Communicated on 8 January 2018
FIRST SECTION
Application no. 12576/12
Ilias TSIGARAS
against Greece
lodged on 22 February 2012
STATEMENT OF FACTS
The applicant, Mr Ilias Tsigaras, is a Greek national who was born in 1964 and lives in Amfithea. He is represented before the Court by Mr V. Chirdaris and Mr A. Kandarakis, lawyers practising in Athens.
A. The circumstances of the case
On 31 December 2002 the Greek State, in a joint decision by the Minister of Finance and Economics and the Minister for the Environment, Regional Development and Public Works, expropriated some properties, including one which belonged to the applicant, in order to make improvements to the National Road of Ioannina-Antirrio in the vicinity of Amfilochia. The property expropriated from the applicant included a plot of 2,033 sq. m that was part of a larger piece of land measuring 2,991 sq. m. On the part of his land that was not expropriated there was a single-storey building used by the applicant as his domestic residence, measuring 101.60 sq. m, with a basement of equal dimensions.
On 30 April 2004 the Greek State brought an action in the Arta Court of First Instance to determine a provisional unitary compensation amount per square metre of each expropriated property. The Court of First Instance held a hearing of the case on 1 October 2004 and issued its decision assessing the provisional unitary compensation amount on 12 November 2004 (judgment no. 798/2004).
On 10 May 2005 the applicant brought an action in the Ioannina Court of Appeal to determine the final unitary compensation amount. He also requested special compensation for the remainder of his property, that is to say for the remaining portion of his land measuring 958 sq. m and the building on it. The hearing before the Court of Appeal took place on 21 September 2005. On 2 February 2006 the Court of Appeal issued decision no. 70/2006, adjourning the examination of the merits of the case on the grounds that an expert report was required to assess the value of the expropriated property. It subsequently scheduled a new hearing of the case for 17 May 2006. On that date the court adjourned the hearing until 18 April 2007, then adjourned it again until 16 April 2008. Following a fresh adjournment, the hearing eventually took place on 5 November 2008.
In a judgment of 29 June 2009 (no. 224/2009) the Ioannina Court of Appeal assessed the final unitary compensation amount at 40 euros per square metre. It additionally assessed the special compensation for the remainder of the land that had not been expropriated at 10 euros per sq. m. Lastly, it assessed the value of the building located on that part of the applicant’s land at 125,000 euros and its lost value at 50,000 euros. The material date it took as a basis for assessing the compensation was 1 October 2004, that is to say the date of the hearing concerning provisional compensation, on the grounds that the first hearing concerning the assessment of the final compensation had been held on 25 September 2005, which was less than a year after the date of the hearing concerning provisional compensation (Article 17 § 2 of the Constitution).
On 14 September 2010 the applicant appealed to the Court of Cassation on points of law. He claimed, inter alia, that the Court of Appeal had erred in considering the date of the hearing concerning the provisional compensation as the material time for the assessment of the compensation. He argued that the date of the hearing concerning final compensation had been 5 November 2008, as that was the hearing during which examination on the merits took place and resulted in judgment no. 224/2009 awarding him compensation; therefore pursuant to Article 17 § 2 of the Constitution, more than a year had elapsed between the hearing concerning the assessment of the provisional compensation and that concerning the assessment of the final compensation. In view of the above, the assessment of the final compensation should have made reference to the hearing on 5 November 2008. In the applicant’s view, the hearing of 25 September 2005 should not have been taken into account as it had not resulted in a ruling on the merits but rather in decision 70/2006 by which the examination on the merits was adjourned and an expert report was ordered.
On 29 September 2011 the Plenary of the Court of Cassation dismissed the applicant’s appeal on points of law (judgment no. 14/2011). As regards the material time for assessing the compensation, referring to Articles 111, 223, 224 and 281 of the Code of Civil Procedure, the majority of the Court of Cassation held that it was the first hearing (of 21 September 2005) that should have been taken into account ‒ regardless of whether or not the examination on the merits took place on that date ‒ on the grounds that “during that hearing the subject of the evidence procedure and of judicial research was being determined”. A minority of thirteen judges disagreed with above-mentioned conclusion on the grounds that Article 17 § 2 of the Constitution implies that its purpose is for individuals who are deprived of their property to be given full compensation corresponding to the value of the property as it stood on a date closer to date of payment. Therefore, in the present case, the material time to be considered should have been the last hearing before the decision on the merits was issued.
The judgment was finalised (καθαρoγραφή) on 4 October 2011 and it was archived on 4 November 2011, on which date it was possible to obtain a copy.
B. Relevant domestic law and practice
1. The Constitution
The relevant Article of the Greek Constitution reads as follows:
Article 17
“...
2. No one may be deprived of his property unless it is for the public benefit, which must be duly proved, in the circumstances and manner laid down by law and only after payment of full compensation corresponding to the value of the expropriated property at the time of the court hearing on the provisional assessment of compensation. In cases in which an application is lodged directly requesting a final assessment of the compensation, the value of the expropriated property at the time of the court hearing of that application shall be taken into account. If more than a year has elapsed between the hearing date concerning provisional assessment of compensation and the hearing date concerning final assessment of compensation, then the value shall be assessed with reference to the latter date.
3. Any change in the value of the expropriated property occurring after and solely as a result of publication of the decision to expropriate shall not be taken into account.
...”
2. Code of Civil procedure
The relevant Articles of the Code of Civil Procedure read as follows:
Article 111
“1. The proceedings in a hearing shall be based on the written pre-trial proceedings.
2. No main or incidental action for judicial protection can be lodged with a court, unless specified otherwise by law. An action which has been lodged without pre-trial proceedings shall automatically be dismissed as inadmissible.”
Article 223
“When an action is pending before the court it is not permissible to modify its claims. Exceptionally, the applicant, in his submissions up until the end of the first‑instance procedure, may limit his claims or request a) whatever is associated with the main subject-matter of the action (τα παρεπόμενα του κύριου αντικειμένου της αγωγής); b) another object instead of that initially requested, or the difference in value caused by a change that took place.”
Article 224
“It is inadmissible to change the legal basis of an action. The applicant by his submissions submitted in accordance with Article 237 § 1 before the first-instance court may supplement, clarify or correct his allegations, as along as the action’s legal basis does not change.”
Article 281
“The ‘date of the hearing’ is deemed to be the date on which the case was called and started its trial, irrespective of whether the court started the examination on the merits.”
COMPLAINTS
The applicant complains, under Article 1 of Protocol No. 1, that the failure of the domestic authorities to apply properly the relevant domestic law concerning the date with reference to which compensation should be assessed deprived him of the appropriate compensation for expropriation.
Invoking Articles 6 and 13 of the Convention, the applicant also complains about the length of the expropriation proceedings and the lack of legal remedy in this respect.
QUESTIONS TO THE PARTIES
1. Has there been a violation of the applicant’s right to property within the meaning of Article 1 of Protocol No 1 to the Convention?
In particular, taking into account that more than four years had elapsed between the date of the hearing concerning the provisional assessment of compensation and the date of the hearing which resulted in judgment no. 224/2009 setting the amount of the final compensation, was the applicant awarded compensation that was reasonably related to his property’s value? If not, did it impose a disproportionate burden on the applicant?
2. Was the applicant’s case heard within a reasonable time as provided for by Article 6 of the Convention (see Glykantzi v. Greece, no. 40150/09, 30 October 2012)?
3. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 6, as required by Article 13 of the Convention?
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