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You are here: BAILII >> Databases >> European Court of Human Rights >> KATIKARIDIS AND OTHERS v. GREECE - 19385/92 [1996] ECHR 56 (15 November 1996)
URL: http://www.bailii.org/eu/cases/ECHR/1996/56.html
Cite as: [1996] ECHR 56, (2001) 32 EHRR 6
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In the case of Katikaridis 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. Ryssdal, President,
Mr F. Gölcüklü,
Mr L.-E. Pettiti,
Mr N. Valticos,
Mrs E. Palm,
Mr I. Foighel,
Mr A.B. Baka,
Mr B. Repik,
Mr P. Kuris,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 29 June and 24 October 1996,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 72/1995/578/664. 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) (1 October 1994) 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 13 September 1995, within the
three-month period laid down by Article 32 para. 1 and Article 47 of
the Convention (art. 32-1, art. 47). It originated in an application
(no. 19385/92) against the Hellenic Republic lodged with the Commission
on 24 October 1991 under Article 25 (art. 25) by three Greek nationals,
Mr Savvas Katikaridis, Mr Nicolaos Katikaridis and
Mr Stergios Tormanidis, and by Agrotikes Syneteristikes Ekdosis, AE,
a limited company incorporated under Greek law.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby Greece recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46). The
object of the request was to obtain a decision as to whether the facts
of the case disclosed a breach by the respondent State of its
obligations under Article 6 para. 1 of the Convention (art. 6-1) and
Article 1 of Protocol No. 1 (P1-1).
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of Rules of Court A, the applicants stated that
they wished to take part in the proceedings and designated the lawyers
who would represent them (Rule 30).
3. The Chamber to be constituted included ex officio
Mr N. Valticos, the elected judge of Greek nationality (Article 43 of
the Convention) (art. 43), and Mr R. Ryssdal, the President of the
Court (Rule 21 para. 4 (b)). On 29 September 1995, in the presence of
the Registrar, the President drew by lot the names of the other
seven members, namely Mr F. Gölcüklü, Mr L.-E. Pettiti, Mrs E. Palm,
Mr I. Foighel, Mr R. Pekkanen, Mr B. Repik and Mr P. Kuris (Article 43
in fine of the Convention and Rule 21 para. 5) (art. 43). Subsequently
Mr A.B. Baka, substitute judge, replaced Mr Pekkanen, who was unable
to take part in the further consideration of the case (Rules 22
para. 1 and 24 para. 1).
4. As President of the Chamber (Rule 21 para. 6), Mr Ryssdal,
acting through the Registrar, consulted the Agent of the
Greek Government ("the Government"), the applicants' lawyers and the
Delegate of the Commission on the organisation of the proceedings
(Rules 37 para. 1 and 38). Pursuant to the order made in consequence,
the Registrar received the applicants' memorial on 25 March 1996 and
the Government's memorial on 15 April 1996. On 20 May the Secretary
to the Commission indicated that the Delegate did not wish to reply in
writing.
5. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
25 June 1996. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr V. Kondolaimos, Adviser,
Legal Council of State, Delegate of the Agent,
Mrs V. Pelekou, Legal Assistant,
Legal Council of State, Counsel;
(b) for the Commission
Mr L. Loucaides, Delegate;
(c) for the applicants
Mr C. Horomidis,
Mr I. Horomidis, both of the Salonika Bar, Counsel.
The Court heard addresses by Mr Loucaides, Mr I. Horomidis and
Mr Kondolaimos.
AS TO THE FACTS
I. Circumstances of the case
A. Background
6. On 28 July 1981, by means of a joint decision of the
Ministers of Finance and Public Works taken under Law no. 653/1977 "on
the obligations of adjoining owners where major roads are built", the
State expropriated part of each of the properties belonging to the
applicants for the purpose of constructing a flyover on the road
between Salonika and Langadas.
