Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 33535/96

by Garifallia KALLERGI and 467 others

against Greece

The European Commission of Human Rights (First Chamber) sitting

in private on 10 September 1997, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

Mrs. M. HION

Mr. R. NICOLINI

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 19 March 1996 by

Garifallia KALLERGI and 467 others against Greece and registered on

28 October 1996 under file No. 33535/96;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The first applicant is a Greek citizen. She is a civil servant

and resides in Alimos Attiki. The names and particulars of the

remaining 467 applicants are available at the Commission's Secretariat.

In the proceedings before the Commission they are represented by

Mr. I. Stamoulis, a lawyer practising in Athens.

The facts of the case, as they have been submitted by the

applicants, may be summarised as follows:

A. Proceedings involving the applicants

On 12 May 1993 the applicants concluded, before a notary in

Marathonas, an agreement with Mr. M for the purchase of M's share in

a plot of land called "Plakes Suniu", situated partly in Keratea and

partly in Lavrio. On the same day, they paid 90,846,000 drachmas by way

of taxes for the purchase.

On 13 May 1993 the tax office of Lavrio certified that the plot

of land in question did not figure in the special registry of State-

owned immovable property (vivlia katagraphis dimosion ktimaton).

On 8 June 1993 the applicants asked the mortgage office

(ipothikophilakio) of Keratea to register (metagraphi) in its books the

notarial deed of 12 May 1993. The Keratea mortgage office refused on

the same day, on the ground that the plot of land in question formed

part of a wider plot of land which could not be sub-divided.

On 1 July 1993 the applicants submitted a similar request to the

mortgage office of Lavrio, as they had to do under domestic law since

the plot of land in question was situated partly in Keratea and partly

in Lavrio. They received, however, a negative reply on the same day.

The Lavrio mortgage office relied on a letter addressed to it by

the Forest Office of Lavrio on 9 December 1992 informing it of the

following: Part of the plot of land in question was situated within the

confines of the "core" of the National Park of Sunio, which had been

founded by presidential decree No. 182/26.3.74 and, as a result, it

could not be the object of private-law transactions. Moreover, the

entire plot of land was owned by the State, used to be covered by a

wood and had to be reafforested (anadasoteo) according to decision

No. 2500/16.10.85 of the Nomarch (Nomarchis) of Eastern Attica. This

was evidenced by the fact that on 7 August 1967 a royal decree was

issued, revoking the decree of 16 April 1966 by which the development

of the plot of land had been authorised, on the ground that the plot

of land was part of a State-owned forest.

The Lavrio mortgage office also invoked the fact that the

applicants had not submitted, as required by law, a certificate that

the plot of land had not been destroyed by fire after 11 June 1975 and

that the applicants and M had not paid the taxes due in full. Finally,

the Lavrio mortgage office referred to the fact that criminal

proceedings had been instituted in connection with the agreement of

12 May 1993.

On an unspecified date, the first applicant was charged with

attempting, by concluding the agreement of 12 May 1993, to deprive the

State of part of its property.

On 8 July 1993 the applicants lodged before the Council of State

(Simvulio Epikratias) an application for the judicial review (etisi

akiroseos) of presidential decree No. 182/26.3.74, decision

No. 69008/10.6.88 of the Minister of Agriculture, which fixed the

confines of the National Park of Sunio, and decision No. 2500/16.10.85

of the Nomarch of Eastern Attica.

On 12 July 1993 the applicants paid an additional sum

of 44,130,220 drachmas by way of taxes for the purchase of M's share

in Plakes Suniu.

On 14 July 1993 the applicants lodged before the Council of State

an application for the judicial review of the decision of 1 July 1993

of the Lavrio mortgage office refusing registration of the notarial

deed of 12 May 1993 and of decision No. 69008/10.6.88 of the Minister

of Agriculture and decision No. 2500/16.10.85 of the Nomarch of Eastern

Attica.

On 30 July 1993 the applicants lodged before the Council of State

an application for the judicial review of the royal decree of

7 August 1967.

On 31 August 1993 the applicants paid a final instalment

of 45,771,607 drachmas to the tax office. M paid his share of the taxes

as well.

On 31 January 1994 the applicants lodged a further application

to the Council of State asking for their previous action against

decision No. 2500/16.10.85 of the Nomarch of Eastern Attica to be

examined separately.

On 30 June 1994 the public prosecutor asked the indictments

chamber of the court of appeal (simvulio efeton) of Athens to indict

the first applicant for attempting, by concluding the agreement of

12 May 1993, to deprive the State of part of its property. On

14 July 1994 the first applicant applied for permission to attend the

hearing before the indictments chamber in person. This hearing was held

on 18 August 1994 in camera. On 2 November 1994 the chamber decided to

reject the applicant's request to appear in person and to commit her

for trial before the three-member court of appeal (trimeles efetio)

which was competent to hear the case at first instance because of the

nature of the charges.

