SECOND SECTION
PARTIAL DECISION[Note1]
AS TO THE ADMISSIBILITY OF
Application no. 41666/98
by Sofia KYRTATOU & Nikos KYRTATOS
against Greece
The European Court of Human Rights (Second Section) sitting on 11 January 2000 as a Chamber composed of
MrM. Fischbach, President,
MrP. Lorenzen,
MrsM. Tsatsa-Nikolovska,
MrA.B. Baka,
MrE. Levits,
MrA. Kovler,
MrG. Bonello, judges,
andMrE. Fribergh, Section Registrar;
Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 19 June 1996 by Sofia Kyrtatou and Nikos Kyrtatos against Greece and registered on 15 June 1998 under file no. 41666/98;
Having regard to the report provided for in Rule 49 of the Rules of Court;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are Greek nationals, born in 1921 and 1953 respectively and living in Munich. The first applicant is the second applicant’s mother.
The facts of the case, as submitted by the applicants, may be summarised as follows.
The applicants own real property in the south-eastern part of the Greek island of Tinos, where they spend part of their time. Their property includes a swamp by the coast in Ayios Yiannis. The first applicant is the co-owner of a house and a plot of land on the Ayia Kiriaki - Apokofto peninsula, which is adjacent to the swamp.
I.PROCEEDINGS BEFORE THE COUNCIL OF STATE CONCERNING THE REDRAWING OF THE BOUNDARIES OF VARIOUS SETTLEMENTS IN SOUTH-EAST TINOS
On 4 December 1985 the Prefect (Nomarhis) of Cyclade redrew the boundaries of the settlement (ikismos) of Ayios Yiannis of the Dio Horia municipality and of the settlements of Ayia Varvara, Ayios Sostis and Lautaris of the Triandaru municipality (decision No. 9468/1985). On 6 May 1988 the prefect redrew again the boundaries of the settlements of Ayios Yiannis and Ayios Sostis (decision No. 2400/1988).
On 18 March 1993 the town-planning authority of Siros issued building permit No. 620 on the basis of the prefect’s decision No. 9468/1985. Another permit (No. 298) had been issued on the same basis by the same authority in 1992.
On 21 July 1993 the applicants and the Greek Society for the Protection of the Environment and Cultural Heritage lodged an application for judicial review of the prefect’s decisions Nos. 9468/1985 and 2400/1988 and of building permit No. 620/1993 before the Council of State. On the same date a second application was lodged by the same persons for judicial review of the prefect’s two decisions and of building permit No. 298/1992.
On 10 July 1995 the Council of State considered that the applicants had locus standi because they owned property in the area concerned. The Council found that it could not review the prefect’s decision No. 9468/1985 directly because the application had not been lodged within the time-limit prescribed by law. However, it could review the two building permits issued on the basis of that decision and, in the context of this review, the Council was obliged to examine the constitutionality of the prefect’s decision. This decision was found to violate Article 24 of the Constitution, which protects the environment, because the redrawing of the boundaries of the settlements put in jeopardy an important natural habitat for various protected species, the swamp in Ayios Yiannis. It followed that the building permits were also unlawful and had to be quashed. Moreover, the Council quashed the prefect’s decision No. 2400/1988 because it had not been published in the Official Journal in the manner prescribed by law (decisions Nos. 3955/1995 and 3956/1955).
On 21 April 1997 a special committee of the Council of State found that the authorities had failed to comply with the above decisions. They had not demolished the two buildings constructed on the basis of permits Nos. 620/1993 and 298/1992 and continued issuing building permits in respect of the area that had been included in the settlements further to the unlawful redrawing of the boundaries.
The applicants claim that the two buildings in question have been constructed on their land. They also claim that a third building is currently under construction.
II.CRIMINAL COMPLAINT AGAINST MR S
On 9 January 1990 A. Kyrtatos, the first applicant’s husband and second applicant’s father, lodged a criminal complaint against Mr S, an elected local official. He claimed that S had used his influence against him. On 20 October 1990 the public prosecutor decided not to take any action in this connection.
A. Kyrtatos subsequently died.
The applicants claim that, despite decisions Nos. 3955/1995 and 3956/1955 of the Council of State, Mr S took advantage of the redrawing of the boundaries of the settlements in South-East Tinos to build business premises.
III.CIVIL PROCEEDINGS AGAINST MR M
In 1991 the first applicant and others instituted civil proceedings against Mr M in the multi-member first instance civil court (polimeles protodikio) of Siros. They claimed that he had unlawfully taken over part of their land in Ayios Yiannis. On 13 March 1992 the court found in favour of the plaintiffs.
