FIRST SECTION
DECISION
Application no. 36081/09
Eleftherios SCHINAS
against Greece
The European Court of Human Rights (First Section), sitting on 28 March 2017 as a Committee composed of:
Kristina Pardalos, President,
Robert Spano,
Pauliine Koskelo, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 12 June 2009,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Eleftherios Schinas, is a Greek national, who was born in 1954 and lives in Rethymno. He was represented before the Court by Mr N. Bastogiannis, a lawyer practising in Athens.
2. The Greek Government (“the Government”) were represented by their Agent’s delegates, Mr I. Bakopoulos and Ms G. Kotta, Legal Assistants, State Legal Council.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. The background of the case
4. The applicant is the owner of a plot of land in Rethymno district, in Crete. On 6 November 2000, at the applicant’s request, the town-planning authority of Rethymno issued a building permit (no. 379/00), in accordance with which a construction project commenced.
5. On 10 October 2001, after several inspections that took place at the construction area, the town-planning authority decided to revoke the above-mentioned building permit (decision no. 4620/01) since the maximum height of the building had been exceeded. It transpires from the file that the applicant had learnt of the revocation decision on 17 October 2001.
6. Subsequently, on 31 May 2002, the town-planning authority issued a decision (no. 3982/02), declaring that the construction works had been carried out without an authorisation because the building permit had been revoked.
2. First set of proceedings
7. On 18 November 2002 the applicant lodged an application for judicial review (αίτηση ακύρωσης) against the Ministry of Environment, the Physical Planning and Public Works (Υπουργείο Περιβάλλοντος, Χωροταξίας και Δημοσίων Έργων) and the town-planning authority of Rethymno with the Chania Administrative Court of Appeal, asking for the annulment of the town-planning authority’s decision no. 4620/01 of 10 October 2001.
8. By judgment dated 12 September 2003, the court rejected the application as inadmissible on the grounds that it had been lodged outside the time‑limit prescribed by law (judgment no. 63/2003).
9. On 5 August 2004 the applicant lodged an appeal with the Council of State against the judgment no. 63/2003 (appeal no. 6580/2004).
10. By judgment dated 31st October 2013, the Council of State upheld the judgment of the Court of Appeal and rejected the applicant’s appeal (judgment no 3715/2013).
3. Second set of proceedings
11. On 28 June 2002 the applicant challenged before a committee of the town-planning authority the decision no. 3982/02 (see paragraph 6 above), declaring that the construction had been carried out without a permit. This preliminary administrative procedure had to be exhausted by the applicant according to the national legislation (presidential decree no. 267/1998) before any recourse to a court. The appeal (ένσταση) was rejected by the committee on 3 February 2003 (decision no. 2/2003).
12. On 18 February 2003 the applicant lodged an application for judicial review of the decision no. 2/2003 against the town-planning authority of Rethymno with the Chania Administrative Court of Appeal.
13. By judgment dated 12 September 2003, the court rejected the application (judgment no. 64/2003).
14. On 6 September 2004 the applicant lodged an appeal with the Council of State against the judgment no. 64/2003 (appeal no. 7121/2004).
15. By judgment dated 26 November 2014, the Council of State upheld the judgment of the Court of Appeal and dismissed the applicant’s appeal (judgment no 4180/2014).
B. Relevant domestic law and practice
1. The relevant provisions of Law no. 4055/2012
16. Law no. 4055/2012 on “fair trial within a reasonable time” came into force on 2 April 2012. Articles 53 to 58 of the above mentioned Law introduced a remedy to compensate citizens for unjustified delays in administrative proceedings. Article 55 § 1 provides that all claims for just satisfaction must be lodged separately with each level of jurisdiction and within six months of publication of the final decision taken by the court in the proceedings which in the claimant’s view were excessively lengthy.
2. Introductory Law to the Civil Code
17. The following provisions of the Introductory Law (Isagogikos Nomos) to the Civil Code (Law no. 2783/41) is 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."
18. These sections establish the concept of a special prejudicial act in public law, creating State liability in tort. This liability results from unlawful acts by the administrative authorities, including acts which are not in principle enforceable through the courts. The admissibility of an action for damages is subject to one condition, namely the unlawfulness of the act or omission.
