SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 49215/99 by Nikolaos , Anastasia, Hariklia and Panayiotis ANGELOPOULOS against Greece

The European Court of Human Rights (Second Section) , sitting on 29 June 2000 as a Chamber composed of

Mr A.B. Baka, President , Mr C.L. Rozakis, Mr B. Conforti, Mr G. Bonello, Mrs M. Tsatsa-Nikolovska, Mr E. Levits, Mr A. Kovler, judges , Mr E. Fribergh , Section Registrar ,

Having regard to the above application introduced on 23 December 1998 and registered on 29 June 1999,

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 first and second applicants are Greek national s , born in 1941 and 1948 respectively and living in Drafi , Attika . They are married. The third and fourth applicants are their children. The first applicant is a lawyer practising in Athens. He represents b efore the Court the remaining applicants.

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

The applicants are the co-owners of a plot of land in Drafi . Adjacent to their plot, but separated by a road, there are three plots of land owned by a co-operative of civil servants of the Ministry of Agriculture, Mr M and Mr Y respectively. On 11 May 1974 an area comprising the three plots of lands in question was included in the town plan. The applicants’ plot was not. In September 1977 a decision drawing the exact limits of the area covered by the town plan was issued.

It was the first two applicants who acquired the plot of land in 1987.

On 1 June 1989 the two applicants obtained a permit for the reconstruction of a house on their plot of land.

On 14 September 1990 the co-operative allegedly destroyed the fence surrounding the applicants’ plot. On 28 November 1990 the co-operative allegedly redirected the road into the applicants’ plot taking over 600 m2. At the same time M started building on his plot on the basis of the September 1977 delimitation. In January 1991 Y did the same.

On 24 July 1991 the multi -member first instance civil court ( polimeles protodikio ) of Athens, in the course of an interim measures procedure, decided that the first two applicants were in all probability the lawful possessors of the 600m2 in question and that they should not be disturbed in the future by the co-operative. On the same day the petty claims court ( irinodikio ) of Kropia ordered, by way of interim measures, the co-operative to restore the road in its previous state. In the alternative, it authorised the two applicants to do so themselves, in which case they could recover the costs from the co-operative.

In the summer of 1991 the authorities accepted that the 1977 delimitation was inaccurate.

Following the decision of 24 July 1991 of the petty claims court of Kropia , the first two applicants restored the fence. On 29 November 1991 the same court rejected an application for interim measures lodged by M and Y finding that in all probability the two applicants had correctly restored the fence.

On 15 February 1992 the forests’ inspector ( dasarhis ) requested the authorities to revoke the first two applicants’ reconstruction permit on the ground that their plot of land was in a forest area. On 20 February 1992 the first applicant lodged with the Council of State ( Simvulio Epikratias ) an application for judicial review of the forests’ inspector’s request.

On 13 April 1992 the authorities ordered M and Y to stop building. M did not comply.

On 22 April 1992 the authorities revoked a similar order concerning the first two applicants.

The first two applicants requested a special committee to resolve their dispute with the inspector as to whether their plot was in a forest area. On 3 August 1992 the first applicant lodged with the Council of State an application for judicial review of the refusal of the committee to reply to their request. Subsequently, he withdrew his application to facilitate the hearing of another action on 5 November 1997.

On 6 April 1993 the first applicant lodged with the Council of State an application for judicial review of a series of acts in essence preparing the modification of the town plan of 11 May 1974.

On 19 July 1993 the authorities proposed a modification of the town plan. The first two applicants objected.

On 30 July 1993 the indictments chamber of the Court of Appeal ( simvulio efeton ) of Athens decided that no criminal proceedings should be instituted against members of the co-operative. At the origin of this procedure lay a criminal complaint by the first two applicants.

On 15 December 1993 the three-member Court of Appeal ( trimeles efetio ) of Athens acquitted the first applicant of having illegally built in a forest.

On 12 January 1994 the authorities informed the first two applicants that they were not entitled to compensation for the expropriation of part of their plot of land that would result from the 19 July 1993 modification of the town plan. As a result, the expropriation in question needed not be revoked.

On 31 January 1994 the prefect ( nomarhis ) decided that the applicants’ plot of land was part of an area that should be turned back into a forest.

On 22 April 1994 the first two applicants applied to the Council of State for judicial review of the refusal of the authorities to revoke the expropriation plan.

On 5 May 1994 the prefect issued a second decision to the effect that the applicants’ plot of land was part of an area that should be turned back into a forest.

On 27 May 1994 the co-operative sued the first two applicants before the single-member first instance civil court ( monomeles protodikio ) of Athens in respect of the ownership of 332 m2 of their plot of land. Then it dropped the action, which it re-introduced on 11 April 1995 before the multi -member first instance civil court.

On 30 May 1994 the co-operative and Y instituted civil proceedings against the first two applicants questioning their title to the plot of land. The two applicants counter-sued the co-operative and Y.

On 4 July 1994 the first two applicants applied to the Council of State for judicial review of the prefect’s decision of 5 May 1994. The proceedings are still pending.

On 8 July 1994 the Council of State rejected the first applicant’s application of 20 February 1992 on the ground that the forests’ inspector’s request was not an act that could be attacked before it.

On 2 November 1994 the first two applicants applied for judicial review of the prefect’s decision of 31 January 1994. The proceedings are still pending.

On 20 December 1994 the co-operative applied to the Council of State for judicial review of the forests’ inspector refusal to bring down the applicants’ house.

On 2 October 1995 the head of the district ( periferiarhis ) issued a decision confirming the decisions of 31 January 1994 and 5 May 1994 of the prefect. On 27 November 1995 the first two applicants applied to the Council of State for judicial review of this decision. The proceedings are still pending.

On 6 March 1996 the first instance civil court ordered the taking of evidence in the action brought by the co-operative against the first two applicants in respect of 332 m2 of their plot.

On 27 March 1996 the multi -member first instance civil court of Athens rejected the action of 30 May 1994 of the co-operative and Y as well as the first two applicants’ counter- action considering that the matter fell within the jurisdiction of the administrative courts. The applicants appealed in cassation . The proceedings are still pending.

On 12 September 1996 the first and second applicants intervened in the proceedings instituted in the Council of State by the co-operative against the forests’ inspector.

On 9 July 1997 the Council of State at the request of the minister examined a draft decree with a new proposed modification of the town plan. It considered that it was illegal.

On 13 October 1997 the first applicant asked for the withdrawal of two the Council of State judges who were dealing with his application of 6 April 1993. While his application was pending one of the judges in question submitted a report on the case. On 5 November 1997 the Council of State considered that the two judges needed not withdraw.

On 29 June 1998 the Council of State, having admitted a request by the co-operative and Y to intervene in the proceedings, rejected the first applicant’s application of 6 April 1993 on the ground that “preparatory acts” could not be attacked before it.

On 15 May 1998 Y obtained a new building permit. On 1 October 1998 the first two applicants applied to the Council of State for judicial review of the relevant decision. The proceedings are still pending.

On 27 October 1998 the first applicant asked for the reopening of the proceedings concerning his application of 6 April 1993 on the ground that the Council of State had not taken into consideration certain documents which had been missing from the file.

In September 1999 the authorities ordered Y to stop the construction. He was, however, able to complete it.

On 29 September 1999 the first two applicants transferred part of their plot to their children, the third and fourth applicants.

On 19 January 2000 the Council of State decided to remit the first two applicants' application of 22 April 1994 to the Administrative Court of Appeal for further examination. The proceedings are still pending.

The applicants live in the house on the plot of land in question.

COMPLAINTS

1. The applicants complain under Article 1 of Protocol No. 1 and Article 8 of the Convention about the authorities’ actions against their property and home.

2. They also invoke Articles 3 and 4 of the Convention, alleging that the authorities’ conduct in the matter of their property amounts to inhuman treatment and holding them in slavery.

2. Moreover, the first applicant also complains under Article 6 § 1 of the Convention about the decision of 29 June 1998 of the Council of State, the loss of the documents and the continued participation of two judges in the proceedings.

3. Finally, the first two applicants complain under Article 6 § 1 of the Convention about the length of the proceedings before the Council of State they are involved in.

