CASE OF IATRIDIS v. GREECE
Preliminary objection rejected (non-exhaustion of domestic remedies);Preliminary objection rejected (six month period);Violation of P1-1;Violation of Art. 13;Not necessary to examine Art. 6-1;Not necessary to examine Art. 8;Just satisfaction reserved
Elisabeth Palm;Gaukur Jörundsson
6. In 1929 K.N. inherited three-quarters of a tract of land known as the “Karras estate” from his adoptive father. In 1938 K.N.’s adoptive mother sold him the remaining quarter of the “Karras estate”, which she had inherited from her husband. The contract of sale gave the surface area of the “Karras estate” as 12,000,000 sq. m. 7. In 1950, having obtained the necessary permit from the authorities, K.N. built an open-air cinema – the “Ilioupolis” cinema – on part of this land. 8. In 1953 the Minister of Agriculture refused to recognise K.N. as owner of the whole “Karras estate”, taking the view that K.N.’s adoptive father had owned only part of the land, namely an area of between 320,000 and 520,000 sq. m, which did not include the part on which the “Ilioupolis” cinema had later been built. The rest of the area was public forest and was not included in the title deeds submitted by K.N. Thereupon K.N applied to the Supreme Administrative Court to set aside the decision of the Minister of Agriculture but his application was dismissed. On 8 February 1955 a royal decree designated the area in dispute as land to be reafforested. K.N. applied to the Supreme Administrative Court to set aside the royal decree but the court dismissed the application, holding that the disputed area was forest land belonging to the State. 9. By means of Cabinet decisions of 10 February 1965 and 11 March 1966, which were published in the Official Gazette (Eφημερίδα της Κυβερνήσεως) and entered in the Ilioupolis municipal register, the State transferred a 220,000 sq. m area of the “Karras estate” to the Police Officers’ Housing Cooperative. This area did not include the land on which the “Ilioupolis” cinema had been built. 10. On 28 July 1965 a royal decree ordering the reafforestation of land in Ilioupolis was promulgated. According to the Government, this decree covered an unspecified part of the “Karras estate”. On 2 December 1966 the decree was amended by a further decree, which was published in the Official Gazette. 11. On 3 April 1967 K.N. brought an action against the Police Officers’ Housing Cooperative to establish his title to the land which had been transferred to it. The State, as transferor, intervened in the proceedings in favour of the Cooperative. This action was entered in the Ilioupolis mortgage register. In the margin of the relevant page, the subsequent judgments of the Athens Court of First Instance (no. 16992/1973) and the Court of Appeal (no. 4910/1977 – see paragraph 13 below) dismissing the action and acknowledging the State’s ownership of the disputed area were noted. 12. In 1976 K.N. died and his heirs received an inheritance-tax demand in respect of the land on which the cinema had been built. The State took a mortgage on the land as security for the tax debt. The mortgage was paid off in 1982. 13. K.N.’s heirs continued the proceedings brought on 3 April 1967. On 21 June 1977 the Athens Court of Appeal held that the tract of land transferred to the Police Cooperative belonged to the State. In the reasons for its judgment the court agreed with the Minister of Agriculture, holding that K.N.’s adoptive father had owned only a part of the “Karras estate”, which had not included the part on which the “Ilioupolis” cinema had been built or the part which had been transferred to the Cooperative. The Court of Appeal based this conclusion on, inter alia, the fact that in 1905 the “Karras estate” had been entered in the national forest register as forest land and that the State had since, in good faith, had possession and use of it as owner. 14. Following a decision taken by the Deputy Minister of Finance on 19 September 1984, part of the “Karras estate”, including the part on which the cinema had been built, was entered in the register of State property on 27 June 1985. On 9 July 1985 this fact was noted in the Ilioupolis mortgage register. In 1987 K.N.’s heirs brought proceedings to establish their title to the land that had been entered in the register of State property. In 1988 the Athens Court of First Instance dismissed their application on the ground that on 21 June 1977 the Athens Court of Appeal had held that K.N.’s adoptive father had owned only a part of the “Karras estate”, covering an area of between 320,000 and 520,000 sq. m. K.N.’s heirs appealed against that decision. 