COMPLAINTS
19. The applicant complained under Articles 6 § 1 and 13 of the Convention of the excessive length of proceedings before the Greek courts, and also of the lack of an effective domestic remedy in that respect.
20. The applicant also complained under Article 1 of Protocol No. 1 to the Convention about the infringement of his right to the peaceful enjoyment of his property.
THE LAW
A. Alleged violation of Articles 6 § 1 and 13 of the Convention
21. The applicant complained that the length of the administrative proceedings in question had been incompatible with the “reasonable time” requirement and that he had no effective remedy in this regard. He relied on Articles 6 § 1 and 13 of the Convention, which read, in so far as relevant, as follows:
Article 6 § 1
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by a ... tribunal...”
Article 13
“Everyone whose rights and freedoms as set forth in the Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
1. First set of proceedings
22. The Court notes that the proceedings began on 18 November 2002 with an application before the Chania Administrative Court of Appeal and ended on 31 October 2013, when judgment no. 3715/2013 of the Council of State was published.
23. The Court notes that the proceedings before the Council of State, which started on 5 August 2004 and ended on 31st October 2013, with the publication of judgment no. 3715/2013, entered in the field of application of Law no. 4055/2012, introducing a compensatory remedy for excessive length of proceedings (see paragraph 16). Consequently, the applicant could have lodged a complaint with the Council of State under that Law. In the light of its considerations in the case of Techniki Olympiaki (Techniki Olympiaki A.E v. Greece, (dec.), no. 40547/10, §§ 37-58, 1st October 2013) and mainly those on the effectiveness of that remedy, the Court concludes that in the present case the applicant was required under Article 35 § 1 of the Convention to have recourse to this remedy. Moreover, the Court notes that no exceptional circumstances capable of exempting the applicant from the requirement to avail himself of this domestic remedy have been identified in the instant case.
24. Consequently, the complaint under Article 6 § 1 of the Convention in so far it concerns this part of the proceedings must be dismissed for failure to exhaust domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.
25. As regards the complaint under Article 13 of the Convention concerning this part of the first set of proceedings, in the light of the case Techniki Olympiaki already mentioned, and in the light of the foregoing considerations (see paragraphs 23 and 24 above), the Court considers that it is manifestly ill-founded and must therefore be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
26. As regards the complaint regarding the initial part proceedings, before the Chania Administrative Court of Appeal and until the lodging of an appeal by the applicant, i.e. from 18 November 2002 to 5 August 2004 (see paragraphs 7 to 9 above), in respect of which Law no 4055/2012 (see paragraph 16 above) did not apply, 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, Vassilios Athanasiou and others v. Greece, no. 50973/08, 21 December 2010).
27. In the present case, the impugned proceedings, which lasted for one year and less than ten months at one level of jurisdiction, were not sufficiently lengthy to justify a finding that there is a violation of Article 6 § 1 of the Convention. In particular, the Court observes that the Chania Administrative Court of Appeal published its judgment within less than ten months from the date, in which the applicant lodged an application for judicial review (see paragraphs 7 and 8 above). The Court also notes that the period of nearly eleven months that elapsed between the publication of the judgment of the Administrative Court of Appeal and the lodging of an appeal with the Council of State by the applicant (see paragraphs 8 and 9 above) should not be attributed to the domestic authorities (see Lada and others v. Greece (dec.), no. 24610/12, § 17, 6 October 2015). The Court considers that the period of ten months at one level of jurisdiction, which is solely attributable to the judicial authorities, was not unreasonable (see Manetas v. Greece (dec.), no. 35131/13, § 21, 20 October 2015).
28. It follows that this part of the complaint under Article 6 must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
29. As to complaint under Article 13, the Court notes that, in the light of the foregoing considerations (see paragraphs 26 to 28 above) concerning Article 6, it is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
2. Second set of proceedings
30. As regards the period to be taken into consideration in the second set of proceedings, and in particular the dies a quo, the Court reiterates that when under the national legislation an applicant has to exhaust a preliminary administrative procedure before having recourse to a court, the proceedings before the administrative body are to be included in the calculation of the length of the civil proceedings for the purposes of Article 6 (see Kiurkchian v. Bulgaria, no. 44626/98, §§ 51-52, 24 March 2005, and Ichtiaroglou v. Greece, no. 12045/06, § 38, 19 June 2008).
