FIRST SECTION
CASE OF TSALAPATAS AND OTHERS v. GREECE
(Application no. 6667/09)
JUDGMENT
STRASBOURG
18 October 2011
This judgment is final but it may be subject to editorial revision.
In the case of Tsalapatas and Others v. Greece,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Anatoly Kovler, President,
Linos-Alexandre Sicilianos,
Erik Møse, judges,
and André Wampach, Deputy Section Registrar,
Having deliberated in private on 27 September 2011,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 6667/09) 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”) by six Greek nationals whose names appear in the annex, on 13 January 2009.
2. The applicants were represented by Mr A. Papakonstantinou, a lawyer practising in Athens. The Greek Government (“the Government”) were represented by their Agent’s delegates, Mrs K. Paraskevopoulou, Senior Adviser at the State Legal Council, and Mr I. Bakopoulos, Legal Representative at the State Legal Council.
3. On 2 September 2010 the President of the First Section decided to give notice of the application to the Government. In accordance with Protocol no. 14, the application was allocated to a Committee of three Judges.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The six applicants were born on the dates listed in the Annex.
5. The applicants are co-owners of a plot of land in the Volos district. On 26 August 1986 a compulsory expropriation was declared on their property according to presidential decree no. 719/1986. Subsequently, on 1st August 2002, the applicants filed an application with the Ministry of Environment, Physical Planning and Public Works asking for the revocation of the blocking of their property as the expropriation procedure had not been completed and no compensation had been awarded to them.
6. On 18 November 2002 the applicants lodged a recourse against the Greek authorities with the Volos First Instance Administrative Court challenging the implicit refusal of the authorities to revoke the expropriation of their property.
7. On 7 July 2005 a preliminary decision was published asking the authorities to submit additional evidence within twenty days (decision no. 241/2005). On 13 July 2006 the applicants filed an application before the Volos First Instance Administrative Court asking for a hearing date to be set as soon as possible.
8. The hearing took place on 5 March 2009.
9. By judgment dated 25 June 2009 the Volos First Instance Administrative Court accepted the applicants’ recourse (judgment no. 144/2009).
10. On 22 January 2010 the Government lodged an appeal on points of law with the Supreme Administrative Court challenging the abovementioned decision (appeal no. 1099/10). It transpires from the case file that these proceedings are still pending.
II. RELEVANT DOMESTIC LAW AND PRACTICE
11. The following provisions of the Introductory Law (Εισαγωγικός Νόμος) to the Civil Code (Law no. 2783/41) are relevant:
Section 104
“The State shall be liable in accordance with the provisions of the Civil Code concerning legal persons, for acts or omissions of its organs regarding private-law relations or State assets.”
Section 105
“The State shall be under a duty to make good any damage caused by the unlawful acts or omissions of its organs in the exercise of public authority, except where the unlawful act or omission is in breach of an existing provision but is intended to serve the public interest. The person responsible shall be jointly and severally liable, without prejudice to the special provisions on ministerial responsibility.”
12. These sections establish the concept of a special prejudicial act in public law, creating State liability in tort. This liability results from unlawful acts or omissions. The acts concerned may be not only legal acts but also physical acts by the administrative authorities, including acts which are not in principle enforceable through the courts (Kyriakopoulos, Interpretation of the Civil Code, section 105 of the Introductory Law to the Civil Code, no. 23; Filios, Contract, Special Part, volume 6, Tort, 1977, para. 48 B 112; E. Spiliotopoulos, Administrative Law, 3rd edition, para. 217; Court of Cassation judgment no. 535/1971, Nomiko Vima, 19th year, p. 1414; Court of Cassation judgment no. 492/1967, Nomiko Vima, 16th year, p. 75). The admissibility of an action for damages is subject to one condition, namely the unlawfulness of the act or omission.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
13. The applicants complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
14. The Government contested that argument.
15. The period to be taken into consideration began on 18 November 2002 when the applicants lodged a recourse with the Volos First Instance Administrative Court, and has not yet ended as, according to the case file, the proceedings are still pending before the Supreme Administrative Court. It has thus lasted, to date, more than eight years and [eight months] for two levels of jurisdiction.
A. Admissibility
16. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
17. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
18. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above).
19. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.
There has accordingly been a breach of Article 6 § 1.
II. OTHER ALLEGED VIOLATION OF THE CONVENTION
20. The applicants also complained that their right to property under Article 1 of Protocol No. 1 of the Convention had been violated as, despite the passage of a long time from the declaration of the expropriation on their property, no compensation had been awarded to them for its blocking.
21. The Court observes that the applicants could have lodged a civil action for damages against the State under sections 104 and 105 of the Introductory Law to the Civil Code, asking for compensation for loss of income due to the blocking of their property and consequently the lack of its peaceful enjoyment (see, Roussakis and others v. Greece (dec.), no. 15945/02, 8 January 2004 and Amalia S.A. & Koulouvatos S.A. v. Greece (dec.), no. 20363/02, 28 October 2004). In this connection, the Court observes that the applicants did not make any submissions concerning the availability of this remedy.
22. Therefore, in view of the above, this complaint should be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
23. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
24. In respect of pecuniary damage, the applicants claimed (a) 1,010,000 euros (EUR) jointly concerning damage they had allegedly suffered because of the deprivation of their property for twenty-five years without compensation and (b) EUR 4,920 jointly for costs concerning the preparation of a report by a property valuation company assessing the value of their plot. Further, they claimed EUR 45,000 each for non-pecuniary damage.
25. The Government contested the applicants’ claims for pecuniary damage. They stressed that these claims, as long as they were connected with a violation of property rights, fell outside the Court’s examination of the case under Article 41 of the Convention and should be rejected. Further, regarding the applicants’ claim for non-pecuniary damage, they considered the amount claimed exorbitant and submitteds that if the Court considered that an award should be made, an amount of an amount of EUR 6,000 to each applicant would be adequate and reasonable.
26. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects these claims. On the other hand, ruling on an equitable basis and taking into account all the circumstances of the case, it awards jointly to the first three applicants EUR 7,000 and, further, EUR 7,000 to each of the other applicants in respect of non-pecuniary damage, plus any tax that may be chargeable on this amounts.
B. Costs and expenses
27. The applicants claimed EUR 2,214 jointly for the costs and expenses incurred before the Court. They produced an invoice for that amount.
28. The Government contested this claim and submitted that the amount claimed was not reasonable.
29. Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the applicants jointly the sum of EUR 1,500 plus any tax that may be chargeable to the applicants..
C. Default interest
30. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention;
3. Holds
(a) that the respondent State is to pay the applicants, within three months, the following amounts:
(i) jointly to the first three applicants, Spyridonas Tsalapatas, Chariklia Tsalapata and Aikaterini Tsalapata EUR 7,000 (seven thousand euros) plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) to the other three applicants Maria Nikoloutsou, Achilleas Tsalapatas and Ioannis Tsalapatas, EUR 7,000 (seven thousand euros) each, plus any tax that may be chargeable, in respect of non-pecuniary damage;
(iii) EUR 1,500 (one thousand five hundred euros) jointly to the applicants, plus any tax that may be chargeable, in respect of costs and expenses;
(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;
4. Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 18 October 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
André WampachAnatoly Kovler
Deputy RegistrarPresident
ANNEX
Spyridonas TSALAPATAS, born in 1966Chariklia TSALAPATA, born in 1967Aikaterini TSALAPATA, born in 1946Maria NIKOLOUTSOU, born in 1946Achilleas TSALAPATAS, born in 1947Ioannis TSALAPATAS, born in 1949
Full & Egal Universal Law Academy