Information Note on the Court’s case-law 208

June 2017

Kosmas and Others v. Greece - 20086/13

Judgment 29.6.2017 [Section I]

Article 1 of Protocol No. 1

Article 1 para. 1 of Protocol No. 1

Peaceful enjoyment of possessions

Insufficient account taken of applicant’s situation in settlement of dispute over land acquired by monastery through adverse possession: violation

Facts – The monasteries of Mount Athos are pub lic-law entities which enjoy special status. Under the law, their property cannot be acquired through adverse possession except where continuous possession for more than thirty years prior to 1915 can be demonstrated.

In 2004 a monastery claimed ownership before the courts of a plot of land being used by the first applicant (“the applicant”). The monastery relied on a deed of purchase dated 1824 and, in the alternative, on continuous possession from 1882 to 1915. The applicant objected, citing a series of t ransfer deeds going back to 1883 and various steps concerning possession taken since 1974. He also alleged that the action constituted an abuse of rights.

The courts held that the monastery was the owner, at least by virtue of adverse possession of the pro perty since 1912, as the applicant had not proved continuous possession by his predecessors over the same period. Accordingly, the courts found that the subsequent steps invoked by the applicant could not be relied on, in view of the fact that monastic pro perty could not be acquired through adverse possession. The complaint of abuse of rights was also dismissed.

Law – Article 1 of Protocol No. 1

(a) Existence of a “possession” and the applicable rule – The title or possession of the applicant or his predec essors had never been contested (the applicant had even been granted administrative authorisation to run a restaurant and construct a building).

The fact that this situation had been tolerated over a lengthy period indicated that the authorities and the monastery had recognised de facto that the applicant and his predecessors had a proprietary interest in the land, consisting in possession as recog nised and protected by domestic law, and that they had never done anything to suggest that the situation would change.

In sum, the applicant’s proprietary interest was sufficiently established and weighty to amount to a “possession” within the meaning of t he first sentence of Article 1 of Protocol No. 1; that Article was therefore applicable.

(b) Interference and proportionality – The eviction of the applicant following the Court of Cassation’s judgment had been provided for by law and had pursued a legiti mate aim (to protect the monasteries’ immovable property from encroachment by third parties).

Nevertheless, the following reasons led the Court to find that the applicant had had to bear an individual and excessive burden which was not justified by any leg itimate interest.

The applicant, believing that he owned the land lawfully and in good faith on the basis of title deeds dating back to 1883, had set up and operated a business there with his family.

The courts had taken no account of those title deeds, of the fact that various operating and building permits had been issued to the applicant as if he were the owner of the land, or of the fact that he had been paying property tax.

It was true that the ad ministrative authorities could not have known at the time that the monastery would successfully claim ownership of the property in 2004.

Nevertheless, the administrative legal acts drawn up by the State authorities could only have reinforced the beneficiar ies’ belief that the system of acquisition and transfer of property was stable and reliable and that they were in legitimate possession of the property in question.

In any event, the applicant had also argued that the action brought by the monastery consti tuted an abuse of rights. Had that argument been upheld, he would at least have been able to retain “possession” of the land. However, it had been rejected on the ground that the costs incurred in using the land for commercial purposes had been offset by t he profits made and the fact that no rent was paid to the monastery.

Accordingly, the courts had not taken into account the loss, without any compensation, of the tools of the applicant’s trade, which had constituted his and his family’s livelihood since 1986.

Conclusion : violation with regard to the first applicant (five votes to two).

Article 41: EUR 75,000 to the first applicant in respect of pecuniary and non-pecuniary damage.

© Council of Europe/European Court of Human Rights This summary by the Regi stry does not bind the Court.

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