(Application no. 43588/06)
5 February 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Vontas and Others v. Greece,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Sverre Erik Jebens,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 15 January 2009,
Delivers the following judgment, which was adopted on that date:
THE CIRCUMSTANCES OF THE CASE
A. The applicants' property and their title deeds
B. The proceedings before the domestic courts
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
“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 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.”
The Government's objection of non-exhaustion of domestic remedies
1. The submissions of the parties
2. The Court's assessment
(a) Whether there was a “possession” within the meaning of Article 1 of Protocol No. 1
(b) Whether there has been an interference with the right of property
(c) Whether the interference was justified
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage and costs and expenses
B. Default interest
FOR THESE REASONS, THE COURT
(a) that the respondent State is to pay the applicants jointly, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 12,493 (twelve thousand four hundred and ninety-three euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Done in English, and notified in writing on 5 February 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina Vajić
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the partly dissenting opinion of Judge Malinverni is annexed to this judgment.
PARTLY DISSENTING OPINION
OF JUDGE MALINVERNI
I voted with the majority in favour of a finding of a violation of Article 1 of Protocol No. 1. As the judgment rightly states, this violation is to be found in the manner in which the Greek courts interpreted, then applied the domestic law.
I also share the majority view that the Court's finding of a violation of the Convention “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” (§ 49) (restitutio in integrum).
It is also exact that “if the nature of the breach allows of restitutio in integrum, it is for the respondent State to effect it” (idem).
Where I am unable to follow my colleagues is when they affirm that “[i]n view of the circumstances of the present case and the specific reasons which have led it to find a violation of Article 1 of Protocol No. 1, the Court considers that the restoration of the applicants' ownership rights would put them 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” (§50).
The majority based its reasoning on the fact that the land at issue actually belonged to the applicants (paragraphs 31 and 41). The authorities therefore had an obligation to return it to them. However, that was not the opinion of the Greek courts.
Upholding the judgment of the first-instance court, the Piraeus Court of Appeal held that “independently of the question whether the disputed land was included in the applicants' title deeds, it had become land “for public use”, and thus part of the municipality's property” (§ 15). The case was then referred to the Court of Cassation, which found that “the applicants had never become [the land's] owners” (§ 17). We may therefore conclude that, in the opinion of the Greek courts, “the applicants had never acquired ownership” (§ 38).
If, as the Greek courts maintain, the applicants never owned the disputed land, it is difficult to see how the Court could order the authorities to return it to them. The authorities could rely on the judgments of the domestic courts recognising their ownership rights, which have since become res judicata. Without a reopening of the domestic proceedings, which does not appear to be possible in Greek law, the solution proposed by the majority (restitutio in integrum) is not the most appropriate in casu. For that reason I voted against point 3 of the operative part.
In my opinion the Court should rather, in this case, have ordered the payment of compensation to the applicants for the damage sustained as a result of the unfair hearing they were given, which “has led to injustice” (§41). In this case the violation of Article 1 of Protocol No. 1 is of a far more procedural than substantive nature. It was the incorrect application of domestic law (the vetustas rule instead of other rules) that led to a violation of Article 1 of Protocol No. 1.