On 4 October 1995 the Council of State rejected the applicants'

application of 8 July 1993, insofar as it concerned presidential decree

No. 182/26.3.74 and decision No. 69008/10.6.88, on the ground that it

had been lodged out of time (decision No. 4727/1995).

On the same day it also rejected the applicants' application of

14 July 1993 on the ground that the decision of 1 July 1993 of the

Lavrio mortgage office was not an administrative act of the type which

could be challenged before the Council of State. The Council considered

that the refusal of the mortgage office to register the notarial deed

of 12 May 1993 should have been challenged before the civil courts, in

accordance with Article 791 of the Code of Civil Procedure. Moreover,

there was no link between the decision of 1 July 1993 of the Lavrio

mortgage office and decision No. 69008/10.6.88 of the Minister of

Agriculture and decision No. 2500/16.10.85 of the Nomarch of Eastern

Attica. As a result, the application had to rejected insofar as it

concerned these acts as well (decision No. 4728/1995).

By a third decision issued on 4 October 1995 the Council of State

rejected the applicants' application of 30 July 1993 on the ground that

it had been lodged out of time (decision No. 4729/1995).

Finally, on the same day the Council of State rejected the

applicants' application of 31 January 1994 on the ground that decision

No. 2500/16.10.85 introduced a general measure and as a result the

time-limit for challenging it started as from its publication in the

Official Gazette (Efimerida Kiverniseos). Since the applicants' action

had been lodged approximately nine years later, it had to be rejected

as out of time (decision No. 4730/1995).

The criminal proceedings against the first applicant are still

pending.

B. Proceedings involving Mr. M

In 1966 and 1967 Mr. M concluded agreements with the heirs of G

for the purchase of a share in Plakes Suniu. G's heirs had obtained

permission to subdivide a wider plot of land on 25 February 1966.

On 16 January 1968 the public prosecutor of the Court of Appeal

of Athens, deciding on an application for interim measures lodged by

the State against M, declared that M had the right to continue

occupying Plakes Suniu which was not covered by a wood and which had

been never occupied by the State.

On 26 February 1969 the three-member criminal court of first

instance (trimeles plimmeliodikio) of Athens acquitted M of charges

concerning the unlawful occupation of Plakes Suniu.

On 26 June 1969 the State lodged a civil action against M

claiming ownership of Plakes Suniu. On 9 February 1991 the multi-member

first instance civil court (polimeles protodikio) of Athens refused to

order, by way of interim measures in the context of the State's civil

action, that Plakes Suniu should be occupied by the State. It also

ordered the taking of evidence on the merits of the case. On

20 May 1991 the single-member first instance civil court (monomeles

protodikio) of Athens ordered that the State's action should no longer

figure in the books kept by the mortgage office of Lavrio because it

was manifestly ill-founded.

C. Relevant domestic law

According to Article 1033 of the Civil Code, agreements

concerning the transfer of ownership of real property are done by

notarial deed. According to Article 1192 of the same Code, such deeds

must be registered in the books of the mortgage office of the area

where the real property is situated. Without such registration, there

is no transfer of ownership, according to Article 1198 of the Code.

According to Article 791 of the Code of Civil Procedure, all

disputes arising out of the refusal of a mortgage office to register

a notarial deed are submitted to the local civil court.

Article 46 of presidential decree No. 18/1989 stipulates that,

except as otherwise provided, an application for judicial review must

be made within sixty days of the day following the date of notification

of the impugned decision or following the date of publication, or,

otherwise, of the day following the day on which the applicant acquired

knowledge of the decision.

COMPLAINTS

1. The applicants complain under Article 1 of Protocol No. 1 that

the various administrative measures taken vis-à-vis the plot of land

they agreed to purchase from Mr. M on 12 May 1993 amount to de facto

expropriation.

In particular, they complain about the royal decree of

7 August 1967 which revoked the royal decree of 16 April 1966 by which

the development of the plot of land had been authorised, on the ground

that the plot of land was part of a State-owned forest. The applicants

contend that the competent administrative authorities have acted

abusively in declaring that their plot of land is part of a State-owned

forest, since this is contradicted by a number of judicial decisions

issued in proceedings involving M.

They also complain about presidential decree No. 182/26.3.74 and

decision No. 69008/10.6.88 of the Minister of Agriculture purporting

to create the National Park of Sunio, which remain in force although

the park was never created and Plakes Suniu has never been officially

expropriated.

Finally, they complain about decision No. 2500/16.10.85 of the

Nomarch of Eastern Attica which declared that the plot of land should

be reafforested, although it has never been a forest.

The applicants point out that, these decisions notwithstanding,

the State accepted the payment of a high amount of taxes for the

transfer of part of Plakes Suniu to the applicants.

They also consider that challenging the mortgage offices' refusal

to register the notarial deed of 12 May 1993 before the civil courts

under Article 791 of the Code of Civil Procedure would have served no

useful purpose. Even if the deed was registered, the applicants would

be still affected by the administrative acts complained of and their

plot of land would be subjected to a regime of de facto expropriation.

2. The applicants also complain under Article 6 para. 1 of the

Convention of their right of access to a court which was violated by

decisions Nos. 4727/1995, 4729/1995 and 4730/1995 of the Council of

State. They consider that the Council of State erred in considering

that the time-limit for challenging the administrative acts attacked

by the applicants' actions started from the publication of these acts

in the Official Gazette. The applicants consider that these acts

introduced individual measures and, as a result, the time-limit for

challenging them before the Council of State started on the day

following the day when the persons concerned became aware of their

contents.

The applicants submit that decision No. 4730/1995 of the Council

of State, in particular, cannot be reconciled with decision

No. 1831/1992 of the same court. In the latter decision the Council of

State had considered that an application for the judicial review of

decision No. 2500/16.10.85 of the Nomarch of Eastern Attica, which had

been lodged by a person affected by that decision in the same manner

as the applicants, need not have been introduced within sixty days from

the day following the publication of that decision in the Official

Gazette but within sixty days from the day following the day when the

plaintiff became aware of its contents.

3. The first applicant also complains under Article 4 of Protocol

No. 7 that criminal proceedings have been instituted against her for

offences of which M had been acquitted in 1969.

4. The first applicant finally complains under Article 6 that she

was not allowed to appear in person before the indictment chamber of

the Court of Appeal of Athens which decided to commit her for trial.

THE LAW

1. The applicants complain under Article 1 of Protocol No. 1 (P1-1)

that the various administrative measures affecting Plakes Suniu, i.e.

the plot of land a share in which they agreed to purchase from M,

amount to a de facto expropriation.

Article 1 of Protocol No. 1 (P1-1) provides as follows:

"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 Commission notes that all the administrative measures

complained of were taken before the applicants concluded the agreement

with M for the purchase of his share in the plot of land in question

on 12 May 1993. The Commission also notes that, as a result of the

refusal of the Keratea and Lavrio mortgage offices to register the

relevant notarial deed, the ownership of M's share has not been

transferred to the applicants. The Commission, therefore, considers

that the applicants cannot claim to be affected by the administrative

measures complained of in their capacity as owners of a share in Plakes

Suniu.

However, the Commission cannot ignore that the administrative

measures complained of were relied on by the Lavrio mortgage office to

refuse registration of the notarial deed of 12 May 1993. Moreover, the

Commission is prepared to assume, for the sake of argument, that the

authorities, by accepting the payment of a substantial amount of taxes

in respect of the agreement of 12 May 1993, created a legitimate

expectation to the applicants that they would become the legal owners

of M's share in Plakes Suniu. However, even assuming that the

applicants' legitimate expectations are protected by Article 1 of

Protocol No. 1 (P1-1) (Eur. Court HR, Pressos Compania Naviera S.A. and

other v. Belgium judgment of 20 November 1995, Series A no. 332, p. 21,

para. 31) and that the mortgage offices' refusal to register the

notarial deed amounts to an interference with the applicants' "property

rights" under that provision, the Commission considers that this part

of the application must be declared inadmissible for the following

reasons.

The Commission notes in this connection that the applicants

disposed of a remedy under domestic law against the refusal of the

mortgage offices. As the Council of State indicated in its decision

No. 4728 of 4 October 1995, the applicants could have lodged an action

before the civil courts under Article 791 of the Code of Civil

Procedure. In the context of such an action the applicants could have

put forward their reasons for considering that the Lavrio mortgage

office could not have refused registration on the basis of the

administrative measures complained of. However, the applicants have not

done so and, as a result, the Commission considers that they cannot

argue that national law did not give sufficient protection to their

expectations.

It follows that, even assuming that Article 1 of Protocol No. 1

(P1-1) is applicable, the applicants have not exhausted domestic

remedies as required under Article 26 (Art. 26) of the Convention. As

a result, the Commission considers that this part of the application

must be rejected in accordance with Article 27 para. 3 (Art. 27-3) of

the Convention.

