FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 66742/01 by Tryphon KATSOULIS and Others against Greece

The European Court of Human Rights (First Section), sitting on 6 May 2003 as a Chamber composed of

Mr P. Lorenzen , President , Mr C.L. Rozakis , Mrs F. Tulkens , Mrs N. Vajić , Mr A. Kovler , Mr V. Zagrebelsky , Mrs E. Steiner , judges , and Mr S. Nielsen , Deputy Section Registrar ,

Having regard to the above application lodged on 6 December 2000,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants are thirty-nine Greek nationals, whose names appear in the annex. They are represented before the Court by Mr P.Yatagantzidis and Ms E. Metaxaki , both lawyers practising in Athens. The respondent Government are represented by the Delegate of their Agent, Mr M. Apessos , Senior Adviser at the State Legal Council and Mr K. Georgiadis , Legal Assistant at the State Legal Council.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicants are involved in a long-standing dispute with the State concerning the ownership of a plot of land known as “ Omorphokklisia ” in Galatsi , a suburb of Athens. The applicants have so far obtained a number of rulings in their favour from the civil courts and the public prosecutors of the Athens first instance and appeal courts. On several occasions, the State authorities have either claimed that the land in question was a forest or that it was not.

In 1934 the Ministry of Agriculture took a reforestation decision (no. 108424/1934) concerning a wider region in Attica , which included Athens, Piraeus and the suburbs. According to that decision, the area “consisted, before the destruction and downgrading of the forest vegetation ..., of pine-tree forest which was progressively downgraded and tended to disappear ...”.

In a document of the Forest Inspection of Athens of 14 November 1968, it was stated that half of the area which included the applicants’ land was agricultural and half covered by bush and five pine-trees. The Forest Inspection expressed the opinion that, considering the aspect of the area, it has never been a forest and could not be reforested, since the decision of the Ministry of Agriculture of 1934 excluded from the scope of the reforestation barren lands or plots owned by individuals. The Forest Inspection concluded that the city plan could be extended to the impugned area.

On 6 September 1994 the prefect of Athens declared an area, including the applicants’ land, “ reafforestable ” (it should be turned back into a forest). As it was expressly stated in the prefect’s decision, the aim was “... to recreate the forest greenery destroyed or downgraded by illegal quarry activities and other illegal actions such as land clearing, constructions etc. in an area of 284 000 square meters”.

On 14 November 1994 the applicants challenged the decision of the prefect before the Supreme Administrative Court. They claimed that they were owners of properties that originated from the parcelling of a broader area included in the major area known as “ Veïkou Estate” and which were located inside the reafforestable area. In particular, in their appeal, they contended that the prefect’s decision lacked reasons and aimed at depriving them of any property or possession rights on the contested plot. In their additional observations of 3 March 1999 they claimed that the prefect’s decision was an executory act, in particular because it was issued after a new assessment of the factual situation (pages 55-60 of the applicants’ memorial). They further contended that the cause of the adoption of that decision was the attempt of the State to create a dispute over their property or possession rights, although the legal conditions for the issuance of such a decision were not met since the area never constituted a forest in the past.

On 14 December 1994 the applicants invited the State to purchase the plot in question from them according to the procedure prescribed by Law no. 998/1979. The authorities did not reply.

On 22 October 1999 the Forest Inspection of Athens qualified as “ reafforestable ” according to the procedure prescribed by Law no. 998/1979 an area of approximately 189 sq. m. located within the area concerned by the prefect’s decision of 10 October 1994. The Forest Inspection concluded that only 20 sq. m. of that surface (including some of the applicants’ properties) was forest and should be reafforested. The Committee for the Settlement of Forest Disputes confirmed that decision and an appeal is now pending before the Appeal Committee.

On 5 June 2000 the Supreme Administrative Court declared the applicants’ appeal inadmissible on the ground that the prefect’s decision was not an executory act since it simply confirmed the decision issued by the Minister of Agriculture in 1934. In particular, the court held that the decision of 1934 remained in force because no other act, of an equivalent force, had reversed it. The subsequent acts of the Administration, such as the interpretation of some aerial photos, could not be considered as a new assessment of the situation which could give to the decision of the prefect an executory character (judgment no. 1968/2000).

In various judgments delivered during the past years the Greek courts have had the occasion to decide the property status of part of the Veïkou Estate (judgments nos. 8864/1995 of the Athens First Instance Court, 8314/1996 and 9632/2000 of the Athens Court of Appeal). The courts have recognised that a number of plots which were situated in the greater area of the Veïkou Estate did not constitute a forest but were private properties which were included in the development plan of the city. Some other judicial decisions (judgments nos. 13789/1977, 1865/1992 and 1783/1997 of the Athens First Instance Court, 7350/1978 of the Athens Court of Appeal and 696/1980 of the Court of Cassation), concluded that the greater area, which comprised the properties claimed by the applicants, had never been a forest in the past.

