AS TO THE ADMISSIBILITY OF
Application No. 33535/96
by Garifallia KALLERGI and 467 others
against Greece
The European Commission of Human Rights (First Chamber) sitting
in private on 10 September 1997, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M. HION
Mr. R. NICOLINI
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 19 March 1996 by
Garifallia KALLERGI and 467 others against Greece and registered on
28 October 1996 under file No. 33535/96;
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 first applicant is a Greek citizen. She is a civil servant
and resides in Alimos Attiki. The names and particulars of the
remaining 467 applicants are available at the Commission's Secretariat.
In the proceedings before the Commission they are represented by
Mr. I. Stamoulis, a lawyer practising in Athens.
The facts of the case, as they have been submitted by the
applicants, may be summarised as follows:
A. Proceedings involving the applicants
On 12 May 1993 the applicants concluded, before a notary in
Marathonas, an agreement with Mr. M for the purchase of M's share in
a plot of land called "Plakes Suniu", situated partly in Keratea and
partly in Lavrio. On the same day, they paid 90,846,000 drachmas by way
of taxes for the purchase.
On 13 May 1993 the tax office of Lavrio certified that the plot
of land in question did not figure in the special registry of State-
owned immovable property (vivlia katagraphis dimosion ktimaton).
On 8 June 1993 the applicants asked the mortgage office
(ipothikophilakio) of Keratea to register (metagraphi) in its books the
notarial deed of 12 May 1993. The Keratea mortgage office refused on
the same day, on the ground that the plot of land in question formed
part of a wider plot of land which could not be sub-divided.
On 1 July 1993 the applicants submitted a similar request to the
mortgage office of Lavrio, as they had to do under domestic law since
the plot of land in question was situated partly in Keratea and partly
in Lavrio. They received, however, a negative reply on the same day.
The Lavrio mortgage office relied on a letter addressed to it by
the Forest Office of Lavrio on 9 December 1992 informing it of the
following: Part of the plot of land in question was situated within the
confines of the "core" of the National Park of Sunio, which had been
founded by presidential decree No. 182/26.3.74 and, as a result, it
could not be the object of private-law transactions. Moreover, the
entire plot of land was owned by the State, used to be covered by a
wood and had to be reafforested (anadasoteo) according to decision
No. 2500/16.10.85 of the Nomarch (Nomarchis) of Eastern Attica. This
was evidenced by the fact that on 7 August 1967 a royal decree was
issued, revoking the decree of 16 April 1966 by which the development
of the plot of land had been authorised, on the ground that the plot
of land was part of a State-owned forest.
The Lavrio mortgage office also invoked the fact that the
applicants had not submitted, as required by law, a certificate that
the plot of land had not been destroyed by fire after 11 June 1975 and
that the applicants and M had not paid the taxes due in full. Finally,
the Lavrio mortgage office referred to the fact that criminal
proceedings had been instituted in connection with the agreement of
12 May 1993.
On an unspecified date, the first applicant was charged with
attempting, by concluding the agreement of 12 May 1993, to deprive the
State of part of its property.
On 8 July 1993 the applicants lodged before the Council of State
(Simvulio Epikratias) an application for the judicial review (etisi
akiroseos) of presidential decree No. 182/26.3.74, decision
No. 69008/10.6.88 of the Minister of Agriculture, which fixed the
confines of the National Park of Sunio, and decision No. 2500/16.10.85
of the Nomarch of Eastern Attica.
On 12 July 1993 the applicants paid an additional sum
of 44,130,220 drachmas by way of taxes for the purchase of M's share
in Plakes Suniu.
On 14 July 1993 the applicants lodged before the Council of State
an application for the judicial review of the decision of 1 July 1993
of the Lavrio mortgage office refusing registration of the notarial
deed of 12 May 1993 and of decision No. 69008/10.6.88 of the Minister
of Agriculture and decision No. 2500/16.10.85 of the Nomarch of Eastern
Attica.
On 30 July 1993 the applicants lodged before the Council of State
an application for the judicial review of the royal decree of
7 August 1967.
On 31 August 1993 the applicants paid a final instalment
of 45,771,607 drachmas to the tax office. M paid his share of the taxes
as well.
On 31 January 1994 the applicants lodged a further application
to the Council of State asking for their previous action against
decision No. 2500/16.10.85 of the Nomarch of Eastern Attica to be
examined separately.
On 30 June 1994 the public prosecutor asked the indictments
chamber of the court of appeal (simvulio efeton) of Athens to indict
the first applicant for attempting, by concluding the agreement of
12 May 1993, to deprive the State of part of its property. On
14 July 1994 the first applicant applied for permission to attend the
hearing before the indictments chamber in person. This hearing was held
on 18 August 1994 in camera. On 2 November 1994 the chamber decided to
reject the applicant's request to appear in person and to commit her
for trial before the three-member court of appeal (trimeles efetio)
which was competent to hear the case at first instance because of the
nature of the charges.
