THE FORMER KING OF GREECE, PRINCESS IRENE AND PRINCESS EKATERINI v. GREECE

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 25701/94

The former King of Greece, Princess Irene and Princess Ekaterini

against

Greece

REPORT OF THE COMMISSION

(adopted on 21 October 1999)

TABLE OF CONTENTS

Page

I.INTRODUCTION

(paras. 1 - 17) 1

A.The application

(paras. 2 - 4) 1

B.The proceedings

(paras. 5 - 12) 1

C.The present Report

(paras. 13 - 17) 3

II.ESTABLISHMENT OF THE FACTS

(paras. 18 - 60) 4

A.The particular circumstances of the case

(paras. 18 - 59) 4

B.Relevant domestic law

(para. 60) 12

III.OPINION OF THE COMMISSION

(paras. 61 - 111) 13

A.Complaints declared admissible

(para. 61) 13

B.Points at issue

(para. 62) 13

C.As regards Article 1 of Protocol No. 1

(paras. 63 - 105) 13

CONCLUSION

(para.  106) 22

D.As regards Article 14 of the Convention taken together with Article 1                             of Protocol No. 1

(paras. 107 - 108) 22

CONCLUSION

(para. 109) 23

E.Recapitulation

(paras. 110 - 111) 23

Page

CONCURRING OPINION OF Mr C.L. ROZAKIS 24

APPENDIX:DECISION OF THE COMMISSION AS TO

THE ADMISSIBILITY OF THE APPLICATION 25

I.INTRODUCTION

1.  The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A.The application

2.  The applicants are the former King Constantinos of Greece (hereinafter “the former King”), his sister, the Princess Irene, and his aunt, the Princess Ekaterini. The first applicant lives in London, the second in Madrid and the third in Buckinghamshire. They were represented before the Commission by Messrs. Nathene & Co., Solicitors in London.

3.  The application is directed against Greece.  The respondent Government were represented by their Agent, Mr L. Papidas, President of the Legal Advisory Council of the State (Νoμικό Συμβoύλιo τoυ Κράτoυς).

4.  The case concerns the ownership status of the Greek Royal property. The applicants invoke Articles 1 of Protocol No. 1 and 14 of the Convention.

B.The proceedings

5.  The application was introduced by the former King and eight members of his family on 21 October 1994 and registered on 17 November 1994.

6.  On 15 May 1995 the Commission decided, pursuant to Rule 48 § 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits. 

7.  The Government's observations were submitted on 9 October 1995 after an extension of the time-limit fixed for this purpose. The applicants replied on 29 May 1996 after two extensions of the time-limit. 

8.  On 7 September 1996 the Commission decided to adjourn the examination of the case pending the outcome of the proceedings before the Special Supreme Court.

9.  On 12 January 1998 the Commission decided to hold a hearing of the parties.  The hearing was held on 21 April 1998. The parties were represented as follows:

For the Government:

Mr Vassilios Kontolaimos, Senior Adviser, Legal Advisory Council of the State, Acting Agent

Mrs Kyriaki Grigoriou, Legal Assistant, Legal Advisory Council of the State, Acting Agent

Mrs Mania Telalian, Member of the Special Legal Service of the Ministry of Foreign Affairs, Acting Agent

Mr Peter Duffy Q.C., Barrister, Counsel

Professor Nicolaos Alivizatos, Counsel

Professor Michail-Constantinos Stathopoulos, Counsel

Mrs Maria Demitriou, Barrister, Counsel

Mr Charis Pampoukis, Adviser

Mr Georgios Katrougalos, Adviser

Mr Elias Kastanas, Adviser

Mr Petros Liacouras, Adviser

Mr Dimitri Konstas, Permanent Representative of Greece to the Council of Europe, was also present at the hearing.

For the applicants:

Lord Anthony Lester Q.C., Barrister, Representative

Mr John Bravos, Lawyer, Representative

Miss Monica Carss-Frisk, Barrister, Representative

Mrs Nathene Arnaoutis, Lawyer, Representative

Professor Apostolos Georgiadis, Adviser

Mrs Angeliki Georgiadis, Lawyer, Adviser

The first, second, third, fifth, sixth and eighth applicants were also present at the hearing.

10.  On 21 April 1998 the Commission declared admissible the first, eighth and ninth applicants’ complaints under Articles 1 of Protocol No. 1 and 14 of the Convention. It declared inadmissible the remainder of the application.

11.  The text of the Commission’s decision on admissibility was sent to the parties on 2 June 1998 and they were invited to submit further observations on the merits.  The Government submitted observations on 6 November 1998, to which the applicants replied on 5 November and 16 December 1998, 26 January, 24 February and 23 June 1999.

12.  After declaring the case admissible, the Commission, acting in accordance with former Article 28 § 1 (b) of the Convention , also placed itself at the disposal of the parties with a view to securing a friendly settlement. In the light of the parties’ reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C.The present Report

13.  The present Report has been drawn up by the Commission in pursuance of former Article 31 of the Convention and after deliberations and votes, the following members being present:

MMS. TRECHSEL, President

A. WEITZEL

J.-C. SOYER

F. MARTINEZ

C.L. ROZAKIS

L. LOUCAIDES

J.-C. GEUS

B. MARXER

M.A. NOWICKI

B. CONFORTI

SirNicolas BRATZA

MMI. BÉKÉS

D. ŠVÁBY

G. RESS

P. LORENZEN

K. HERNDL

E.A. ALKEMA

M. VILA AMIGÓ

MrsM. HION

MMR. NICOLINI

A. ARABADJIEV

14.  The text of this Report was adopted on 21 October 1999 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with former Article 31 § 2 of the Convention.

15.  The purpose of the Report, pursuant to former Article 31 of the Convention, is:

(i)to establish the facts, and

(ii)to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

16.  The Commission's decision on the admissibility of the application is annexed hereto. 

17.  The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II.ESTABLISHMENT OF THE FACTS

A.The particular circumstances of the case

18.  In 1864 a crowned democracy was established in Greece, when George I, son of the Danish King Christian IX, was elected as King and ascended the throne. The former King Constantinos of Greece (the first applicant) is a direct descendant of King George I. He ascended the Greek throne in 1964, at the age of twenty-four, in succession to his father King Paul I.

19.  On 21 April 1967 there was a military coup in Greece. The former King remained in the country until 13 December 1967, when he left for Rome.

20.  On 15 November 1968 the military regime promulgated a new constitution (the former had been enacted in 1952), which was amended in 1973 when the former King was overthrown (see below). Article 21 of the 1968 Constitution (as amended in 1973) guaranteed the right to property and provided that nobody was to be deprived of property save insofar as such deprivation was carried out in the public interest and upon payment of full compensation, the amount of which was to be determined by the civil courts. However, Article 134 § 3 of the same Constitution provided for a unique legislative measure to be enacted, which would have the effect of confiscating the moveable and immovable property of the former King and the Royal family.