Law no. 653/1977 creates a presumption that the owners of
properties on major roads benefit when such roads are widened and
provides that they must accordingly contribute to the cost of
expropriation if they are expropriated (see paragraph 29 below).
The properties, which bordered the road, were used for
business purposes.
The first two applicants, Mr Savvas Katikaridis and
Mr Nicolaos Katikaridis, sold car tyres from their premises, of which
they lost 174.38 sq. m. The third applicant, Mr Tormanidis, who was
in the fuel business, owned a service station, of which he lost
68.68 sq. m. The fourth applicant, Agrotikes Syneteristikes
Ekdosis, AE, a publishing and printing firm, had 347.36 sq. m
expropriated.
B. Court proceedings to determine compensation
7. In 1982 the State applied to the Salonika Court of
First Instance to have a provisional unit amount per square metre
assessed for the compensation.
8. On 10 June 1982 (in judgment no. 3008/1982) the court set the
amount in question at 14,000 drachmas per square metre.
In a judgment of 8 December 1983 (no. 2445/1983) the
Salonika Court of Appeal determined that the final amount should be
14,500 drachmas per square metre.
C. Proceedings to identify those entitled to compensation
9. On 4 June 1984 the Salonika Court of First Instance made a
declaration to the effect that the applicants were entitled to the
compensation finally assessed in 1983 (judgment no. 3648/1984).
10. On account of the application of the presumption created by
Law no. 653/1977, however, the State did not compensate the applicants
for the fifteen-metre-wide area laid down in that law.
D. Proceedings to recover the compensation
1. In the Salonika Court of First Instance
11. On 20 July 1984 the applicants applied to the
Salonika Court of First Instance seeking payment of the compensation
that had been assessed. They stated in their application that since
the building of the flyover, their properties - which had previously
given on to the major road, thirty metres wide - had been on a
secondary road that was only five to seven metres wide. Furthermore,
there was no link between the secondary road and the main road, which
now passed six metres above their properties.
12. The State argued that pursuant to the presumption created by
Law no. 653/1977, the applicants, who owned properties fronting the
road to be widened, benefited from the expropriation and were therefore
not entitled to compensation.
13. The Salonika Court of First Instance gave its ruling on
27 June 1985 (judgment no. 2190/1985). It allowed the State's
objection and dismissed the applicants' action on the ground that the
statutory presumption was irrebuttable and applied in their case.
2. In the Salonika Court of Appeal
14. On 12 July 1985 the applicants appealed against that judgment.
15. On 24 June 1986 the Salonika Court of Appeal held (in
judgment no. 934/1986) that the application of the irrebuttable
presumption contravened Article 17 of the Constitution. It ordered the
applicants to adduce evidence that the building of the flyover had not
been to their advantage.
16. On 9 June 1987 (in judgment no. 1882/1987) the Court of Appeal
found in the applicants' favour after having taken the evidence
requested. It noted that the applicants' business premises, which
before the flyover had been built had fronted the main road, had been
highly profitable because of the amount of traffic using that road;
since the flyover had been built, however, trade on those premises had
fallen off considerably and some of the businesses had had to close as
they were making losses. The court held that the State was to pay
2,528,510 drachmas to Mr Katikaridis, 995,860 drachmas to Mr Tormanidis
and 5,036,720 drachmas to Agrotikes Syneteristikes Ekdosis, AE.
3. In the Court of Cassation
17. On 30 September 1987 the State lodged an appeal on points of
law. The hearing was set down for 28 September 1988 and deliberations
were held on 17 October 1988.
18. In a judgment (no. 672/1989) of 13 June 1989 the
Third Division of the Court of Cassation held:
"... The provisions of section 1 of Law no. 653/1977 apply
not only to the building or widening of a road in an area not
covered by a town development plan but also to the building
of an interchange and slip roads linking the expropriated
properties to the major road. Section 1 (3) of
Law no. 653/1977 creates an irrebuttable presumption in law
that owners of property fronting a newly built major road or
slip road giving access to an interchange derive a benefit.
The creation of such a presumption is in principle acceptable
under the Constitution where there are reasonable grounds for
it based on everyday experience. In the instant case the
presumption imposes an obligation on adjoining owners to
contribute to the cost of the road improvements, which is
borne by the State, by means of `self-compensation'. The
obligation rests on the owners of properties on both sides,
in other words on owners whose properties front the newly
built road or the interchange. These owners are deemed to
derive a benefit and are obliged [to contribute to the cost
of building] an area of a width equal to half that of the
road built, provided that it does not exceed half the surface
area of the property concerned. The premise on which this
obligation is based is that the construction of a major road
or interchange completely alters a region's economy and
increases the value of the properties on either side of the
road improvements, thus causing unjust enrichment of the
owners; if this enrichment were not offset by the loss
incurred through the taking of part of their property, it
would make it very difficult or even impossible for the State
to acquire land essential to the implementation of
road-building programmes ... Of course, it is possible that
in certain cases owners who derive benefit from the
development of an entire region may simultaneously suffer
detriment. The shape or size of their property may be
altered to the point where its use is diminished or made
impossible; likewise, such use (until the building works are
completed) or the implementation of plans to enhance the
value of their property may prove difficult or impossible.
However, in such cases, owners who have suffered detriment
can obtain compensation under Article 13 para. 4 of
Legislative Decree no. 797/1971, which also applies to cases
covered by Law no. 653/1977. Consequently, the provisions of
this Law are not contrary to Articles 17 and 4 para. 1 of the
Constitution, because they do not create exceptions in
relation to adjoining property owners that are unjustified
..."
The Third Division referred the case to the Fourth Division
of the Court of Cassation.
19. Notice of the proceedings before the Fourth Division of the
Court of Cassation was served on the applicants on 20 January 1990;
they filed their pleading on 10 July 1990. The date set for the
hearing was 21 September 1990.
On 30 November 1990 the Fourth Division of the
Court of Cassation held (in judgment no. 1841/1990) that section 1 (3)
of Law no. 653/1977 (taken in conjunction with section 62 (9) and (10)
of Law no. 947/1979) did not apply to expropriation for the
construction of an interchange (flyover) in an area not covered by a
town development plan; such a construction did not benefit
adjoining property owners as it was intended solely to ensure a rapid
and safe flow of traffic; further, it deprived them of direct,
immediate access to the original major road which their properties had
previously fronted. In addition, the court held that the presumption
created by this section was rebuttable as otherwise the section would
be unconstitutional. Finally, it referred the case to a full court of
the Court of Cassation for resolution of the conflict between the
two divisions (Article 580 para. 4 of the Code of Civil Procedure).
20. Notice of proceedings before the full court of the
Court of Cassation was served on the applicants on 6 December 1990; on
20 January 1991 they lodged a pleading in which they relied on
Article 6 of the Convention (art. 6) and Article 1 of Protocol No. 1
(P1-1). The hearing date was set for 21 February 1991.
On 6 June 1991 the Court of Cassation, sitting as a full court
(thirty-two judges), found in favour of the view taken by the
Third Division in the following terms (judgment no. 14/1991):
"...
In accordance with section 62 (9) of Law no. 947/1979 `on
areas where building is permitted', the provisions of
section 1 of Law no. 653/1977 also apply where existing roads
are improved by means of rerouting or widening in whole or in
part. The list of types of improvement ... is given by way
of example and is not exhaustive. It follows that on a true
construction of this provision, improvements to a major road
include the building of an interchange. The expropriation of
property for widening such a road and building access roads
to the interchange in parallel to it are governed by
[sections 1 (1), (3), (4) and (5) and 2 (2) of
Law no. 653/1977]. Besides, as appears from the provisions
of section 1 (1) and (3) of Law no. 653/1977, the presumption
[that the owners derive a benefit from such improvements] is
irrebuttable. The Law does not permit proceedings to be
brought to prove that an improvement to a road does not
confer any benefit, and thus to rebut that presumption.