On 31 March 1994 the same court reversed its previous judgment, which had been issued in the absence of Mr M. The proceedings are currently pending before the Court of Appeal (Efetio) of the Aegean.
IV.CIVIL PROCEEDINGS AGAINST MESSRS GK & EK
On 27 November 1995 the second applicant instituted civil proceedings in the Magistrates’ Court (Irinodikio) of Tinos agains Messrs GK and EK claiming that they had injured him in 1990. On 18 March 1997 the court rejected his action on the ground that it had not been shown that the applicant’s health problems had been caused by the 1990 incident.
The applicant appealed. However, his appeal was rejected by the first instance civil court (protodikio) of Siros, sitting as a court of appeal, on an unspecified date.
V.APPLICATION TO THE PUBLIC PROSECUTOR CONCERNING THE FENCES
The fences in the first applicant’s plot in Ayia Kiriaki - Apokofto have been destroyed on many occasions since 1988. When the applicants try to mend the fences they are prevented by the authorities, which receive false information from the persons who have destroyed them.
On 25 October 1997 the applicants requested the public prosecutor to order the authorities not to prevent them from mending their fences. They claim not to have received a reply.
VI.CRIMINAL COMPLAINT FOR DEFAMATION
On an unspecified date the applicants lodged a criminal complaint for defamation against a number of persons who had allegedly lied about the legal status of the first applicant’s property. They have not received any information in this connection.
VII.PROCEEDINGS CONCERNING ELECTRICITY POLE
In 1993 the authorities installed a light on an electricity pole in the first applicant’s plot in Ayia Kiriaki - Apokofto. On 4 June 1993 the applicants, considering that this was against the law, lodged a criminal complaint with the public prosecutor. On 11 June 1993 they lodged an application for interim measures with the Magistrates’ Court of Tinos.
On 30 July 1993 the court found that it was not competent to deal with the case and referred it to the public prosecutor and the single-member first instance civil court (monomeles protodikio) of Siros.
On 25 October 1994 the public prosecutor decided not to institute criminal proceedings. The applicants appealed to the public prosecutor of the court of appeal. They have not received any information in this connection.
VIII.CIVIL PROCEEDINGS AGAINST THE FIRST APPLICANT’S BROTHER
On 15 November 1995 the first applicant and another person lodged a civil action in the multi-member first instance civil court (polimeles protodikio) of Siros against the first applicant’s brother and a fourth individual. They asked the court to order the defendants to pay them a sum of money and to refrain from certain actions in the future. They also asked the court to regulate the use of the house in Ayia Kiriaki - Apokofto by the various co-owners. On 18 July 1996 the court regulated the use of the house and rejected the rest of the claims.
The defendants appealed but the applicants did not. On 30 November 1999 the Court of Appeal of the Aegean issued a final decision rejecting the defendants’ appeal.
The applicants claim that the first applicant’ s brother has acted in collusion with the authorities in order to harm their interests.
IX.THREATENED DEMOLITION OF APPLICANTS’ HOUSE
On 23 June 1993 the applicants received a notice to the effect that their house in Ayia Kiriaki - Apokofto had been built without an authorisation and should be demolished. The applicants appealed to the competent administrative board. Their appeal was rejected.
On 5 October 1994 they applied to the Council of State for judicial review of the decision of the administrative board. The Council decided to suspend the demolition of the applicants’ house. The proceedings are still pending.
X.ATTEMPTED EXPULSION OF FIRST APPLICANT FROM HER LAND
On 13 February 1996 the first applicant was served with a decision ordering her expulsion from the plot of land on the peninsula in Ayia Kiriaki – Apokofto on the ground that it belonged to the State. The applicant appealed to the Magistrates’ Court.
On 28 January 1997 the court quashed the decision in question.
XI.DELIMITATION OF THE BEACH IN AYIA KIRIAKI - APOKOFTO
On 26 January 1996 the authorities drew the limits of the beach, which belongs to the State, in Ayia Kiriaki - Apokofto. The applicants applied for judicial review of this decision to the Council of State arguing that, as a result of the new delimitation, the first applicant had lost part of her property.
The proceedings before the Council of State are still pending.
