PARTLY CONCURRING AND PARTLY DISSENTING OPINION OF JUDGE TULKENS

( Translation )

I agree with Mr Gaukur Jörundsson both that there has been a breach of Article 6 § 1 (see point 2 of his opinion) and that it was unnecessary for the Court to consider whether the amount of compensation awarded by the Greek courts was reasonable (see point 1 of his opinion). However, that latter issue was put to the vote and, like the majority, I voted in favour of finding no violation.

Partly concurring and partly dissenting opinion of Judge Zupančič

On the question of unreasonable delay in this case I concur entirely with Judge Gaukur Jörundsson’s dissenting opinion. I would add the following remarks.

Determining whether there was unreasonable delay in this case is not, in my opinion, simply a question of counting the months and years when formal proceedings were under way. It concerns the central issue of deciding when litigation in a case such as this, in fact, commences. This is because Article 6 § 1 of the Convention cannot have been intended to operate to speed up only civil and criminal proceedings that have already been instituted. Justice delayed is also justice denied, but this may not be simply a question of formal procedure.

The meaning of the above adage is different in purely private litigation where the State provides a conflict-resolution service in lieu of self help, i.e., to supplant the use of force by the parties. The unacceptability of delay in private litigation is a logical consequence of the fact that the first act of the Hobbesian State is to prevent recourse to arms, as it leads, in the final analysis, to bellum omnium contra omnes , i.e., anarchy. It is, therefore, logical that the calculation of delay in such cases should depend on the timing of the initial step of the request of the injured party, the plaintiff, for the State’s protection: volenti non fit injuria . He who is not willing to fight for his interests in court should suffer the consequences of his or her inactivity.

Yet the matter here differs from the paradigmatic private litigation case.

First, the dispute here is between the State and the individual, not between two private individuals. The issue of delay in this case is somewhat akin to the issue of unreasonable delay in criminal cases. In criminal matters the litigation is between the State and the individual. Of course, in criminal trials the stakes (liberty) are much higher and closer to the central human rights’ concern. On the other hand, the establishment of the high probability deriving from probable cause in criminal matters does create an assumption that the initial cause of the (criminal) trial is to be found in the defendant’s actions, not in the act of the State accusing him of having committed an offence. But if the State were to put the defendant in pre-trial detention and keep him imprisoned for two and a half years, without, for example, commencing the criminal process, we would most certainly count the delay from the date of the actual loss of liberty.

In the present case the applicants’ problem was clearly caused by the decision of the executive branch of the State to expropriate. Had it not been for this executive branch’s (administrative) decision the issue of proper compensation would never have arisen in the first place. It is only proper, in my opinion, in a situation in which the executive branch of the State acto jure imperii itself causes the situation in which private interests are harmed to arise, for the two branches of that State (the executive branch in an administrative process, the judicial in civil proceedings), to speedily resolve the private dispute the State itself created.

Once the legitimate right (to property) has been interfered with, the conflict of interests is clearly established. As to when that conflict arose, there can be no doubt in this case. In my opinion, only periods of deliberate inactivity on the part of the injured party, clearly indicating a lack of interest in the matter, should be ignored in assessing whether there has been unreasonable delay.

Thus the question arises whether in the initial phase of this expropriation the applicants did in fact fail to protest. The question, in other words, is, what could the applicants in fact have done once the decision to expropriate had been published. If their action was limited only to a constitutional challenge of the administrative act itself (the decision to expropriate if it was a concrete, not an abstract act), then the question is: should they have made such a challenge? However, since this would not have been an ordinary private dispute, I do not think we ought to maintain, for example, that they should have challenged the constitutionality of the decision only in order to prove that they had an interest in receiving proper compensation for the loss of their right to peaceful enjoyment of their property. Clearly, their chances of success in such administrative proceedings would have been very small.

Apart from that, it would not be logical to require them to object to expropriation as such. As good citizens they are entitled to agree to the prevalence of the public interest in the expropriation of their real estate. They should not be legally forced to object to expropriation as such – it may not even have been an issue for them – when their specific interest may only have been to obtain fair compensation for the damage incurred without delay.

