GRYPAIOS AND OTHERS v. GREECE - 10525/09 [2012] ECHR 230 (7 February 2012)


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    European Court of Human Rights
    You are here: BAILII >> Databases >> European Court of Human Rights >> GRYPAIOS AND OTHERS v. GREECE - 10525/09 [2012] ECHR 230 (7 February 2012)
    URL: http://www.bailii.org/eu/cases/ECHR/2012/230.html
    Cite as: [2012] ECHR 230

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    FIRST SECTION







    CASE OF GRYPAIOS AND OTHERS v. GREECE


    (Application no. 10525/09)








    JUDGMENT





    STRASBOURG


    7 February 2012





    This judgment is final but it may be subject to editorial revision.

    In the case of Grypaios and Others v. Greece,

    The European Court of Human Rights (First Section), sitting as a Committee composed of:

    Anatoly Kovler, President,
     Linos-Alexandre Sicilianos,
     Erik Møse, judges,
    and André Wampach, Deputy Section Registrar,

    Having deliberated in private on 17 January 2012,

    Delivers the following judgment, which was adopted on that date:

    PROCEDURE

  1. The case originated in an application (no. 10525/09) against the Hellenic Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by seven Greek nationals whose names appear in the annex (“the applicants”), on 5 February 2009.

    2. 2.  The applicants were represented by Mr V. Chirdaris, a lawyer practising in Athens. The Greek Government (“the Government”) were represented by their Agent’s delegates, Mr I. Bakopoulos and Ms G. Kotta, Legal Assistants at the State Legal Council.

  2. On 2 September 2010 the President of the First Section decided to communicate the complaints concerning the length of the proceedings and the lack of an effective remedy in this respect to the Government. In accordance with Protocol No. 14, the application was allocated to a Committee of three Judges.

    3. THE FACTS

    I.  THE CIRCUMSTANCES OF THE CASE

  3. The applicants were born on the dates listed in the Annex and live in Hydra.

    4. A.  Background of the case

  4. The applicants are owners of different plots of land in Hydra, in the same area.

  5. On 6 December 1980, 26 January 1981 and 27 January 1982 respectively, after applications were lodged by the applicants, the Forest Inspection of Poros decided that their plots of land were not forestal.

  6. On 16 August 1985 the Forest Inspection of Poros designated an area of 235 000 square meters (235 stremmas), including the applicants’ property, as a forest land (decision no. 1265/1985).

  7. The applicants lodged objections with the First Instance Committee for the Settlement of Forest Disputes (hereafter “the First Instance Committee”) challenging decision no. 1265/1985.

  8. By decision no. 1/1986 the First Instance Committee decided that the area under consideration should be reduced to 203,5 stremmas and that, from this area, only a part of 138 stremmas should be characterised as forest land. Further, the applicants’ objections were accepted regarding 66,5 stremmas of the abovementioned area.

  9. On an unspecified date an appeal was lodged by the applicants before the Appeal Committee for the Settlement of Forest Disputes (hereafter “the Appeal Committee”) challenging the part of decision no. 1/1986 designating the 138 stremmas as a forest land.

  10. By decision no. 1/1987 the applicants’ allegations were accepted and the case was remitted to the Forest Inspection of Poros for a new consideration.

    11. B.  Proceedings relevant to the case

  11. On 26 May 1988 the Forest Inspection of Poros designated again all the area (235 stremmas) as a forest land (decision no. 65/1988).

  12. On 3 August 1988 the first five applicants lodged objections with the First Instance Committee challenging decision no. 65/1988. On 5 September 1989 their objections were rejected (decision no. 1/1989).

  13. Subsequently, on 7 May 1990 they lodged an appeal with the Appeal Committee challenging decision no. 1/1989. The Appeal Committee found that the First Instance Committee did not have a lawful composition. Decision no. 1/1989 was annulled and the case was remitted to the First Instance Committee for a new consideration.

  14. On 7 July 1993 the First Instance Committee decided that, as far as the 66,5 stremmas were concerned, the authorities had not challenged decision no. 1/1986 and thus, it had become final regarding this part of the area (decision no. 11/1993). Further, regarding the remaining part of the 138 stremmas, the Committee decided that this area was forest land and rejected the objections of the applicants.

  15. In December 1993 appeals were lodged against the abovementioned decision. The first four applicants challenged the part of the decision concerning the 138 stremmas and the authorities the part of the decision concerning the 66,5 stremmas.

  16. On 20 December 1994 the Appeal Committee found that the First Instance Committee had to decide again on the nature of the 66,5 stremmas.

  17. On 19 February 1996 the First Instance Committee decided to declare the area of the 66,5 stremmas as a forest (decision no. 1/1996).