Lastly, the statutory provision laying down the presumption
also makes it possible to identify the persons who can claim
compensation for the expropriation of their property, and the
property owners' right to compensation is unaffected. It
follows that the provision of this Law and the irrebuttable
presumption it creates do not infringe Article 17 para. 2 of
the Constitution, which requires full compensation to be paid
to owners of expropriated property ..."
However, a minority of thirteen judges considered that the
conflict should have been resolved in favour of the view taken by the
Fourth Division. According to four of them, section 62 (9) of
Law no. 947/1977 did not apply to improvements brought about by the
building of interchanges, and consequently the adjoining owners did not
derive any benefit. In the view of four others, the presumption was
rebuttable, not irrebuttable, since, where interchanges were concerned,
the difference in level obstructed access to the major road and this
was detrimental to the adjoining properties. Lastly, five judges were
of the opinion that the irrebuttable presumption deprived owners of
their right to reimbursement of the true value of their property at the
date of expropriation.
21. The case was subsequently sent to the Fourth Division so that
it could rule on the merits of the applicants' action. However, since
the action was bound to fail after the Court of Cassation's judgment
of 6 June 1991, the applicants did not resume the proceedings.
II. Relevant domestic law
A. The Constitution
22. The relevant Articles of the 1975 Constitution provide:
Article 17
"1. Property shall be protected by the State; rights
deriving therefrom, however, may not be exercised contrary to
the public interest.
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
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
an application is made for immediate final determination of
compensation, regard shall be had to the value of the
expropriated property at the time of the court hearing of the
application.
..."
Article 93 para. 4
"The courts shall not apply laws whose content is contrary to
the Constitution."
B. Legislative Decree no. 797/1971 on expropriations
23. Legislative Decree no. 797/1971 of 30 December 1970 and
1 January 1971 is the main legislative provision governing
expropriations. It applies the principles set out in the
constitutional provisions.
24. Chapter A of the legislative decree lays down the procedures
and prerequisites for announcing expropriations.
Article 1 para. 1 (a) provides that expropriations of urban
or rural properties and claims to rights in rem over them, if
authorised by law in the public interest, are made known by a joint
decision of the Minister having authority in the sphere concerned by
the intended expropriation and the Minister of Finance.
Article 2 para. 1 sets out the prerequisites for a decision
announcing an expropriation: in particular, (a) a cadastral plan
showing the area to be expropriated, and (b) a list of the owners of
the land, its surface area, its extent and the main characteristics of
the buildings on it.
25. Chapter B of the legislative decree specifies the procedures
for carrying out an expropriation.
Compensation must be paid to the person concerned in
accordance with precisely worded conditions. The acquisition of
ownership by the person for whose benefit the expropriation was ordered
(Articles 7 para. 1 and 8 para. 1) starts on the date of payment or (in
cases where the identification of the beneficiaries has not yet been
completed, or where the property is charged or where the identity of
the true beneficiary is in issue) on the date of publication of notice
in the Official Gazette that compensation has been deposited with the
Bank for Official Deposits.
If the expropriation does not take place in accordance with
the foregoing conditions within a period of one and a half years from
the date of the judgment determining the compensation, it automatically
lapses (Article 11 para. 1).
26. Chapter D sets out in detail the procedure for assessing
compensation.
Article 14 provides that the parties to the proceedings are
(a) any party required to pay compensation; (b) any party for whose
benefit the expropriation is ordered; (c) any party who claims
ownership of, or other rights in rem over, the property.
Article 17 para. 1 lays down that compensation is to be
assessed by the courts. It expressly provides that the court
determines only the unit amount of compensation and not who is entitled
to compensation or who is obliged to pay it.
By Article 13 para. 1, compensation is calculated by reference
to the real value of the expropriated property on the date of
publication of the decision giving notice of the expropriation.
