Published on 14 June 2021

FIRST SECTION

Application no. 13959/20 JEWISH COMMUNITY OF THESSALONIKI against Greece lodged on 28 February 2020 communicated on 25 May 2021

SUBJECT MATTER OF THE CASE

The application concerns the dismissal in 2019 of the applicant ’ s demand to be judicially recognised as the sole owner of a plot, on the ground that it was considered as “enemy property” after the end of World War II – although the property of the plot had been transferred to the applicant in 1934.

The applicant is a Greek legal entity of public law ( νομοθετικό π ρόσω πο δημοσίου δικ αίου ), having its seat in Thessaloniki. It was founded by royal decree in 1920, in accordance with Law No. 2456/1920 regulating the operation of Jewish Communities in Greece. In 1917, a fire devastated the city ’ s centre, where a substantial part of its Jewish community had been residing for centuries. On 26 December 1920, a land area of approximately 165,000 sq. metres, situated in the centre of Thessaloniki, was expropriated to the benefit of the applicant Community. The aim of the measure was to house the Jewish citizens of Thessaloniki, whose properties had been destroyed by the fire three years earlier. Plot 26 (whose surface was approximately 7,400 sq. meters), was included in the expropriated area. It belonged to Iakov Saoul Modiano, an Italian citizen of Jewish origin, who was a member of the applicant Community. Due to a long-lasting dispute with a neighbour, the provisional compensation owed for the expropriation, which had been fixed by the competent court, was not paid to the former owner until 1934. In that year, the applicant, in compliance with the law at the time in force, deposited the amount to the Deposit and Loans Fund ( Τα μείο Παρακατα θηκών και Δα νείων ) in the name of the former owner. At the same time, it published the relevant notice in Government Gazette.

On 10 November 1940, following Greece ’ s invasion by Italy, the Greek Government issued a law whereby all “enemy properties” were liable to be put under sequestration ( μεσεγγύηση ). Properties belonging to Italian citizens were deemed as such. In March 1943, the Jews of Greece were arrested and transferred to concentration camps in Central Europe. Out of the 60,000 Jews of Thessaloniki who were deported, less than 1,950 managed to survive and return home. In their great majority, they found their houses occupied by illegal tenants, their synagogues destroyed, and their cemeteries vandalised.

Iakov Saoul Modiano, who had left Greece with his family before the war, was arrested and executed in Italy in 1943. His children, though, managed to survive. After the war, three of them returned to Thessaloniki. However, they were suspected by the competent authorities for having allegedly cooperated with the enemy during the war years.

In 1947, a peace treaty was signed between Italy and the Allies which was ratified by Greece. According to the treaty, the Allied signatories were empowered to seize and liquidate enemy properties (Article 79). The Greek authorities appointed commissioners to handle enemy properties that were considered to have been under sequestration in accordance with the 1940 law; that was the case for plot 26. By way of two other laws, namely legislative decree 1138/1949 and necessity law 1530/1950, the Greek Government qualified once again as “enemy properties” the ones belonging to German and Bulgarian citizens or entities and ordered their seizure “with no further formalities” to the benefit of the Greek State. Initially, these laws did not include Italian properties. At the same time, the two laws provided for a deadline of three months, within which any third-party claiming property rights over the seized enemy properties were invited to object (Article 2 of law 1530/1950). In 1955, by way of a new royal decree, Italian properties were characterised as enemy properties in the sense of the 1949 and 1950 laws. The three-month time-limit to object was also provided in this case for third parties claiming property rights.

Being under the impression that the 1920 expropriation had been long before finalised (1934) and to the extent that the Greek State did not officially contest its property rights over plot 26 at that time, the applicant did not take any legal action aiming at the recognition of its property rights according to the 1955 law. In 1976, the Greek State went as far as asking from the courts to fix the final amount of compensation of 3/6 part of the compensation due for the 1920 expropriation. The Greek State alleged that, since three of the six Modiano heirs were Italian citizens, it was entitled to that amount.

