AS TO THE ADMISSIBILITY OF
by Evangelos TZAMALIS and Others
The European Court of Human Rights (First Section), sitting on 20 October 2009 as a Chamber composed of:
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 11 January 2007,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having regard to the comments submitted by the Centre on Housing Rights and Evictions (“COHRE”) pursuant to Article 36 § 2 of the European Convention on Human Rights and Rule 44 § 2 of the Rules of Court,
Having deliberated, decides as follows:
The applicants, Mr Evangelos Tzamalis, Mr Emmanouil Tzamalis, Mr Kostas Petropoulos and Mrs Sofia Markopoulou, are Greek nationals who live in Megara Attikis. They were represented before the Court by the Greek Helsinki Monitor, a Greek non-governmental organisation. The Greek Government (“the Government”) were represented by their Agent’s Delegates, Mr G. Kanellopoulos, Senior Adviser at the State Legal Council, and Mr I. Bakopoulos, Legal Assistant at the State Legal Council. Third-party comments were received from one Geneva-based non-governmental organisation, Centre on Housing Rights and Evictions, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2).
The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
Two of the applicants, Mr Em. Tzamalis and Mr K. Petropoulos, are permanent residents at the Municipality of Megara where they are registered. The first had applied and obtained in 2004 a housing loan from the Greek State for the purchase of a constructible plot in Megara. The second had also applied in 2004 to benefit from the housing programme in Megara, but his application was turned down because the conditions required were not met.
In late 2005, the four applicants, together with other Roma families, all of whom lived until then in Megara (Attica), moved to the “Kladissos” area which is located at the administrative borders of the Municipality of Canea with the Municipality of Therissos, in the island of Crete. The applicants proceeded to set up their sheds in a section of a road that was not yet in operation. The surrounding area was being used as an impromptu rubbish tip. According to information from local police, the place where the applicants established themselves belongs to the Municipality of Therissos, while one family settled in an adjacent plot of land belonging to a private person.
Various local officials such as representatives from the Health Directorate and from the Municipality of Therissos, the deputy Prefect of Canea as well as the commander of the Canea Police Station visited the place where the applicants had set up their sheds and noted that the living conditions prevailing there were unsavoury and unhealthy. Certain efforts were made by the officials to find alternative sites for accommodation. Police officials eventually proceeded to file on 29 June 2006 six complaints for breach of the A5/696-11/5/1983 Sanitary Regulation and in particular because “on 8 April 2006 the Roma created problems of aesthetics and pollution with rubbish and other old items”.
It transpires from a document established on 8 August 2006 by the police Directorate of Canea that on 15 June 2006 the owner of the plot of land where one family had settled arrived at the office of the First Deputy Director of the Police Directorate, accompanied by his lawyer, and requested the police to put an end to the situation created in the area. Some days later, the owner made a written report to the police whereby he complained about the occupation of his property by the illegal settlers who had transformed it into a rubbish tip and asked the police to intervene in order to expel them and destroy the shed which they had set up illegally.
On 15 June 2006, police arrived at the settlement and asked the settlers to leave, informing them of the possibility of a forced eviction if they failed to leave by themselves.
On 18 July 2006, police escorted a bulldozer and a demolition crew from a municipal enterprise to the settlement.
According to the applicants and as subsequently corroborated by the police, the bulldozer proceeded to demolish seven sheds. One of them was the shed that was located on private property while the remaining six sheds were located on municipal owned land. The police did not demolish the remaining four sheds but warned those living there that should they not leave the area, their sheds would also be demolished.
On 20 July 2006, the Greek Helsinki Monitor filed a criminal complaint with the Canea First Instance Prosecutor’s Office on the applicants’ eviction or threatened eviction while it also informed the Chief of the Hellenic Police of the eviction. In both cases, it called for the launching of criminal and disciplinary proceedings against both police officers and municipal officials who had been involved in the eviction, while it also called upon both the judicial and the police authorities to examine whether the actions of the police officers and municipal officials might have been racially motivated. In particular, the NGO complained of accumulated threats on the part of police officers, waste of alien’s property, breach of domestic asylum and racial discrimination.
On 15 October 2006, the applicants decided to leave Crete and seek to settle elsewhere.
On 6 February 2008, the Greek Helsinki Monitor, which had received on 1st August 2006, notarized powers of attorney by the four applicants, filed a complaint on their behalf. The new complaint was similar to the one lodged on 20 July 2006.
On 26 January 2009, the Canea First Instance Prosecutor dismissed both complaints. He noted that the first complaint was lodged not by the persons concerned but by the Greek Helsinki Monitor, which had not at the time a power of attorney, and that the second complaint was lodged out of time.
The applicants appealed against this decision to the Crete Court of Appeal Prosecutor’s office but on 30 April 2009, the Prosecutor dismissed the appeal as out of time. The Prosecutor noted that the applicants had not respected the time-limit of fifteen days for lodging the appeal and held that the fact that they had taken knowledge of the decision of the Canea First Instance Prosecutor belatedly, due to the absence abroad of their representative, did not constitute a case of force majeure or of an absolute impediment to file the appeal within the above-mentioned time-limit.
The applicants submitted that their right not to be subjected to inhuman or degrading treatment (Article 3) had been violated on three different grounds : firstly, because of the State’s failure to provide them with a place where they can settle and of the fact that it consigned them to live under unacceptable living conditions and the likelihood of their being subjected to eviction or other sanctions ; secondly, because of their eviction by means of demolition of their houses and destruction of their belongings in relation to two of the applicants and of intimidation in relation to the other two ; thirdly, because of the fact that the authorities not only failed to prevent their officials from acting ultra vires but additionally failed to even launch a preliminary investigation or summon the applicants to testify in relation to their eviction.