Paragraph 4 of that Article provides:
"Where part of a property is expropriated and the part
remaining in the owner's possession suffers substantial
depreciation in value or is rendered unusable, the judgment
in which compensation is assessed shall also include a
determination of the special compensation for that part.
This special compensation shall be paid to the owner together
with the compensation for the expropriated part."
27. The procedure for assessing compensation may comprise
two phases.
Firstly, the provisional assessment phase, in respect of which
a single judge of the court of first instance for the area in which the
expropriated property is situated has jurisdiction once a party
concerned has lodged an application (Article 18).
Secondly, the final assessment phase, in respect of which the
Court of Appeal for the area in which the expropriated property is
situated has jurisdiction on application by the parties concerned
within thirty days from the date on which the provisional assessment
decision was served, or six months from the date of its publication if
it is not served (Article 19 paras. 1 and 2).
Paragraph 6 of that Article provides that only a person who
has lodged such an application with a view to an increase or decrease
in the provisionally assessed amount may benefit from it.
The provisionally assessed amount becomes final for any person
not filing an application expeditiously.
Further, an application may be lodged directly with the
Court of Appeal in order that a final decision may be obtained against
which no appeal will lie (Article 20).
28. Chapter E of the legislative decree provides a special
procedure for obtaining a court order identifying persons entitled to
compensation.
A single judge of the court of first instance for the area in
which the expropriated property is situated has jurisdiction to make
such an order (Article 26).
Article 27 para. 1 provides that entitlement is determined on
the basis of information on the cadastral plan and on the list of
landowners drawn up by a qualified engineer duly approved by the
Ministry of Public Works, and any other information supplied by the
parties or considered by the court of its own motion.
No appeal lies against the decision taken at the end of this
special procedure (Article 27 para. 6).
By paragraph 4 of Article 27, the court shall not give a
decision if
(a) it is established at the hearing or by means of a
declaration by the State that a person can claim full ownership of the
expropriated property or some other right in rem;
(b) there is any dispute between one or more persons
allegedly entitled to compensation as to ownership or any other right
in rem such that an inquiry has to be made into the claims put forward,
which inquiry must include a hearing for each party concerned who has
brought an action;
(c) it is established at the hearing that a party
claiming to be entitled to compensation is unable to show that he has
any right in rem.
By paragraph 2 of Article 8 of
Legislative Decree no. 797/1971, a final decision as to a given
person's entitlement is necessary before the Bank for Official Deposits
can pay out the sum that was deposited as compensation once that had
been assessed by the courts.
C. Law no. 653/1977 on the obligations of adjoining owners where
major roads are built
29. The relevant provisions of section 1 of Law no. 653/1977 of
25 July and 5 August 1977 provide:
"1. Where a major road up to thirty metres wide is built in
an area not covered by a town development plan,
adjoining owners who derive a benefit shall be required to
pay for an area fifteen metres wide, thus contributing to the
cost of expropriating the properties bordering the road.
However, the area to which this obligation applies shall not
exceed half the surface area of the property concerned.
...
3. For the purposes of this section, adjoining owners whose
properties front the roads that have been built shall be
deemed to have derived benefit.
4. Where those entitled to compensation on account of an
expropriation are themselves liable for payment of part of
that expropriation, there shall be a set-off between rights
and obligations.
5. The method and procedure for apportioning the
compensation between the State and the adjoining owners shall
be laid down in a decree to be published on a proposal by the
Minister of Public Works.
..."
D. Law no. 947/1979 on areas where building is permitted
30. Section 62 of Law no. 947/1979 of 10 and 26 July 1979
provides:
"...
9. The provisions of section 1 of Law no. 653/1977 ... shall
also apply where existing roads are improved by means of
rerouting or widening in whole or in part, as specified in a
decision of the Minister of Public Works ...
10. The provisions of section 1 of Law no. 653/1977 ...
shall also apply to secondary, municipal or local roads up to
fifteen metres wide ..."
PROCEEDINGS BEFORE THE COMMISSION
31. The applicants applied to the Commission on 24 October 1991.
They alleged breaches of Article 6 para. 1 of the Convention (art. 6-1)
and Article 1 of Protocol No. 1 (P1-1).
32. On 31 August 1994 the Commission declared the application
(no. 19385/92) admissible as to the applicants' complaints concerning
the length of the proceedings and the interference with their right to
the peaceful enjoyment of their possessions; the remainder of the
application it declared inadmissible. In its report of 28 June 1995
(Article 31) (art. 31), it expressed the unanimous opinion that there
had been a breach of Article 6 para. 1 of the Convention (art. 6-1) and
Article 1 of Protocol No. 1 (P1-1). The full text of the Commission's
opinion is reproduced as an annex to this judgment (1).
_______________
Note by the Registrar
1. For practical reasons this annex will appear only with the printed
version of the judgment (in Reports of Judgments and Decisions 1996-V),
but a copy of the Commission's report is obtainable from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT
33. In their memorial the Government asked the Court,
"as [their] primary submission, to declare the application
inadmissible for failure to exhaust domestic remedies ...
and, in the alternative, to dismiss the application as being
unfounded".
AS TO THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTION
34. As before the Commission, the Government's primary submission
was that the applicants had not exhausted domestic remedies as they had
failed both to rely on Article 1 of Protocol No. 1 (P1-1), on which
they now relied, before the domestic courts and to resume the
proceedings before the Fourth Division of the Court of Cassation.
35. The Court reiterates that Article 26 of the Convention
(art. 26) must be applied "with some degree of flexibility and without
excessive formalism"; it is sufficient that the complaints intended to
be made subsequently before the Convention organs should have been
raised "at least in substance and in compliance with the formal
requirements and time-limits laid down in domestic law" (see the
Castells v. Spain judgment of 23 April 1992, Series A no. 236, p. 19,
para. 27). In addition, the only remedies Article 26 (art. 26)
requires to be exhausted are those that are available and sufficient
and relate to the breaches alleged (see, as the most recent authority,
the Manoussakis and Others v. Greece judgment of 26 September 1996,
Reports of Judgments and Decisions 1996-IV, pp. 1359-60, para. 33).
36. With regard to the first limb of the objection, the Court,
like the Commission, notes that in the proceedings before the full
court of the Court of Cassation the applicants expressly referred to
Article 6 of the Convention (art. 6) and Article 1 of Protocol No. 1
(P1-1) (see paragraph 20 above).
As to the second limb, it observes, like the Commission, that
the proceedings before the Fourth Division of the Court of Cassation
would have had no prospect of success after the full court's judgment
of 6 June 1991.
37. The Court therefore dismisses the objection.
II. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 OF THE CONVENTION
(art. 6-1)
38. The applicants complained of the length of the proceedings to
obtain compensation. They alleged a violation of Article 6 para. 1 of
the Convention (art. 6-1), which provides:
"In the determination of his civil rights and obligations
..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ..."
39. The Government, relying on the complexity of the case and the
excessive number of cases pending before the courts, contested that
submission.
The Commission accepted it. In particular, it considered that
the Government had not provided a satisfactory explanation to justify
the length of time which it found the proceedings in the
Court of Cassation had taken.
A. Period to be taken into consideration
40. The relevant period began on 20 November 1985, when the
declaration whereby Greece accepted the right of individual petition
took effect. The proceedings ended on 6 June 1991, when the full court
of the Court of Cassation delivered its judgment (see paragraph 20
above). However, in order for the reasonableness of the period of time
which elapsed to be determined, regard must be had to the stage which
the case had reached in 1985 (see, as the most recent authority,
Stran Greek Refineries and Stratis Andreadis v. Greece judgment of
9 December 1994, Series A no. 301-B, p. 82, para. 52).
B. Reasonableness of the length of proceedings
41. The reasonableness of the length of proceedings must be
assessed in the light of the particular circumstances of the case,
which here call for an overall assessment, and having regard to the
criteria laid down in the Court's case-law, in particular the
complexity of the case and the conduct of the applicant and of the
relevant authorities (see, as the most recent authority, the Ausiello
v. Italy judgment of 21 May 1996, Reports 1996-III, p. 722, para. 19).