COMPLAINTS
1.The applicants complain, under Articles 5, 6 § 1, 8 and 10 of the Convention and Article 1 of Protocol No. 1, about the failure of the authorities to comply with decisions Nos. 3955/1995 and 3956/1955 of the Council of State. They claim that the development of the swamp in the south-eastern part of Tinos has led to the destruction of the physical environment and has affected their life. In particular, the successive construction of the three unlawful buildings on their property has meant that they are subjected to constant noise because of the works. One of these buildings is used as a restaurant functioning on a 24-hour basis (building permit No. 298/92). This is the most noisy restaurant on the island. The second building is used as a hotel (building permit No. 620/93) and, according to information, another hotel will function in the third building under construction. In general, the area has lost all of its scenic beauty and its character has changed profoundly from that of a natural habitat for wildlife to a tourist development. Part of the swamp has been reclaimed so as to create, in addition to the buildings, a car park and a road. There are lights on all night and a lot of environmental pollution.
2.The applicants also complain under Articles 6 § 1 and 8 of the Convention and Article 1 of Protocol No. 1 about their inability to obtain protection from the authorities against the activities of Mr S.
3.The first applicant complains under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 of the length of the civil proceedings against Mr M.
4.The second applicant complains under Articles 6 § 1 and 8 of the Convention and Article 1 of Protocol No. 1 about the outcome of the proceedings against Messrs GK and EK.
5.The applicants complain under Articles 5, 6 § 1, 7 and 8 of the Convention and Article 1 of Protocol No. 1 that they are prevented by the authorities from mending their fences.
6.The applicants complain under Articles 6 § 1, 8 and 10 of the Convention and Article 1 of Protocol No. 1 about the authorities’ failure to examine their complaint for defamation.
7.The applicants complain under Articles 5, 6 § 1 and 8 of the Convention and Article 1 of Protocol No. 1 about the outcome of their criminal complaint concerning the electricity pole.
8.The applicants complain under Articles 5 and 8 of the Convention and Article 1 of Protocol No. 1 of the judgment of the first instance civil court of Siros in the civil proceedings against the first applicant’s brother concerning the house in Ayia Kiriaki – Apokofto and about the authorities’ failure to provide them with protection against the latter’s activities.
9.The applicants complain under Articles 5, 6 § 1, 7 and 10 of the Convention and Article 1 of Protocol No. 1 about the decision to demolish their house.
10.The applicants also complain about the length of the relevant proceedings in the Council of State.
11.The first applicant complains under Articles 5, 6 § 1, 7, 8 and 10 of the Convention and Article 1 of Protocol No. 1 about the attempt to expel her from her land.
12.The applicants complain under Articles 5, 6 § 1, 7 and 10 of the Convention about the new delimitation of the beach in Ayia Kiriaki - Apokofto.
THE LAW
1.The applicants complain, under Articles 5, 6 § 1, 8 and 10 of the Convention and Article 1 of Protocol No. 1, about the failure of the authorities to comply with decisions Nos. 3955/1995 and 3956/1955 of the Council of State.
Article 5 of the Convention guarantees the right to liberty and security. Article 6 § 1 of the Convention guarantees the right to a court for the determination of one’s civil rights and obligations and to a hearing within a reasonable time. Article 8 of the Convention guarantees the right to respect for private life and home. Article 10 of the Convention guarantees the right to freedom of expression. Article 1 of Protocol No. 1 guarantees the right to property.
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
2.The applicants complain under Articles 6 § 1 and 8 of the Convention and Article 1 of Protocol No. 1 about their inability to obtain protection from the authorities against the activities of Mr S.
Even assuming that the provisions in question create a right to seek and obtain protection from the authorities against certain activities of private individuals, the Court notes that the applicants did not institute any proceedings against Mr S. The only proceedings against him had been instituted by A. Kyrtatos.
It follows that the applicants have not exhausted domestic remedies in accordance with Article 35 § 1 of the Convention. As a result, this part of the application must be declared inadmissible in accordance with Article 35 § 4 of the Convention.
3.The first applicant complains under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 of the length of the civil proceedings against Mr M.
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
4.The second applicant complains under Articles 6 § 1 and 8 of the Convention and Article 1 of Protocol No. 1 about the outcome of the proceedings against Messrs GK and EK.
The Court recalls that it is not competent to deal with applications alleging that errors of national law have been committed by the national courts, except where it considers that such errors might have involved a possible violation of the rights and freedoms set out in the Convention (Eur. Court HR, Garcia Ruiz v. Spain judgment of 21 January 1999, to be published in Reports of Judgments and Decisions 1999, § 28). The Court considers that there is no appearance of a violation of Article 6 § 1 or 8 of the Convention or Article 1 of Protocol No. 1 in the particular circumstances.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
5.The applicants complain under Articles 5, 6 § 1, 7 and 8 of the Convention and Article 1 of Protocol No. 1 that they are prevented by the authorities from mending their fences.