On 4 October 1995 the Council of State rejected the applicants'
application of 8 July 1993, insofar as it concerned presidential decree
No. 182/26.3.74 and decision No. 69008/10.6.88, on the ground that it
had been lodged out of time (decision No. 4727/1995).
On the same day it also rejected the applicants' application of
14 July 1993 on the ground that the decision of 1 July 1993 of the
Lavrio mortgage office was not an administrative act of the type which
could be challenged before the Council of State. The Council considered
that the refusal of the mortgage office to register the notarial deed
of 12 May 1993 should have been challenged before the civil courts, in
accordance with Article 791 of the Code of Civil Procedure. Moreover,
there was no link between the decision of 1 July 1993 of the Lavrio
mortgage office and decision No. 69008/10.6.88 of the Minister of
Agriculture and decision No. 2500/16.10.85 of the Nomarch of Eastern
Attica. As a result, the application had to rejected insofar as it
concerned these acts as well (decision No. 4728/1995).
By a third decision issued on 4 October 1995 the Council of State
rejected the applicants' application of 30 July 1993 on the ground that
it had been lodged out of time (decision No. 4729/1995).
Finally, on the same day the Council of State rejected the
applicants' application of 31 January 1994 on the ground that decision
No. 2500/16.10.85 introduced a general measure and as a result the
time-limit for challenging it started as from its publication in the
Official Gazette (Efimerida Kiverniseos). Since the applicants' action
had been lodged approximately nine years later, it had to be rejected
as out of time (decision No. 4730/1995).
The criminal proceedings against the first applicant are still
pending.
B. Proceedings involving Mr. M
In 1966 and 1967 Mr. M concluded agreements with the heirs of G
for the purchase of a share in Plakes Suniu. G's heirs had obtained
permission to subdivide a wider plot of land on 25 February 1966.
On 16 January 1968 the public prosecutor of the Court of Appeal
of Athens, deciding on an application for interim measures lodged by
the State against M, declared that M had the right to continue
occupying Plakes Suniu which was not covered by a wood and which had
been never occupied by the State.
On 26 February 1969 the three-member criminal court of first
instance (trimeles plimmeliodikio) of Athens acquitted M of charges
concerning the unlawful occupation of Plakes Suniu.
On 26 June 1969 the State lodged a civil action against M
claiming ownership of Plakes Suniu. On 9 February 1991 the multi-member
first instance civil court (polimeles protodikio) of Athens refused to
order, by way of interim measures in the context of the State's civil
action, that Plakes Suniu should be occupied by the State. It also
ordered the taking of evidence on the merits of the case. On
20 May 1991 the single-member first instance civil court (monomeles
protodikio) of Athens ordered that the State's action should no longer
figure in the books kept by the mortgage office of Lavrio because it
was manifestly ill-founded.
C. Relevant domestic law
According to Article 1033 of the Civil Code, agreements
concerning the transfer of ownership of real property are done by
notarial deed. According to Article 1192 of the same Code, such deeds
must be registered in the books of the mortgage office of the area
where the real property is situated. Without such registration, there
is no transfer of ownership, according to Article 1198 of the Code.
According to Article 791 of the Code of Civil Procedure, all
disputes arising out of the refusal of a mortgage office to register
a notarial deed are submitted to the local civil court.
Article 46 of presidential decree No. 18/1989 stipulates that,
except as otherwise provided, an application for judicial review must
be made within sixty days of the day following the date of notification
of the impugned decision or following the date of publication, or,
otherwise, of the day following the day on which the applicant acquired
knowledge of the decision.
COMPLAINTS
1. The applicants complain under Article 1 of Protocol No. 1 that
the various administrative measures taken vis-à-vis the plot of land
they agreed to purchase from Mr. M on 12 May 1993 amount to de facto
expropriation.
In particular, they complain about the royal decree of
7 August 1967 which revoked the royal decree of 16 April 1966 by which
the development of the plot of land had been authorised, on the ground
that the plot of land was part of a State-owned forest. The applicants
contend that the competent administrative authorities have acted
abusively in declaring that their plot of land is part of a State-owned
forest, since this is contradicted by a number of judicial decisions
issued in proceedings involving M.
They also complain about presidential decree No. 182/26.3.74 and
decision No. 69008/10.6.88 of the Minister of Agriculture purporting
to create the National Park of Sunio, which remain in force although
the park was never created and Plakes Suniu has never been officially
expropriated.