  18. Subsequently, on 19 April 1996 - the first two applicants - and on 2 July 1996 - the other five applicants - lodged appeals with the Appeal Committee challenging decisions nos. 11/1993 and 1/1996, with the exception of the fifth applicant who challenged only decision no. 1/1996.

  19. On 19 October 1999 the Appeal Committee upheld the designation of the area including the applicants’ property as a forest land (decision no. 12/1999).

  20. On 2 June 2000 the applicants lodged recourses with the Supreme Administrative Court asking for the annulment of decision no. 12/1999. By judgment dated 27 December 2006, the court accepted the recourse of the fifth applicant and annulled the part of decision no. 12/1999 concerning the property of the applicant that was included in the area of the 66,5 stremmas (judgment no. 3893/2006). Further, on the same date the court rejected the recourses of the other applicants (judgment nos. 3890-2/2006). The judgments were “finalised” (θεώρηση και καθαρογραφή) on 5 and 25 August 2008 respectively.

    21. II. RELEVANT DOMESTIC LAW AND PRACTICE

  21. The following provisions of the Introductory Law (Εισαγωγικός Νόμος) to the Civil Code (Law no. 2783/41) are relevant:

    22. 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.”

  22. These sections establish the concept of a special prejudicial act in public law, creating State liability in tort. This liability results from unlawful acts or omissions. The acts concerned may be not only legal acts but also physical 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.

    23. THE LAW

    I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

  23. The applicants complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:

    24. “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

  24. The Government contested that argument.

    1. Admissibility

  25. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

    1. Merits

    1.  The period to be taken into account

  26. As far as the period to be taken into consideration is concerned, and in particular regarding the dies a quo, the Court reiterates that the Committees for the Settlement of Forest Disputes satisfy both the substantive and procedural requirements of a “tribunal” within the meaning of Article 6 § 1 (see Argyrou and Others v. Greece, no. 10468/04, § 31, 15 January 2009). In the present case, prior to the recourse that the applicants lodged with the Supreme Administrative Court, they had submitted objections with the First Instance and Appeal Committees for the Settlement of Forest Disputes (decisions nos. 11/1993 and 1/1996) challenging the Forest Inspection’s decision that designated their property as a forest land (decision no. 65/1988). In view of the Court’s conclusion in Argyrou and Others (cited above), the latter are proceedings before a “tribunal” within the meaning of Article 6 § 1 and therefore their length has to be taken into account in the context of the present case.

  27. Accordingly, as far as the first four applicants are concerned, the period to be taken into consideration started to run on 3 August 1988, when they lodged their objections with the First Instance Committee and ended on 25 August 2008, when decisions nos. 3890-92/2006 of the Supreme Administrative Court were “finalised”. The proceedings thus lasted more than twenty years for three levels of jurisdiction.

  28. As far as the fifth applicant is concerned, the period to be taken into consideration started to run also on 3 August 1988, when the applicant lodged his objection with the First Instance Committee and ended on 5 August 2008, when decision no. 3893/2006 of the Supreme Administrative Court was “finalised”. The Court observes that a period of approximately three years (from 7 July 1993 to 2 July 1996) should be deducted from the total length of the proceedings, as the fifth applicant did not challenge decision no. 11/1993. The proceedings thus lasted approximately seventeen years for three levels of jurisdiction.

  29. As to the last two applicants who joined the proceedings on 2 July 1996, when they lodged an appeal with the Appeal Committee challenging decisions nos. 11/1993 and 1/1996, the period to be taken into consideration started on the abovementioned date and ended on 25 August 2008, when decisions nos. 3890-92/2006 of the Supreme Administrative Court were “finalised”. The proceedings thus lasted more than twelve years for two levels of jurisdiction.

    30. 2.  Reasonableness of the length of the proceedings

    31.  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, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

  30. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above).

  31. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject (see Argyrou and Others, cited above), the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

    32. There has accordingly been a breach of Article 6 § 1.

    II.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

  32. The applicants further complained of the fact that in Greece there was no court to which application could be made to complain of the excessive length of proceedings. They relied on Article 13 of the Convention which provides as follows:

    33. “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.”

  33. The Government contested that argument.

  34. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.

  35. The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI). It notes that the objections and arguments put forward by the Government have been rejected in earlier cases (see Konti-Arvaniti v. Greece, no. 53401/99, §§ 29-30, 10 April 2003 and Tsoukalas v. Greece, no. 12286/08, §§ 37-43, 22 July 2010) and sees no reason to reach a different conclusion in the present case.

  36. Accordingly, the Court considers that in the present case there has been a violation of Article 13 of the Convention on account of the lack of a remedy under domestic law whereby the applicants could have obtained a ruling upholding his right to have his case heard within a reasonable time, as set forth in Article 6 § 1 of the Convention.

    37. III.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION

    39.  Lastly, the applicants complained under Article 1 of Protocol No. 1 that, due to the domestic courts’ decisions designating their plots as forest land - with the exception of the fifth applicant - and the failure of the authorities to award them compensation for more than twenty years for the blocking of their properties, their right to peaceful enjoyment of their property was infringed.

    40. The Court reiterates that, with the exception of the fifth applicant, the Supreme Administrative Court held, in its sufficiently reasoned judgments nos. 3890-92/2006, that the decision of the authorities to declare as a forest the area including the applicants’ plots land was right. Hence, their complaint is about a speculative loss of income based on the assumption that their plots of land were not forestal and that they had the right to exploit them without any constraints (see Ian Edgar (Liverpool) Ltd v. the United Kingdom (dec.), no. 37683/97, ECHR 2000-I).

  37. As regards the fifth applicant, the Court observes that, following judgment no. 3893/2006 of the Supreme Administrative Court, he could have lodged a civil action for damages against the State under sections 104 and 105 of the Introductory Law to the Civil Code, asking for compensation for loss of income due to the designation by the administration of his plot as forest land and consequently the lack of its peaceful enjoyment (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).

  38. Therefore, in view of the above, these complaints are manifestly ill-founded and must be rejected under Article 35 §§ 3 (a) and 4 of the Convention.

    39. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

  39. Article 41 of the Convention provides:

    40. “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

    A.  Damage

  40. The first, second and fifth applicant claimed 400,000 euros (EUR) each and the rest of the applicants claimed the same amount jointly in respect of pecuniary damage they had allegedly suffered because of the loss of their property. Further, the applicants claimed EUR 40,000 each for non-pecuniary damage.

  41. The Government contested the applicants’ claims for pecuniary damage. They stressed that their claims for pecuniary damage, as long as they were not connected with the length of the proceedings before the domestic courts, fell outside the Court’s examination of the case under Article 41 of the Convention and should be rejected. Further, regarding the applicants’ claim for non-pecuniary damage, they considered the amount requested exorbitant and submitted that the finding of a violation would constitute sufficient just satisfaction.

  42. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects these claims. On the other hand, ruling on an equitable basis and taking into account all the circumstances of the case, it awards to each of the first four applicants EUR 18,000, EUR 16,000 to the fifth applicant and, further, EUR 6,000 to each of the last two applicants in respect of the non-pecuniary damage suffered because of the length of the proceedings, plus any tax that may be chargeable on these amounts.

    43. B.  Costs and expenses

  43. The applicants claimed EUR 1,230 jointly for the costs and expenses incurred before the Court. They produced an invoice for that amount.

  44. The Government contested this claim.

  45. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000 XI). In the present case, regard being had to the documents in its possession and to its case-law, the Court considers it reasonable that the sum claimed, namely EUR 1,230, should be awarded jointly to the applicants in full, plus any tax that may be chargeable to them.

    46. C.  Default interest

  46. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

    47. FOR THESE REASONS, THE COURT UNANIMOUSLY

  47. Declares the complaint concerning the excessive length of the proceedings and the lack of remedies in that respect admissible and the remainder of the application inadmissible;


  48. Holds that there has been a violation of Article 6 § 1 of the Convention;


  49. Holds that there has been a violation of Article 13 of the Convention;


  50. Holds

    51. (a)  that the respondent State is to pay the applicants, within three months, the following amounts, in respect of non-pecuniary damage:

    (i) to each of the first four applicants EUR 18,000 (eighteen thousand euros) plus any tax that may be chargeable on this amount;

    (ii) to the fifth applicant EUR 16,000 (sixteen thousand euros) plus any tax that may be chargeable on this amount;

    (iii) to each of the sixth and seventh applicant EUR 6,000 (six thousand euros), plus any tax that may be chargeable on this amount;

    (iv) EUR 1,230 (one thousand two hundred and thirty euros) jointly to the applicants, plus any tax that may be chargeable to them, in respect of costs and expenses;

    (b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;


  51. Dismisses the remainder of the applicants’ claim for just satisfaction.

    52. Done in English, and notified in writing on 7 February 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

    André Wampach Anatoly Kovler
    Deputy Registrar President

    ANNEX


    1. Eleftherios GRYPAIOS born on 5/09/1931

    2. Theofilos SAITIS born on 3/03/1942

    3. Argyrios MARKOUIZOS born on 3/09/1929

    4. Nikolaos MARKOUIZOS born on 31/07/1960

    5. Spyridon STALIKAS born on 11/07/1943

    6. Evaggelia MARKOUIZOU born on 25/03/1965

    7. Maria MARKOUIZOU born on 16/10/1962

     


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