and for underground parking and that the decision in question had not been revoked. 43. On 19 December 1997 the first applicant transferred 20.75% of the plot to the third applicant and 20.75% to the fourth applicant. 44. On 16 March 1998 the town planning authorities of the Prefecture of Athens informed the Legal Council of State that the decision of 21 May 1990 of the Prefect of Eastern Attika amounted to an expropriation of the applicants’ plot. However, when the town planning authorities wrote to the Municipality of Neo Psihiko on 9 May 1996, they were not aware of this decision. Following the quashing of decision no. 26224/839/1993 of the Prefect of Eastern Attika by the Council of State, the use of the applicants’ plot is governed by the decision of 21 May 1990. The town planning authorities, further to a request by the Municipality of Neo Psihiko, were in the course of determining those liable to pay compensation because of the expropriation. 45. According to decision no. 3284/86 of the Council of State, an expropriation that has been revoked may be re-imposed only if there is a serious town-planning need and the authorities are able to pay appropriate compensation immediately. In 1986 the Ministry for the Environment, Town Planning and Public Works issued a circular informing the authorities of this development (circular no. 141/1986). 46. According to the case-law of the Council of State, amendments to town plans must be published in the Official Gazette together with a detailed plan. Otherwise they are null and void (decisions nos. 488/91 and 489/91).