AS TO THE ADMISSIBILITY OF
Application No. 29994/96
by ANAGENISSIS BUILDING ASSOCIATION LTD
against Greece
The European Commission of Human Rights (First Chamber) sitting
in private on 17 October 1996, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
A. WEITZEL
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 11 December 1995
by ANAGENISSIS BUILDING ASSOCIATION LTD against Greece and registered
on 29 January 1996 under file No. 29994/96;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a company incorporated under Greek law. It has
its seat in Athens. In the proceedings before the Commission it is
represented by Mr. Y. Drossos, a lawyer practising in Athens.
The facts of the case, as they have been submitted by the
applicant company, may be summarised as follows:
In 1963 and 1964 the applicant company bought 727,000 square
meters of land which formed part of a larger estate known as "Stamata
estate" from the successors in title to the heirs of A.I.
On 29 June 1966 the city plan of the municipality of Stamata was
amended by royal decree to include part of the applicant company's plot
of land (450,000 square meters). This would have enabled the applicant
company to obtain building permits to develop its land. On
10 September 1966 this royal decree was challenged by another company
before the Council of State (Simvulio Epikratias) on the ground, inter
alia, that there was a forest on the applicant company's plot of land.
On 13 January 1968 the Ministry of Agriculture requested the
Ministry of Public Works to revoke the same royal decree on the ground
that the plot of land in question was a "public forest" subject to the
restrictions of Articles 190 and 216 of the Forests' Code (Law 4175/29)
and, as a result, the Ministry of Agriculture should have been
consulted before the promulgation of the royal decree.
On 8 March 1968 the Council of State found that no part of the
applicant company's plot of land was covered by a forest. However, it
annulled the royal decree as ultra vires. The Council considered that
the extension of the town plan had not been ordered in the general
interest. Its sole purpose was to serve the interest of the applicant
company. The Council further considered that only the Parliament could
decide the extension of a town plan in the interests of one particular
building association.
In letters addressed to the applicant company in 1970 and 1971
the Ministries of Social Services and Public Works referred to the
applicant company as owner of the plot of land.
On 23 February 1979 the Undersecretaries of State for Finance and
Agriculture issued a joint decision declaring that the "Stamata estate"
had always belonged and continued to belong to the State.
On 4 August 1981 there was a fire in Attica. On 26 April 1982 the
Prefect of Eastern Attica issued a decision ordering the reforestation
of a specific area.
On 16 April 1987 a new presidential decree concerning building
associations was promulgated. On 30 April 1987 the Ministry of Public
Works informed the applicant company that the recent legislative change
had removed the restrictions imposed by the decision of 8 March 1968
of the Council of State. As a result, the applicant association could
have obtained a permission to develop its plot of land, if the latter
had not been included in the area affected by the decision of
26 April 1982 of the Prefect of Eastern Attica.
On 30 July 1992 after ten years of litigation, the multi-member
First Instance Civil Court (Polimeles Protodikio) pronounced on a
dispute between the State and another building association which had
also bought a plot of land which had formed part of the larger "Stamata
estate". In its decision the first instance court recognised, inter
alia, that the "Stamata estate" belonged to the heirs of A.I. This
decision was upheld by the Court of Appeal (Efetio) of Athens in 1994.
On 9 November 1995 the applicant company, relying on the decision
of 8 March 1968 of the Council of State, asked the Prefect of Eastern
Attica to revoke his decision of 26 April 1982. On the same day and
relying on the same decision, it asked the Ministries of Finance and
Agriculture to revoke their decision of 23 February 1979.
COMPLAINTS
The applicant company complains under Article 1 of Protocol No. 1
that its right to the peaceful enjoyment of its possessions has been
and is still being violated. Thus, the authorities contest its right
to own 450,000 square meters, which used to form part of the larger
"Stamata estate" and which it acquired from the successors in title to
the heirs of A.I. They also consider that the plot of land in question
is covered by a forest. Finally, they consider that its plot of land
must be reforested and have, as a result, imposed a serious restriction
on its use for which the law provides no compensation.
The applicant company submits that the authorities have chosen
to ignore the decisions of 8 March 1968 of the Council of State and
30 July 1992 of the First Instance Civil Court of Athens from which it
transpires that it is the owner of the plot of land in question which
was never covered by a forest. As a result, the institution of any
further proceedings would be futile.
THE LAW
The applicant company complains under Article 1 of Protocol No. 1
(P1-1) of a violation of its right to the peaceful enjoyment of its
possessions in that the authorities question its right to own a piece
of land and, in addition, have imposed restrictions on its use by
ordering its reforestation.
The Commission recalls that under Article 26 (Art. 26) of the
Convention it may only deal with a matter after all domestic remedies
have been exhausted, according to the generally recognised rules of
international law. It also recalls that the basis of this rule is that,
before proceedings are brought before an international court, the State
made answerable must have had an opportunity of redressing the alleged
damage by domestic means (No. 12945/87, Dec. 4.4.90, D.R. 65 p. 173).
The Commission does not exclude that there might be a dispute
between the authorities and the applicant company as to the ownership
of the plot of land in question. However, this dispute has never been
brought before the domestic courts.
Moreover, the Commission notes that the applicant company has
never been refused permission to develop the plot of land on the ground
that it is not an owner. On 30 April 1987 the Ministry of Public Works
indicated that such a permission would have been refused because on
26 April 1982 the Prefect of Eastern Attica decided that the plot of
land had to be reforested. However, the applicant company never
sought to obtain the annulment of the decision of the Prefect of
Eastern Attica by bringing an action before the Council of State.
Neither has it indicated any valid reasons why such an action would not
constitute an effective remedy in the circumstances of the case.
Admittedly, on 8 March 1968 the Council of State considered that
the plot of land was not covered by a forest and the Prefect of Eastern
Attica took no account of this judgment when he ordered the
reforestation of a larger area affected by the fire of 4 August 1981.
However, the Commission does not consider that this necessarily
indicates that a new Council of State judgment quashing the Prefect's
decision insofar as it affected the applicant company's plot of land
would not be respected by the authorities.
It follows that the applicant company has not exhausted domestic
remedies in accordance with Article 26 (Art. 26) of the Convention and
the application must be rejected as inadmissible under Article 27 para.
3 (Art. 27-3) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy