PARTLY CONCURRING AND PARTLY DISSENTING OPINION OF JUDGE PALM

I agree with the majority that there was a violation of Article 1 of Protocol No. 1 in this case as a result of the application of the irrebuttable presumption created by section 1(3) of Law no. 653/1977. I join Judge Gaukur Jörundsson’s opinion that this breach of Article 1 is fundamental and leads to uncertainty as to whether the compensation granted to the applicants is compatible with Article 1. I find, therefore, that it is neither necessary nor correct for the Court to decide also the question whether the amount of compensation awarded to the applicants amounts to a violation of the same Article.

PARTLY CONCURRING AND PARTLY DISSENTING OPINION OF JUDGE GAUKUR JÖRUNDSSON

1. I agree with the majority that the violation of Article 1 of Protocol No. 1 in this case consists in the inflexibility of the system applied in fixing the compensation to be awarded to the applicants (see paragraphs 51-54 of the judgment). This breach of Article 1 is fundamental and leads to uncertainty as to whether the compensation granted to the applicants is compatible with Article 1. Having found a violation of Article 1 on the ground referred to above it is not, in my opinion, necessary to deal with the question whether the amount of compensation was in reality satisfactory.

2. For the following reasons I have found that there has also been a violation of Article 6 § 1 of the Convention in the present case.

The parties disagree as to the length of the proceedings to be considered under Article 6 § 1. In their memorial before the Court, the applicants argue that the proceedings “began with the declaration on 30 March 1970 that expropriation was in the public interest and lasted until the judgment of the Court of Cassation”. The Government are of the view that for the purposes of Article 6 § 1 the period to be considered started early in 1992, when the applicants lodged their application to the Court of Appeal for the determination of the final unit amount for compensation, and ended on 20 June 1995, when the Court of Cassation delivered its judgment. The Commission expressed the opinion (see paragraph 32 of the Commission’s report) that the proceedings had started on 9 January 1989 and ended “at the earliest” on 20 June 1995.

In civil proceedings the “reasonable time” referred to in Article 6 § 1 normally begins to run from the moment the action was instituted before the “tribunal”. It is conceivable, however, that in certain circumstances time may begin to run earlier (see the Erkner and Hofauer v. Austria judgment of 23 April 1987, Series A no. 117, p. 61, § 64). If, prior to the judicial proceedings, another action, for instance an administrative appeal (see the König v. Germany judgment of 28 June 1978, Series A no. 27, pp. 33-34, § 98, and application no. 7987/77, Commission decision of 8 March 1982 Decisions and Reports 32, p. 94) or a request for a formal confirmation (see the Schouten and Meldrum v. the Netherlands judgment of 9 December 1994, Series A no. 304, p. 25, § 62), has to be brought, the starting-point shifts to the commencement of that action. The submission of a preliminary claim for compensation to the administrative authority concerned, as required under national law, has been considered to constitute the starting-point of the relevant period under Article 6 § 1 (see the Vallée v. France judgment of 26 April 1994, Series A no. 289-A, p. 17, § 33). The Court has, furthermore,

assessed the reasonableness of the duration of preliminary negotiation proceedings, which were expressly recognised by law, prior to formal expropriation proceedings before a court (see the Phocas v. France judgment of 23 April 1996, Reports of Judgments and Decisions 1996-II, p. 546, § 69).

By a decision of 9 January 1989 the Greek State expropriated some of the applicants’ land in order to build a new major road. On 5 June 1991 the Greek State brought an action for the assessment of compensation and these proceedings ended with the judgment of the Court of Cassation of 20 June 1995, a copy of which the applicants obtained on 9 October 1995. These proceedings were governed by the provisions of Article 17 of the Greek Constitution, which lays down basic principles concerning the expropriation and protection of property (see paragraph 17 of the judgment), by Legislative Decree no. 797/1971 which regulates the different phases of the expropriation proceedings and, in the applicants’ case, by Law no. 653/1977 (see paragraphs 18-25 of the judgment).

Although expropriation proceedings are divided into different stages under Greek law, the different phases are interlinked. Thus a valid decision to expropriate inevitably precedes the determination of compensation. Furthermore, specified compensation must be determined and paid within certain time-limits, otherwise the expropriation will automatically lapse.

The fixing of the compensation to which an expropriation gives rise is a matter which concerns the civil rights and obligations of the expropriated party. Article 6 § 1 is accordingly applicable to the court proceedings in which the amount of this compensation is determined, and imposes, inter alia , an obligation on the part of the competent authorities to determine the compensation in question within a “reasonable time”.

The proceedings with which the Court is here concerned in the first place are the court proceedings taken by the Greek State for determination of the compensation due to the applicants. It is, however, relevant in determining whether the length of the proceedings was reasonable to note that they could only be taken after the administrative procedure, which concerned the decision to expropriate. Both the administrative procedure and the court proceedings, which by their very nature were compulsory, involved, in their entirety, a determination of the applicants’ civil rights. When the decision to expropriate had been taken the applicants’ property rights had been interfered with and made uncertain, as the applicants were in fact prevented from using their land and disposing of it. That uncertainty lasted until the compensation had been determined and paid. Only when both the administrative procedure and the court proceedings had been brought to an end could the applicants’ property rights be said to have been determined within the meaning of Article 6 § 1. Accordingly, and since both the administrative procedure and the court proceedings concerned the same civil rights, the concept of “reasonable time” must be applied at both levels. The period to be considered under Article 6 § 1 started, therefore, on 9 January 1989, when the decision to expropriate was taken, since the facts of the case, as presented to the Court by the parties, do not warrant any earlier date. It ended on 9 October 1995, when the applicants obtained a copy of the decision of the Court of Cassation. The proceedings lasted, accordingly, six years and ten months.

The reasonableness of the length of the proceedings must be assessed in the light of the particular circumstances of the case and with the aid of the following criteria: the complexity of the case and the conduct of the parties and the authorities hearing it.

I find that the proceedings in question were not particularly complex, bearing in mind the rigid system applied in fixing the compensation to be paid to the applicants.

The Government have in their memorial before the Court criticised in the first place what they call the applicants’ failure to apply to the Athens Court of First Instance before 5 June 1991, for the determination of provisional compensation. It is clear that under Greek law this possibility was open to the applicants. Nevertheless, the applicants cannot be blamed for having failed to avail themselves of it. The speedy payment of fair compensation was a clear condition for the lawfulness of the expropriation under Greek law and its conformity with Article 1 of Protocol No. 1. It was, therefore, the duty of the State to take the initiative in having the compensation question decided and to take appropriate action in that regard.

The Government secondly criticise the applicants in their memorial before the Court for not producing a copy of their appeal to the Court of Cassation before 15 June 1994, which was approximately six months after their appeal. I accept that the Court of Cassation cannot be blamed for any inactivity during this period.

As to the conduct of the authorities concerned, it is, however, important to note that there was a delay of about two and a half years between the decision to expropriate and the commencement of the State’s action to have the compensation determined. The Government have not given any convincing explanation which can justify this delay.

Regard being had to the circumstances of the case and the relevant criteria under Article 6 § 1, the period of six years and ten months must be deemed to have been excessive and accordingly to constitute a violation of Article 6 § 1.