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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> PAPAMICHALOPOULOS AND OTHERS v. GREECE (ARTICLE 50) - 14556/89 [1995] ECHR 45 (31 October 1995)
URL: http://www.bailii.org/eu/cases/ECHR/1995/45.html
Cite as: [1995] ECHR 45, 21 EHRR 439, (1996) 21 EHRR 439
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In the case of Papamichalopoulos and Others v. Greece (1),
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention") and the relevant
provisions of Rules of Court A (2), as a Chamber composed of the
following judges:
Mr R. Bernhardt, President,
Mr F. Gölcüklü,
Mr A. Spielmann,
Mr N. Valticos,
Mr R. Pekkanen,
Mr J.M. Morenilla,
Mr F. Bigi,
Mr L. Wildhaber,
Mr J. Makarczyk,
and also of Mr H. Petzold, Registrar,
Having deliberated in private on 24 November 1993, 25 August 1994
and 22 March, 27 June and 25 October 1995,
Delivers the following judgment, which was adopted on the
last-mentioned date:
________________
Notes by the Registrar
1. The case is numbered 18/1992/363/437. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since its
creation and on the list of the corresponding originating applications
to the Commission.
2. Rules A apply to all cases referred to the Court before the entry
into force of Protocol No. 9 (P9) and thereafter only to cases
concerning States not bound by that Protocol (P9). They correspond to
the Rules that came into force on 1 January 1983, as amended several
times subsequently.
_______________
PROCEDURE
1. The case was referred to the Court by the European Commission of
Human Rights ("the Commission") on 25 May 1992, within the three-month
period laid down by Article 32 para. 1 and Article 47 (art. 32-1,
art. 47) of the Convention. It originated in an application
(no. 14556/89) against the Hellenic Republic lodged with the Commission
under Article 25 (art. 25) by fourteen Greek nationals,
Mr Ioannis Papamichalopoulos, Mr Pantelis Papamichalopoulos,
Mr Petros Karayannis, Mrs Angeliki Karayanni, Mr Panayotis Zontanos,
Mr Nikolaos Kyriakopoulos, Mr Konstantinos Tsapalas,
Mrs Ioanna Pantelidi, Mrs Marika Hadjinikoli, Mrs Irini Kremmyda,
Mrs Christina Kremmyda, Mr Athanas Kremmydas, Mr Evangelos Zybeloudis
and Mrs Konstantina Tsouri, on 7 November 1988.
2. In a judgment of 24 June 1993 ("the principal judgment") the
Court found that there had been a breach of Article 1 of
Protocol No. 1 (P1-1), as the applicants' loss of all ability to
dispose of their land, taken together with the failure of the attempts
made up to that time to remedy the situation complained of, had
entailed sufficiently serious consequences for the applicants de facto
to have been expropriated in a manner incompatible with their right to
the peaceful enjoyment of their possessions (Series A no. 260-B,
pp. 68-70, paras. 35-46, and points 1-2 of the operative provisions).
3. As the question of the application of Article 50 (art. 50) was
not ready for decision, it was reserved in the principal judgment. The
Court invited the Government and the applicants to submit, within two
months, the names and positions of experts chosen by agreement for the
purpose of valuing the disputed land and to inform it, within eight
months from the expiry of that period, of any friendly settlement that
they might reach before the valuation (ibid., pp. 70-71, paras. 47-49,
and point 3 of the operative provisions).
4. In letters of 13 and 22 September 1993 the applicants and the
Government respectively informed the Court that they had appointed as
experts Mr C. Liaskas, President of the Greek Chamber of Technology
(Tekhniko Epimelitirio Ellados), Mr C. Vantsis, a civil engineer and
a member of the Association of Sworn Valuers (Soma Orkoton Ektimiton),
and Mr G. Katsos, a topographer and a member of the same association.
5. At a meeting on 24 November 1993 the Court decided that it should
recommend the Government and the applicants to take, by agreement, the
necessary steps to enable the experts appointed by them to start their
work on 15 January 1994. It also decided that the experts' task would
be to determine, firstly, the value of the disputed land in 1967 and,
secondly, its current value, since the wording of the operative
provisions of the principal judgment in no way precluded pursuing in
parallel the possibility of a friendly settlement and the production
of the experts' report. However, owing to a number of concerns
expressed by the Government on 6 December 1993, the President informed
the parties to the dispute that the deadline of 15 January 1994 no
longer applied.
6. On 9 February 1994, on the Court's instructions, the Registrar
sent the experts the following letter:
"As you already know, the Greek Government and Mr Stamoulis have
chosen you as an expert ... to value certain land belonging to
the applicants and whose occupation by the Greek Navy has been
held by the ... Court ... to be contrary to Article 1 of
Protocol No. 1 (P1-1) ...