15. On 9 February 1989 the Athens Court of Appeal held that in its judgment of 21 June 1977 it had resolved only the matter of ownership of the 220,000 sq. m which had been transferred to the Police Officers’ Housing Cooperative. The other dicta in the grounds of the judgment were not binding on K.N.’s heirs. The Court of Appeal consequently set aside the 1988 decision of the Court of First Instance and ordered that court to deal with the merits of the case. 16. On 29 May 1996 K.N.’s heirs applied to State Counsel at the Athens Court of First Instance for interim measures against the State and Ilioupolis Town Council. State Counsel refused their application on an unspecified date. K.N.’s heirs appealed against this decision. On 30 May 1997 Deputy State Counsel at the Athens Court of Appeal dismissed their appeal. 17. In 1978 K.N.’s heirs leased the “Ilioupolis” open-air cinema to the applicant, who completely restored it. On 4 July 1985 the Attica prefecture informed the applicant that with effect from 27 June 1985 the land on which the cinema had been built was considered to be State property, and that his retention of it was wrongful. The State would consequently be claiming compensation from him in accordance with Article 115 of the Presidential Decree of 11/12 November 1929, without prejudice to its right to evict him under Law no. 1539/1938 on the protection of State land. On 16 November 1988 the State Lands Authority (Kτηματική Εταιρία του Δημοσίου) assigned the cinema to Ilioupolis Town Council. On 24 November 1988 the Attica prefecture notified the applicant of this and ordered him to vacate the cinema within five days, failing which Law no. 1539/1938 would be applied. 18. On 9 February 1989 the Lands Department (Kτηματική Υπηρεσία) of the Attica prefecture ordered the applicant to be evicted, under Law no. 1539/1938 as amended by Law no. 263/1968. The order was “served” on the applicant on 16 March 1989 by being posted on the door of the cinema. The following day, when the members of the Bar were on strike and the applicant was absent, officials from Ilioupolis Town Council executed the order, forcing an entry into the cinema. An inventory was drawn up of a number of items of movable property belonging to the applicant (projectors, chairs, billboards and bar equipment). A Mr G.L., who was professionally connected with the applicant but was not acting as his representative, signed the inventory and asked the Council officials to store the goods. 19. The applicant challenged the eviction order in the Athens District Court, which dealt with the matter under summary procedure and found for the State. The applicant appealed to the Athens Court of First Instance sitting with a single judge, which on 23 October 1989, having heard the appeal under summary procedure, quashed the eviction order. The court ruled that the Lands Department could issue an eviction order only if the property in question belonged to the State, if the State’s title to the property was not in dispute, and if the property was being unjustifiably occupied by a third party. The court held, further, that these conditions had not been satisfied in the case before it, since the applicant had established the following facts with a fair degree of certainty: proceedings were pending before the courts in an action brought in a dispute between K.N.’s heirs and the State over the land on which the cinema had been built; K.N.’s heirs had considered themselves to be the owners of the land and the cinema for a very long time and had exercised all the rights and performed all the duties associated with ownership; and, lastly, the applicant had occupied the cinema under a lease since 1978. 20. Following that decision, the applicant made several approaches to the appropriate authorities to challenge the continued occupation of the cinema by Ilioupolis Town Council. On 2 April 1990 the Ministry of Finance stated that, since the eviction order had been quashed, the land should be returned to the applicant and the assignment of the cinema to Ilioupolis Town Council revoked. However, if the Council insisted on retaining the cinema, the matter of who was to compensate the applicant would have to be determined in accordance with the law on business tenancies. 21. On 11 July 1991 the State Legal Council (Nομικό Συμβούλιο του Κράτους), in answer to a question put to it by the Ministry of Finance, expressed the view that the cinema had to be returned to the applicant. The applicant’s claims in respect of the loss he had sustained owing to the eviction could be entertained only if he applied to the State Legal Council or brought proceedings. Furthermore, the State could assert its claim to be the owner of the land by bringing an action against K.N.’s heirs or by expediting the proceedings in the litigation between it and them, which had been pending before the courts since 1987. On 15 May 1994 the applicant applied to the State Lands Authority to have the cinema returned to him. 22. On 21 December 1994 the applicant sued the State and Ilioupolis Town Council in tort in the Athens Administrative Court for the loss he had sustained as a result of the failure to return the cinema to him. He claimed compensation in the amount of 32,300,000 drachmas (GRD), plus interest for loss of income from 1989 to 1994 and for the loss of his business equipment. 23. On 5 April 1995 the applicant applied to the mayor of Ilioupolis to have the cinema returned to him. On 5 May 1995 he lodged a criminal complaint against the mayor. On an unspecified date he also lodged a criminal complaint against the chairman of the State Lands Authority. 24. On 26 July 1995 the applicant filed an application in the Athens Court of First Instance for registration of a mortgage against Ilioupolis Town Council as security for lost income amounting to GRD 30,000,000. The court dismissed the application on the ground that there was no obligation to return the property, seeing that no application to that end had been made to the court and that there had been no final court decision in the matter. 25. On 31 July 1995 the State Lands Authority, following a further request from the applicant, recommended that the assignment of the cinema to Ilioupolis Town Council should be revoked and the cinema returned to the applicant, who was to be reinstated as tenant by the Ministry of Finance. That recommendation had to be approved by the Ministry of Finance pursuant to Law no. 973/1979. The applicant, who had not been notified of the recommendation, applied to the Minister of Finance on 4 October 1995. On 13 October 1995 he asked the Athens Court of First Instance to order interim measures against the mayor of Ilioupolis in the tort proceedings. On 16 October 1995 he applied to the Minister of Finance again. On 25 October 1995 the Court of First Instance held that there were no grounds for ordering interim measures, since there could be no liability on the part of the mayor. On 7 November 1995, following the intervention of State Counsel, the applicant was notified of the State Lands Authority’s decision of 31 July 1995. On 15 November 1995 the applicant requested the Deputy Minister of Finance to approve that decision. 26. On 7 August 1996 the State Legal Council expressed the view that the cinema should not be returned to the applicant, for the following reasons. Although the Athens Court of First Instance had set aside the eviction order of 23 October 1989, it had not ordered the cinema to be returned to the applicant. In its decision of 25 October 1995 the Court of First Instance had held that there was no obligation to return the cinema. Furthermore, under special case-law relating to State-owned property, the lease between K.N.’s heirs and the applicant was not valid. Consequently, the Ministry of Finance would be acting unlawfully if it revoked the assignment of the cinema to Ilioupolis Town Council. On 3 September 1996 the Deputy Minister of Finance approved the opinion of the State Legal Council. 27. On 31 October 1996 the Athens Administrative Court dismissed the action commenced by the applicant on 21 December 1994 on the ground that it should have been brought in the civil courts. On 17 December 1996 the applicant brought the action in the Athens Court of First Instance, seeking GRD 140,000,000 in damages for the loss of income he had suffered in 1995 and 1996 as a result of being unable to operate his cinema and for non-pecuniary loss. The action was due to be tried on 13 November 1997 but it was still pending on the day of the hearing before the Court. 28. On 7 January 1997 the Committals Division of the Athens Criminal Court decided to commence criminal proceedings against the mayor of Ilioupolis for dereliction of duty. 29. On 27 January 1998 the applicant brought an action against the State and Ilioupolis Town Council in which he sought payment of GRD 32,000,000 plus interest for loss of income during 1997 and for non-pecuniary damage. This action was still pending on the day of the hearing before the Court. 