This seems to imply that the applicants were legally compelled to await for their civil-damages claim to be processed in court – as an integral part of a total of approximately 180 cases – and properly adjudicated. If the argument here is that this was a complex legal and factual issue authorising the court to take a long time to decide it, then the answer is clearly that, since the initiative and the timing were all in the State’s hands, it could have prepared in advance for such an eventuality. The implications for the calculations of time are, I think, clear.

The question of the irrebuttable presumption has been addressed in this and other cases and I agree that it is difficult to accept such an “inflexible approach” to the determination of damage in expropriation cases. However, it would perhaps be useful to explore the real procedural effect of such a praesumptio juris et de jure . The effect of irrebuttable presumptions is very similar to the effect of fictions. There were numerous jurisprudential debates – with contributions by writers such as Jeremy Bentham, as common law used to be full of all kinds of fictions and presumptions – as to the real effect of presumptions and fictions upon a particular legal subject matter. But the clear effect of an irrebuttable presumption, such as the Greek presumption of counterbalancing benefit, is simply to block litigation over the issue the presumption addresses.

The aggrieved party affected by the irrebuttable presumption is procedurally prevented from having a normal burden of proof since evidence affecting the damage caused by certain aspects of expropriation is, by virtue of this presumption, deemed inadmissible. The applicants were even precluded from showing that the effect of the abstract presumption was fictitious in concreto , i.e., wholly in conflict with the actual reality. This is only logical, since the intent of irrebuttable presumptions is in effect to prevent litigation over (particularly sensitive) issues.

The question then arises whether an irrebuttable presumption, in a situation in which it would not be possible to show that it is a proportionate means to a legitimate aim, in fact represents a denial of access to a court on the issue covered by the presumption. Given that the majority finds the irrebuttable presumption here unacceptable anyway, I do not have to discuss the question of proportionality, etc. The issue for me is simply what should be the effect of the clear unacceptability of the irrebuttable presumption, in this and other cases.

If the irrebuttable presumption was a procedural violation of the right to access to a court (on that particular substantive issue), it would seem that it is the fault of the State Party that the question of damages was not and could not be litigated. If the case comes before the European Court of Human Rights without the amount of damage being clearly established, we are then faced with a situation in which the applicant’s claim to a particular amount of compensation should by then have been specifically refuted by the State Party. By that stage at the latest the refutation by the State Party ought to have been fully detailed and persuasive since it was the State’s own legislature which precluded litigation over that issue before the State Party’s courts.

As regards the amount of damages, both the evidential burden and the risk of non-persuasion before the European Court of Human Rights should have been borne by the State, failing which the damage ought to be awarded in accordance with the applicants’ claim. I am not convinced that that should be so in every case, i.e., I am not suggesting that this be adopted as a clear rule of evidence. But in this particular case it cannot be said that the damage resulting from the application of the objectionable presumption amounts only to the equivalent of the value determined by application of the presumption of offsetting benefit (1,500 sq. m), because the issue could not have been tried before the case came here in the first place. The reversal of the burden of proof and the risk of non-persuasion, at least in this particular situation, would seem to me to be the only logical answer to the fact that litigation over this aspect of the case was precluded in the Greek courts.

joint Partly concurring and partly dissenting opinion of judges THOMASSEN and pan ŢÎRU

We agree with the majority that there has been a violation of Article 1 of Protocol No. 1.

However, unlike the majority, we find that there has also been a breach of Article 6 § 1 of the Convention for the reasons set out in point 2 of the separate opinion of Mr Gaukur Jörundsson.

[1] Notes by the Registry

-2. Protocol No. 11 and the Rules of Court came into force on 1 November 1998.

[3] 3. Since the entry into force of Protocol No. 11, which amended Article 19, the Court has functioned on a permanent basis.

[2] . Note by the Registry. Rules of Court A applied to all cases referred to the Court before the entry into force of Protocol No. 9 (1 October 1994) and from then until 31 October 1998 only to cases concerning States not bound by that Protocol.

[3] . Note by the Registry . For practical reasons this annex will appear only with the final printed version of the judgment (in the official reports of selected judgments and decisions of the Court), but a copy of the Commission’s report is obtainable from the Registry.