2. The applicants also complain that decisions Nos. 4727/1995,

4729/1995 and 4730/1995 of the Council of State rejecting their actions

as inadmissible amounted to a violation of their right of access to a

court under Article 6 para. 1 (Art. 6-1) of the Convention.

Article 6 para. 1 (Art. 6-1) of the Convention, insofar as

relevant, provides as follows:

"In the determination of his civil rights and obligations ...,

everyone is entitled to a ... hearing ... by an independent and

impartial tribunal established by law".

The Commission recalls that, according to the case-law of the

Court, Article 6 para. 1 (Art. 6-1) of the Convention extends only to

disputes over civil rights and obligations which can be said, at least

on arguable grounds, to be recognised under domestic law. The

expression disputes over civil rights and obligations covers all

proceedings the result of which is decisive for such rights and

obligations. However, a tenuous connection or remote consequences do

not suffice. The result of the proceedings must be directly decisive

for a civil right or obligation (Eur. Court HR, Pudas v. Sweden

judgment of 27 October 1987, Series A no. 125, pp. 13 and 14, paras.

30 and 31).

The Commission notes that the proceedings culminating in the

decisions complained of concerned a series of administrative acts which

had been adopted long before the conclusion of the agreement of

12 May 1993 between the applicants and Mr. M. These acts affected the

property rights of M, the owner of a share in Plakes Suniu, and not

those of the applicants, who could become owners only after the

registration of the notarial deed of 12 May 1993. It follows that the

proceedings complained of did not concern a property "right" which the

applicants had under domestic law. As a result, no appearance of a

violation of Article 6 para. 1 (Art. 6-1) of the Convention is

disclosed as a result of the rejection of their above-mentioned actions

by the Council of State.

The Commission, therefore, considers that this part of the

application is manifestly ill-founded and must be rejected in

accordance with Article 27 para. 2 (Art. 27-2) of the Convention.

3. The first applicant complains that the institution of criminal

proceedings against her amounts to a violation of Article 4 of Protocol

No. 7 (P7-4).

However, the Commission recalls that Greece has not recognised

the right of individual petition in respect of the rights guaranteed

under Protocol No. 7. It follows that this part of the application must

be rejected as incompatible with the provisions of the Convention in

accordance with Article 27 para. 2 (Art. 27-2) thereof.

4. The first applicant finally complains that she was not allowed

to appear in person before the indictment chamber of the Court of

Appeal of Athens which decided to commit her for trial, in breach of

the principle of equality of arms as guaranteed under Article 6

paras. 1 and 3 (d) (Art. 6-1, 6-3-d)) .

Article 6 (Art. 6) of the Convention provides as follows:

"1. In the determination of any criminal charge against him,

everyone is entitled to a fair ... hearing by an independent and

impartial tribunal established by law. ....

...

3. Everyone charged with a criminal offence has the following

minimum rights:

...

d. to examine or have examined witnesses against him and

to obtain the attendance and examination of witnesses on his

behalf under the same conditions as witnesses against him".

The Commission, on the one hand, considers that the aim of

Article 6 para. 3 (d) (Art. 6-3-d) is to guarantee certain rights for

the accused in connection with the examination of witnesses. Equality

of arms is one of these rights (Eur. Court HR, Engel v. Netherlands

judgment of 23 November 1976, Series A no. 22, p. 39, para. 91). The

applicant, however, does not complain of procedural inequality in the

examination of witnesses. As a result, Article 6 para. 3 (d)

(Art. 6-3-d) is irrelevant in the context of the present application.

It is true, on the other hand, that the second provision invoked

by the applicant, Article 6 para. 1 (Art. 6-1), guarantees the

principle of equality of arms inherent in the notion of fairness under

Article 6 para. 1 (Art. 6-1) (cf. Eur. Court HR, Delcourt v. Belgium

judgment of 17 January 1970, Series A no. 11, p. 15, para. 28).

However, according to the Commission's case-law, the question whether

court proceedings satisfy the requirements of Article 6 para. 1

(Art. 6-1) can only be determined by examining the proceedings as a

whole, i.e. only once they have been concluded (No. 10300/83, Dec.

12.12.84, D.R. 40, p. 180).

The Commission recalls that the proceedings against the first

applicant are still pending. As a result, the Commission cannot

determine at this stage whether the refusal of the indictments chamber

to hear her in person is capable of affecting the fairness of the

proceedings as a whole.

It follows that the applicant cannot claim to be a victim of a

violation of her rights under Article 6 para. 1 (Art. 6-1) of the

Convention. The Commission, therefore, considers that this part of the

application is premature and must be rejected as manifestly ill-founded

in accordance with Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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KALLERGI AND 467 OTHERS v. GREECE

KALLERGI AND 467 OTHERS v. GREECE

LEXI