DE JESUS AND OTHERS v. PORTUGAL

Published on 19 February 2024

FOURTH SECTION

Application no. 47841/20
Isaura DE JESUS and Others
against Portugal
lodged on 27 October 2020
communicated on 2 February 2024

SUBJECT MATTER OF THE CASE

The applicants are co-owners of land that was classified by the Municipality of Palmela as an Urban Area of Illegal Genesis (Área Urbana de Génese Ilegal- “AUGI”) given that it was rural land on which an informal urban division had been carried out and constructions built without a licence from the competent authorities.

The applications concern enforcement proceedings brought against the applicants after they failed to pay their share of costs for the urbanisation of the AUGI so that the land could be converted into urban land, in accordance with the conditions provided for in Law no. 91/95 of 2 September 1995, which established the exceptional legal regime for the regularisation of AUGIs at domestic level.

On 27 March 2004 the co-owners of the AUGI held a general assembly at which they approved the provisional budget for the urbanisation works in the global amount of 8,916,880 euros (EUR). They also approved the formula to share urbanisation costs between co-owners.

On 19 August 2009 the Municipality Council of Palmela approved the division of the site (licença de loteamento) for the conversion of the AUGI.

On 25 August 2009 a letter was sent to the first applicant’s deceased husband, informing him of the number of lots of land allocated to him.

On 30 July 2010 the Municipality of Palmela published the division of the site for the conversion of the AUGI.

Following the approval of the division of the site, the Administration Committee of the AUGI determined the provisional amount of EUR 385,933.72 to be paid by the applicants, taking into consideration that 21 plots of land had been allocated to them. Of this amount, the applicants had already paid EUR 27,935 in 2004, as per an agreement with the Administration Committee.

On 25 November 2014 a letter was sent by the Administration Committee of the AUGI to the applicants, claiming the payment of the remaining debt.

On 6 February 2018, the Administration Committee of the AUGI initiated enforcement proceedings against the applicants for EUR 429,637.70 corresponding to the amount claimed based on the certified copy of the minutes of the General Assembly of 27 March 2004, plus interest.

The applicants opposed the enforcement proceedings, claiming that the enforcement title (título executivo) was not valid.

On 28 January 2020, ruling at last instance, the Supreme Court decided that the minutes of the General Assembly of 27 March 2004 constituted an enforceable title in so far as they established the formula to calculate the amount enforced.

Relying on Articles 6 § 1 and 13 of the Convention and on Article 1 of Protocol No. 1 to the Convention, the applicants complain that they were arbitrarily and disproportionately deprived of their property. They claim in particular that:

- the enforceable title, which was the basis of the enforcement proceedings lodged by the AUGI Commission against them, was not in accordance with Law no. 91/95;

- Law no. 91/95 was not sufficiently precise and foreseeable in terms of division of the land and the costs of the conversion between the co-owners, failing to strike a fair balance between the public interest inherent in the conversion and their right to protection of their property rights;

- their arguments were not heard, and the principles of adversarial proceedings and equality of arms were not respected during the enforcement proceedings brought against them, in breach of their right to a fair trial and to an effective remedy in respect of the interference with their property rights.

QUESTIONS TO THE PARTIES

1.  Have the applicants exhausted all domestic remedies in respect of their grievances under Article 1 of Protocol No. 1 to the Convention, as required by Article 35 § 1 of the Convention (see Communauté genevoise d’action syndicale (CGAS) v. Switzerland [GC], no. 21881/20, §§ 138-146, 27 November 2023)?

2.  Did the applicants have any “possession” for the purpose of Article 1 of Protocol No. 1 (see Béláné Nagy v. Hungary [GC], no. 53080/13, §§ 73‑76, 13 December 2016; and Kopecký v. Slovakia [GC], no. 44912/98, § 35 (c), ECHR 2004-IX)?

3.  Should the answer to the above questions be in the affirmative, has there been a violation of the applicants’ peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1? In particular, was the interference in accordance with the law and necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions (see G.I.E.M. S.r.l. and Others v. Italy [GC], nos. 1828/06 and 2 others, §§ 292-293, 28 June 2018; Depalle v. France [GC], no. 34044/02, §§ 83-84, ECHR 2010; and Ivanova and Cherkezov v. Bulgaria, no. 46577/15, § 73, 21 April 2016)?

4.   Did the applicants benefit from a fair trial in the determination of their civil rights and obligations in accordance with the principles of adversarial proceedings and equality of arms, as required by Article 6 § 1 of the Convention (see Regner v. the Czech Republic [GC], no. 35289/11, § 146, 19 September 2017)?

5.   Did the applicants have at their disposal an effective domestic remedy for the complaints under Article 1 of Protocol No. 1 to the Convention, as required by Article 13 of the Convention?

INFORMATION SOUGHT

The applicants are invited to indicate whether they have paid the amounts claimed from them by the administration of the AUGI and, if not, whether attachments (penhoras) of assets belonging to them have been ordered.

They are also invited to provide an update about the current situation of the AUGI at issue.

APPENDIX

List of applicants: