Resolution ResDH(2002)103 concerning the judgments of the European Court of Human Rights of 15 November 1996 and 31 March 1998 in the case of Tsomtsos and others 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 former Article 54 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 judgment of the European Court of Human Rights in the Tsomtsos and others case delivered on 15 November 1996 and transmitted the same day to the Committee of Ministers;

Recalling that the case originated in an application (No. 20680/92) against Greece, lodged with the European Commission of Human Rights on 3 August 1992 under former Article 25 of the Convention by Mr Nikolaos Tsomtsos and one hundred Greek nationals (see appendix 2) and that the Commission declared admissible the complaint concerning the impossibility for the applicants to obtain a compensation for the expropriation of their land because of an irrebuttable statutory presumption according to which they derived benefit from the construction of a road on their land;

Recalling that the case was brought before the Court by the Commission on 8 December 1995;

Whereas in its judgment of 15 November 1996 the Court unanimously:

- dismissed the Government’s preliminary objections ;

- held that there had been a violation of Article 1 of Protocol n° 1 of the Convention;

- held that the government of the respondent state was to pay the applicants, within three months, 4 000 000 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 that the question of the application of former Article 50 was not ready for decision as far as pecuniary damage is concerned;

Considering that in its judgment of 31 March 1998 concerning former Article 50, 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 former Article 50 of the Convention and, having regard to its terms and to the fact that no objection had been raised by the Delegate of the Commission, 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 former Article 50 of the Convention the final unit amounts of compensation for the expropriated properties as assessed by the Salonika Court of Appeal in its judgment No. 15/1991, increased by 80% to the extent that the applicants had not been indemnified for the properties;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention which are applicable by decision of the Committee of Ministers in cases transmitted under former Article 54 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 15 November 1996 and 31 March 1998, having regard to the obligation of Greece under Article 46, paragraph 1 (former Article 53) of the Convention to abide by it;

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 that found in the present judgment; this information appears in the appendix to this resolution;

Having satisfied itself that the government of the respondent state paid the applicants the sum provided for in the judgment of 15 November 1996 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 under Article 46 (former Article 54) of the Convention in this case.

Appendix to Resolution ResDH(2002)103

Information provided by the Government of Greece during the examination of the Tsomtsos and others 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).

Following the finding of a violation in this case, the judgment of the European Court of Human Rights was disseminated to the competent services of the Ministry of the Environment, Planning and Public Works and it was also sent to the President of the Supreme Court, in order to be disseminated to the civil courts of the State. It was also published (in Greek) in Nomiko Vima (46, p. 718) and Elliniki Dikaiosini (38/1997, p. 725), journals largely disseminated in legal circles.

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.

List of applicants

1. M. Nikolaos Tsomtsos, 2. M. Ioannis Velissaropoulos, 3. M. Asterios Katranis, 4. Ms Vasiliki Katrani, 5. Ms Athina Sanopoulou, 6. Ms Konstantina Kagka, 7. Ms Aikaterini Stylianidou, 8. M. Georgios Koutsos, 9. Ms Magdalini Georgiadou, 10. Ms Despina Gontsia, 11. M. Ioannis Tsekmes, 12. Ms Alexandra Marinou, 13. M. Christos Tsilas, 14. M. Dimitrios Karatsovalis, 15. Ms Fani Kotakou, 16. M. Konstantinos Kotakos, 17. Ms Angeliki Mike, 18. Ms Aikaterini Tsilopoulou, 19. M. Panagiotis Tsakilis, 20. Ms Fani Samaroudi, 21. M. Theodoros Zaralis, 22. Ms Efthimia Amerani, 23. M. Thomas Kanakoglou, 24. M. Polochronis Alpanis, 25. M. Stergios Thomaidis, 26. M. Dimitrios Kefalas, 27. M. Konstantinos Tsekouras, 28. Ms Vaya Giannakoudaki, 29. Ms Anastassia Milioni, 30. M. Panagiotis Moraitis, 31. M. Konstantinos Papadakis, 32. M. Theologos Zafiriou, 33. Ms Ioanna Koufou, 34. Ms Venetia Patsalaki, 35. Ms Fani Iliadou, 36. Ms Evdokia Samara, 37. M. Dimitrios Papadopoulos, 38. M. Ioannis Abatzoglou 39. Ms Maria Kazaki, 40. Ms Anastassia Polizou, 41. M. Vassileios Kazakis 42. Ms Vassiliki Tahtsidi, 43. M. Iraklis Hilis, 44. M. Sotirios Hilis, 45. Ms Diamanto Koboyianni, 46. Ms Maria Hatzi, 47. Ms Damaskini Panou, 48. Ms Chryssi Hatziloxandra, 49. Ms Olympia Mylonaki, 50. Ms Evgenia Tsimpinou, 51. Ms Alexandra Maristathi, 52. M. Dimitrios Fotiou, 53. M. Dimitrios Mikes, 54. Ms Thekla Konstantaridi, 55. Ms Eleni Gouli, 56. M. Haridimos Tsilopoulos,

57. Ms Maria Tigiri, 58. M. Dimitrios Parnavelis, 59. Ms Zoï Gavezou, 60. Ms Polymnia Parnaveli, 61. Ms Anna Parnaveli (agissant en son nom ainsi qu'au nom de ses deux filles mineures Varvara Parnaveli et Angela Parnaveli), 62. Ms Foteini Karagali, 63. Ms Aikaterini Pessou, 64. M. Vlassios Karagalis, 65. M. Grigorios Karagalis, 66. M. Dimitrios Mamoglou, 67. M. Konstantinos Psaras, 68. M. Petros Hatziyovanakis, 69. M. Ioannis Hatziyovanakis, 70. Ms Paraskevoula Gani, 71. Ms Sevasti Pananou, 72. M. Theodoros Giannelis, 73. M. Dimitrios Papailias (agissant au nom de ses trois filles mineures, Eleftheria Papailia, Theodora Papailia et Theopoula Papailia), 74. Ms Roda Mouraki, 75. Ms Elissavet Boziou, 76. Ms Evgenia Mouraki, 77. Ms Efrossini Vlahou, 78. Ms Zoï Kassapidi, 79. Ms Sofia Hyrmpou, 80. M. Diamantis Hyrmpos, 81. Ms Angeliki Milia, 82. Ms Maria Kliatsou, 83. M. Georgios Arampatzis, 84. Ms Evdokia Panayiotopoulou, 85. M. Christos Kraniotis, 86. M. Iossif Perdikopoulos, 87. M. Nissim Taramboulous, 88. Ms Sofia Orfanou, 89. M. Christodoulos Tsilopoulos, 90. M. Diamandis Tsakmakas, 91. M. Emmanouil Stoukos, 92. Ms Lemonia Liakou, 93. M. Nikolaos Kyvernitis, 94. M. Nikolaos A. Kyvernitis, 95. M. Evgenios Kyvernitis, 96. Ms Chryssoula Petroulia, 97. M. Athanassios Drakopoulos, 98. Ms Stiliani Triaridi, 99. Ms Chryssoula Barbayannidi, 100. Ms Dimitra Papadimitriou, 101. M. Dimitrios Fotiou