31. In the present case, prior to the second application for judicial review that the applicant lodged with the Chania Administrative Court of Appeal, he had submitted an appeal to the committee of the town-planning authority. That remedy had to be exhausted according to the national legislation (presidential decree no. 267/1998) before having recourse to a court. The applicant requested the authority to revoke the decision declaring that the construction had been built without a permit (see paragraph 11 above). Accordingly, the period to be taken into consideration started to run on 28 June 2002, when the applicant lodged the above-mentioned appeal with the committee of the town-planning authority, and ended on 26 November 2014, with the publication of the judgment no. 4180/2014 of the Council of State.
32. The Court notes that the proceedings before the Council of State which started on 6 September 2004 and ended on 26 November 2014, entered in the field of application of Law no. 4055/2012, introducing a compensatory remedy for excessive length of proceedings (see paragraph 16). Consequently, the applicant could have lodged a complaint with the Council of State under that Law. In the light of its considerations in the case of Techniki Olympiaki (cited above in paragraph 23) and mainly those on the effectiveness of that remedy, the Court concludes that in the present case the applicant was required under Article 35 § 1 of the Convention to have recourse to this remedy. Moreover, the Court notes that no exceptional circumstances capable of exempting the applicant from the requirement to avail himself of this domestic remedy have been identified in the instant case.
33. Consequently, the complaint under Article 6 § 1 of the Convention in so far as it relates to the proceedings before the Council of State must be dismissed for failure to exhaust domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.
34. As regards the complaint under Article 13 of the Convention concerning this part of the second set of proceedings, in the light of the case Techniki Olympiaki already mentioned, and in the light of the foregoing considerations (see paragraphs 32 and 33 above), the Court considers that it is manifestly ill-founded and must therefore be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
35. As to the complaint regarding the initial phase of the proceedings comprising the proceedings before the committee of the town-planning authority and the Chania Administrative Court of Appeal, in respect of which Law no. 4055/2012 (see paragraph 16 above) did not apply, the Court notes that they lasted from 28 June 2002 to 6 September 2004 (see paragraphs 11 to 14 above). The Court will assess the reasonableness of that period in the light of the criteria deriving from its case-law, as stated above (see paragraph 26 above).
36. That phase of the impugned proceedings, which lasted for two years and some two months at two levels of jurisdiction, were not sufficiently lengthy to justify a finding that there is a violation of Article 6 § 1 of the Convention. In particular, the applicant failed to submit any evidence of periods of inactivity attributed to the domestic authorities. As to the period of nearly a year of inactivity between the publication of the judgment of the Chania Administrative Court and the date on which the applicant lodged an appeal with the Council of State, the Court is of the opinion that it should not be attributable to the domestic authorities (see Lada and others v. Greece (dec.), no. 24610/12, § 17, 6 October 2015). In any event, the remaining period of one year and less than three months for two levels of jurisdiction was not unreasonable (see Karvelas and Pania v. Greece (dec.), no. 64516/12, § 14, 13 September 2016).
37. It follows that this part of the complaint under Article 6 must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
38. As to complaint under Article 13, the Court notes that, in the light of the foregoing considerations (see paragraphs 35 to 37 above) concerning Article 6, it is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
B. Other alleged violations of the Convention
39. The applicant also complained under Article 1 of Protocol No. 1 to the Convention about a breach of his right to the peaceful enjoyment of his possessions. In particular, he alleged that because of the arbitrary revocation of the above-mentioned building permit, the construction could not be completed.
40. The Court observes that the applicant could have lodged an action against the State to ask for compensation, under sections 104 and 105 of the Introductory Law to the Civil Code (see paragraphs 17 and 18 above), for loss of income caused by his inability to complete the construction, due to the revocation of the building permit. Consequently, he could have put before the domestic authorities the substance of his complaint about the interference with his right to the peaceful enjoyment of his property (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).
41. In view of the foregoing, the remainder of the application should be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 20 April 2017.
Renata DegenerKristina Pardalos
Deputy RegistrarPresident
Full & Egal Universal Law Academy