The Court recalls that the applicants have lodged an application with the public prosecutor in this connection. On the basis of the information available, this application is still pending. Moreover, there is no indication that the applicant have tried to institute any other proceedings against the authorities, such as civil proceedings, although they could have done so.
The Court, therefore, considers that domestic remedies have not been exhausted in accordance with Article 35 § 1 of the Convention. It follows that this part of the application must be declared inadmissible in accordance with Article 35 § 4 of the Convention.
6.The applicants complain under Articles 6 § 1, 8 and 10 of the Convention and Article 1 of Protocol No. 1 about the authorities’ failure to examine their complaint for defamation.
The Court recalls that the Convention and its Protocols do not guarantee the right to have criminal proceedings instituted against third persons (No. 9777/82, Dec. 14.7.83, D.R. 34, p. 158). The Court, therefore, considers that the applicants’ complaint is incompatible ratione materiae.
It follows that this part of the application is incompatible with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
7.The applicants complain under Articles 5, 6 § 1 and 8 of the Convention and Article 1 of Protocol No. 1 about the outcome of their criminal complaint concerning the electricity pole.
Given that that the Convention and its Protocols do not guarantee the right to have criminal proceedings instituted against third persons, the Court considers that this complaint is also incompatible ratione materiae.
It follows that this part of the application is incompatible with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
8.The applicants complain under Articles 5 and 8 of the Convention and Article 1 of Protocol No. 1 of the judgment of the first instance civil court of Siros in the civil proceedings against the first applicant’s brother concerning the house in Ayia Kiriaki – Apokofto and about the authorities’ failure to provide them with protection against the latter’s activities.
The Court recalls that the judgment in question provided the applicants with partial redress and that the defendants’ appeal has been rejected. Moreover, the Court notes that the applicants did not appeal against the first instance court judgment in so far as it rejected the remainder of their action. Moreover, they have not attempted to institute proceedings in connection with the first applicant’s brother’s other activities.
It follows that the applicants, in so far as they can claim to be victims within the meaning of Article 34 of the Convention, have not exhausted domestic remedies in accordance with Article 35 § 1 thereof. As a result, this part of the application must be declared inadmissible in accordance with Article 35 § 4 of the Convention.
9.The applicants complain under Articles 5, 6 § 1, 7 and 10 of the Convention and Article 1 of Protocol No. 1 about the decision to demolish their house.
The Court recalls that the applicants have instituted proceedings in this connection that are still pending in the Council of State.
It follows that the applicants have not exhausted domestic remedies in accordance with Article 35 § 1 of the Convention. As a result, this part of the application must be declared inadmissible in accordance with Article 35 § 4 of the Convention.
10.The applicants also complain about the length of the proceedings they have instituted in connection with the threatened demolition of the house in the Council of State.
The Court recalls that the Council of State has decided to suspend the demolition of the house. The Court, therefore, considers that this complaint falls to be examined exclusively under Article 6 § 1 of the Convention, which guarantees the right to a hearing within a reasonable time in the determination of one’s civil rights and obligations.
Moreover, the Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b)[Note2] of the Rules of Court, to give notice of this part of the application to the respondent Government.
11.The first applicant complains under Articles 5, 6 § 1, 7, 8 and 10 of the Convention and Article 1 of Protocol No. 1 about the attempt to expel her from her land.
The Court notes that the magistrates’ court has quashed the relevant decision. It follows that the applicant cannot any longer claim to be a victim within the meaning of Article 34 of the Convention. This complaint is, therefore, manifestly ill-founded.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.
12.The applicants complain under Articles 5, 6 § 1, 7 and 10 of the Convention about the new delimitation of the beach in Ayia Kiriaki - Apokofto.
The Court recalls that the applicants have instituted proceedings in this connection that are still pending in the Council of State.
It follows that the applicants have not exhausted domestic remedies in accordance with Article 35 § 1 of the Convention. As a result, this part of the application must be declared inadmissible in accordance with Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
DECIDES TO ADJOURN the examination of the applicants’ complaints about the failure of the authorities to comply with decisions Nos. 3955/1995 and 3956/1995 of the Council of State and about the length of the proceedings against Mr M and the proceedings concerning the demolition of the house in Ayia Kiriaki - Apokofto.
DECLARES INADMISSIBLE the remainder of the application.
Erik FriberghMarc Fischbach
RegistrarPresident
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