21.  Between 21 April 1967 and 31 May 1973 the military dictatorship formally maintained the crowned democracy, despite the former King’s self-imposed exile.

22.  On 1 June 1973 the military regime purported to abolish the crowned democracy, to declare the former King and his heirs deposed and to establish a Presidential Parliamentary Republic.

23.  In October 1973 the military dictatorship issued a legislative decree No. 225/1973, pursuant to Article 134 § 3 of the 1968 Constitution (as amended in 1973), whereby all moveable and immovable property of the former King and Royal family was confiscated with effect from the date of publication of the decree in the Government Gazette (4 October 1973), and whereby title to the confiscated property passed to the Greek State. Land belonging to the former King at Tatoi (Attica) and at the island of Kerkyra (Corfu), as well as land at Polidendri belonging to the former King, Princess Irene and Princess Ekaterini, were specifically mentioned as forming part of the immovable property being confiscated.

24.  The above decree provided for compensation in the sum of 120,000,000 drachmas (GRD) to be distributed amongst the members of the Royal family whose property was confiscated, and this sum was deposited in a bank account to be claimed by the Royal family. The former King’s share of the compensation was stated to be GRD 94,000,000 and Princess Irene’s share GRD 12,000,000. No compensation was provided for Princess Ekaterini. It was further provided that the compensation had to be claimed by 31 December 1975. No part of it was ever claimed.

25.  On 24 July 1974 the military dictatorship in Greece was replaced by a civilian Government under the leadership of Mr. Karamanlis.

26.  By a legislative Act of 1 August 1974 (“the First Constitutional Act of 1974”), the Government revived the Constitution of 1952, except for the provisions relating to the form of government (Article 1).

27.  Article 10 of this Act provided that, until the National Assembly was reconvened, legislative power vested in the Council of Ministers was to be exercised through legislative decrees. Article 10 § 2 provided that such legislative decrees would be capable of having retrospective effect as regards any issues arising from any Constitutional Acts after 21 April 1967. Article 15 provided that the 1968 Constitution (as amended), as well as any other Constitutional Act or act of a constitutional character passed under the military dictatorship after 21 April 1967, was repealed.

28.  Pursuant to Articles 1 and 10 of the First Constitutional Act of 1974, the Government issued a legislative decree (No. 72/1974) which provided for the property of the former King and the Royal family to be administered and managed by a seven member committee until the form of regime had been finally determined.

29.  The above decree was implemented by three Ministerial decisions:

i.By decision No. 18443/1509 of 1 October 1974, a seven member committee was formed

“for the purposes of managing and administrating the estate of the Royal family”.

ii.By decision No. 21987 of 24 October 1974, it was provided that “the delivery [of the property] of the Royal family from the State to the committee” was to be made by 31 December 1974.

iii.By decision No. 25616 of 23 December 1974, it was provided that the delivery of the property of the Royal family to the committee would continue until completion, before delivery to its owners or to a person nominated by them.

30.  Between 1974 and 1979 all the moveable and immovable property of the former King and Royal family in Greece was administered and managed in the name of the committee established pursuant to L.D. 72/1974, on behalf of the former King and Royal family. In 1979 the property was delivered to them.

31.  On 17 November 1974 there were elections to the National Assembly, and the Assembly was thereafter reconvened. A referendum was held on 8 December 1974, the outcome of which was in favour of a Parliamentary Republic. By Resolution D 18/18.1.1975, the National Assembly resolved and declared, inter alia, that democracy in Greece was never lawfully abolished, and that the revolutionary coup of 21 April 1967, as well as the situation which resulted as a consequence up to 23 July 1974, constituted a coup d'état which aimed to encroach upon the power and the sovereign rights of the people.

32.  In 1975 the National Assembly enacted the present Constitution, which came into force on 11 June 1975.

33.  On 12 February 1975 all Embassies were informed by the Ministry of Foreign Affairs that “all members of the former Royal family retain their Greek nationality (ιθαγέvεια)” and that if there was a request to renew the Royal passports, a joint (family) passport should be issued, in the name of “Constantinos, Former King of Greece” and in comparable form for the other members of the Royal family.

34.  In 1981 the socialist “PA.SO.K.” party under the leadership of Mr. Papandreou was elected to power in Greece. From January 1984 onwards discussions were held with the former King regarding his property. By 1988 an agreement in principle had been reached between the Government and the former King relating to the property and tax liabilities of the Royal family. However, the agreement was never executed because of the ill-health of the Prime Minister, Mr. Papandreou.

The 1992 agreement

35.  In 1990 the conservative “New Democracy” party was elected to power.

36.  In 1992 an agreement was reached between the former King and the Greek State, in the following terms:

i.The former King transferred an area of 200,030 square metres of his forest at Tatoi to the Greek State for the sum of GRD 460,000,000.

ii.The former King donated an area of 401,541.75 square metres of his forest at Tatoi to a foundation for the benefit of the public, namely the “Universal Hippocration Medical Foundation and Research Centre”.

iii.A foundation for the benefit of the public, namely the “National Forest of Tatoi” was created, and the former King donated an area of 37,426,000 square metres of his forest at Tatoi to the foundation.

iv.The former King, the Royal family and the Greek State waived all legal rights in connection with, and discontinued all pending legal proceedings concerning the Royal family's tax liabilities.

v.The former King and the Royal family agreed to pay to the Greek State the sum of GRD 817,677,937 in respect of inheritance tax, income tax and capital taxes, together with interest and surcharges. The payment to be made by the former King would be set off against any sums due to the former King pursuant to the agreement.

37.  The agreement was contained in and evidenced by notarial deed No. 10573/1992 of 3 June 1992. On 28 September 1992 the division of Scientific Studies (διεύθυvση Επιστημovικώv Μελετώv) of the Greek Parliament issued a report on a draft bill ratifying the above mentioned notarial act. The report stated inter alia that legislative decree No. 225/1973 was repealed by legislative decree No. 72/1974 and that the property thereby “reverted to its former ownership status”. Subsequently the agreement was incorporated in and given the force of law by Law No. 2086/1992.

 Remaining property and ownership titles

38.  In addition to the property which was the subject of Law No. 2086/1992, the former King, Princess Irene and Princess Ekaterini own the following property in Greece:

a)The former King owns a further area of 41,990,000 square metres of land and a building at Tatoi. This property was formed during the reign of King George I (the first applicant's grand-father), through successive purchases of pieces of land:

- By deed No. 24101/15.5.1872, King George I purchased from Scarlatos Soutzos the Liopessi-Mahonia estate and from Soutzos' wife the adjacent Tatoi estate, for a total of GRD 300,000.

- Under Law No. 599/17.2.1877, the Greek State transferred to King George I the forest known as Bafi, of approximately 15,567,000 square metres. A part of approximately one million square metres of the above property was subsequently exchanged for another property of equal area, adjacent to Tatoi estate and belonging to local landowners, who were paid by King George I GRD 3,000 to compensate for the difference in value of the exchanged properties.