B. Relevant domestic law and practice

1. The Constitution

The relevant provisions of the Constitution read as follows:

Article 24 § 1

“The protection of the natural and cultural environment constitutes a duty of the State. The State is bound to adopt special preventive or repressive measures for the preservation of the environment. Matters pertaining to the protection of forests and forest areas in general shall be regulated by law. Alteration of the use of State forests and State forest areas is prohibited, except where agricultural development or other uses imposed for the public interest prevail for the national economy.”

Article 117 § 3

“Public or private forests or forest areas which have been destroyed or are being destroyed by fire or have otherwise been deforested or are being deforested, shall not thereby relinquish their previous designation and shall compulsorily be proclaimed reafforestable , the possibility of their disposal for other uses being excluded.”

The Government submit that, in the sense of Article 117 § 3 (which, in accordance with the established case-law of the Supreme Administrative Court, is directly applicable), the protection of forests is enacted without any time-limit and is not obstructed by any illegal destruction or deforestation. Moreover, the declaration of an area as reafforestable and the prohibition of any use that would obstruct reafforestation is not left to the discretion of the Administration but is mandatory.

2. Law no. 998/1979 relating to the protection of forests and forest expanses

The relevant sections of Law no. 998/1979 read as follows:

Section 10 § 3

“A Committee for the Settlement of Forest Disputes is established at the seat of each prefecture, which is competent to settle disputes concerning the character of an area or part of the surface as forest area or the limits of it.”

Section 14

“1. If no forest registry has been drawn up, the characterisation of an area or part of the surface as forest area and the determination of the limits thereof ... is made at the request of any person having a lawful interest or ex officio, by act of the competent forest inspector.

2. ...The act is notified to the person, legal entity or public service which has submitted the request....

Section 38 § 1

“Forests and forest areas which are destroyed or deforested by fire or illegal logging are declared reafforestable , regardless of their special category or their location ...”

Section 41

“1. The decision declaring an area as reafforestable is taken by the competent prefect. It clearly indicates the limits of the area and is accompanied by a plan ...

3. ... the decision of the prefect mentioned in paragraph 1 is taken following the recommendation of the competent forest inspection.”

According to Section 43 of that Law the State can buy the properties included in a reafforestation scheme.

The Government stress that the above-mentioned sections establish a special judicial procedure for the characterisation of an area as forest area and aim at settling disputes in a binding way for both the Administration and the individuals.

3. Introductory Law to the Civil Code

Section 105 of the Introductory Law to the Civil Code provides:

“The State shall be under a duty to make good any damage caused by the unlawful acts or omissions of its organs in the exercise of public authority, except where the unlawful act or omission is intended to serve the public interest...”

COMPLAINTS

1 . The applicants complain under Article 6 § 1 of the Convention of the fairness of the proceedings before the Supreme Administrative Court.

2 . The applicants also complain under Article 6 § 1 of the Convention about the length of the proceedings.

3 . The applicants lastly complain of a violation of Article 1 of Protocol No. 1.

THE LAW

1. The applicants complain that their application against the prefect’s decision of 10 October 1994 was not examined fairly. They rely on Article 6 § 1 of the Convention, which, in so far as relevant, provides:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair... hearing within a reasonable time by [a] ... tribunal...”

a) The Government submit that Article 6 is inapplicable. The object of the proceedings before the Supreme Administrative Court was the validity of an administrative act, namely the decision of the prefect of Athens to declare an area reafforestable and did not concern a “civil” right within the meaning of this provision, for instance a property right. Had the Supreme Administrative Court examined the substance of the case, it would have considered only whether the conditions for the adoption of the impugned decision were satisfied according to the rules of administrative law.

In the alternative the Government submit that the proceedings before the Supreme Administrative Court were in fact limited to a determination of whether the admissibility conditions of the application were fulfilled; since these conditions were considered not to be fulfilled, the court did not consider the substance of the applicants’ claims. Thus, the proceedings complained of did not involve a determination of the applicants’ “civil rights and obligations” within the meaning of Article 6.

The applicants maintain that the impugned administrative act reduced dramatically the value of their plot and thus directly affected their property rights. Therefore, although the proceedings before the Supreme Administrative Court aimed at quashing an administrative act, their outcome was directly decisive for a right of civil character, namely the right to use and exploit their property. The applicants further claim that the refusal of the Supreme Administrative Court to examine the substance of their application was arbitrary and unfair and cannot affect the applicability of Article 6.

The Court recalls that for Article 6 § 1 under its “civil” head to be applicable, there must be a “dispute” over a “right” which can be said, at least on arguable grounds, to be recognised under domestic law. The “dispute” must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise. The outcome of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (see, among many other authorities, Masson and Van Zon v. the Netherlands , judgment of 28 September 1995, Series A no. 327-A, p. 17, § 44).

In the present case, the Court notes that the proceedings before the Supreme Administrative Court concerned the legality of the prefect’s decision whereby the broader area in which the applicants’ land was situated was declared reafforestable . Such a decision entailed for the applicants an infringement of their property rights on the said land since it deprived them of any possibility to build on this land, to cultivate it, to rent it or to exploit it in any other manner; it only authorised them to plant trees on it. In their application to the Supreme Administrative Court the applicants complained in substance about an inadmissible interference with their right to property and invited the court to annul the prefect’s decision. The Court is therefore satisfied that the outcome of the proceedings, regardless of the reasons for the dismissal of their application, was directly decisive for the civil right claimed by the applicants.

Accordingly, the objection must be dismissed (see Papastavrou and Others v. Greece (dec.), no. 46372/99, 4 October 2001, unreported).

b) As regards the merits of the complaint, the Government claim that it is manifestly ill-founded.

The applicants reiterate that by rejecting their application as inadmissible, the Supreme Administrative Court deprived them of the opportunity to have their case decided by a court. As a result, it confirmed the unlawful deprivation of their property by the State without compensation. The impugned decision could by no means be considered as a non- executory act, because it was issued after a new assessment of the factual situation : the ministerial decision of 1934 had never been applied because of its general and vague character ; it thus lost over the years any legal force it might have had; furthermore, as it transpires from several official documents, the State never considered this area as reafforestable . Therefore, the prefect could not have issued the 1994 decision without ordering a new inquiry. The applicants stress that the Supreme Administrative Court failed to answer all these arguments and issued a judgment which lacked reasons. They conclude that the judgment given by that court amounted to a denial of justice.

The Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see, among many other authorities, Garcia Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I).

In the instant case, the Court considers that the applicants’ complaint under Article 6 of the Convention concerns the outcome of the proceedings before the Supreme Administrative Court. The applicants disagree with the judgment of that court because it concluded that the prefect’s decision of 1994 had not an executory character. However, the Court cannot accept this argument. It notes that the Supreme Administrative Court decided the case according to the Greek legislation and Constitution and after having taken into account all the relevant arguments of the applicants; the latter had submitted two voluminous memorials in which they developed their position at length. It cannot be said that the Supreme Administrative Court, by finding that the impugned decision was not an executory act, decided arbitrarily or that its decision took the applicants by surprise. In effect, the Court notes that a whole chapter of the applicants’ additional observations (pages 55-60) concerned the point on which the Supreme Administrative Court based its decision.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The applicants further complain about the length of the proceedings.

The Government affirm that the length of the proceedings is not open to criticism.

The Court considers, in the light of the criteria established by its case-law on the question of “reasonable time”, and having regard to all the material in its possession, that an examination of the merits of the complaint is required.

3. The applicants lastly complain about an interference with their property rights. They contend that the area in question cannot be turned into a forest. It had never been a forest and the authorities’ only aim in declaring it “ reafforestable ” was to apply pressure on them in connection with the underlying dispute concerning the ownership of the plot of land. Declaring an area “ reafforestable ” radically restricts the use to which its owners can put it, since they can only plant trees on it. This amounts to a de facto expropriation for which domestic law does provides no compensation. The applicants rely on Article 1 of Protocol No. 1, which  reads 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.”

a) The Government submit that the applicants did not exhaust domestic remedies, as required by Article 35 § 1 of the Convention.

Firstly, the complaints which the applicants raised before the Supreme Administrative Court were exclusively based on domestic law and made no reference to the Convention. The vague allegation in their appeal to the deprivation of the opportunity to freely exercise their property and possession rights on parts of the reafforestable area is purely incidental and subsidiary to their main reason of appeal, that is the abuse of power on the part of the Administration, and cannot be considered as a complaint pertaining to Article 1 of Protocol No. 1. Even if the Supreme Administrative Court had the possibility to examine ex officio the applicants’ case under the Convention, the applicants were not relieved from the obligation to invoke the Convention before it.

Secondly, the Government recall that the obligation to exhaust domestic remedies requires the applicant to comply with the procedural rules attached to the remedy. In the present case, the Supreme Administrative Court dismissed the applicants’ appeal on procedural grounds, namely because the challenged act was not executory . It transpires from the judgment of the Supreme Administrative Court that the decision which should have been challenged was that of the Ministry of Agriculture of 13 September 1934, which had characterised the broader area, the Veikou Estate (including the applicants’ plots), as forest area.

Thirdly, the applicants knew that the Greek State considered the Veikou Estate as public domain. Accordingly, if they considered that they had property rights on the contested plot, they should have applied to the competent civil courts in order to be recognised owners of the plot (Article 70 of the Code of Civil Procedure). However, the applicants never filed such an action. The Government stress that the ownership status of a land is determined by the civil courts. In this respect, the Athens First Instance Court dismissed in 1999 an action introduced by an association against the State concerning the recognition of its property rights on a plot situated near the applicants’ plot. These proceedings are currently pending before the Supreme Administrative Court. The rulings in favour of the applicants, mentioned in their application, and delivered from the civil courts and the public prosecutors of the Athens first instance and appeal courts do not settle the ownership status of the contested plot: the first concerned the validity of the eviction order taken by the Administration against the applicants and the second the provisional settlement of the possession of the plot.

Fourthly, the applicants could have brought actions in the administrative courts for compensation for the damage sustained as a result of the allegedly unlawful act of the prefect.

Finally, as regards the forest character of the plot, the Government claim that the applicants never engaged the proceedings prescribed by Section 14 of Law no. 998/1979. According to the Supreme Administrative Court’s case-law, these proceedings are autonomous and distinct from those concerning the annulment of a decision declaring an area reafforestable and can be engaged in parallel with it; therefore, the applicants had the possibility to initiate it even after the adoption of the prefect’s decision of 10 October 1994.

The applicants stress that despite the fact that the Supreme Administrative Court dismissed their application as inadmissible, all their grounds of appeal before it were founded, directly or indirectly, on the right to property, as it transpires from the text of their appeal and their additional observations to that court.

As regards the Government’s argument that they failed to engage proceedings before the civil courts, the applicants recall that the violation of Article 1 of Protocol No. 1 was caused by a decision of the prefect. Such a decision gives rise to an administrative dispute which can only be decided by the administrative courts. Judgment no. 2889/1999 of the Athens First Instance Court mentioned by the Government did not concern the applicants’ property and did not settle the issue of the validity of the reafforestation decision. Besides, in 2000 the Athens Court of Appeal quashed the above-mentioned judgment, on the ground that the State had always considered that the plot in question was owned by Mr Veikos ’ heirs.

Further, the applicants affirm that the actions for damages would not have brought them the result they sought, namely the annulment of the prefect’s decision.

Finally, the applicants submit that proceedings under Sections 10 and 14 of Law no. 998/1997 were not appropriate against the prefect’s decision. Such a decision has no bearing on the procedure aiming at qualifying an area as forest area or on the objections which can be raised by virtue of Section 14 § 3 of the Law. A decision quashing an act whereby the Forest Inspector qualifies an area as forest area does not affect a decision of a prefect to reafforest . There is an inconsistency between the two procedures, which affects the efficiency of the existing remedies and creates a risk of obtaining contradictory decisions concerning the same area.

The Court recalls that the only remedies Article 35 § 1 requires to be exhausted are those that are available and sufficient and relate to the breaches alleged. Moreover, an applicant who has availed himself of a remedy capable of redressing the situation giving rise to the alleged violation, directly and not merely indirectly, is not bound to have recourse to other remedies which would have been available to him but the effectiveness of which is questionable (see the Manoussakis and Others v. Greece judgment of 26 September 1996, Reports of Judgments and Decisions 1996-IV, § 33).

With regard to the first limb of the objection, it is sufficient for the Court to find that in their submissions to the Supreme Administrative Court the applicants relied on the interference with their property rights. They therefore gave the Supreme Administrative Court an adequate opportunity to remedy by its own means the situation complained of.

With regard to the second limb of the objection, the Court considers that, in the particular circumstances of the case, it is difficult to argue that the applicants could have foreseen that their judicial review application before the Supreme Administrative Court would have been declared inadmissible. The Court recalls in this respect that the Supreme Administrative Court dismissed the application not on a purely formalistic and procedural ground, such as time-bar or lack of reasons, but because it held that the prefect’s decision of 1994 confirmed a ministerial decision of 1934, which the applicants considered as deprived of any legal effect because it remained a dead-letter.

With regard to the third limb of the objection, the Court considers with the applicants, who claimed to be owners of the contested plot, that the only competent court which could quash the prefect’s decision was the Supreme Administrative Court.

With regard to the fourth limb of the objection, the Court considers that the actions for damages cannot be deemed sufficient to remedy the applicants’ complaints. Even supposing that the outcome of such actions had been favourable to them, compensation for damages would not have been an alternative solution to the annulment of the prefect’s decision sought by the applicants.

With regard to the fifth limb of the objection, the Court notes that the administrative proceedings prescribed by Sections 10 and 14 of Law no. 998/1979 concerns a different procedure, that is the qualification by the Forest Inspection of an area as forest area, which has no bearing on the legality of a prefect’s decision to declare an area reafforestable .

The objection of non-exhaustion must accordingly be dismissed (see Papastavrou and Others v. Greece (dec.), op. cit.).

b) As regards the merits of the complaint, the principal thrust of the Government’s argument is that no “possession” of the applicants, within the meaning of Article 1 of Protocol No. 1, has been subject to interference. The Government consider that the State is the owner of the broader area of the Veïkou Estate and that only the Greek courts are competent to resolve the ownership status of the disputed plots.

The mere allegation of the applicants that they are owners of these plots, which are not precisely delineated in their application, does not mean that they are actually owners. The applicants, in an attempt to prove their ownership rights on the disputed land, invoke judicial decisions and administrative documents which concern other properties (both for the ownership status and the character as a forest) and try to use the Strasbourg Court as a civil court which can resolve the ownership status of their plots. However, no decision has been taken by the domestic courts as regards the ownership status of the applicants’ plots. The Supreme Administrative Court only examined whether the conditions for declaring the area reafforestable were met, in particular whether the prefect’s decision was lawful and sufficiently justified in relation to Article 117 § 3 of the Constitution and other provisions of Law no. 998/1979. The determination of the ownership status of the whole Veïkou Estate is still pending before the domestic courts, following several actions (on the basis of Article 70 of the Code of Civil Procedure) introduced by persons claiming ownership rights on certain plots. However, the applicants have never introduced such an action.

The Government further argue that neither the judgment of the Supreme Administrative Court nor the prefect’s decision violated the applicants’ rights under Article 1 of Protocol  No. 1. According to Article 117 of the Constitution, the protection of forests is guaranteed without any time-limit in the past and cannot be obstructed by any act of destruction and deforestation accomplished illegally. A decision to reafforest is not left to the discretion of the Administration but must be obligatorily taken when necessary and when the conditions provided for in Article 117 are met. The Supreme Administrative Court, based on a great amount of evidential material, held that it was probable that the disputed area constituted a forest in the past. It followed that the prefect’s decision was not arbitrary but dictated by reasons of public interest, namely the protection of the environment.

The applicants affirm that they are the owners of the contested properties and that they have submitted to the Court the deeds on which they base their claims. They complain that the State tries to take away their property without any reason of public interest and without paying any compensation. The Government’s argument that the disputed area constituted a forest in the past is just a pretext and cannot justify the taking of their property or the control of its use. Further, the failure to compensate them amounts to a disproportionate interference with their property rights. In this connection, the applicants stress that according to Law no. 998/1979, the State can buy the properties included in a reafforestation scheme. The applicants have submitted a request to have their properties purchased to which the competent authorities did not reply; thus, the refusal of the State to pay them any compensation has been confirmed.

The applicants further argue that they have submitted a great number of judicial decisions whereby the Greek courts decided the property status of the Veïkou Estate. It transpires from these decisions that the courts have recognised that a number of plots which are situated in the greater area of the Veïkou Estate do not constitute a forest but are private properties which are included in the development plan of the city. Some other judicial decisions submitted by the applicants have concluded that the greater area which comprises their properties has never been a forest in the past.

The applicants stress that the administrative authorities which decided the reafforestation refer to the area as a public domain and totally ignore the judicial decisions which are favourable to them. The applicants further claim that the disputed area cannot constitute a forest because of the nature and the composition of the soil and the subsoil. Such a conclusion can be drawn from several technical reports and expert valuations carried out in 1993, 1995, 1996, 1997 and 2000 by foresters and even University professors and experts in geology and forestry. Furthermore, some administrative decisions (forest map of the Ministry of Agriculture, Presidential decree of 28 August 1980 fixing building conditions in the area, Presidential Decree of 11 November 1991 approving the development plan of the Galatsi area, opinion of the Forest Inspection of Athens of 14 November 1968) support the position that the disputed land had always been considered as grazing or arable land. Moreover, in 1957, the Administration delimited the forest land in the area without including in it the disputed plots.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicants’ complaints concerning the length of the proceedings and the respect of their property rights;

Declares the remainder of the application inadmissible.

Søren Nielsen Peer Lorenzen              Deputy Registrar President

List of applicants