THE LAW

1. The applicants complain under Article 1 of Protocol No. 1 and Article 8 of the Convention about the authorities’ actions against their property and home.

Article 1 of Protocol No. 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.”

Article 8 of the Convention provides as follows:

“1. Everyone has the right to respect for his … home …

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Court will examine each applicant’s complaints under Article 1 of Protocol No. 1 and Article 8 of the Convention separately.

2. In so far as the first applicant is concerned, the Court notes that on 20 February 1992 he lodged an action concerning the forests’ inspector’s request to have his reconstruction permit revoked. This action was rejected on 8 July 1994, i.e. more than six months before the lodging of the application. It follows that the first applicant did not lodge this complaint within the time-limit provided by Article 35 § 1 of the Convention. Therefore, this part of the application must be rejected as inadmissible in accordance with Article 35 § 4 thereof.

3. The Court also notes that on 6 April 1993 the first applicant challenged before the Council of State a series of acts allegedly affecting his property and home. On 29 June 1998 the Council of State decided to reject his application. The applicant has requested the re-opening of the proceedings on the basis that the Council did not take into consideration certain documents.

The Court does not consider it necessary to decide whether the application for re-opening is, in the particular circumstances, an effective remedy. Even assuming that it is not and that the Court is not prevented from examining this part of the application by the fact that the domestic proceedings are still pending, the Court considers that there is no appearance of a violation of Article 1 of Protocol No. 1 and Article 8 of the Convention as a result of the acts in question. The Court notes that the Council of State found these acts to be preparatory in nature. As a result, they could not interfere with the first applicant’s right under Article 1 of Protocol No. 1 and Article 8 of the Convention.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected as inadmissible under Article 35 § 4.

4. The Court further notes that the first applicant withdrew his application for judicial review of a committee’s refusal to try to resolve his dispute with the forests’ inspector. It follows that he did not exhaust domestic remedies in this respect in accordance with Article 35 § 1 of the Convention. Therefore, this part of the application must be rejected as inadmissible in accordance with Article 35 § 4 thereof.

5. As for the rest, the Court recalls that the first applicant has challenged before the Council of State a series of acts that allegedly interfere with his rights under Article 1 of Protocol No. 1 and Article 8 of the Convention. Thus, on 22 April 1994 he challenged the refusal of the authorities to revoke an expropriation plan. On 4 July 1994, 2 November 1994 and 7 November 1995 he challenged the decision of the prefect and the head of district to concerning the re- afforestation of his plot. On 1 October 1998 he challenged the authorities’ decision to issue Y with a new building permit. All the above proceedings are still pending.

Moreover, the Court notes that the first applicant did not institute any proceedings concerning the failure of the authorities to prevent M and Y from developing their property in breach of the then existing plan.

As a result, the Court considers that the first applicant has not exhausted domestic remedies in accordance with Article 35 § 1 of the Convention and this part of the application must be rejected as inadmissible under Article 35 § 4 thereof.

6. As regards the second applicant’s complaints under Article 1 of Protocol No. 1 and Article 8 of the Convention, the Court notes that she did not join the proceedings that the first applicant instituted concerning the forests’ inspector’s request to have the reconstruction permit revoked, the preparatory acts and the refusal of the committee to try to resolve the dispute with the forests’ inspector. Nor did she institute any proceedings concerning the failure of the authorities to prevent M and Y from developing their property in breach of the plan.

Moreover, the Court notes that the proceedings that the second applicant instituted together with the first on 22 April 1994, 4 July 1994, 2 November 1994, 7 November 1995 and 1 October 1998 are still pending.

It follows that the second applicant has not exhausted domestic remedies in this connection in accordance with Article 35 § 1 of the Convention and that this part of the application must be rejected as inadmissible under Article 35 § 4 thereof.

7. As regards the third and fourth applicants’ complaints under Article 1 of Protocol No. 1 and Article 8 of the Convention, the Court recalls that there has been no alleged interference with their rights under the above provisions after 29 September 1999, the date when they became co-owners, other than the alleged continued failure of the authorities to prevent M and Y from developing their property in breach of the plan. However, the third and fourth applicants have not instituted any proceedings in this respect. It follows that they have not exhausted domestic remedies as required under Article 35 § 1. This part of the application must, therefore, be rejected as inadmissible under Article 35 § 4.

8. All four applicants complain under Articles 3 and 4 of the Convention that that the authorities’ conduct in the matter of their property amounts to inhuman treatment and holding them in slavery.

Article 3 of the Convention provides the following:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 4 § 1 of the Convention provides the following:

“No one shall be held in slavery or servitude.

The Court considers that, even assuming that the applicants have exhausted domestic remedies in this connection, the minimum level of severity required before treatment can be found to be in breach of Article 3 of the Convention has not been reached (see the Ireland v. United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65 § 162). Moreover, there is no indication that the applicants are held in slavery. As a result, there is no appearance of a violation of Articles 3 and 4 of the Convention.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected as inadmissible under Article 35 § 4.

9. The first applicant complains under Article 6 § 1 of the Convention about the proceedings leading to the decision of 29 June 1998 of the Council of State.

Article 6 § 1 of the Convention provides the following:

“In the determination of his civil rights and obligations …, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

In so far as the applicant complains that the Council erred in rejecting his application and admitting the intervention of the co-operative and Y and assuming that he has exhausted domestic remedies, the Court recalls its case-law to the effect that it is not competent to deal with applications alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention (Garcia Ruiz v. Spain judgment of 21 January 1999, to be published in Reports 1999, § 28). In the circumstances of the case, the Court considers that there is no appearance of a violation of Article 6 § 1 of the Convention.

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

10. In so far as the first applicant complains under Article 6 § 1 of the Convention about the participation of two judges in the proceedings leading to the decision of 29 June 1998 of the Council of State, the Court recalls that his request for the withdrawal of the judges in question was rejected on 5 November 1997, i.e. more than six months before the introduction of the application.

It follows that this part of the application was not lodged within the time-limit provided by Article 35 § 1 of the Convention and must be rejected as inadmissible in accordance with Article 35 § 4 thereof.

11. In so far as the first applicant complains under Article 6 § 1 of the Convention about the failure of the Council of State to take into consideration some documents before reaching its decision of 29 June 1998, the Court recalls that he has lodged a request for re-opening in this connection that is still pending.

As a result, the Court considers that the first applicant has not exhausted domestic remedies in accordance with Article 35 § 1 of the Convention and this part of the application must be rejected as inadmissible under Article 35 § 4 thereof.

12. The first two applicants complain under Article 6 § 1 of the Convention about the length of the various Council of State proceedings they are involved in.

The Court notes that the proceedings instituted by the first applicant on 15 February 1992 were concluded on 8 July 1994, i.e. more than six months before the introduction of the application. The same holds true of the proceedings of 3 August 1992 that were withdrawn some time before 5 November 1997.

It follows that this part of the application was not lodged within the time-limit provided by Article 35 § 1 of the Convention and must be rejected as inadmissible in accordance with Article 35 § 4 thereof.

13. In so far as the two applicants complain about the length of the remaining Council of State proceedings they are involved in - i.e. the proceedings instituted by the first applicant on 6 April 1993, the proceedings instituted by the first two applicants on 22 April 1994, 4 July 1994, 2 November 1994, 7 November 1994 and 1 October 1998 and the proceedings in which the first two applicants intervened on 12 September 1996 -, the Court considers that it cannot, on the basis of the file, determine the admissibility of the above complaint and that it is therefore necessary, in accordance with Rule 4 § 3(b) of the Rule of Court, to give notice thereof to the respondent Government.

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN the examination of the first applicant ’s complaint [Note1] about the length of the Council of State proceedings he instituted 6 April 1993 and the first and second applicants’ complaint about the length of the Council of State proceedings they instituted on 22 April 1994, 4 July 1994, 2 November 1994, 7 November 1994 and 1 October 1998 and of the Council of State proceedings in which they intervened on 12 September 1996; and

DECLARES INADMISSIBLE the remainder of the application.

Erik Fribergh Andras Baka Registrar President

[Note1] Summarise the complaints without necessarily citing the invoked Convention Articles.