- By deed No. 55489/4.4.1891, King George I purchased from Andreas Syngros a part of the Kiourka estate, which is adjacent to the Tatoi estate, for GRD 110,000.

- By certificate No. 382/20.10.1878, the mortgage registrar of Marathonas attests that the Keramydi estate belongs to King George I and was devolved to him by his predecessors in title Ioannis Malakindis, Dimitrios, Vassilios and Panagis Dionyssiotis, George Kyriazis, George Sardelis and Stamata Sykaminioti. These persons had acquired the property in parts through successive purchases from 1844 to 1878.

39.  By his holograph will dated 24 July 1904, King George I made the Tatoi estate a family trust (familia-fideicommis) in order to serve as a permanent residence of the reigning King of the Greeks. However, according to the then prevailing Byzantine-Roman Law, a family trust lasts only for four successions, which means that the trust is released in the fourth successor.

40.  Following the death of King George I on 5 March 1913, Tatoi devolved to his successor, King Constantinos I, and following the latter's deposition from the throne in 1917, to his second-born son, King Alexander. After the latter's death in 1920 Tatoi came back to King Constantinos I who had in the meantime returned to the throne. After the latter's resignation from the throne in September 1922, Tatoi came to his first-born son and Crown Prince George II.

41.  Then, following the abolishment of the Crown and the proclamation of the Republic by resolution of the fourth Constituent Assembly dated 25 March 1924, the Greek State expropriated Tatoi by Law No. 2312/14/20.8.1924, while the Bafi estate came ipso jure and without any compensation to the State, since it was donated by it.

42.  Following the return of King George II to the throne, Emergency Law of 22 January 1936 gave Tatoi back to the King “in full ownership and possession”, with the exception of the Bafi-Keramydi estate which, in the meanwhile, had been allotted to landless refugees. The explanatory report of this law stated inter alia that the expropriation had been in breach of Article 11 of the Constitution of 1911, according to which a compulsory expropriation must always be preceded by compensation to the owner determined by the courts.

43.  After the death of George II on 1st April 1947, his brother Paul came to the throne. Legislative Decree 1136/5/11.10.1949 stated the following: “The Tatoi estate, which was returned ... to the late King George II, has become the unreserved, free and exclusive property of H.M. King Paul from his accession to the throne”. Following King Paul's death on 6 March 1964, the property came to his son and successor Constantinos II (the first applicant), by virtue of his father's holograph will dated 8 December 1959.

b)The former King and Princess Irene each own 101,5/288 of an area of 33,600,000 square metres of land at Polidendri, and Princess Ekaterini owns 36/288 of that area.

44.  By virtue of deed No. 38939/1906, Hassan Efendi Leondaritis, a landowner of Larissa, transferred and sold to Crown Prince Constantinos I the estate known as Polidendri, for the amount of GRD 397,500. Following the death of Constantinos I, the estate devolved to his intestate heirs as follows: to his wife Sophia 2/8 ab indivisio, and to each of his children George II, Paul, Helen, Irene, Ekaterini and the daughter of his predeceased son Alexander, Alexandra, 1/8 ab indivisio.

45.  By virtue of deeds Nos. 79847 of 18 February 1924 and 80452 of 24 March 1924, the above co-heirs and co-owners (with the exception of Ekaterini) transferred and sold 7/8 ab indivisio of the estate to Athanassios Galeos, a captain of the merchant marine, for the amount of GRD 4,585,000. As regards the 1/8 ab indivisio share of Ekaterini, a price of GRD 650,000 was preliminarily agreed and the land was leased to the new owner pending the completion of the required formalities, whereupon the land would be transferred to him.

46.  By virtue of deed No. 4289 of 20 March 1925, Athanassios Galeos and other people formed the “Forest Company” (Αvώvυμoς Δασική Εταιρία), to which Athanassios Galeos transferred the 7/8 ab indivisio of the estate he had acquired. This company was dissolved by resolution of its General Assembly dated 12 May 1938. By deed No. 22408 of 7 October 1939, the liquidators of the company transferred and sold to Crown Prince Paul the 7/8 ab indivisio of the estate for the amount of GRD  4,000,000 which was paid with funds from the dowry of his wife, Princess Frederica. After his death, 14/32 of his share to Polidendri devolved to his widow, and 14/96 to each of his three children, Sophia, Constantinos (the first applicant) and Irene (the eighth applicant). In 1968 Princess Sophia declined the inheritance, and her share of the estate was added to the share of the remaining heirs pro rata. After the death of Queen Frederica on 6 December 1981, and in the absence of a will, her 49/96 ab indivisio share on Polidendri devolved to her children in equal shares, i.e. each child received 49/288 of her share.

c) The Mon Repos estate at the island of Kerkyra

47.  The original title on this property is minutes No. 278 of 1st June 1864 of the Provincial Council of Kerkyra, by which the Council decided to offer to King George I, in recognition of his contribution to the accession of the Ionian islands to Greece, the house in which the British Magistrate of the Supreme Council once lived, together with the surrounding area, situated at the place known as “Aghios Pandeleïmon of Garitza”. The existing records from that time do not indicate the area, exact location and limits of the donated estate. Thereafter, the donation was expressly recognised, by deed No. 7870/1887.

48.  Between 1870 and 1912 King George I enlarged the above estate by successive purchases of certain smaller or bigger tracts of land belonging to third parties, situated around or inside the farm. After two purchases made by George II, Mon Repos took its final shape of approximately 238,000 square metres.

49.  Following the death of King George I, Mon Repos devolved to Prince Andreas, by virtue of King George's holograph will dated 24 July 1904.

50.  After the 1922 Revolution and by decision No. 1767/1923, the compulsory expropriation of Mon Repos was proclaimed in favour of the State in order to be used as the summer residence of the reigning King. In 1931 the administrative eviction of Prince Andreas was ordered. Legal proceedings were then instituted, and by judgment No. 57/1934, the Kerkyra Court of Appeal (Εφετείo) recognised Prince Andreas as the lawful owner of the property and ordered the return of the estate to him. Following the restoration of the crowned democracy, Emergency Law No. 514/1937 expressly provided that Mon Repos be conceded and transferred in full ownership and possession to Prince Andreas.

51.  By deed No. 11909/1937, Prince Andreas sold Mon Repos to King George II against a life annuity payable by yearly instalments of GRD 400,000. King George II died on 1st April 1947. His co-heirs donated their shares to King George's brother, King Paul, who acquired full ownership of Mon Repos (deeds Nos. 3650/1957, 3816/1957 and 5438/1959). Following King Paul’s death, and by virtue of his holograph will, Mon Repos devolved to his widow Frederica (usufruct) and to his son, the first applicant (bare ownership). The usufruct was terminated by the death of Queen Frederica on 6 December 1981, and the first applicant acquired full title ownership of Mon Repos.

52.  On or about 5 August 1994 the building of Mon Repos was broken into and physically entered. It is now occupied by the Municipality of Kerkyra.

