Final Resolution ResDH (2003)7 Human Rights Application No. 30175/96 “Avis Tourist, Hotel and Rural Industry Enterprises” against Greece

(Adopted by the Committee of Ministers on 24 February 2003 at the 827th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of former Article 32 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Having regard to interim Resolution DH(98)314, adopted on 25 September 1998 in the case of “Avis Tourist, Hotel and Rural Industry Enterprises” against Greece, in which the Committee of Ministers held that there had been a violation of Article 6, paragraph 1, of the Convention as regards the unfairness of an expropriation procedure insofar as provisional compensation had been fixed without the applicant being summoned to appear; that there had been a violation of Article 6, paragraph 1, of the Convention as regards the excessive length of the proceedings; and that there had been a violation of Article 1 of Protocol No. 1 to the Convention because reasonable compensation had not been paid within the time-limit provided for by law and on account of the system for the "setting-off" of costs in expropriation procedures, with the result that costs were never reimbursed to the persons whose property was expropriated; and authorised the publication of the report of the European Commission of Human Rights;

Whereas the Committee of Ministers examined the proposals made by the Commission when transmitting its report as regards just satisfaction to be awarded to the applicant, proposals supplemented by a letter of the President of the Commission dated 30 October 1999;

Whereas, at the 704th meeting of the Ministers’ Deputies, the Committee of Ministers, agreeing with the Commission’s proposals, held by a decision adopted on 10 April 2000, in accordance with former Article 32, paragraph 2, of the Convention, that the government of the respondent state was to pay the applicant as just satisfaction, within three months, the sum of 91 000 000 drachmas in respect of pecuniary damage and 2 000 000 drachmas in respect of costs and expenses, namely a total sum of 93 000 000 drachmas, and that interest should be payable on any unpaid sum, calculated on the basis of each full elapsed month of delay, at the statutory rate applicable on the date of this decision it being understood that the interest would accrue from the expiry of the time-limit until full payment was placed at the disposal of the applicant;

Whereas the Committee of Ministers invited the government of the respondent state to inform it of the measures that had been taken following its decisions of 25 September 1998 and 10 April 2000, having regard to Greece’s obligation under former Article 32, paragraph 4, of the Convention to abide by them;

Whereas, during the examination of the case by the Committee of Ministers, the government of the respondent state gave the Committee information about the measures taken in order to prevent new violations of the same kind as that found in the present case; this information is summarised in the appendix to this resolution;

Having satisfied itself that, on 7 July 2000, within the time-limit set, the government of the respondent state had paid the applicant the total sum of 93 000 000 drachmas as just satisfaction,

Declares, after having taken note of the measures taken b y the Government of Greece, that it has exercised its functions under former Article 32 of the Convention in this case.

Appendix to Resolution ResDH (2003)7

Information supplied by the Government of Greece in connection with the examination of the case of “Avis Tourist, Hotel and Rural Industry Enterprises” by the Committee of Ministers

The Greek Government considers that only the violation of Article 1 of Protocol No. 1 to the Convention as a result of the system of “setting-off” the costs of expropriation procedures calls for special general measures.

It notes that the violation stemmed from Article 1 of legislative decree No. 446/1974 and Article 22 of law No. 3693/1957, according to which, when the state expropriated on its own behalf, the costs incurred by the person expropriated as a result of the expropriation procedure (stamp duties, lawyers’ fees, etc.) were always “set off”, i.e. they were never reimbursed, so the courts could not order the state to pay costs. However, when the expropriation benefited someone other than the state, that person was required to pay the corresponding costs in full (Article 9 paragraph 5 of law No. 1093/1980).

In order to remedy the violation, Law No. 2882/6 February 2001 (Real Estate Expropriation Code) was adopted and entered into force on 6 May 2001. Under Article 18, paragraph 4, of this law, the practice of “setting-off” legal costs established in Article 22 of Law No. 3693/1957 does not apply to expropriation procedures.

As an interim measure the Commission’s report had been circulated to the competent authorities and the civil courts, leading in 2000 to a change in the case-law of the Court of Cassation, which concluded in plenary that protection of the right to own property required the compensation paid to the expropriated person to be “full” and “intact”. It should therefore cover legal costs. Accordingly, the principle of “setting-off” legal costs, effectively decreasing the compensation, violated the ownership rights of the expropriated person. The Court of Cassation had thus found that in setting-off the legal costs the appeal court had violated the ownership rights of the persons expropriated. It had therefore set aside the corresponding part of the impugned judgment and referred the case to a new court of appeal to review the matter of legal costs (decisions 13 and 17-19/29 June 2000).

The Government of Greece considers that the measures taken will prevent any further violation similar to those noted in the present case and consequently that it has complied with its obligations under former Article 32, of the Convention.