42. The proceedings in the Salonika Court of First Instance and
the Salonika Court of Appeal lasted two years and approximately
ten months in all, of which one year and four months elapsed before
Greece's declaration under Article 25 of the Convention (art. 25).
Those proceedings are not open to criticism. The proceedings in the
Court of Cassation lasted a little over three years; their length
resulted from the fact that the matter came before three differently
composed benches of the court in succession and is explained by the
conflict between the judgments delivered by the Third and
Fourth Divisions, which the full court had to resolve.
43. Having regard to the circumstances of the case, and especially
its complexity, the Court reaches the conclusion that there has been
no violation of Article 6 para. 1 of the Convention (art. 6-1).
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 (P1-1)
44. The applicants alleged that the presumption created by
section 1 (3) of Law no. 653/1977 and the fact that the
Court of Cassation had held that it was an irrebuttable one had
prevented them from obtaining in the courts the compensation to which
they were entitled by virtue of a final court decision following the
expropriation of part of their properties. They relied on Article 1
of Protocol No. 1 (P1-1), which provides:
"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 (P1-1) 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."
45. It was not contested that the applicants had been deprived of
their property in accordance with the provisions of
Legislative Decree no. 797/1971 and Law no. 653/1977, so that
improvements could be made to a major road, and that the expropriation
thus pursued a lawful aim in the public interest.
46. The applicants objected to the irrebuttable presumption that
adjoining owners derived a benefit from improvements to major roads and
the basis for it - everyday experience - indicated by the Court of
Cassation in its judgment of 13 June 1989 (see paragraph 18 above).
They submitted that in certain decisions of the
Salonika Court of Appeal and the Court of Cassation, and in the
dissenting opinions of several of the Court of Cassation judges, it had
been questioned whether the presumption was irrebuttable where, as
here, it was evident that adjoining owners not only did not derive any
benefit from the expropriation but, on the contrary, sustained a loss
in the value of the remaining part of their property. They complained
that the burden of expropriations for the purpose of making
improvements to major roads, which benefited society as a whole, fell
mainly on the shoulders of the adjoining owners. The amount of benefit
derived by those owners varied from case to case and should not have
been predetermined irrebuttably in a provision of general application.
47. In the Government's submission, the presumption did not of
itself warrant the conclusion that there was a real or apparent
disproportion between the general interest pursued and the expropriated
owners' alleged loss. Even supposing that the wording of section 1 of
Law no. 653/1977 at first sight suggested such a disproportion, it
would be reduced to a minimum as the section limited adjoining owners'
contributions to the cost of expropriation to an area fifteen metres
wide on either side of the road and provided that that obligation could
not exceed half the surface area of the property concerned
(see paragraph 29 above).
48. In the Commission's opinion, the fact that, owing to the
application of the presumption which had been held to be irrebuttable,
it was impossible for the applicants to obtain the compensation
declared due to them amounted to a violation of Article 1 of
Protocol No. 1 (P1-1).
49. The Court recognises that when compensation due to the owners
of properties expropriated for roadworks to be carried out is being
assessed, it is legitimate to take into account the benefit derived
from the works by adjoining owners.
It observes, however, that in the system applied in this
instance the compensation is in every case reduced by an amount equal
to the value of an area fifteen metres wide, without the owners
concerned being allowed to argue that in reality the effect of the
works concerned either has been of no benefit - or less benefit - to
them or has caused them to sustain varying degrees of loss.
This system, which is too inflexible, takes no account of the
diversity of situations, ignoring as it does the differences due in
particular to the nature of the works and the layout of the site. It
is "manifestly without reasonable foundation" (see, mutatis mutandis,
the James and Others v. the United Kingdom judgment of
21 February 1986, Series A no. 98, p. 32, para. 46, and the
Mellacher and Others v. Austria judgment of 19 December 1989, Series A
no. 169, p. 26, para. 45). In the case of a large number of owners,
it necessarily upsets the fair balance between the protection of the
right to property and the requirements of the general interest.
50. In the instant case the applicants had strong arguments to put
forward in an attempt to show that the construction of a flyover near
their premises, instead of increasing the value of the properties they
retained, reduced their value by depriving them of direct access to the
major road, which had by then been raised six metres. Moreover, the
Salonika Court of Appeal had found that the applicants had sustained
loss as a consequence of the works and held that the State was to pay
commensurate compensation (see paragraph 16 above).
51. The applicants thus had to bear an individual and excessive
burden which could have been rendered legitimate only if they had had
the possibility of obtaining payment of the compensation in question.
There has therefore been a violation of Article 1 of
Protocol No. 1 (P1-1).
IV. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)
52. Article 50 of the Convention (art. 50) provides:
"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."
A. Pecuniary damage
53. The applicants referred to the amounts assessed by the
Salonika Court of Appeal (see paragraph 8 above), to which was to be
added default interest at the rate of 25% per annum for the period from
1 September 1985 to 31 October 1990 and 30% for the period from
1 November 1990 to 25 June 1996. They also claimed 1,000,000 drachmas
each in respect of the excessive length of the proceedings.
54. The Government submitted that any pecuniary damage sustained
could not exceed the figure obtained by multiplying the judicially
determined unit amount for the expropriated properties by the number
of square metres belonging to each applicant.
55. The Delegate of the Commission expressed no view.
56. In the circumstances of the case, the Court considers that the
question of the application of Article 50 (art. 50) is not ready for
decision as far as pecuniary damage is concerned and must be reserved,
due regard being had to the possibility of an agreement between the
respondent State and the applicants (Rule 54 paras. 1 and 4 of
Rules of Court A).
B. Costs and expenses
57. The applicants also claimed payment of 3,000,000 drachmas for
lawyers' fees and sundry costs incurred in the proceedings before the
national courts, together with 5,000,000 drachmas for the proceedings
before the Convention institutions.
58. The Government contested the necessity and reasonableness of
these costs. They pointed out, with regard to the proceedings before
the Convention institutions, that there had been no hearing before the
Commission.
59. The Delegate of the Commission did not express an opinion.
60. Having regard to the finding of a violation of Article 1 of
Protocol No. 1 (P1-1) and to the complexity of the case, the Court,
making its assessment on an equitable basis as required by Article 50
of the Convention (art. 50), awards the applicants 4,000,000 drachmas
for costs and expenses.
C. Default interest
61. According to the information available to the Court, the
statutory rate of interest applicable in Greece at the date of adoption
of the present judgment is 6% per annum.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Dismisses the Government's preliminary objection;
2. Holds that there has not been a violation of Article 6
para. 1 of the Convention (art. 6-1);
3. Holds that there has been a violation of Article 1 of
Protocol No. 1 (P1-1);
4. Holds that the respondent State is to pay the applicants,
within three months, 4,000,000 (four million) drachmas for
costs and expenses, on which sum simple interest at an
annual rate of 6% shall be payable from the expiry of the
above-mentioned three months until settlement;
5. Holds that the question of the application of Article 50 of
the Convention (art. 50) as regards the claim for pecuniary
damage is not ready for decision;
accordingly,
(a) reserves the said question in that respect;
(b) invites the Government and the applicants to submit,
within the forthcoming six months, their written observations
on the matter and, in particular, to notify the Court of any
agreement they may reach;
(c) reserves the further procedure and delegates to the
President of the Chamber power to fix the same if need be.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 15 November 1996.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Registrar