CASE OF PALIOURAS AND OTHERS v. GREECE

THIRD SECTION

CASE OF PALIOURAS AND OTHERS v. GREECE

(Applications nos. 51031/16 and 2 others – see appended list)

JUDGMENT
 

STRASBOURG

10 September 2024

This judgment is final but it may be subject to editorial revision.

In the case of Paliouras and Others v. Greece,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

 Darian Pavli, President,
 Ioannis Ktistakis,
 Andreas Zünd, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the applications nos. 51031/16, 51040/16 and 51054/16 against the Hellenic Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 23 August 2016 by the applicants listed in the appended table (“the applicants”), who were represented by Mr V. Chirdaris, a lawyer practising in Athens;

the decision to give notice of the applications to the Greek Government (“the Government”) represented by their Agent’s delegates, Ms G. Papadaki and Ms S. Trekli, Senior Advisers at the State Legal Council, and the Greek Agent, Ms Niki Marioli;

the parties’ observations;

the decision to reject the Government’s objection to the examination of the applications by a Committee;

Having deliberated in private on 9 July 2024,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The case concerns allegedly contradictory reasoning in the domestic court’s judgments in the context of the applicants’ request for annulment of the compensation protocols issued against them.

2.  On 2 July 2015, protocols of administrative eviction (πρωτόκολλα διοικητικής αποβολής) were issued against the applicants for the arbitrary occupation of some land plots characterised as public.

3.  On the same date, protocols determining compensation for the arbitrary use (πρωτόκολλα καθορισμού αποζημίωσης αυθαίρετης χρήσης) of the land in question were issued against the applicants for the period between 1 January 1995 and 31 December 2014 (covering nineteen years) amounting to 4,878.75, 1,697.80 and 3,325.80 euros (EUR) respectively for each applicant.

4.  On 13 August 2015 each applicant introduced an application (ανακοπή) before the single-member first instance court of Karditsa requesting that the compensation protocols be annulled or, alternatively, modified. They paid EUR 975,50, 339,56 and 665,04 respectively (corresponding to 20% of the determined compensation), as a procedural requirement for their applications to be examined.

5.  On 24 February 2016 the single-member first instance court of Karditsa dismissed the applications by final judgments nos. 35/2016, 36/20126 and 34/2016 respectively and validated the protocols determining compensation for nineteen years. The domestic court found in respect of all applicants that Article 2 of Law no. 388/1943 providing for the annulment of the compensation for a period exceeding five years from the date the protocols were first issued, was applicable and cited relevant case-law in this regard. At the same time, the court held in its reasoning that the protocols had been lawfully issued for nineteen years and, in the operative part, validated the compensation protocols for that period.

6.  The applicants relied on Article 6 § 1 of the Convention to claim a violation of their right to a fair hearing, arguing that the reasoning of the court’s judgments was contradictory, and on Article 1 of Protocol No. 1 to the Convention for arbitrary and unreasonable compensation.

THE COURT’S ASSESSMENT

7.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

8.  The Court notes that the applicant in application no. 51031/16, Mr Achilleas Paliouras, died on 3 September 2017 while the case was pending before the Court. The applicant’s grandchildren, Mr Konstantinos Koutsianas, Mr Achilleas Koutsianas and Mr Nikolaos Koutsianas expressed their wish to pursue the application in his stead. The Government did not object and the Court considers that the above-mentioned heirs have a legitimate interest in pursuing the application on behalf of their late grandfather. However, reference will still be made to the applicant of application no. 51031/16 throughout the present text (see Horváthová v. Slovakia, no. 74456/01, §§ 25-27, 17 May 2005).

9.  The Government argued that the applicants had failed to exhaust domestic remedies. In particular, they could have applied for the rectification of the judgments before the Karditsa single-member first instance court under Articles 315 and 317 of the Greek Code of Civil Procedure (CPP). Article 315 of the CPP provides:

«If, due to an oversight in the drafting of the judgment, clerical or accounting errors have infiltrated or if its operative part was formulated in an incomplete or inaccurate manner, the court which has issued the judgment may, if a party so requests or even ex officio, rectify it by a new judgment».

10.  They stressed that the domestic court, although explicitly recognising that compensation for arbitrary use could only be imposed for five years in respect of protocols issued for the first time such as the ones in question, had failed to reflect the real judicial intention and validated the contested protocols holding that compensation was due for nineteen years. The Government noted that it was apparent from the judgments and the citation of settled case‑law that the real intention of the court was that the protocols should have covered a period of five years and not nineteen, as it had mistakenly been the case.