The applicants submitted that there had been a violation of Article 6: their eviction was the result of a unilateral, irrevocable and ultra vires decision by the local authorities and the local police. The applicants were denied access to a court, held to be guilty not according but in violation of the law and denied the rights of those charged with a criminal offence.
The applicants submitted that their right under Article 8 has been violated twofold: firstly on the account of Greece’s failure to provide housing to them and secondly because of the fact that agents of the State carried out their eviction.
The applicants further submitted that the failure of the authorities to effectively and promptly investigate, prosecute and ultimately sanction the crimes committed against them constituted a violation of Article 13.
The applicants submitted that all the alleged violations of their rights are related to their ethnic origin, in violation of Article 14 taken together with Articles 3, 6, 8, 13 and Article 1 of Protocol No. 1.
The applicants also alleged a violation of Article 1 of Protocol No.1. They submitted that they had two proprietary interests, which the Greek authorities failed to respect. The first such material proprietary interest related to their houses and belongings that they lost following the demolition of their houses. The second quasi-proprietary interest related to their right, arising out of duress, not to be evicted until they were provided with alternative accommodation. Furthermore, they had the “legitimate expectation” that they would be relocated, in due time, in accommodation where they could live under human conditions.
The Government submitted that the applicants failed to exhaust domestic remedies. Referring to the case Selçuk and Asker v. Turkey (24 April 1998, Reports of judgments and decisions 1998–II) mentioned by the applicants in their application, the Government submitted that the circumstances of the instant case differ from those of the Turkish case and could not relieve the applicants of the obligation to exhaust domestic remedies. In the latter case the applicants suffered from the arson and demolition of their homes in which they had lived for 54 and 60 years. In the instant case, two of the applicants set up without permission a shed in which they lived for some months and then moved back to Athens. The present case should also be distinguished from the case of Ayder and Others v. Turkey (no 23656/94, 8 January 2004) equally mentioned by the applicants. The public assurance that the State would compensate them for the damages caused by the total destruction of the applicants’ properties in the Turkish case bears no resemblance to the effort undertaken by the authorities to identify a relocation site for the applicants in the instant case.
The Government contended that the applicants should have used the remedies referred to in Articles 105 and 106 of the Introductory Law to the Civil Code and claim compensation for their removal from the disputed land. The applicants could have also and in particular relied on articles 57 and 59 of the Civil Code and seek non-pecuniary damage for the suffering caused by the alleged pressure and threats to leave the public land. Certainly no remedy could be exercised aiming at the residential rehabilitation of applicants in the demolished sheds, which was a structure built illegally and without permit in a communal area, since no such right was provided for by law.
The applicants alleged that the procedures suggested by the Government are ineffective. In that respect they mentioned the example of the illegal eviction of some other Roma families near Athens in which the courts accepted the State liability but awarded each victim family member compensation of only 200-500 euros. The applicants did not contest the existence of effective remedies for compensation regarding the material loss (destruction of sheds, loss of household belongings etc.) but emphasized that there was no remedy that would enable them to compel the authorities to provide them with alternative accommodation or even allow them to resettle on the plot from where they were evicted.
The Court reiterates that, according to Article 35 § 1 of the Convention, it may only deal with an issue after all domestic remedies have been exhausted. The purpose of this provision is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, for example, Hentrich v. France, judgment of 22 September 1994, Series A no. 296-A, § 33, and Remli v. France, judgment of 23 April 1996, Reports of Judgments and Decisions 1996-II, § 33).
The Court further notes that it is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time (see, inter alia, Vernillo v. France, judgment of 20 February 1991, Series A no. 198, § 27, and Dalia v. France, judgment of 19 February 1998, Reports 1998-I, § 38). Once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement (Dankevich v. Ukraine, no. 40679/98, § 107, 29 April 2003). The Court recalls further that domestic remedies have not been exhausted where an appeal has been rejected because of a procedural mistake by the appellant (see, for instance, Danini v. Italy, no 22998/93, Commission decision of 14 April 1996).
The Court notes that following the demolition of their sheds, the applicants filed, on 6 February 2008 and via the Greek Helsinki Monitor which had received in the meantime notarized powers of attorney by the four applicants, a complaint with the Canea First Instance Prosecutor. They called for the launching of criminal and disciplinary proceedings against both police officers and municipal officials who had been involved in the eviction, while it also called upon both the judicial and the police authorities to examine whether the actions of the police officers and municipal officials might have been racially motivated. In particular, they complained of accumulated threats on the part of police officers, waste of alien’s property, breach of domestic asylum and racial discrimination.
On 26 January 2009, the Prosecutor dismissed the complaint together with another complaint filed on 20 July 2006 by the Greek Helsinki Monitor itself. He noted that the first complaint was lodged not by the persons concerned but by the Greek Helsinki Monitor, which had not at the time a power of attorney, and that the second complaint was lodged out of time. The applicants appealed against this decision to the Crete Court of Appeal Prosecutor’s office but on 30 April 2009, the Prosecutor dismissed the appeal as out of time.
The Court notes that the applicants’ complaints related to their eviction, which are similar to those submitted before the Court, were rejected on the basis of undue delay. In these circumstances, where failure to respect procedural rules constitute the reason for the refusal of a remedy, the Court cannot consider that the requirement as to the exhaustion of domestic remedies has been satisfied. In particular, as regards the complaint under Article 1 of Protocol No.1, the Court notes that the applicants admitted the existence of effective remedies for compensation regarding their material loss (destruction of sheds and loss of household belongings).
Consequently, the application must be rejected for non-exhaustion of domestic remedies in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren Nielsen Nina Vajić