30. The cinema is still being operated by Ilioupolis Town Council and has not been returned to the applicant. The applicant has not set up an open-air cinema anywhere else. 31. The immovable property of the State is protected against third parties by Law no. 263/1968 amending and supplementing the provisions on State property. Section 2(2) and (3) of the Law provides: “… The relevant tax inspector shall issue an administrative eviction order against any person wrongfully taking over public property. An application to set aside such an order may be filed with the appropriate District Court within thirty days of its being served … An appeal against the decision of the District Court may be brought within thirty days before the President of the Court of First Instance, who shall hear it under the special procedure provided for in Article 634 of the Code of Civil Procedure. No appeal shall lie against the decision of the President of the Court of First Instance. The decision resulting from the foregoing procedure shall not prevent the parties from asserting their rights by means of ordinary procedure …” “… Κατά του αυτογνωμόνως επιλαμβανομένου οιουδήποτε δημοσίου κτήματος συντάσσεται παρά του αρμοδίου Οικονομικού Εφόρου Πρωτόκολλο Διοικητικής Αποβολής. Κατ΄αυτού επιτρέπεται άσκηση ανακοπής ενώπιον του αρμοδίου Ειρηνοδικείου μέσα σε αποκλειστική προθεσμία 30 ημερών από της κοινοποιήσεως του… Κατά της αποφάσεως του Ειρηνοδικείου χωρεί έφεση ενώπιον του Προέδρου Πρωτοδικών, που δικάζει με την ειδική διαδικασία του άρθρου 634 Πολ. Δικ., μέσα σε προθεσμία 30 ημερών. Κατά της αποφάσεως του Προέδρου Πρωτοδικών ουδέν ένδικο μέσο χωρεί. Η κατά την ανωτέρω διαδικασία εκδιδομένη απόφαση δεν παρακωλύει την επιδίωξη των εκατέρωθεν δικαιωμάτων κατά την τακτική διαδικασία …” Applications to set aside and the entire procedure for challenging administrative eviction orders are concerned solely with the validity of the eviction order and not with recognition of ownership or regulation of possession. 32. Where an administrative eviction order is quashed and it is desired that the decision make provision for the reinstatement of the evicted appellant, an application for reinstatement must be lodged either at the same time as the application to set aside – in which case a consequential order will be made if the application is allowed – or separately with the appropriate court (action for regulation of possession). An application for reinstatement is not subject to the time-limits laid down by section 2 of Law no. 263/1968 for applying to set aside an eviction order, since there is no provision to that effect (Athens Court of Appeal judgment no. 6802/89, Reports 1990, pp. 778-79, Athens Court of First Instance judgment no. 25950/1995, State Legal Council opinion no. 464/96, Annexes 14a and b and 13c). 33. The lessee of a property is the possessor of the leased property. This right of possession is protected by domestic law. The protection of possession both as a material fact and as a legal relationship is regulated in Greek law by Articles 997 et seq. of the Civil Code. 34. In particular, Article 997 of the Civil Code, entitled “Protection of possessors”, provides: “In the event of unlawful interference with the possession of property or of a right or in the event of dispossession, the person who, as lessee or bailee or as a consequence of a similar relationship, took possession of the property or right from the person who had use of it shall also have a possession claim against third parties.” “Επί παρανόμου διαταράξεως της νομής πράγματος ή δικαιώματος, ή αποβολής εξ αυτής, έχει κατά τρίτων τας περί νομής αγωγάς και ο παρά τιυ νομέως λαβών την κατοχή του πράγματος ή δικαιώματος ως μισθωτής ή θεματοφύλαξ ή συνεπεία άλλης παρομοίας σχέσεως.” 35. The possession claims that the lessee and possessor of the leased property may file are set out in Articles 987 and 989 of the Civil Code. Article 987 provides: “A possessor who has been unlawfully dispossessed shall be entitled to claim repossession from the person in unlawful possession. A claim for compensation under the provisions on torts shall not be excluded.” “Ο νομέας που αποβλήθηκε παράνομα από τη νομή έχει δικαίωμα να αξιώσει την απόδοσή της από αυτόν που νέμεται επιλήψιμα απέναντί του. Αξίωση αποζημιώσεως σύμφωνα με τις διατάξεις για τις αδικοπραξίες δεν αποκλείεται.” Article 989 provides: “A possessor whose possession has been the subject of unlawful interference shall be entitled to seek an order restraining the interference and prohibiting it in the future. A claim for compensation under the provisions on torts shall not be excluded.” “Ο νομέας που διαταράχθηκε παράνομα έχει δικαίωμα να αξιώσει την παύση της διατάραξης καθώς και την παράλειψή της στο μέλλον. Αξίωση αποζημίωσης κατά τις διατάξεις για τις αδικοπραξίες δεν αποκλείεται.” By Article 987, the possessor is protected in the event of dispossession, that is to say deprivation of control of the property. By Article 989, he is also protected in the event of interference, namely interference with his control of the property not amounting to dispossession. A classic example of interference, as held by the domestic courts, is threatening the possessor with prohibition of a specific act of possession. The purpose of these remedies is to protect possession itself, regardless of whether it is based on a right or not. It is for that reason that Article 991 of the Civil Code provides: “A defendant in an action for interference or dispossession can invoke a right giving him control over the property only if that right has been upheld in a final decision by a court after proceedings between him and the plaintiff.” “Ο εναγόμενος για διατάραξη ή αποβολή δεν μπορεί να επικαλεστεί δικαίωμα που του παρέχει εξουσία πάνω στο πράγμα παρά μόνο αν το δικαίωμα έχει αναγνωριστεί τελεσίδικα σε δίκη ανάμεσα σε αυτόν και τον ενάγοντα.” In accordance with Article 997 of the Civil Code, a possessor has these rights against third parties and not against the possessor from whom he derives the possession rights. Against the latter he has the rights afforded him by the legal relationship between them. 36. Where a possessor brings an action in possession, it will be either for repossession or for restraint of interference, depending on whether the possessor has been evicted or merely disturbed in the exercise of his control of the property. Furthermore, the possessor is entitled in the same proceedings to claim compensation for the damage sustained, under the provisions on torts (Articles 914 et seq.). 37. More particularly in respect of the State’s obligation to pay compensation, section 105 of the Introductory Act to the Civil Code is applied, under which unlawful conduct on the part of agents of the State creates an obligation to pay compensation irrespective of whether an offence has been committed by the agents in question. Moreover, where the unlawful situation arises from an administrative act, prior annulment of that act is not required. The court may consider the validity of the administrative act in the course of the proceedings and a specific prior ruling on its validity is not necessary. 38. A possessor whose right is created by a lease is also protected against the lessor if it becomes impossible for him to use the leased property. 39. Article 583 of the Civil Code provides: “If the agreed use of the leased property is taken from the lessee in whole or in part because of a third party’s right (legal defect), Articles 576 to 579 and 582 shall apply. However, the lessee may himself have the legal defect removed at the lessor’s expense.” “Αν η συμφωνηθείσα χρήση του μισθίου αφαιρεθεί από τον μισθωτή εν μέρει ή εν όλω εξαιτίας δικαιώματος τρίτου νομικό ελάττωμα εφαρμόζονται οι διατάξεις των άρθρων 576 έως 579 και 582. Αλλ΄ο μισθωτής δεν δύναται να προβεί ο ίδιος στην άρση του νομικού ελαττώματος με δαπάνες του εκμισθωτού.” 40. In that event, the lessee’s rights under Articles 576 to 579 and 582, to which Article 583 refers, are the following: the right to reduce the rent or not to pay the rent, the right to compensation, the right to bring an action against the lessor to have the legal defect removed, and the right to terminate the lease. Apart from the right to bring an action against the lessor to have the legal defect removed, the lessee may still bring an action in possession at his own expense against third parties in his capacity as possessor (Article 997). The lessor is exempt from liability only if the lessee was aware of the defect at the time when the lease was signed. 41. Lastly, leases of property for carrying on commercial activities (commercial leases) are also governed by all the above provisions under section 29 of Law no. 813/1978, codified by Presidential Decree no. 34/1995. That provision reads as follows: “Save as hereinafter provided, leases under the present Law shall be governed by the contractual terms and by the provisions of the Civil Code.” “Αι κατά τον παρόντα νόμον μισθώσεις, εφόσον δεν ορίζεται άλλως εις αυτόν, διέπονται υπό των συμβατικών περί αυτών όρων και των διατάξεων του Αστικού Κώδικος.”