Rescission of the 1992 agreement

53.  In the summer 1993 the former King and his family visited Greece.

54.  Following the elections of autumn 1993, a Government under the leadership of Mr. Papandreou was again returned to power in Greece. The new Government declared their intention to deal with the matters relating to the property of the former Royal family(1). They introduced eventually Law No. 2215/1994 which was passed by the Greek Parliament on 16 April 1994 and became law with effect from 11 May 1994. It is entitled Settlement of matters pertaining to the expropriated property of the deposed Royal family of Greece, and provides as follows:

i. Law 2086/1992 is repealed and Deed No. 10573/1992 rescinded. Any acts carried out pursuant thereto are void and of no legal consequence (Article 1). The acts so declared void and of no legal consequence include the “Universal Hippocration Medical Foundation and Research Centre” at Tatoi and the “National Forest of Tatoi Foundation”(2).

ii.The Greek State becomes the owner of the moveable and immovable property of the former King, Princess Irene and Princess Ekaterini. Legislative decree No. 225/1973 is stated to have remained in force (Article 2).

iii. Title to the property Mon Repos on the island of Kerkyra is transferred to the Municipality of Kerkyra (Article 4 § 2).

iv.Taxes already assessed are written off. All legal proceedings pending before the administrative Courts or the Council of State (Συμβoύλιo της Επικρατείας) in respect of inheritance and other taxes, surcharges and penalties are discontinued. Amounts paid by the former King and other members of the Royal family in respect of tax may be claimed back from the Greek State, but the State may oppose any set-off of such a claim against any claim of the State against the Royal family (Article 5 § 1).

v.Any agreements concerning any property of the Royal family, except leasehold agreements, are declared void. Any leases of land belonging to the Royal family continue as if entered into between the lessees and the Greek State (Article 5 § 2).

-------------------------------

1 On 24 October 1993 the then Under-secretary of the Presidency of the Government stated before the Greek Parliament that several negotiations took place between the earlier “PA.SO.K.” Government and the former Royal family regarding property issues, but stressed that “at the time we did not have the present challenges, the present insolent intervention of the deposed King in the political issues of our country”. On 1st April 1994 the then Minister of Finance issued a statement according to which the draft Bill (which was subsequently, with one exception, passed by the Greek Parliament) resulted in the restoration of the “constitutional legality and historical memory” and the satisfaction of “the democratic sensibility of the Greek people as this was expressed by the referendum of 1974”.

2 On 8 December 1997 the “National Forest of Tatoi Foundation” introduced an application with the European Commission of Human Rights pursuant to former Article 25 of the Convention. The application was registered on 4 February 1998 (N° 39654/98). On 1 November 1998, by virtue of  Article 5 § 2 of Protocol No. 11, the application fell to be examined by the European Court of Human Rights.

vi.Any legal proceedings brought by the former King or other members of the Royal family before any Greek court using the designation “King” or any other royal designation, even if combined with the word “ex” or “former”, will not be recognised (Article 6 § 4).

vii.Preconditions are imposed for the continued recognition of the Greek nationality of the former King and the Royal family, and for the retention of their Greek passports:

- A declaration must be submitted to the Registrar of Births, Marriages and Deaths (ληξιαρχείo) of Athens to the effect that the former King and Royal family unreservedly respect the 1975 Constitution and accept and recognise the Greek Republic.

- A further declaration must be submitted to the Registrar to the effect that the former King and Royal family unreservedly waive any claim relating to the past holding of any office or possession of any official title.

- The former King and Royal family must register in the Municipal Register of Citizens (μητρώα αρρέvωv ή δημoτoλόγια) under a name and a surname. 

viii.Any legislative provision contrary to this legislation is automatically repealed (Article 6 § 5).

Legal proceedings before the Greek courts

55.  The applicants have brought several legal proceedings before the Greek courts, concerning the titles to their estates.

56.  The applicants have also challenged the constitutionality of Law No. 2215/1994. Following two conflicting judgments issued by the Court of Cassation (Αρειoς Πάγoς) and the Council of State, the case was referred to the Special Supreme Court (Αvώτατo Ειδικό Δικαστήριo).

The judgment issued by the Special Supreme Court on 25 June 1997

57.  The Court first examined whether the applicants were entitled to bring legal proceedings before it without using a surname. The Court held that “the indication 'former King' is mentioned in the legal documents not as a title of nobility which is forbidden by the Constitution, but in order to define the identity of this litigant, who for the reasons stated earlier, has no surname ... It concerns a reference to a historic fact, which, like other elements, can indeed designate the identity of the above person, so that this person may enjoy judicial protection”.

58.  As regards the question of the Royal property, the Court stressed that it “was from the beginning a political question”, that the property rights of the applicants were linked to the form of Government and that “during the reign of the Royal family, the property that belonged to the King and the Royal family was treated like a special group of property”. The Court noted inter alia the following:

“When the Constitution by Article 1 defines the form of the regime, by the same provision, which is historically interpreted, in the framework of the political and constitutional conjuncture ... in which it was voted, pursuant to the regulations of the First Constitutional Act and of legislative decree No. 72/1974 that was issued on the basis of its Article 10, also solves the issue of the Royal property. In other words, the referendum renders irrevocable the devolvement of this property to the State, in a way that its return by law to the former King was contrary to the Constitution. Therefore, Article 1 of Law No. 2086/1992 ... whose regulations imply that the former Royal property continued to belong to the deposed monarch and the members of the former Royal family, and actually connect these persons with the property, contravenes the Constitution.”

59.  Consequently, the Special Supreme Court, by thirteen votes to four, held that Law No. 2215/1994 is constitutional. According to the Greek Constitution the judgments of the Special Supreme Court are irrevocable and binding on all Greek courts (Article 100 § 4).

B.Relevant domestic law

60.  The domestic law relevant to the present application, other than Laws Nos 2086/1992 and 2215/1994 already mentioned above, is contained in the Greek Constitution of 1975.

Article 4 §§ 1, 2

“1. All Greeks are equal before the law.

2. Greek men and women have equal rights and equal obligations.”

Article 17 §§ 1, 2 and 4 

“1.  Property is protected by the State; rights deriving therefrom, however, may not be exercised contrary to public interest.

2.  No one shall be deprived of his property except for the public benefit which must be duly proven, when and as specified by law and always following full compensation corresponding to the value of the expropriated property at the time of the court hearing on the provisional determination of compensation.  In cases in which a request for the final determination of compensation is made, the value at the time of the court hearing of the request shall be considered.

4.  Compensation shall in all cases be determined by civil courts. Such compensation may also be determined provisionally by the court after hearing or summoning the beneficiary, who may be obliged, at the discretion of the court, to furnish a commensurate guarantee for collecting the compensation as provided by law.”

III.OPINION OF THE COMMISSION

A.Complaints declared admissible

61.  The Commission has declared admissible the applicants’ complaints:

- that Law No. 2215/1994 violated their right to property;

- that they were discriminated against in the enjoyment of this right.

