CASE OF PAPAMICHALOPOULOS AND OTHERS v. GREECE
Preliminary objection dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Preliminary objection dismissed (Art. 34) Individual applications;(Art. 34) Victim;Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Just satisfaction reserved (Article 41 - Just satisfaction)
N. Valticos;R. Pekkanen
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. 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 One of the three orders, however, was revoked by State Counsel at the Athens Court of Appeal on the ground of "lack of urgency", following an application by the Navy Fund.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. 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. 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. 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. 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." "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. ..." 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 ..." 30. The relevant paragraphs of Articles 246 and 263 of the Rural Code provide: "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 ... ..." "... 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. ..."