Finally, they complain about decision No. 2500/16.10.85 of the
Nomarch of Eastern Attica which declared that the plot of land should
be reafforested, although it has never been a forest.
The applicants point out that, these decisions notwithstanding,
the State accepted the payment of a high amount of taxes for the
transfer of part of Plakes Suniu to the applicants.
They also consider that challenging the mortgage offices' refusal
to register the notarial deed of 12 May 1993 before the civil courts
under Article 791 of the Code of Civil Procedure would have served no
useful purpose. Even if the deed was registered, the applicants would
be still affected by the administrative acts complained of and their
plot of land would be subjected to a regime of de facto expropriation.
2. The applicants also complain under Article 6 para. 1 of the
Convention of their right of access to a court which was violated by
decisions Nos. 4727/1995, 4729/1995 and 4730/1995 of the Council of
State. They consider that the Council of State erred in considering
that the time-limit for challenging the administrative acts attacked
by the applicants' actions started from the publication of these acts
in the Official Gazette. The applicants consider that these acts
introduced individual measures and, as a result, the time-limit for
challenging them before the Council of State started on the day
following the day when the persons concerned became aware of their
contents.
The applicants submit that decision No. 4730/1995 of the Council
of State, in particular, cannot be reconciled with decision
No. 1831/1992 of the same court. In the latter decision the Council of
State had considered that an application for the judicial review of
decision No. 2500/16.10.85 of the Nomarch of Eastern Attica, which had
been lodged by a person affected by that decision in the same manner
as the applicants, need not have been introduced within sixty days from
the day following the publication of that decision in the Official
Gazette but within sixty days from the day following the day when the
plaintiff became aware of its contents.
3. The first applicant also complains under Article 4 of Protocol
No. 7 that criminal proceedings have been instituted against her for
offences of which M had been acquitted in 1969.
4. The first applicant finally complains under Article 6 that she
was not allowed to appear in person before the indictment chamber of
the Court of Appeal of Athens which decided to commit her for trial.
THE LAW
1. The applicants complain under Article 1 of Protocol No. 1 (P1-1)
that the various administrative measures affecting Plakes Suniu, i.e.
the plot of land a share in which they agreed to purchase from M,
amount to a de facto expropriation.
Article 1 of Protocol No. 1 (P1-1) provides as follows:
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way impair
the right of a State to enforce such laws as it deems necessary
to control the use of property in accordance with the general
interest or to secure the payment of taxes or other contributions
or penalties."
The Commission notes that all the administrative measures
complained of were taken before the applicants concluded the agreement
with M for the purchase of his share in the plot of land in question
on 12 May 1993. The Commission also notes that, as a result of the
refusal of the Keratea and Lavrio mortgage offices to register the
relevant notarial deed, the ownership of M's share has not been
transferred to the applicants. The Commission, therefore, considers
that the applicants cannot claim to be affected by the administrative
measures complained of in their capacity as owners of a share in Plakes
Suniu.
However, the Commission cannot ignore that the administrative
measures complained of were relied on by the Lavrio mortgage office to
refuse registration of the notarial deed of 12 May 1993. Moreover, the
Commission is prepared to assume, for the sake of argument, that the
authorities, by accepting the payment of a substantial amount of taxes
in respect of the agreement of 12 May 1993, created a legitimate
expectation to the applicants that they would become the legal owners
of M's share in Plakes Suniu. However, even assuming that the
applicants' legitimate expectations are protected by Article 1 of
Protocol No. 1 (P1-1) (Eur. Court HR, Pressos Compania Naviera S.A. and
other v. Belgium judgment of 20 November 1995, Series A no. 332, p. 21,
para. 31) and that the mortgage offices' refusal to register the
notarial deed amounts to an interference with the applicants' "property
rights" under that provision, the Commission considers that this part
of the application must be declared inadmissible for the following
reasons.
The Commission notes in this connection that the applicants
disposed of a remedy under domestic law against the refusal of the
mortgage offices. As the Council of State indicated in its decision
No. 4728 of 4 October 1995, the applicants could have lodged an action
before the civil courts under Article 791 of the Code of Civil
Procedure. In the context of such an action the applicants could have
put forward their reasons for considering that the Lavrio mortgage
office could not have refused registration on the basis of the
administrative measures complained of. However, the applicants have not
done so and, as a result, the Commission considers that they cannot
argue that national law did not give sufficient protection to their
expectations.
It follows that, even assuming that Article 1 of Protocol No. 1
(P1-1) is applicable, the applicants have not exhausted domestic
remedies as required under Article 26 (Art. 26) of the Convention. As
a result, the Commission considers that this part of the application
must be rejected in accordance with Article 27 para. 3 (Art. 27-3) of
the Convention.