B.Points at issue

62.  The points at issue in the present case are as follows:

- whether there has been a violation of Article 1 of Protocol No. 1;

- whether there has been a violation of Article 14 of the Convention taken together with Article 1 of Protocol No. 1.

C.As regards Article 1 of Protocol No. 1

63.  Article 1 of Protocol No. 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.”

64.  The Government first contend that the complaint under Article 1 of Protocol No. 1 is inadmissible ratione temporis, because any violation of this Article took place before 20 November 1985, i.e. when Greece recognised the right to individual petition. In particular, the Government submit that the applicants’ property was expropriated by virtue of legislative decree No. 225/1973, and has remained expropriated by virtue of that decree and as a result of the establishment under the 1975 Constitution of a Presidential Parliamentary Republic. The Government believe that Law No. 2215/1994 was a confirmation of the existing constitutional position as was later decided by the Special Supreme Court; accordingly any taking of property occurred years earlier and any ownership complaint is now inadmissible.

65.  The Government further allege that this complaint is inadmissible ratione materiae. In particular the Government note that a common feature all over Europe is the existence of a clear-cut distinction between, on the one hand, public and, on the other, private possessions of monarchs. Public possessions are owned by the States and their use is put at the disposal of the monarchs for the exercise of their function as Heads of State. The Government submit that such properties, held under special privileges and immunities, do not come within the concept of property or possessions protected under Article 1 of Protocol No. 1. On the other hand, the private property of European monarchs has no privileges whatsoever compared with the property of ordinary citizens. It is acquired, used and transferred in accordance with the common rules of domestic civil law, as applied to all transactions between private individuals. According to the Government, such private possessions would reasonably be protected under Article 1 of Protocol No. 1.

66.  In the present case, the Government argue that the acquisition of all three contested estates by the former Royal family did not occur in accordance with the general provisions of Greek civil law but because of the functions of the beneficiaries. The Government add that the most significant particularity of the legal status of the alleged “Royal property” of the Greek Crown lay in the fact that it had always had a sui generis and quasi-public character. According to the Government, this is demonstrated by the fact that the property in question had not only been assimilated to State property for procedural purposes (i.e. special time-limits, award of State privileges for the recovery of debts, prohibition of provisional forced execution, etc), but it had also benefited from substantial State prerogatives (i.e. non-prescription of claims, plain prohibition of usucaption, criminalisation of trespass, etc). The Government conclude that, no matter how each of the contested estates had been acquired, these lands, which include constitutionally protected forests, historical and archaeological sites, were conserved in their integrality and even expanded only because of the privileges attached to the monarchs’ public status. No ordinary Greek citizen would ever have succeeded in legally acquiring and transferring these lands. Therefore, the Government consider that the contested estates do not fall under the notion of “possessions” protected by Article 1 of Protocol No. 1.

67.  In particular, as regards the Tatoi estate, the Government argue that more than one third of it, namely the “Bafi” forest,  was expressly donated with no exchange whatsoever by the Greek State to the former Royal family ratione personae, that is in view of the functions they exercised. In this context, the Government submit that the precise wording of King George’s will, dated 24 July 1904, is more than significant: The late King did not bequeath the Tatoi estate to his family free from any burden, but “in order to serve as a permanent residence of the reigning King of the Greeks”. According to the Government, this means that the late King did not intend to leave the Tatoi estate as an ordinary possession which could be freely transferred by his descendants, but as an appendage to the throne, provided that his House would continue to reign. The special nature of Tatoi as an estate serving public concerns and not as a possession of the former Royal family is further evidenced by the fact that through the 1992 agreement the first applicant purported directly to transfer to the Greek State or to donate to a non-profit foundation, “the National Forest of Tatoi”, more than 90% of the Tatoi lands. In other words, the 1992 agreement recognised the first applicant as having ownership rights over less than 10% of the estate. In any event, as evidenced by Application No. 39654/98 filed by the above mentioned foundation (see above), no interference occurred with respect to the applicants’ alleged property rights over 37,000,000 square meters of Tatoi’s total surface. As for the remaining part of the estate, though apparently purchased by King George I himself acting as a private individual by means of sales contracts and by payment of a price, these lands were never properly transferred to the Royal family: This is due to the fact that the King’s transferors had never legally acquired ownership rights over these lands because they had not complied with the legislation which at the time regulated the status of forest lands. For the same reason, no ownership rights could be acquired through usucaption.

68.  As regards the Polidendri estate, the Government submit that, to the extent that neither its transferor to the Crown Prince in 1906 nor the latter or his heirs ever complied with the formalities provided for forest lands by standing legislation, its acquisition and subsequent transfers were defective. For the same reason, no ownership rights were acquired through usucaption.

69.  Finally, as regards the Mon Repos estate, the Government submit that it was donated to King George I in his capacity as Head of State, his Royal function being the unique causa traditionis. Even assuming that by virtue of these donations the former Royal family acquired ownership rights over Mon Repos, its transfer was legally valid only under the implicit but self-evident condition that the transferees would continue to exercise their functions.

70.  In any event, even assuming that there has been an interference with the applicants’ rights under Article 1 of Protocol No. 1, the Government affirm that the transfer of the alleged possessions of the applicants to the State satisfied all the requirements of this provision: As regards the principle of legality, both legislative decree No. 225/1973 and Law No. 2215/1994 were adequately accessible and sufficiently precise and foreseeable. Their individual character was due to the uniqueness of the circumstances. They cannot, therefore, be criticised as arbitrary. As regards the existence of public interest, the Government make reference to the protection of the forest and of the archaeological sites within the three contested estates, and also to the need to preserve the constitutional status of the country as a Republic.

71.  Furthermore, the Government argue that the principle of a fair balance between the demands of the general interests of the community and the obligation of the State to protect the individual’s fundamental rights, do not require the payment of any further compensation to the former Royal family in order to counterbalance the prejudice which they allegedly suffered. In this respect the Government submit that there should be taken into account: (i) the exceptional circumstances, of dubious legality, under which the properties in question were acquired; (ii) the extent of the contested properties transferred to the State, which is less than that claimed by them; (iii) the exceptional circumstances under which these properties were maintained; (iv) the special tax privileges which they enjoyed and which permitted their retention; (v) the exceptionally reduced commercial value of the properties transferred to the State; and (vi) the provisions of the transfer acts themselves as to compensation.

72.  In particular, the Government repeat that large part of the estates were donated to the former Royal family; as for the remaining part of the contested estates, their acquisition and transfer did not occur in accordance with the general provisions of Greek law, namely of Greek forest legislation. Furthermore, following the transfer of more than 37,000,000 square meters to the “National Forest of Tatoi Foundation”, the applicants’ alleged right to compensation presently concerns only the 10% of the Tatoi estate. Moreover, the maintenance of the estates of the former Royal family has been to a large extent at the expense of the Greek State, which awarded huge sums for the restoration and the execution of urgent works on the “Royal villas”. The Government add that the Royal estate has always enjoyed special tax privileges and was exempt from inheritance tax until 1974. The Government also note that the commercial value of the contested estates is insignificant, mainly because of their nature as forests. The restrictions on their exploitation, in connection with the high cost of maintaining, guarding and operating them, reduces their real market value. Their commercial value is further reduced by the fact that they include archaeological sites, which cannot be commercially exploited by private citizens. The Government stress that all the above elements must be taken into account in the assessment of the observance of a “fair balance”.

