CASE OF PLATAKOU v. GREECE
Preliminary objection rejected;Violation of Art. 6-1;Not necessary to examine Art. 14+6;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
András Baka
8. On 18 December 1990, by decision no. 108562/1990 of the Ministers of Culture and Finance, the Greek State expropriated 162.64 sq. m. of land belonging to the applicant, and a three-storey building standing on it, in order to house the Sparta Museum. 9. By decision no. 37/1993 of 30 April 1993, the Sparta Court of First Instance assessed provisional compensation in the sum of 30,000,000 drachmas (GRD). At the hearing, the Greek State maintained that the building was in very poor condition and described it as a “ruin”. The applicant had sought GRD 120,000,000 [Note by the Registry: Before the Court, the applicant produced an expert report dated 24 February 1993 from the Ministry of Culture describing her building as “a typical example of turn-of-the-century bourgeois architecture” and certifying it to be in very good condition. She also produced a report by a valuer dated 2 April 1993 in which the property (the land and the building) was valued at GRD 117,088,000 and a certificate from the Sparta Town Council, which in 1990 had decided to purchase the building with a view to installing part of its services there. The mayor noted that “despite its high cost, the building in question had been chosen because of its central location and its special architectural and aesthetic interest”. That purchase did not take place as the expropriation was ordered shortly afterwards. The final document produced by the applicant was a valuer's report dated 25 June 1999 in which the valuer certified under oath before the Sparta District Court that the then current value of the property was GRD 147,522,400.]. 10. On 16 June 1993 the applicant applied to the Nafplion Court of Appeal for an order assessing the final unit amount for compensation. She continued to maintain that the true value of her property was GRD 120,000,000. Her application was lodged with the registry of the Court of Appeal on 4 October 1993. The case was set down for hearing on 15 December 1993. 11. On 8 October 1993 S.I., a court bailiff (δικαστικός επιμελητής) at Athens Court of First Instance was instructed by the applicant's lawyer to serve the application on the applicant's opponents, namely the Greek State and the Archaeological Resources and Expropriations Office (Ταμείo Αρχαιoλoγικώv Πόρωv και Απαλλoτριώσεωv). Although the time-limit for serving the application expired six months after the date of the decision of the Sparta Court of First Instance (that is to say on 31 October 1993), S.I. did not serve it until 12 November 1993, as he mistook it for a notice of appeal requiring service at least thirty days before the date of the hearing. 12. Meanwhile, the applicant's opponents had also applied to the Nafplion Court of Appeal for an order assessing the final unit amount for compensation. Their application, dated 30 August 1993, was lodged with the registry of the Court of Appeal on 9 September 1993 and served on the applicant on 4 March 1994. The hearing was fixed for 6 April 1994. 13. On 15 December 1993 the applicant's opponents appeared before the Court of Appeal and applied for an adjournment of the applicant's application so that both applications could be heard together on 6 April 1994. 14. On 29 June 1994, by judgment no. 357/1994, the Court of Appeal declared both applications inadmissible as being out of time. As regards the Greek State's application, however, it observed that for the purposes of the six-months' limitation period time did not run during the judicial vacation, that is to say from 1 July 1993 to 15 September 1993. 15. On 18 July 1994 the applicant sought an order from the Nafplion Court of Appeal “restoring matters to their previous position” (αίτηση επαvαφoράς τωv πραγμάτωv στηv πρoηγoύμεvη κατάσταση). She argued in particular that the mistake by the court bailiff that had caused him to serve her application out of time constituted an act of force majeure for which she was not responsible. 16. On 21 July 1994 the applicant applied to the Court of Cassation for an order restoring matters to their previous position and an order quashing the Court of Appeal's judgment no. 357/1994. She argued, inter alia, that the error of the bailiff, who thought he was dealing with an appeal, was clear from the wording of the affidavits of service, which stated that the document served was a notice of appeal against the Court of First Instance's decision no. 37/1993. 17. On 29 July 1994 the applicant applied to the Sparta Court of First Instance for a review (αvαψηλάφηση) of its decision no. 37/1993. In support of her application, she referred to a document dated 24 February 1993 from the Ministry of Culture which indicated that the building was in very good condition. The applicant said that her opponents had been aware of the existence of the document before the hearing but had concealed it from the court. By decision no. 191/1994 of 30 December 1994, the application for a review was declared inadmissible on the ground that no appeal lay from a decision assessing the provisional amount for compensation. On 2 February 1995 the applicant lodged an appeal against decision no. 191/1994, but it was dismissed by the Nafplion Court of Appeal on 14 July 1995 (judgment no. 490/1995). The applicant did not appeal to the Court of Cassation against that judgment. 