11.  The Government noted that extraordinary procedural remedies are not remedies requiring exhaustion for the purposes of Article 35 § 1 of the Convention. However, as the judgments were final, the respondent could not afford the applicants redress otherwise. The remedy under Article 315 of the CPP was accessible and effective in view of the circumstances.

12.  Alternatively, the applicants could have applied to the State Legal Council (SLC) for an extrajudicial recognition or settlement of their claims whereby the SLC had the possibility to recognise that no compensation was due beyond five years by means of an act (πρακτικό) with the same legal effect as a court’s judgment. They noted that an application could be submitted at any time before or after the imposition of compensation through a simplified and costless procedure.

13.  The applicants argued that Article 315 of the CPP was not applicable in their cases as there was no discrepancy between the court’s intention and the wording in the operative part of the judgment. According to the legal framework and the case-law, the rectification (of any part of the judgment) was possible provided that the principle of res judicata was observed, and the errors were attributed to discrepancies between what the court intended to express and what was formulated. Therefore, rectification should neither pertain to the merits nor alter or revoke the judgment’s content. Any errors related to implementation and interpretation of law or assessment of evidence can only be contested by legal remedies, whereas rectification applied to inadvertent errors occurring during the drafting or transcript of a judgment to attribute to the text its intended content.

14.  In the applicants’ view, the domestic court correctly set out the legislative framework establishing that compensation protocols issued for the first time could not be validated for a period beyond five years. They asserted that there was a legal error in the judgments, in that they had found that the protocols had been lawfully issued for a period of nineteen years, despite the fact that they had been first issued in 2015.

15.  The applicants further contended that applications before the SLC could only result in a non-enforceable advisory opinion that would be submitted to the Ministry of Finance for a decision, and thus, would not offer any prospect of success.

16.  The general principles concerning the rule of exhaustion of domestic remedies have been summarised in Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69‑77, 25 March 2014). Discretionary or extraordinary remedies are not considered effective remedies within the meaning of Article 35 § 1 of the Convention and thus need not be used (see Šimkus v. Lithuania, no. 41788/11, § 33, 13 June 2017, and Goulandris and Vardinogianni v. Greece, no. 1735/13, § 27, 16 June 2022).

17.  In view of this, the Court considers that the remedies suggested by the Government, notably applications for rectification and before the SLC, do not constitute legal remedies that should be exhausted. It takes further note of the case-law and material produced by both parties which is not factually identical to the present cases. In the light of the above, the Court dismisses the Government’s objection.

18.  The applicants stressed that the Government acknowledged that the protocols in question should have been annulled for the period beyond five years.

19.  The Government considered that the judgments were well‑substantiated with regard to the public nature of the land and its arbitrary occupation by the applicants, as well as rental values and the date of issue of the compensation protocols. As regards the period for which the compensation should have been determined, the domestic court set out and interpreted the pertinent applicable provision but it reached a manifestly erroneous conclusion that did not alter the fairness of the proceedings to such an extent as to infringe Article 6 §1 of the Convention.

20.  The general principles concerning arbitrary or manifestly unreasonable findings of domestic courts have been summarised in Bochan v. Ukraine (no. 2) [GC], no. 22251/08, §§ 61- 62, ECHR 2015; Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, §§ 83-85, 11 July 2017; and Lazarević v. Bosnia and Herzegovina, no. 29422/17, § 30, 14 January 2020.

21.  The Court observes that the domestic court first held that compensation protocols should not be validated beyond five years. It then found that the protocols had been lawfully issued for a period of nineteen years and dismissed the applicants’ claims without establishing any connection between the facts, the applicable law and the outcome. The period of nineteen years, acknowledged by both parties as erroneous, was further reiterated in the operative part of the judgments.

22.  The Court considers that the reasoning of the domestic court, comprising the legal grounds and taken together with the operative part, renders the court’s decision ambiguous and arbitrary.

23.  The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 6 § 1 of the Convention.

24.  The Government submitted that the applications should be dismissed as inadmissible on account of insignificant damage on the basis of the de minimis criterion. The applicants disagreed with the Government’s objection.