73.  Finally, the Government note that Law No. 2215/1994 covered indirectly the issue of compensation. First, it provides for the writing-off of all the debited taxes owed by the former Royal family to the Greek State from 1974 onwards. In this way, the former Royal family have been spared payment of at least GRD 817,000,000. Secondly, legislative decree No. 225/1973, which the 1994 law maintains into force, provided for pecuniary compensation as well, amounting to GRD 120,000,000. This sum was placed at the disposal of the applicants but was never collected by them. Although the time-limit fixed by that decree expired on 31 December 1975, the applicants can still claim this sum, since the 1994 Law, in retaining or recalling into force the 1973 decree, has put an end to any pending issues and has modified the previous legal status. Therefore, within a period of five years from the date on which the decision of the Special Supreme Court was taken (which confirmed the conformity of the 1994 Law, and thus the 1973 decree, with the Greek Constitution), the applicants can claim the compensation which was awarded to them in 1973, possibly asking for its re-adjustment. The Government note in this respect that in 1973 the parity of drachma to the US dollar was 30 to 1, while today is approximately 300 to 1.

74.  The Government conclude that the transfer of the properties in question to the Greek State satisfied the requirements of Article 1 of Protocol No. 1.

75.  As regards the Government’s argument that the application is inadmissible ratione temporis, the applicants reply that they are complaining about Law No. 2215/1994, which was enacted and came into force in 1994. In any case, legislative decree No. 225/1973 was never a valid law, having been issued by an unconstitutional military dictatorship in order to persecute them and inflict a personal punishment upon them. Furthermore, the effect of this decree was to deprive the applicants of all their property, without prior compensation determined by the courts and corresponding to the value of the property, in other words, a general confiscation. As such, the taking contravened not only the fundamental principles of the rule of law, but also all Greek Constitutions from 1827 onwards.

76.  Even assuming that this Decree was ever valid, the applicants argue that it was repealed after the fall of the dictatorship on 24 July 1974. In this respect the applicants invoke in particular Article 15 of the First Constitutional Act of 1974, which provided that the 1968 Constitution, as well as any other Constitutional Act or act of a constitutional character passed under the military dictatorship after 21 April 1967, was repealed.

77.  The applicants further claim that legislative decree No. 225/1973 was repealed by legislative decree No. 72/1974. In this respect they refer to the report issued on 28 September 1992 by the division of Scientific Studies of the Greek Parliament, which stated inter alia that legislative decree No. 225/1973 was repealed by legislative decree No. 72/1974 and that the property thereby “reverted to its former ownership status”.

78.  The applicants stress that it is tantamount to bad faith for the Government now to argue that the Royal family had been deprived of property in question already before the coming into force of Law No. 2215/1994. 

79.  As regards the Government’s argument that the application is inadmissible ratione materiae, the applicants reply that there is manifestly no foundation whatever, as a matter of historical fact or Greek law, for the Government’s novel argument that the property which is the subject of their claim never belonged to the Royal family. The applicants stress that this argument has never been advanced by any Government of Greece except in the course of the proceedings before the Commission. The fact that the Royal family has owned private property was consistently recognised by public authorities throughout the period of the so-called “crowned democracy” which was established when the first applicant’s ancestor, George I, was elected King in 1863. Such private property was always recognised to be distinct from any property that was made available to the Royal family by virtue of the constitutional status of the King (i.e. the Royal Palace in Athens), which is not and has never been the private property of the Royal family.

80.  The applicants further submit that the fact that the Royal family owned private property was clearly recognised even during the period of the unconstitutional military dictatorship between 21 April 1967 and 24 July 1974. The 1968 Constitution included a provision, Article 134 § 3, which provided for a unique legislative measure to be enacted to expropriate or confiscate the movable and immovable property of the former King and his family. A legislative decree was subsequently issued by the dictatorship to confiscate the property of the Royal family. These measures would have served no purpose if the Royal property had always belonged to the State. After the fall of the dictatorship, a legislative decree of 1974 recognised that the property confiscated by the dictatorship belonged to the Royal family. In 1979 the property was delivered into the possession of the Royal family. Protocols governing the delivery of the immovable and movable property were duly signed by the appropriate governmental authorities and by the Special Committee. The status of the property was in no way affected by the outcome of the referendum of 8 December 1974 which resulted in the establishment of a Presidential Parliamentary Republic. The status of the property of the Royal family simply was not in issue in that referendum. Nor was the status of the property affected by the enactment of the 1975 Constitution. If it had been, the State would not have returned the property to their possession in 1979 in recognition of their ownership of it.

81.  Furthermore, the applicants stress that from 1974, they filed tax returns and paid tax in respect of the property in question. They cannot understand how lands could be properly taxable unless they were owned by the tax-payers, nor how the Government could properly and in good faith have demanded and accepted the payment of such taxes except on that basis.

82.  The applicants conclude that there is no basis in Greek law for the notion of a connection between the constitutional role of the former King and the status of his property. Greek civil law does not recognise a so-called sui generis concept of ownership.

83.  As regards the Government’s argument that the taking of their property was justified by reasons of public interest, the applicants submit that nothing in the Government’s case justifies the enactment of a special measure for confiscating their property without compensation. In particular, as regards the allegation that the taking of their property was motivated by the need to protect the forests and the archaeological sites within the three estates in question, the applicants affirm that this is the first time that such a justification has been offered by the Government; given the hostile comments that were made by members of the Government about the former Royal family in the period before the enactment of Law No. 2215/1994, the applicants consider this argument wholly incredible. In any event, there is no evidence to suggest that in order to further an objective of protecting the forests and the archaeological sites on the relevant properties, it was necessary to deprive the applicants of those properties. The first applicant’s concern with the preservation and protection of property in the public interest is demonstrated by the fact that, pursuant to the 1992 agreement between the applicants and the Greek State, the former King not only transferred a large area of the Tatoi estate to the State, but donated further large areas of that property to two foundations in the public interest.

84.  The applicants also refute the Government’s argument that the taking of their property was linked to the public interest in making a constitutional transition from monarchy to republic. In this respect the applicants note that the Government have not explained how that public interest is served by a taking of the private property of the former monarch. The private property of a former monarch and his family is by definition unconnected with his former role as Head of State, and is in no way linked to the constitutional transition from monarchy to republic. And, in any event, this transition took place in 1975, almost twenty years before the enactment of Law No. 2215/1994. The applicants stress that several times the former King formally acknowledged the Greek Republic, to which he presents no threat whatsoever. In the light of all the above, the applicants consider that the Government have failed to offer any credible or sufficient justification for the taking of their property, which was motivated by political and personal antipathy, rather than by any genuine desire to serve the public interest.