18. On 16 November 1995 the Nafplion Court of Appeal stayed the application for an order restoring matters to their previous position until the Court of Cassation had decided the applicant's appeal. 19. On 14 February 1996 the applicant lodged written submissions with the Court of Cassation. She produced, inter alia, a sworn affidavit (έvoρκη βεβαίωση) dated 3 October 1995 by S.I. admitting that he had made a mistake regarding the nature of the document he had been asked to serve. The applicant also contended that the rule applied by the Court of Appeal in the instant case that time ceased to run against the State during the period of the judicial vacation had contravened the principle of equality of arms. She said that, had that rule been applied to her application, it would not have been deemed to have been lodged outside the statutory time-limit. In that connection, the applicant relied on Articles 6 § 1 and 14 of the Convention. 20. In its judgment no. 929/1996 of 18 June 1996 the Court of Cassation said that the application for restoration of matters to the previous position had to be declared inadmissible, since the applicant had omitted to state in her notice of appeal the evidence on which she relied in support of her allegation that the bailiff, S.I., had made a mistake. It added that as the application made by the applicant's opponents had also been declared inadmissible as being out of time, the applicant had not been prejudiced by the application of the rule that time ceased to run during the judicial vacation. It therefore dismissed her appeal on points of law. However, it made no mention in the operative provisions of the judgment to the application appended to the applicant's appeal for the restoration of matters to the previous position. 21. After her appeal to the Court of Cassation had been dismissed, the applicant resumed the proceedings she had commenced on 18 July 1994 in the Nafplion Court of Appeal. The hearing was fixed for 4 December 1996. 22. On 6 February 1997, in judgment no. 94/1997, the Court of Appeal dismissed the applicant's application for an order restoring matters to the previous position on the ground that that application had already been dismissed in substance by judgment no. 929/1996 of the Court of Cassation. The applicant did not appeal to the Court of Cassation against that judgment. 23. The relevant Article of the 1975 Constitution provides: “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, in the circumstances and manner laid down 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 assessment of compensation. In cases in which an application is made for immediate final assessment of compensation, regard shall be had to the value of the expropriated property at the time of the court hearing of the application. ... 4. Compensation shall in all cases be assessed by the civil courts. A court may even make a provisional assessment of compensation after the person entitled has been heard or his attendance requested and, at its discretion, require such person to furnish an appropriate guarantee before receiving the compensation, in accordance with law. Until either final or provisional compensation has been paid, all the rights of the owner shall remain intact, occupation of the property being prohibited.” The assessed compensation must be paid within a year and a half of publication of the provisional assessment order. If immediate final assessment is sought, the final compensation must be paid within a year and a half of publication of the final assessment by the court. 24. A party to proceedings may apply for an order restoring matters to the previous position if it has been unable to comply with a time-limit as a result of an act of force majeure (Article 152 of the Code of Civil Procedure). Article 154 of the Code lays down that applications for orders restoring matters to the previous position are made to the court before which the main proceedings are pending and, if there is only one set of proceedings, to the court which has jurisdiction to determine whether the procedural step for which the time-limit was imposed has been taken in time. 25. The Code of Civil Procedure (Articles 118 to 120 and Article 566) lays down that that notices of appeal on points of law must state the court to which the appeal is made, the names and addresses of the parties, the purpose of the appeal, the judgment appealed against, the grounds of appeal and whether the appeal is against all or part of the impugned decision. The notice of appeal must also be duly dated and signed. Applications for an order restoring matters to the previous position must state the reasons why the applicant has failed to comply with the time-limit and the evidence on which it intends to rely in support of its allegations (Article 155 of the Code of Civil Procedure). 26. Article 11 of Decree no. 26/6 of 10 July 1944 provides that time shall not run against the State during the judicial vacation, that is to say from 1 July to 15 September. 27. Section 25 of Law no. 2318/1995 lays down that court bailiffs are civil servants (δημόσιoι λειτoυργoί ή υπάλληλoι) who act as State representatives in the performance of their duties. 28. Under Article 18 § 10 of Legislative Decree no. 797/1971, no appeal lies against a decision assessing the provisional unit amount of compensation.