As the question of compensation for the applicants was not ready
for decision at the date of the judgment delivered on
24 June 1993, the Court decided to reserve it, having due regard
to the possibility of an agreement between the respondent State
and the applicants. Although the time allowed for that purpose
expires on 24 April 1994, the prospects of such an agreement seem
very slight and the Court will very probably have to determine
the issue. It therefore requests you to start your work on that
date, or even earlier with the consent of the parties to the
case.
The expert opinion is to deal with the value of the land in
dispute both at the date of its [occupation] by the Navy (in
1967) and at the present time (in 1994); your report should be
filed by 31 July 1994 at the latest.
The Court would also like to receive by the end of April 1994
your estimate of the costs of producing the expert report and the
amount of your fees; the President of the Court may tax these,
if need be (Rule 42 para. 1 in fine of the Rules of Court). They
will ultimately have to be paid by the Greek Government.
..."
On the same day, the Registrar sent a copy of that letter to the
Agent of the Government, adding:
"With reference to your letter of 6 December 1993 and my reply
of 9 December, I should like to inform you that the costs of
producing the expert report and the experts' fees will have to
be borne by the Greek State. In its judgment of 24 June 1993 the
Court held that the unlawful occupation by the Navy Fund of the
land in dispute since 1967 had infringed the applicants' right
of property. It follows that the costs incurred by the
applicants in order to have that breach established and rectified
on the one hand, and the costs of the expert report necessary in
this case for the application of Article 50 (art. 50), on the
other, will ultimately have to be met by the respondent State.
That is the opinion of the President, Mr Bernhardt, but the
formal decision will appear in the Court's judgment."
7. On 11 February 1994 counsel for the applicants informed the
Registrar that there was no longer any hope of reaching a friendly
settlement in the case. In a letter of 7 April 1994 the Agent of the
Government said that he had reached the same conclusion and asked for
the Court's consent to the appointment of two technical advisers to
assist the experts.
8. On 19 July 1994 the Agent of the Government sought an extension -
until the end of 1994 - of the time that had been allowed for filing
the expert report. He stated that the Minister of Defence had refused
permission for the experts to enter the naval base "for imperative
administrative reasons which cannot be disclosed" and "for reasons of
national security".
9. In a letter received at the registry on 11 August 1994 the
applicants disputed the genuineness of the reasons put forward for the
refusal by the Minister and the Agent of the Government. They
described the Government's behaviour as a "provocative deception" and
added:
"4. We regret having to inform the Court that there was
absolutely no 'administrative reason' for denying the experts
access to the holiday village in question. It was merely judged
that it would be inappropriate if the experts' visit were to
coincide with the peak holiday period, during which the village
presents the picture of an idyllic coastline whose natural beauty
is unique. And it was felt that if the visit was deferred to a
time when the holiday-makers had left the village, the picture
it presented would probably not have impressed the experts.
5. Obviously, since there were neither any 'administrative
reasons' nor any 'reasons of supreme national security', the
experts visited the village on 17 July 1994 (St Marina's Day) and
had an opportunity to make their investigations, since access was
free for all visitors.
We must denounce to the Court the inaccurate statements
made by the Greek State in disregard of the obligation on the
parties to the proceedings to conduct themselves frankly and in
good faith and to facilitate the task of the Court. I must,
moreover, point out that the manifestly unethical tactic whereby
the State has managed to delay production of the expert report
prolongs the proceedings and aggravates the damage to my clients.
It is for the Court to judge to what extent this conduct on the
part of the authorities of the Hellenic Republic should incur
sanctions and be taken into consideration in the award of `just
satisfaction' under Article 50 (art. 50) of the Convention."
10. For their part, the experts had sent the Court, on
10 August 1994, a copy of a letter they had sent to the Government,
which read as follows:
"In the letter it sent you and which it has also
communicated to us, Department E2 of Navy Headquarters denies us
access until 15 October 1994 to the Navy officers' holiday
village (naval base in the south of the Gulf of Euboea), where
the immovable property in question is situated, for reasons that
it was unable to indicate to us and which we think have to do
with the end of the naval officers' summer holidays.
However, we were able to visit the immovable property on
17 July 1994, St Marina's Day, with hundreds of religious
believers who were making a pilgrimage to the church of that
name.
...
Given all the foregoing and in order to supplement the
information we already have ... so as to be able to produce an
accurate, objective report,
We would ask you to take steps to let us have the following
particulars by 5 September 1994 at the latest:
..."
11. On 25 August 1994 the Court met to consider - in the light of the
observations by the parties to the dispute and the experts - the
progress of the proceedings and to decide how they should be continued.
On 29 August the Registrar sent the parties and the experts a letter
of which the relevant passage read as follows:
"The Court has noted with regret that the deadline laid
down for filing the experts' report has not been complied with.
It has expressed its profound concern as to the Greek
Government's reluctance to co-operate effectively with the
experts ...
It has decided that:
1. the costs of the experts' opinion will fall on the Greek
Government: they will be calculated in accordance with the
applicable Greek legislation but the Court will assess them with
reference to the criteria laid down in its case-law;
2. the Greek Government should immediately afford their
assistance to the experts so that the latter may have all the
information necessary for producing their report. This should
deal with the value of the land in issue at the date of its
[occupation] by the Navy (in 1967) and at the present time (in
1994), such value not to include any damage sustained by the
applicants on account of the loss of use of their property during
1967-1994; and
3. the time allowed for filing the experts' report shall expire
on 31 October 1994."
12. On 14 November 1994, at the experts' request, the President
agreed to a further extension of time for filing their report, until
15 December 1994.
13. The experts filed their report on 19 December 1994 and their
claims for costs and fees on 20 January 1995.
14. On 15 February 1995 the Government asked the Court to hold a
hearing as they disputed the validity of the experts' report as a whole
because one of the three experts, Mr Liaskas, had not contributed to
producing it and because the experts had gone beyond their remit by
dealing with matters on which the Court had not sought their opinion.
The Court then requested Mr Liaskas - who had never discharged
himself from the instructions it had given him - to confirm in writing
that he agreed with his colleagues' findings; it did not receive any
reply from him, however.
15. The Government and the applicants submitted their observations
on the experts' report on 17 and 21 February 1995; on 3 January 1995
the Registrar had received from the Government's technical advisers
(see paragraph 7 above) a report containing their own valuation of the
land in issue.
The Delegate of the Commission did not submit any written
observations.
16. On 22 March 1995 the Court granted the Government's request for
a hearing to be held.
In accordance with the President's decision, this took place in
public on 22 June 1995 in the old Human Rights Building, Strasbourg.
The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr V. Kondolaimos, Adviser, Delegate of
Legal Council of State, the Agent,
Mrs M. Basdeki, Legal Assistant,
Legal Council of State,
Mr V. Roukhotas, civil engineer,
Deputy Director, Department of Works,
Navy Headquarters, Counsel;
(b) for the Commission
Mr L. Loucaides, Delegate;
(c) for the applicants
Mr I. Stamoulis, dikigoros (lawyer),
elected Prefect of the prefecture of
Boeotia,
Mr G. Vitalis, dikigoros, Counsel.
The Court heard addresses by them and also their replies to its
questions. The Delegate of the Agent produced a number of documents
at the hearing.
AS TO THE LAW
17. Under Article 50 (art. 50) of the Convention,
"If the Court finds that a decision or a measure taken by a legal
authority or any other authority of a High Contracting Party is
completely or partially in conflict with the obligations arising
from the ... Convention, and if the internal law of the said
Party allows only partial reparation to be made for the
consequences of this decision or measure, the decision of the
Court shall, if necessary, afford just satisfaction to the
injured party."
I. Validity of the expert report
18. In the first place, the Government disputed the validity of the
expert report on the ground that it had been produced by only two of
the three experts initially appointed. The fact that Mr Liaskas, the
President of the Greek Chamber of Technology, had not taken part in
drawing up the expert report - without officially communicating this
fact to either the Court or the Government, the latter of which were
counting on his experience and judgment - rendered the report null,
arbitrary and "scandalously favourable" to the applicants' interests.
They requested the Court not to take it into account and to order a
fresh expert opinion to be drawn up by all the experts.
19. The applicants pointed out that pursuant to the operative
provisions of the Court's judgment of 24 June 1993, the parties to the
dispute had agreed at the time to choose three experts, one to be
appointed by the Greek Chamber of Technology and the other two by the
Association of Sworn Valuers. The first expert, Mr Liaskas, was a
Government adviser on technical matters, while Mr Vantsis and Mr Katsos
were public servants not remunerated by the State. Mr Liaskas had been
present during the early stages of the work on producing the report but
did not subsequently take part in inspections of the site, though he
was given due notice each time, and did not present himself to sign the
report as he had been requested. These facts were duly recorded by
Mr Vantsis and Mr Katsos in their report, and that sufficed, under the
Code of Civil Procedure (Article 383 para. 3) and Greek private
international law, for the expert report to be valid.
20. The Court points out that in its judgment of 24 June 1993 it
invited the Government and the applicants to submit the names and
positions of experts chosen by agreement for the purpose of valuing the
disputed land, but did not specify the number of experts. It took note
in September 1993 that the three experts in question had been
appointed. In a letter sent by the Registrar on 9 February 1994 it
drew the experts' attention to the fact that the time allowed for the
parties to the dispute to reach a friendly settlement would expire on
24 April 1994 and requested them to start work on that date or even
earlier with the consent of the parties concerned (see paragraph 6
above). It learned of the facts of which the Government complained
only from the expert report lodged on 19 December 1994, from a letter
of 12 February 1995 from the Agent of the Government and from the
Government's observations on the expert report, which were received at
the registry on 17 February 1995.
It appears from the report in question that after 17 October 1994
Mr Liaskas did not take part in any further inspection of the site or
in the writing of the report, although he had been asked to attend for
the latter purpose ten days beforehand; nor did he present himself on
15 December 1994 to sign the report. The Court notes furthermore that
Mr Liaskas, who had never discharged himself, did not reply to the
letter in which the Court asked him whether he endorsed his colleagues'
findings (see paragraph 14 above). The Government, who maintained that
Mr Liaskas's participation would have been invaluable to them, did not
protest before the report was written at his having completely ceased
work. That being so, the Court considers that the Government cannot
rely on the third expert's unexplained non-participation to contest the
validity of the report.
21. In the second place, the Government alleged that the experts had
exceeded their instructions in valuing the buildings and other
facilities on the land in issue; they said that the experts had been
swayed by assurances allegedly given them by the applicants that they
would be remunerated by the applicants themselves if the Court refused
to take these buildings and facilities into account.
22. The applicants considered it natural that the expert report
should also cover these buildings; the Court would thus be in a better
position to rule on the current value of the land and would have a more
reliable basis on which to assess the damage sustained by the
applicants.
23. The Court points out that when it wrote to the experts on
9 February 1994, it specified that their report should deal with the
value of the relevant land both at the date of its occupation by the
Navy (in 1967) and in 1994. It notes in this connection that the
expert report contains all the information necessary for it to be able
to rule on the application of Article 50 (art. 50) in the instant case.
The question whether the value of the buildings must be taken into
account or not is to be looked at as part of the assessment of the
pecuniary damage sustained by the applicants, and the calculation of
it by the experts in no way affects the validity of their report.
24. In conclusion, the Court holds that the experts' report is valid
and is to be taken into account for the purposes of giving a decision.
II. Damage
A. Pecuniary damage
1. Summary of the expert report and of the experts' findings
25. The expert report, which runs to sixty-five pages and has several
appendices, contains an estimate of the value of the land in issue in
1967 and in 1994, and of that of the buildings and other facilities
built by the Navy since 1967. At the outset of their report the
experts cite as justification for having opted to take these buildings
and facilities into account their decisive influence on the land's
increase in value and the fact that the Court's decision on the merits
of the case might result in compensation that would include them.
26. According to the experts, the region in which the land in issue
is situated had not been developed by 1967; the various properties that
existed at the time - farms or fallow fields - were not all enclosed.
By 1994 the land in question, the land adjoining it and the surrounding
woods were fully developed: buildings had been erected and trees and
shrubs planted. However, the entire area occupied by the Navy
continued not to be covered by the local development plan. The area
in issue consisted of seven plots of building land. All building
projects were subject to the approval of the Forestry Inspectorate, and
that was the only restriction after 3 March 1994, when the ones
entailed by the designation of the area as an archaeological site had
been lifted. The physical characteristics and situation of the land
and also the beauty of the region made it an ideal spot for building
a hotel complex; it was one of the few quiet, unspoilt regions of
Attica and was exceptionally valuable in commercial terms because of
the current shortage of comparable areas of land. These considerations
had been decisive for the valuation of the land. Lastly, it would seem
that the entire region has been designated as a naval fortress, but the
experts record that the Greek State did not produce to them any
official document to support that claim.
For the purposes of writing their report, the experts took as a
basis the documents provided by the Revenue relating to parcels of
agricultural or other land similar to the land in issue, information
supplied by the Government and the applicants, and data from the
property market. They also had regard to fluctuations in the rate of
inflation and to the rise in the price of real property in the region.
The valuation covers an area of 104,018 sq. m that was also
recognised in decision no. 17/1983 of 19 September 1983 of the Athens
second Expropriation Board. To that is added the coastal area of
7,180 sq. m that is said to have been delimited in a decree of
10 December 1965 and to belong to the State; the experts nonetheless
value it as a privately owned tract of land which could be disposed of,
but they state that its ownership will have to be determined by the
appropriate courts.
27. After a detailed assessment of the information in their
possession, the experts reach the following conclusions:
Value of the land
In 1967: 104,018 sq. m: 27,500,000 drachmas
7,180 sq. m: 2,300,000 drachmas
In 1994: (a) excluding appreciation
104,018 sq. m: 3,500,000,000 drachmas
7,180 sq. m: 300,000,000 drachmas
(b) including appreciation
104,018 sq. m: 4,200,000,000 drachmas
7,180 sq. m: 360,000,000 drachmas
Value of the land and buildings
In 1994
(a) total value of the land excluding appreciation (3,800,000,000
drachmas) + cost of the buildings (1,351,000,000 drachmas):
5,151,000,000 drachmas
(b) total value of the land including appreciation (4,560,000,000
drachmas) + cost and value of the buildings (1,713,490,000 drachmas):
6,273,490,000 drachmas
2. Arguments of those appearing before the Court
(a) The Government
28. The Government disputed both the relevance of the information
taken as a basis by the experts and the amounts they had arrived at.
In the first place, they alleged that for the purposes of their
valuation the experts had taken into account land other than the land
in issue, together with the coastal area of 7,180 sq. m which belonged
to the State. More especially, they pointed out that at the time of
the publication in the Official Gazette of 10 December 1965 of the
decree laying down the sea base lines, the applicants did not challenge
it; they were therefore estopped from arguing today that they owned the
area.
In the second place, the Government criticised the experts for
having taken for the purposes of comparison land which had no
similarities with the land in issue; the latter was in an inaccessible
steep, rocky and marshy area well suited to the establishment of a
naval base. This state of the region had in no way been altered since
the installation of the base in 1968, and the only economic activities
were quarrying and sporadic farming.
The designation as an archaeological site had been withdrawn only
in 1994 and only for the area enclosed by the surrounding wall of the
naval base; the remainder of the area was still subject to the
restrictions associated with that designation. At all events,
restrictions on building applied to all the adjoining region under the
1936 legislation on fortified areas.
29. The Government made their own valuation of the land in issue as
follows:
Value of the land
In 1967: 104,018 sq. m: 520,000 drachmas
In 1994: 104,018 sq. m: 312,000,000 drachmas
Cost of the buildings
At the time of their construction: 82,900,000 drachmas
Currently: 1,525,500,000 drachmas
(b) The applicants
30. At the outset the applicants denounced the Government's attitude
since the delivery of the Court's judgment of 24 June 1993. Not only
had they refused to conclude a friendly settlement in the case, as the
Court had wished, but they had subsequently tried to delay the
production of the expert report and to make the experts' task
difficult.
31. In their observations on the expert report the applicants
stressed the unique beauty and ideal geographical situation of the
region in which their properties lay; these accounted for the Navy's
wish to turn them into a holiday village for officers and their
families. The designation as an archaeological site reflected the
Navy's concern to protect the area from judicial intervention in the
applicants' favour and from the risk of building in its neighbourhood;
it had also been intended to lessen the value of the applicants' land
before it was valued - for the State - by a committee of civil servants
(see paragraph 16 of the principal judgment). Furthermore, the temple
of Nemesis, which had served as a pretext for the designation, had been
five kilometres away and no longer existed today. The assertion that
the area was a naval fortress was easily refuted by the aerial
photographs produced in evidence.
As regards the expert report itself, the applicants criticised
it for being based on comparative data that were inappropriate in the
instant case and ignoring those adopted by the committee of civil
servants, which were more favourable to the applicants. On the other
hand, they stated that the experts had been right to value the coastal
area of 7,180 sq. m, as the Athens second Expropriation Board had
acknowledged their ownership of this area in 1983. Making their own
calculations, they submitted that the current value of their properties
was 14,455,740,000 drachmas.
The applicants also claimed ownership of the buildings put up by
the Navy on their land. They maintained that under Greek legislation
(Articles 3 and 13 of Decree no. 797/1971) and the Court of Cassation's
case-law (judgment no. 1795/1988), compulsory expropriation of land,
as in the instant case, automatically entailed that of its constituent
parts. If full compensation was to be provided, therefore, it would
have to include the value of those buildings, amounting - according to
the experts' report - to 1,714,000,000 drachmas.
Lastly, the applicants claimed compensation for loss of the use
of their properties for more than twenty-seven years. Under this head,
they sought an annual percentage of 6% on the current value of their
properties, that is to say 26,680,071,000 drachmas. They pointed out
that the Greek Tourist Office had granted one of the applicants,
Mr Karayannis, a building permit (no. 20031/4212, of 25 May 1963) for
a hotel complex, and the American company John T. Ratekin and
Associates had produced plans.
32. In short, the applicants sought:
(i) as their main claim, return of their land and an award of
compensation for loss of use in the amount of 26,680,071,000 drachmas;
(ii) in the alternative, payment of the value of the land and
buildings (16,169,740,000 drachmas) and the award of compensation for
loss of use (26,680,071,000 drachmas), that is to say
42,849,811,000 drachmas in all; and
(iii) interest for delay on the sum to be awarded, calculated in
accordance with Greek legislation, from the date of delivery of the
Court's judgment until payment.
(c) The Commission
33. The Delegate of the Commission referred to international
arbitration tribunals' and courts' case-law on expropriation and took
the view that just satisfaction in the instant case had to consist in
compensation to the amount of the full current value of the land in
issue. He based that opinion on the fact that the applicants' title
deeds had never been transferred to the State and that despite their
efforts the applicants had not succeeded in regaining the enjoyment of
their properties or in acquiring alternative properties as the State
had promised them.
The legal situation as regards their properties had, he
continued, at last been determined and established by the Court's
judgment of 24 June 1993, and it was therefore on that date that an
obligation of restitutio in integrum under Article 50 (art. 50) arose.
However, as the State had awarded them no compensation in kind since
that judgment, they must now be paid its monetary equivalent, increased
solely by the appreciation brought about by the existence of the
buildings; that method was justified by the special circumstances of
the case, in particular the unlawfulness of an expropriation which was
continuing indefinitely. As to determining the amount of the
compensation, the Delegate invited the Court not to reject the experts'
findings.
3. The Court's decision
34. The Court points out that by Article 53 (art. 53) of the
Convention the High Contracting Parties undertook to abide by the
decision of the Court in any case to which they were parties;
furthermore, Article 54 (art. 54) provides that the judgment of the
Court shall be transmitted to the Committee of Ministers which shall
supervise its execution. It follows that a judgment in which the Court
finds a breach imposes on the respondent State a legal obligation to
put an end to the breach and make reparation for its consequences in
such a way as to restore as far as possible the situation existing
before the breach.
The Contracting States that are parties to a case are in
principle free to choose the means whereby they will comply with a
judgment in which the Court has found a breach. This discretion as to
the manner of execution of a judgment reflects the freedom of choice
attaching to the primary obligation of the Contracting States under the
Convention to secure the rights and freedoms guaranteed (Article 1)
(art. 1). If the nature of the breach allows of restitutio in
integrum, it is for the respondent State to effect it, the Court having
neither the power nor the practical possibility of doing so itself.
If, on the other hand, national law does not allow - or allows only
partial - reparation to be made for the consequences of the breach,
Article 50 (art. 50) empowers the Court to afford the injured party
such satisfaction as appears to it to be appropriate.
35. In the principal judgment the Court held that "the loss of all
ability to dispose of the land in issue, taken together with the
failure of the attempts made [up to then] to remedy the situation
complained of, [had] entailed sufficiently serious consequences for the
applicants de facto to have been expropriated in a manner incompatible
with their right to the peaceful enjoyment of their possessions"
(p. 70, para. 45).
36. The act of the Greek Government which the Court held to be
contrary to the Convention was not an expropriation that would have
been legitimate but for the failure to pay fair compensation; it was
a taking by the State of land belonging to private individuals, which
has lasted twenty-eight years, the authorities ignoring the decisions
of national courts and their own promises to the applicants to redress
the injustice committed in 1967 by the dictatorial regime.
The unlawfulness of such a dispossession inevitably affects the
criteria to be used for determining the reparation owed by the
respondent State, since the pecuniary consequences of a lawful
expropriation cannot be assimilated to those of an unlawful
dispossession. In this connection, international case-law, of courts
or arbitration tribunals, affords the Court a precious source of
inspiration; although that case-law concerns more particularly the
expropriation of industrial and commercial undertakings, the principles
identified in that field are valid for situations such as the one in
the instant case.
In particular, the Permanent Court of International Justice held
as follows in its judgment of 13 September 1928 in the case concerning
the factory at Chorzów:
"... reparation must, as far as possible, wipe out all the
consequences of the illegal act and reestablish the situation
which would, in all probability, have existed if that act had not
been committed. Restitution in kind, or, if this is not
possible, payment of a sum corresponding to the value which a
restitution in kind would bear; the award, if need be, of damages
for loss sustained which would not be covered by restitution in
kind or payment in place of it - such are the principles which
should serve to determine the amount of compensation due for an
act contrary to international law." (Collection of Judgments,
Series A no. 17, p. 47)
37. In the present case the compensation to be awarded to the
applicants is not limited to the value of their properties at the date
on which the Navy occupied them. In the principal judgment the Court
took as its basis for assessing the impugned interference the length
of the occupation and the authorities' inability for years on end to
allot the applicants the land promised in exchange. For that reason
it requested the experts to estimate also the current value of the land
in issue; that value does not depend on hypothetical conditions, as it
would if the land was in the same state today as in 1967. It is clear
from the expert report that since then the land and its immediate
vicinity - which by virtue of its situation had potential for
development for tourism - has undergone development in the form of
buildings which serve as a leisure centre for naval officers and
related infrastructure works. Nor does the Court overlook that the
applicants themselves at the time had a scheme for the economic
development of their properties, on which work had already begun (see
paragraph 31 above).
38. Consequently, the Court considers that the return of the land in
issue, an area of 104,018 sq. m - as defined in 1983 by the Athens
second Expropriation Board - would put the applicants as far as
possible in a situation equivalent to the one in which they would have
been if there had not been a breach of Article 1 of Protocol No. 1
(P1-1); the award of the existing buildings would then fully compensate
them for the consequences of the alleged loss of enjoyment. As to the
claimed area of 7,180 sq. m, the Court notes that although the experts
valued it and regarded it as a privately owned tract of land, they
pointed out that parts of it were included in the shore as delimited
in Decree no. 221 of 10 December 1965 and that its ownership would, if
the occasion arose, have to be determined by the appropriate courts.
That being so, the Court does not consider that it should take it into
account.
Admittedly, as far back as 1980 (see paragraph 14 of the
principal judgment) the Government invoked reasons of national defence
that prevented restitution, asserting that even if in peacetime the
naval base was a holiday resort for officers and their families, it was
ready for integration into the country's military structure in wartime.
39. If the respondent State does not make such restitution within six
months from the delivery of this judgment, the Court holds that it is
to pay the applicants, for damage and loss of enjoyment since the
authorities took possession of the land in 1967, the current value of
the land, increased by the appreciation brought about by the existence
of the buildings, and the construction costs of the latter. As to the
determination of the amount of this compensation, and having regard to
the considerable divergence between the methods of calculation employed
for the purpose by the parties to the dispute, the Court adopts the
findings in the expert report for the assessment of the damage
sustained. The amount therefore comes to 4,200,000,000 drachmas for
the land and 1,351,000,000 drachmas for the buildings, plus interest
at 6% from the expiry of the aforementioned period of six months until
payment is actually made.
40. More particularly, as regards the buildings, the Court cannot
accept the Government's submission that awarding compensation under
this head is a matter coming exclusively within the jurisdiction of the
national courts as it requires prior interpretation of national law and
complete clarification of the circumstances of the case; the
applicants, they said, had available to them in the national legal
system effective remedies to satisfy their excessive demands. The
Court considers, firstly, that the buildings form part of the
restitutio in integrum (see paragraph 38 above). It points out,
secondly, that it has declared the applicants to be the victims of a
breach of Protocol No. 1 (P1); requiring them to exhaust domestic
remedies in order to be able to obtain just satisfaction from the Court
would prolong the procedure instituted by the Convention in a manner
scarcely in keeping with the idea of the effective protection of human
rights (see the De Wilde, Ooms and Versyp v. Belgium judgment of
10 March 1972, Series A no. 14, pp. 8-9, para. 16, and the Barberà,
Messegué and Jabardo v. Spain judgment of 13 June 1994, Series A
no. 285-C, p. 57, para. 17).
B. Non-pecuniary damage
41. The applicants also sought 6,000 million drachmas in respect of
the non-pecuniary damage they had allegedly sustained as a result of
the "extraordinary suffering" and the "intolerable mockery" of which
they had been the victims during the three decades that their dispute
with the State had lasted.
42. The Government found that amount "quite absurd" as it was almost
twice as much as the value of the land as assessed by the experts. The
non-pecuniary damage alleged by the applicants was attributable
exclusively to their own conduct, because they had dropped all the
proceedings they had brought in the national courts although those
proceedings had not been wholly without prospects of success.
43. The Court considers that the breach of the Convention caused the
applicants definite non-pecuniary damage arising from the feeling of
helplessness and frustration in the face, firstly, of the Navy's and
successive governments' refusal to comply with the decisions of the
Greek judicial and administrative authorities (see paragraphs 7-12 of
the principal judgment) and, secondly, of the failure of the attempt
to recover land of equal value in exchange (see paragraphs 14-22 and
26-27 of the principal judgment).
The Court awards each of the applicants 450,000 drachmas under
this head, in other words 6,300,000 drachmas in all.
III. Costs and expenses
44. The applicants sought reimbursement of costs and expenses, in
particular for lawyers' fees and expenses and for court fees, in a
total amount of 3,066,080,830 drachmas, broken down as follows:
(a) costs incurred in Greece in four different sets of
proceedings: 1,780,586,530 drachmas;
(b) costs of the proceedings in Strasbourg, including the
proceedings relating to the application of Article 50 (art. 50):
1,285,494,300 drachmas.
45. The Government referred to their Agent's written observations on
this point, which had been filed before the hearing on the merits, and
to his address during that hearing. At the time, he described the
costs and expenses of which the applicants were seeking reimbursement
as hypothetical and had requested the Court to take into account only
those which had been substantiated in full.
46. The Delegate of the Commission expressed no view on the subject.
47. The Court notes that the applicants calculated the
above-mentioned sums on the basis of the relevant national scales, in
particular Legislative Decree No. 3026/1954 enacting the Barristers'
Code, and in proportion to their claims for pecuniary damage.
Furthermore, they did not provide vouchers such as to prove the rate
of fees and other costs that they had had to pay.
It is settled case-law that the Court is not bound by the rules
of domestic practice in this area (see, among many other authorities,
the Abdulaziz, Cabales and Balkandali v. the United Kingdom judgment
of 28 May 1985, Series A no. 94, p. 45, para. 99).
The Court therefore cannot allow in full the applicants' claims,
whose quantum is indisputably very large. However, having regard to
the circumstances of the case, the multiplicity and length of the
national proceedings, both judicial and administrative, the fact that
counsel for the applicants took part in the negotiations with a view
to a friendly settlement, and the special complexity of the question
of the application of Article 50 (art. 50), the Court considers it
reasonable to award them 65,000,000 drachmas, including value added
tax.
IV. Costs of the expert report
48. The two experts who signed the report sought a total amount of
79,600,000 drachmas, plus value added tax at 18%, for their fees and
costs in connection with the production of their report. Their
calculations are based on the relevant Greek legislation and take into
account the valuation work itself, the number of hours worked, the
inspections of the site, the production of the plans and interpretation
of the aerial photographs. They stated that 73% of the amount covered
the valuation of the land and the remainder the valuation of the
buildings.
49. The Government asserted, as their main submission, that the
remuneration of the experts was not their responsibility either under
Article 50 (art. 50) or under any other provision of the Convention,
as it did not represent an expense incurred by the applicants that
might call for reimbursement; on the contrary, it should be met by the
Council of Europe or the Court itself, since the expert report had been
ordered by the latter and completed on its authority.
In the alternative, if the Court disagreed on that point, the
Government requested it to refer the assessment of the remuneration to
the appropriate Greek authorities or courts. However, if the Court
decided to determine the amount itself, it should be limited to only
two of the three experts and to the part of the valuation concerning
the land. Lastly, the Government asked the Court to have regard, in
this connection, to the relevant Greek legislation as interpreted by
the Court of Cassation: such remuneration was to be determined in
keeping with the judgment of the reasonable man.
50. The applicants criticised the Government's attitude. They
pointed out that during the first inspection of the site the Agent of
the Government had informed the experts that the Government would not
consider themselves bound by a decision of the Court that they should
pay their fees. Moreover, they drew the Court's attention to the
numerous obstacles that the Government had put in the way of the
experts when the latter were carrying out their task.
51. The Delegate of the Commission maintained that the concept of
"just satisfaction" was sufficiently broad to include costs of the kind
under consideration.
52. The Court points out, firstly, that the award of compensation is
within the Court's discretion and that it is for it to judge whether
such compensation is necessary or appropriate, at least as regards
specific items.
It agrees that the experts' remuneration does not represent
expenses that the applicants would themselves have incurred in the
domestic legal system in order to try to prevent a breach or have it
rectified or, subsequently, to have it established by the Convention
institutions; such remuneration does, however, represent the costs
associated with producing an expert report which the Court held to be
essential for enabling the applicants to obtain redress for the breach
found in the principal judgment. The Court's purpose in asking the
parties to choose experts by agreement was to avoid the one-sidedness
of the valuation put forward by the applicants in the reports they had
filed before and after the hearing on the merits and which the Court
had not taken into account.
53. In two letters of 9 February 1994 the Registrar, acting on the
instructions of the President of the Chamber, informed the experts and
the Agent of the Government that the costs and fees relating to the
expert report would ultimately have to be borne by the respondent State
and that the formal decision would appear in the Court's judgment
(Rule 53 para. 1 (l) of Rules of Court A) (see paragraph 6 above).
54. The Court does not doubt that the two experts actually and
necessarily carried out the actions they listed in their claims for
costs and fees in order to perform their task as well as possible.
However, it is unable to review, in the light of the relevant national
legislation and case-law, the reasonableness of the rates of those
costs and fees, which seem to be high in respect of certain items.
Making an assessment on an equitable basis, the Court awards each
of the two experts 18,000,000 drachmas, that is to say 36,000,000
drachmas in all.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that the expert report is valid;
2. Holds that the respondent State is to return to the applicants,
within six months, the land in issue of an area of
104,018 sq. m, including the buildings on it;
3. Holds that, failing such restitution, the respondent State is to
pay the applicants, within six months, 5,551,000,000 (five
thousand five hundred and fifty-one million) drachmas in respect
of pecuniary damage, plus non-capitalisable interest at 6% from
the expiry of the six-month period (point 2 of the operative
provisions) until payment;
4. Holds that the respondent State is to pay the applicants, within
three months, 6,300,000 (six million three hundred thousand)
drachmas in respect of non-pecuniary damage;
5. Holds that the respondent State is to pay the applicants, within
three months, 65,000,000 (sixty-five million) drachmas in respect
of costs and expenses, including value added tax;
6. Dismisses the remainder of the claim for just satisfaction;
7. Holds that the respondent State is to pay the two experts,
Mr Katsos and Mr Vantsis, within three months, 36,000,000
(thirty-six million) drachmas in respect of the costs and fees
relating to the writing of their report, plus value added tax.
Done in English and in French, and notified in writing on
31 October 1995 pursuant to Rule 55 para. 2, second sub-paragraph, of
Rules of Court A.
Signed: Rudolf BERNHARDT
President
Signed: Herbert PETZOLD
Registrar