85.  The applicants further submit that the interference with their property was wholly disproportionate. They first repeat that the taking of property complained of was not effected pursuant to legislative decree No. 225/1973. Therefore, the Government’s reliance on a provision for compensation contained in that decree is misconceived. In any event, the amount of compensation provided for in the 1973 decree was fixed by the Greek Government and not by the Courts, and was calculated in an arbitrary manner, bearing little resemblance to the real value of the confiscated property.

86.  The applicants also contest the Government’s argument that the question of fair balance should be evaluated also in the light of the fact that, pursuant to Law No. 2215/1994, taxes assessed in respect of the relevant property are written off, and such taxes which have been paid by the applicants after the 1992 agreement may be claimed back. According to the applicants, this could not possibly be equated to the payment of an amount of compensation reasonably related to the value of all the property in question.

87.  The applicants add that any privileges afforded in the past to the former King and his family by virtue of the former King’s position as Head of State, are irrelevant to the question of proportionality as regards the taking of their private property. In this respect the applicants note that what is required is compensation for the fact that they were deprived of their property; benefits or privileges which may have been received by them prior to the taking of their property are not relevant when assessing the value of the assets of which they have been deprived, and the extent to which they have been compensated for the deprivation of those assets. This is so a fortiori in relation to tax exemptions and privileges which may have been available to the applicants’ predecessors, but which have not been enjoyed by the applicants themselves.

88.  In any event, the applicants note that the majority of the property in question came to the Royal family by private purchase; furthermore, it is correct that the civil list was exempted from income tax from 1918, but this was on the basis that the King would pay all the expenses incurred by him in the exercise of his duties in his capacity as Head of State, for example, expenses for hospitality offered to visiting Heads of State and high-ranking officials of foreign states. Until 1949 the King also had to pay all the costs of maintenance and operation of the palaces made available to him by the State in his capacity as Head of State, out of the civil list. As for the costs of maintenance and repair of the private properties in issue, such funds as were provided by the State for these purposes were provided in recognition of the damage which has been caused to the properties during the periods when they had been in the possession of the State. Therefore, the applicants consider that the Government’s allegations cannot be taken into consideration when assessing the value of the properties of which they have been deprived, all the more that the Government have not produced any proof as to the alleged value of the privileges upon which they rely. Furthermore the applicants dispute the Government’s argument that the contested estates have very little commercial value.

89.  The applicants finally stress that the Special Supreme Court failed to recognise that there was a taking by the State of their private property in 1994, but held that their property had been validly expropriated by legislative decree No. 225/1973. Therefore, the applicants consider that presently they have no basis for obtaining an adequate compensation for the taking of their property by the Greek courts. This is also supported by the fact that over five years have past since the enactment of Law No. 2215/1994 without the applicants receiving any compensation reasonably related to the value of their property.

90.  The applicants conclude that the Government have failed to comply with the requirements of Article 1 of Protocol No. 1. In particular, they claim that the Government have pointed to no exceptional circumstances, nor they would be able to do so, which would justify a departure from the well-established principle that a taking of private property by the State is compatible with Article 1 of Protocol No. 1 only upon the payment of an amount of compensation reasonably related to its value.

Whether the contested estates can be considered as the applicants’ “possessions” and whether there has been an interference with the applicants’ right of property

91.  Article 1 of Protocol No. 1, which guarantees in substance the right of property, comprises three distinct rules. The first, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of peaceful enjoyment of property. The second rule, in the second sentence of the same paragraph, covers deprivation of possessions and subjects it to certain conditions. The third, contained in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest. These rules are not “distinct” in the sense of being unconnected: the second and third rules, which are concerned with particular instances of interference with the right to peaceful enjoyment of property, are to be construed in the light of the general principle laid down in the first rule (see Eur. Court HR, James and others v. United Kingdom judgment of 21 February 1986, Series A no. 98-B, pp. 29-30, § 37).

92.  The Commission must first consider whether Article 1 of Protocol No. 1 is applicable in the present case, notably in view of the Government’s arguments that the contested estates cannot be considered as being the applicants’ “possessions”, and that, in any event, any taking of property occurred years earlier, by virtue of legislative decree No. 225/1973, so that any complaint regarding ownership is now inadmissible.

93.  In that respect the Commission considers that the Government’s allegation that the called “Royal property” was always public property is not consistent with the ownership titles relating to this property which the applicants have produced. Notwithstanding the manner of acquisition of the contested estates (by purchase, donation or inheritance), the result remains that, following a chain of transfers, the applicants had acquired full ownership on these estates, in conformity with the common provisions of the civil law of property. Nor is the Commission convinced by the Government’s argument that the property in question had already been expropriated in 1973 through legislative decree No. 225/1973, and that Law No. 2215/1994 had done no more than to confirm that expropriation. In fact the Commission notes that before the coming into force of Law No. 2215/1994 the Greek State had on several occasions treated the applicants as the owners of the contested estates: In 1979 the property confiscated by the dictatorship was delivered in the possession of the Royal family, members of which filed tax returns and paid tax in respect of that property from 1974 onwards. The Commission also recalls that in 1992 a binding agreement was reached between the former King and the Greek State whereby, among other things, 200 square meters of the Tatoi estate were sold by the first applicant to the Greek State and most of the rest of the estate was donated to two foundations for the benefit of the public. In the Commission’s view all these acts could only be founded on the basis that the applicants were the owners of the property in question; otherwise, namely if the contested estates had been validly expropriated in 1973, with the result that they were already owned by the Greek State,  the said acts would have served no purpose. Furthermore, the Commission notes that on 28 September 1992 the division of Scientific Studies of the Greek Parliament issued a report which stated inter alia that legislative decree No. 225/1973 was repealed by legislative decree No. 72/1974 and that the property thereby “reverted to its former ownership status”. Therefore, the Commission is of the opinion that before the coming into force of Law No. 2215/1994 the property in question belonged to the applicants.

94.  In view of the above the Commission considers that in 1994 there has been an interference with the applicants’ right to the peaceful enjoyment of their possessions which amounts to a “deprivation” of possessions within the meaning of the second sentence of the first paragraph of Article 1 of Protocol No. 1.

Legal basis of the interference

95.  The Commission therefore considers that Law No. 2215/1994 constitutes the legal basis of the interference complained of.