At the end of the 1970s, the Greek State started raising various claims in relation to plot 26. Until then the applicant had been exercising full property rights over the plot, including sales, leasing and constructing. In order to reconfirm its property rights, it then initiated a declaratory action ( ανα γνωριστική α γωγή ) against the State, aiming to define recognition of its property rights. In particular, the applicant referred to the 1920 expropriation, which, as far as plot 26 was concerned, was finalised in 1934, with the deposit of the provisional compensation. At any event, it claimed acquisition by way of usucapio , since it was using the property without interruption for more than 30 years (from 1920 to 1955).

The case was heard before the First Instance Court of Thessaloniki on 9 June 1983. By judgment no. 33723/1999 of 28 December 1999, the First Instance Court considered that the Jewish Community had acquired property rights by way of usucapio . On 25 July 2005, the Court of Appeal of Thessaloniki confirmed the First Instance Court judgment; it reduced though the surface of the disputed land to 4,588 sq. meters (judgment no. 2276/2005). On 5 March 2008 the Court of Cassation reversed the appeal judgment on the grounds that the 30-year usucapio period had been interrupted in 1947, with the appointment by the Greek State of the commissioners. Therefore, in order to secure its property rights, the applicant ought to have requested their recognition during the three-month time-limit provided for by the laws of 1950 and 1955 (judgment no. 458/2008).

On 28 April 2016 the Court of Appeal of Thessaloniki, to which the case was returned by the Court of Cassation, confirmed the latter ’ s judgment and rejected the applicant ’ s 1981 initial declaratory action, on the grounds that the applicant had not claimed in time its property rights, that is within the three-month time-limit provided for by the 1955 law (judgment no. 658/2016).

On 31 October 2016 the applicant appealed on points of law to the Court of Cassation.

On 7 March 2018 the Court of Cassation held that, since the 1920 expropriation had been finalised in 1934 (with the deposit of the provisional compensation in the name of the former owner and with the publication of the official notice thereof), the property of plot 26 had indeed been transferred to the applicant at that time; therefore, since plot 26 belonged to the applicant, that is a Greek legal entity, it could not be put under sequestration in 1940. Nevertheless, under Article 580 § 3 of the Code of Civil Procedure, the Court of Cassation held that the same Section of the Court of Cassation should hear the applicant ’ s 1981 initial declaratory action on the merits and render a final judgment on the substance (judgment no. 486/2018).

On 3 September 2019 the Court of Cassation rejected the applicant ’ s action. Although it held that the property of plot 26 had been transferred to the applicant in 1934, as upheld by judgment no. 486/2018, and that, consequently, plot 26 could not have been considered as enemy property in 1940 and put thereafter under sequestration, it considered that the applicant, in order to guarantee its property rights, ought to have submitted in 1955 the declaratory action provided for by the 1955 law, within the three-month period starting from that law ’ s entry into force (judgment no. 11025/2019 made accessible to the parties on 22 November 2019).

In its application, the applicant alleged that there has been a breach of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.

QUESTIONS TO THE PARTIES

1. By considering the applicant as the owner of plot 26 since 1934 and at the same time by holding that the plot constituted “enemy property” in respect of which the applicant should have complied with the three-month time-limit provided for in Law 1530/1950 and in the royal decree of 1955, could judgment no. 11025/19 of the Court of Cassation be considered as manifestly unreasonable and constitutive of unfairness incompatible with Article 6 § 1 of the Convention (see Buchan v. Ukraine (no. 2) [GC], no. 22251/08, § 61, 5 February 2015)?

2. Has there been a violation of Article 1 of Protocol No. 1 having regard to the fact that, in its judgment no. 11025/19, the Court of Cassation considered that plot 26 constituted “enemy property” and as such fell under the 1955 law, although in its previous judgment no. 486/18, the Court of Cassation admitted that the said plot had been transferred to the applicant in 1934, and reiterated this finding in judgment no. 11025/19?