2. The applicants also complain that decisions Nos. 4727/1995,
4729/1995 and 4730/1995 of the Council of State rejecting their actions
as inadmissible amounted to a violation of their right of access to a
court under Article 6 para. 1 (Art. 6-1) of the Convention.
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, provides as follows:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a ... hearing ... by an independent and
impartial tribunal established by law".
The Commission recalls that, according to the case-law of the
Court, Article 6 para. 1 (Art. 6-1) of the Convention extends only to
disputes over civil rights and obligations which can be said, at least
on arguable grounds, to be recognised under domestic law. The
expression disputes over civil rights and obligations covers all
proceedings the result of which is decisive for such rights and
obligations. However, a tenuous connection or remote consequences do
not suffice. The result of the proceedings must be directly decisive
for a civil right or obligation (Eur. Court HR, Pudas v. Sweden
judgment of 27 October 1987, Series A no. 125, pp. 13 and 14, paras.
30 and 31).
The Commission notes that the proceedings culminating in the
decisions complained of concerned a series of administrative acts which
had been adopted long before the conclusion of the agreement of
12 May 1993 between the applicants and Mr. M. These acts affected the
property rights of M, the owner of a share in Plakes Suniu, and not
those of the applicants, who could become owners only after the
registration of the notarial deed of 12 May 1993. It follows that the
proceedings complained of did not concern a property "right" which the
applicants had under domestic law. As a result, no appearance of a
violation of Article 6 para. 1 (Art. 6-1) of the Convention is
disclosed as a result of the rejection of their above-mentioned actions
by the Council of State.
The Commission, therefore, considers that this part of the
application is manifestly ill-founded and must be rejected in
accordance with Article 27 para. 2 (Art. 27-2) of the Convention.
3. The first applicant complains that the institution of criminal
proceedings against her amounts to a violation of Article 4 of Protocol
No. 7 (P7-4).
However, the Commission recalls that Greece has not recognised
the right of individual petition in respect of the rights guaranteed
under Protocol No. 7. It follows that this part of the application must
be rejected as incompatible with the provisions of the Convention in
accordance with Article 27 para. 2 (Art. 27-2) thereof.
4. The first applicant finally complains that she was not allowed
to appear in person before the indictment chamber of the Court of
Appeal of Athens which decided to commit her for trial, in breach of
the principle of equality of arms as guaranteed under Article 6
paras. 1 and 3 (d) (Art. 6-1, 6-3-d)) .
Article 6 (Art. 6) of the Convention provides as follows:
"1. In the determination of any criminal charge against him,
everyone is entitled to a fair ... hearing by an independent and
impartial tribunal established by law. ....
...
3. Everyone charged with a criminal offence has the following
minimum rights:
...
d. to examine or have examined witnesses against him and
to obtain the attendance and examination of witnesses on his
behalf under the same conditions as witnesses against him".
The Commission, on the one hand, considers that the aim of
Article 6 para. 3 (d) (Art. 6-3-d) is to guarantee certain rights for
the accused in connection with the examination of witnesses. Equality
of arms is one of these rights (Eur. Court HR, Engel v. Netherlands
judgment of 23 November 1976, Series A no. 22, p. 39, para. 91). The
applicant, however, does not complain of procedural inequality in the
examination of witnesses. As a result, Article 6 para. 3 (d)
(Art. 6-3-d) is irrelevant in the context of the present application.
It is true, on the other hand, that the second provision invoked
by the applicant, Article 6 para. 1 (Art. 6-1), guarantees the
principle of equality of arms inherent in the notion of fairness under
Article 6 para. 1 (Art. 6-1) (cf. Eur. Court HR, Delcourt v. Belgium
judgment of 17 January 1970, Series A no. 11, p. 15, para. 28).
However, according to the Commission's case-law, the question whether
court proceedings satisfy the requirements of Article 6 para. 1
(Art. 6-1) can only be determined by examining the proceedings as a
whole, i.e. only once they have been concluded (No. 10300/83, Dec.
12.12.84, D.R. 40, p. 180).
The Commission recalls that the proceedings against the first
applicant are still pending. As a result, the Commission cannot
determine at this stage whether the refusal of the indictments chamber
to hear her in person is capable of affecting the fairness of the
proceedings as a whole.
It follows that the applicant cannot claim to be a victim of a
violation of her rights under Article 6 para. 1 (Art. 6-1) of the
Convention. The Commission, therefore, considers that this part of the
application is premature and must be rejected as manifestly ill-founded
in accordance with Article 27 para. 2 (Art. 27-2) 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