“In the public interest”

96.  The Commission must then determine whether this deprivation of possessions pursued a legitimate aim “in the public interest”, within the meaning of the second rule under Article 1 of Protocol No. 1. In that respect the Commission recalls that it is for national authorities to decide in the first place what measures are “in the public interest” and they have a “margin of appreciation” in making that assessment (see Eur. Court HR, Handyside v. United Kingdom judgment of 7 December 1976, series A no. 24, p. 22, § 48). In the Commission’s opinion the margin enjoyed by the national authorities in taking that decision is a wide one. There is no requirement of “necessity” in Article 1. Furthermore, decisions in this area will commonly involve the appreciation of political, economic and social questions on which opinions within a democratic society may genuinely and reasonably differ widely. In these circumstances the Commission accepts that considerable weight must be attached to the decision of a democratic legislature as to what legislation is or not “in the public interest” (James and others v. United Kingdom, Comm. Report, 11.5.84, § 134, Eur. Court HR op. cit., p. 66). However the power of appreciation is not unlimited and its exercise is subject to the supervision of the Convention organs.

97.  In the present case, the Government content that the purpose for which the applicants’ property was taken was to protect the forest and the archaeological sites within the three contested estates, and also to preserve the constitutional status of the country as a Republic. According to the applicants, Law No. 2215/1994 was in reality motivated by political and personal antipathy towards the former Royal family.

98.  Whilst there is some force in the applicants’ arguments, in particular insofar as they stress that there is no evidence to suggest that the 1994 law was motivated by a concern to protect the forests and the archaeological sites within their property, the Commission considers that the Greek State’s belief in the existence of a political need to settle the matters relating to the property of the former Royal family could not be characterised as manifestly unreasonable.

99.  This, however, does not settle the issue: Not only must a measure depriving a person of his property pursue, on the facts as well as in principle, a legitimate aim “in the public interest”, but there must also be a reasonable relationship of proportionality between the means employed and the aim sought to be realised by any measure depriving a person of his possessions. Indeed the Commission considers that the question whether the principle of proportionality has been observed is the main issue in the present case.

Proportionality of the interference

100.  The Commission recalls that an interference with peaceful enjoyment of possessions must strike a “fair balance” between the demands of the general interests of the community and the requirements of the protection of the individual’s fundamental rights (see, among others, Eur. Court HR, Sporrong and Lönnroth v. Sweden judgment of 23 September 1982, Series A no. 52, p. 26, § 69). The concern to achieve this balance is reflected in the structure of Article 1 of Protocol No. 1 as a whole, including therefore the second sentence, which is to be read in the light of the general principle enunciated in the first sentence. The requisite balance will not be found if the person concerned has had to bear “an individual and excessive burden” (see the James and others v. United Kingdom judgment previously cited, p. 34, § 50).

101.  Compensation terms under the relevant legislation are material to the assessment whether the contested measure respects the requisite fair balance and, notably, whether it does not impose a disproportionate burden on the individual. In this connection, the taking of property without payment of an amount reasonably related to its value will normally constitute a disproportionate interference and a total lack of compensation can be considered justifiable under Article 1 of Protocol No. 1 only in exceptional circumstances (see Eur. Court HR, The Holy Monasteries v. Greece judgment of 9 December 1994, Series A no. 301-A, p. 35, § 71).

102.  In the present case, the Commission notes that there is no provision for compensation in Law No. 2215/1994. The applicants’ submissions focus on this point: the lack of any compensation for the deprivation of their property compromises, in their view, the fair balance between the general interest and their fundamental rights.

103.  In the Government’s opinion, exceptional circumstances - such as the ways in which the property was acquired and used, the privileges which were in the past afforded to the former Royal family, the possibility for the applicants to claim back all taxes paid since 1992, and the compensation provided for by legislative decree No. 225/1973 - justified the absence of any compensation. The Government also affirm that the applicants’ alleged right to compensation presently concerns only the 10% of the Tatoi estate and allege that the commercial value of the contested estates has been significantly reduced.

104.  The Commission does not agree with the Government’s assessment. It first reiterates its position that the taking of property complained of was effected pursuant to Law No. 2215/1994 and not pursuant to legislative decree No. 225/1973. Therefore, the compensation provided for in the latter is irrelevant to the present case. As regards the privileges afforded in the past to the Royal family or the tax exemptions, the Commission notes that the Government have not indicated how much those privileges and taxes would have been worth. In any event, the Commission considers that the circumstances to which the Government refer cannot be regarded as payment of compensation, but could be possibly taken into account in order to make an accurate assessment of the applicants’ claims for just satisfaction under Article 41 of the Convention. The same applies to the Government’s arguments regarding the exact size of the Tatoi estate and the present commercial value of the three estates.

105.  By thus imposing a considerable burden on the applicants deprived of their property, Law No. 2215/1994 does not preserve a fair balance between the various interests in question as required by Article 1 of Protocol No. 1.

CONCLUSION

106.  The Commission concludes, unanimously, that in the present case there has been a violation of Article 1 of Protocol No. 1.

D.As regards Article 14 of the Convention taken together with Article 1 of Protocol No. 1

107.  The applicants maintain that they have been victims of discrimination in relation to the enjoyment of their property rights protected by Article 1 of Protocol No. 1, in breach of Article 14 of the Convention. Article 14 of the Convention reads as follows:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

108.  In view of the findings in paragraph 105 above, the Commission does not consider it necessary to rule on the complaint based on Article 14 of the Convention taken together with Article 1 of Protocol No. 1.

CONCLUSION

109.  The Commission concludes, unanimously, that in the present case it is not necessary to rule on the complaint based on Article 14 of the Convention taken together with Article 1 of Protocol No. 1.

E.Recapitulation

110.  The Commission concludes, unanimously, that in the present case there has been a violation of Article 1 of Protocol No. 1 (§ 106).

111.  The Commission concludes, unanimously, that in the present case it is not necessary to rule on the complaint based on Article 14 of the Convention taken together with Article 1 of Protocol No. 1 (§ 109).

M.-T. SCHOEPFER S. TRECHSEL

Secretary       President

to the Commission         of the Commission

(Or. English)

CONCURRING OPINION OF Mr C.L. ROZAKIS

While I agree with the finding of the Commission that in the present case there has been a violation of Article 1 of Protocol no. 1, I am not in a position to follow the reasoning which has been elaborated by the majority in establishing the relevant infringment of the Convention’s provisions.

My essential disagreement with the Commission’s reasoning is the following : the dispute between the former King Constantine and the Hellenic Republic related mainly to three distinct pieces of property, whose ownership has been debated in the Commission : the property of Tatoi, that of Polydendri and that of « Mon Repos ». The parties have pleaded separately on the ownership of these distinct possessions, and have produced arguments and materials supporting their allegations in this respect. I think that the Commission ought to have given clear answers to these conflicting positions, by specifically determining the exact purview of the notion of « possession » in the circumstances of the case, and not simply finding that a violation has occurred in this respect. In other words, it would have been our responsibility to first determine which are the possessions of the former King - which, after all, is the condition for finding a violation of Article 1 of Protocol no. 1 - before embarking on the consideration of whether there had been a violation. To leave the matter of the exact purview of the possessions to be examined at the stage of the determination of compensation, does not appear to me to be the right course to follow either as a matter of interpretation of Article 1 of the Protocol or as a matter of judicial policy.

 

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