25.  The Court finds that it is not necessary to reply to the Government’s objection as, in any event, this part of the applications is inadmissible for the following reasons.

26.  The Government noted that the applicants had benefited from the long-term arbitrary use of public property to such an extent that no financial or other impact is entailed for the applicants who are still under the obligation to pay to the State. Each applicant paid part of the compensation (see paragraph 4 above) which is less than the compensation corresponding to five years. The applicants have neither been requested to pay any further amount since 2016 nor have the remaining amounts been established as public revenue to be collected. The applicants have not been deprived of their property nor their right to peaceful enjoyment of possessions but on the contrary have unjustifiably enriched themselves at the expense of the State.

27.  The applicants argued that as the protocols have not been revoked they have suffered significant damage in view of the amount of the total compensation imposed upon them (see paragraph 3 above). Each applicant paid part of the compensation (see paragraph 4 above) and the Greek State is entitled to request that the remaining amount be paid with interest since the judgments are final. In reply to the Government’s statement that the sums already paid fell short of the compensation they should have paid for the five‑year period, they alleged that separately from the question of the period for which compensation was imposed, the amount of compensation was erroneously calculated, rendering arbitrary also the amount corresponding to the five-year period.

28.  The Court first notes that the applicants’ complaint concerning the manner in which the compensation was calculated is not supported by any evidence or domestic decision. The Court further considers that the amounts mentioned in paragraph 4 above were lawfully paid by the applicants as a procedural requirement to have their case considered by a court, and in any event it fell short of the sums that would have been due for the period of five years. In addition, they have not been ordered to pay any additional amount of compensation and, according to the Government’s submissions, the applicants have a possibility (see paragraph 12 above) to adjust the amounts of the debts to the extent these are erroneous.

29.  The Court considers in the light of all the material in its possession, that these complaints do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. It follows that this part of the applications is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

30.  The applicants claimed EUR 4,878.75, 1,697.80 and 3,325.80 respectively in respect of pecuniary damage. Each applicant further claimed EUR 25,000 in respect of non-pecuniary damage and they jointly claimed EUR 1,500 for costs and expenses incurred before the Court. They also requested that the amount for costs and expenses be paid directly into the bank account of their representative.

31.  The Government argued that the applicants had not suffered pecuniary damage and that the amounts claimed for non-pecuniary damage and costs and expenses were excessive and unjustified. In their view, the finding of a violation would constitute sufficient just satisfaction.

32.  The Court considers it reasonable to award the applicants the amounts indicated in the appended table in respect of non-pecuniary damage. The Court dismisses the remainder of the applicants’ claims for damages, in view of the circumstances of the case and the nature of the violation found.

33.  Having regard to the documents in its possession, the Court considers it reasonable to award the applicants jointly EUR 1,500 for costs and expenses for the proceedings before the Court plus any tax that may be chargeable to the applicants, and for that amount to be paid directly into the bank account of the applicants’ representative, as requested.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table for non-pecuniary damage, plus any tax that may be chargeable; and EUR 1,500 (one thousand five hundred euros), jointly, plus any tax that may be chargeable to the applicants, in respect of costs and expenses for the proceedings incurred before the Court, to be paid directly into the bank account of the applicants’ representative;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 10 September 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Olga Chernishova Darian Pavli
 Deputy Registrar President

APPENDIX

List of cases:

No.

Application no.

Case name

Lodged on

Applicant
Year of Birth
Place of Residence
Nationality

Represented by

Amount awarded for non-pecuniary damage

(in euros)[1]

1.

51031/16

Paliouras v. Greece

23/08/2016

Achilleas PALIOURAS
1922
Karditsa
Greek

Died: 2017

Heirs:

Konstantinos KOUTSIANAS

1981

Achilleas KOUTSIANAS

1983

Nikolaos KOUTSIANAS

1986

Vassilis CHIRDARIS

Athens

4,000

jointly to the three heirs

2.

51040/16

Koutsianas v. Greece

23/08/2016

Konstantinos KOUTSIANAS
1981
Karditsa
Greek

Nikolaos KOUTSIANAS
1986
Karditsa
Greek

Vassilis CHIRDARIS

Athens

4,000

jointly to the two applicants

3.

51054/16

Palioura v. Greece

23/08/2016

Stergiani PALIOURA
1955
Karditsa
Greek

Vassilis CHIRDARIS

Athens

4,000

[1] Plus any tax that may be chargeable