Resolution ResDH (2002)104 concerning the judgments of the European Court of Human Rights of 25 March 1999 and of 4 April 2000 in the case of Papachelas against Greece

(Adopted by the Committee of Ministers on 21 October 2002 at the 810th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11 (hereinafter referred to as the Convention”),

Having regard to the final judgment of the European Court of Human Rights in the Papachelas case delivered on 25 March 1999 and transmitted the same day to the Committee of Ministers under Article 46 of the Convention;

Recalling that the case originated in an application (No. 31423/96) against Greece, lodged with the European Commission of Human Rights on 6 February 1996 under former Article 25 of the Convention by two Greek nationals Mr Aristomenis Papachelas and Mr Eugène Papachelas , and that the Commission declared admissible the complaints concerning the impossibility for the applicants to obtain compensation for the expropriation of their land because of an irrebuttable statutory presumption that they derived benefit from the construction of a road on their land; the award of compensation that was less than the value of the expropriated land and the excessive length of the civil proceedings concerning the expropriation;

Recalling that the case was brought before the Court by the government of the respondent state on 18 May 1998;

Whereas in its judgment of 25 March 1999 the Court:

- held, by twelve votes to five, that there had been no violation of Article 6, paragraph 1, of the Convention;

- held, by fifteen votes to two, that there had been no violation of Article 1 of Protocol No. 1 as regards the amount of compensation per square metre awarded in the instant case;

- held unanimously that there had been a violation of Article 1 of Protocol No. 1 as a result of the application of the irrebuttable presumption;

- held unanimously, that the government of the respondent state was to pay the applicants, within three months, 2 000 000 drachmas in respect of costs and expenses and that simple interest at an annual rate of 6% would be payable on this sum from the expiry of the above-mentioned three months until settlement;

- held unanimously that the question of the application of Article 41 of the Convention as regards the claim of pecuniary damage was not ready for decision;

Considering that in its judgment of 4 April 2000 concerning Article 41, the Court, having been informed that a friendly settlement had been reached between the Government and the applicants with respect to the latter’s claims under Article 41 of the Convention and, having regard to its terms, found that the agreement was equitable and decided unanimously to strike the case out of the list;

Whereas under the above-mentioned friendly settlement it was agreed that the Government of Greece would pay the applicants, as satisfaction under Article 41 of the Convention, 74 880 000 drachmas together with interest of 6% per annum from September 1992 until payment.

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention;

Having invited the government of the respondent state to inform it of the measures which had been taken in consequence of the judgments of 25 March 1999 and 4 April 2000, having regard to Greece’s obligation under Article 46, paragraph 1, 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 preventing new violations of the same kind as those found in the present judgment; this information appears in the appendix to this resolution;

Having satisfied itself that on 20 June 1999 and on 17 December 1999, within the time-limits set, the government of the respondent state had paid the applicants the sums provided for in the judgment of 25 March 1999 and in the subsequent friendly settlement,

Declares, after having taken note of the information supplied by the Government of Greece, that it has exercised its functions unde r Article 46, paragraph 2, of the Convention in this case.

Appendix to Resolution ResDH (2002)104

Information provided by the Government of Greece during the examination of the Papachelas case by the Committee of Ministers

The Government notes that the violation of Article 1 of Protocol No 1 in this case resulted from the Court of Cassation’s case-law in the field of Article 1, paragraphs 1 and 3 of Act No. 653/1977. According to this case-law, the above-mentioned provisions established an irrebuttable presumption to the effect that the owners of land adjoining a major road were considered as deriving benefit from the works for its improvement. For this reason, they were obliged to contribute to the costs of building and to receive a reduced compensation. The law did not provide for proceedings which might prove that the improvement to a road did not confer any benefit and thus to rebut the presumption (judgment No. 14/1991).

The Government reiterates that Article 28 § 1 of the Constitution provides that the Convention, since its ratification, constitutes part of the national legal order and its provisions prevail over every other legislative provision. It also reiterates the direct effect of the Convention and of the Court’s case-law in Greek law (as shown e.g. in the Resolution DH(99)714 in the Papageorgiou case, as well as recent examples of in domestic case-law, especially the judgments 12/2002, 33/2002 and 14/1999 of the Supreme Court, plenary; judgment 954/1999 of the Athens Court of Appeals; judgment 1141/1999 of the Supreme Administrative Court, 1 Chamber; etc.), and it is of the opinion that the domestic courts will not fail to follow the Court’s case-law in future similar cases, considering the presumption as rebuttable and recognising that the land-owners have the right to compensation for their properties expropriated under Article 1, paragraphs 1 and 3 of the Act No. 653/77.

This development is already undertaken as far as:

- The Court of Cassation accepted that the presumption was no longer irrebuttable (judgment No. 8/1999, plenary).

- The courts of first instance and the Court of Appeal applied the Convention and the case law of the European Court directly and accepted that Article , paragraphs 1 and 3 of the Act No. 653/77 must be interpreted in conformity with Article 1 of Protocol No. 1. They concluded that the presumption must be considered as rebuttable and that owners have the right to ask for full compensation for expropriation under this Act (see judgment No. 10737/98 of the Athens Court of appeal, which refers directly to the judgments of the European Court Katikaridis and others (judgment of 15/11/1996), Tsomtsos , James and others (judgment of 21/02/1986) and Mellacher (judgment of 19/12/1989) cases; judgment No. 2268/2000 of the Salonika court of first instance).

Judicial proceedings for overturning the presumption (henceforth rebuttable ) and for obtaining complementary compensation, constitute the object of another case in which the Court found a violation of Article 1 of Protocol No. 1 ( Dimitrios Azas and others against Greece, judgment of 19 September 2002, final on 19/12/2002, application No. 50824/99). More precisely, this case raises the question whether the evidence for overturning the presumption and obtaining complementary compensation must be examined in the proceedings concerning the determination of the unit amount or in separate proceedings. The Government will examine the question or the procedure which must be followed in the light of the conclusion of the Court in that case.

The Government considers that, given the developments mentioned above, there will no longer exist a risk of a repetition of the violation found in the present case and, consequently, Greece has satisfied its obligations under Article 46, paragraph 1 (former Article 53) of the Convention.