Jean PAPAMICHALOPOULOS and others v/GREECE
Jean PAPAMICHALOPOULOS et autres c/GRECE
DECISION of 5 March 1991 on the admissibility of the application
DECISION du 5 mars 1991 sur la recevabilité de la requête
Article 26 of the Convent/on Special circumstances which absolve the applicant from
the obligation lo exhaust domestic remedies lengthy proceedings which cannot be
based on adequate statutory provisions continuing prejudicial situation
Article I, paragraph I of the First Protocol Continuous occupation of the applicants land b\ the Navy for over twenty years yiiihout compensation (Application
declared admissible)
Article 26 de la Convention Circonstances spéciales relevant un requérant de
I obligation da\oir épuise les voies de recours internes procedure longue ne pouvant
se fonder sur des dispositions légales adéquates situation continue préjudiciable
Article 1, paragraphe I, du Protocole additionnel Occupation continue du terrain
des requérants par larmée depuis plus de vingt ans sans compensation {Requête
déclarée recevable)
(English see p 266}
résumer comme suit
261les principes du droit international généralement reconnus de l'obligation
d épuiser les voies de recours internes (cf No 6699/74 dec 15 12 77 D R 11
p 16) Vu les circonstances particulières susmentionnée^ la Commission estime
qu en l espèce on ne saurait exiger que les requérants aitendent plus longtemps
l issue des procedures qu ils ont entamées
и s'ensuit que l'exception de non épuisement des \oies de recours internes
soule\ee par le Gou\ernement ne peut être retenue
Quant au bien-fonde du grief le Gouvernement soutient que les questions
soulevées par l occupation des terrains des requérants devaient être tranchées
dans le cadre des procedures judiciaires nationales Ces procedures n ont pris fin
qu en 198S et, des lors, ce n est qu a ce moment que l'adminisiralion a ete chargée
de prendre les mesures nécessaires pour régler le problème de l'occupation des
terrains Or, le temps qui s est écoule depuis l'arrêt de la Cour de cassation du 8
janvier 1988 ne peut aucunement être considère comme excessif compte tenu de
la complexité de la situation Aucune atteinte au droit des requérants au respect
de leurs biens ne peut être decetee en 1 espete
Les requérants soutiennent que 1 Etat grec s'est engage dans des procedures
dilatoires dans le seul but de retarder la solution du problème soulevé par
I ot-cupation de leurs terrains Ils soulignent le fait qu ils sont en fait prives de
leurs biens depuis plus de vingt ans sans une contrepartie quelconque
La Commission a procède a un examen préliminaire de la requête a la
lumière des arguments des parties Elle estime que celle ci soulevé des problèmes
complexes de droit et de fait qui nécessitent un examen au fond et ne peut, des
lors, être considérée comme manifestement mal fondée La Commission constate
en outre que la requête ne se heurte a aucun autre motif d'irrecevabilité
Par ces motifs, la Commission, a l unanimité
DECLARI LA REQUÊTE RECEVABLE, tous movens de fond reserves
iTRANSLATIONj
follows
266The fourteen applicants are Greek nationals [ ] They are represented before
the Commission by Mr Georges Vitalis, a lawyer practising in Athens
On 22 August 1967 under Act (Anagastikos nomos) No 109/1967 the Greek
State assigned to the Navy Fund (Tameio Ethnikou Stolou) a vast area near the
resort of Aghia Marina, which was regarded as a state forest However, it turned
out that part of the assigned area comprised agricultural land belonging to the
applicants or their predecessors in title (hereinafter referred to as the applicants)
The latter applied to the public prosecutor attached to the court of first instance,
the competent judicial authority for interim injunctions with a view to recovering
the land belonging to them occupied by the Navy Fund These applications were
successful, three injunctions being issued on 30 July 1968 In addition, on 12 April
1969, the Ministry of Agriculture informed the Navy Fund that part of the land
which had been assigned to it was agricultural land belonging to private
individuals which could not be assigned
However, no restitution took place and work started on the land m question
with a view to the construction of a naval base and a holidav village for naval
officers
After the fall ot the colonels ', Mr Pierre Papamichalopoulos, the father ot
the applicants Jean and Pantelis Papamichalopoulos, brought an action before the
Athens Court of First Instance (Polymeles Protodikeio Athinon) for the recovery
of three plots of land with a total area of 2 500 m2 In a judgment dated 28
February 1976 the court granted this claim and ordered the restitution of the land
at issue This judgment was upheld by a judgment of the Athens Court of Appeal
(Efeleio) dated 31 December 1976 The Navy Fund s appeal on points of law was
dismissed by the Court of Cassation (Areios Pagos) in judgment No 775/1978 of
M June 1978
On 17 July 1978, acting on the instructions of Mr Pierre Papamichalopoulos,
a bailiff served the above mentioned judgments on the Navy Fund with a view to
their enforcement On 28 September 1978 Mr Pierre Papamichalopoulos went to
the naval base, accompanied by a bailiff, seeking enforcement of the decisions
However, the commanding officer prevented the bailiff from entenng the base
Mr Pierre Papamichalopoulos complained unsuccessfully to the principal public
prosecutor attached to the Court of Cassation about the impossibility of securing
execution of the judgments in his Га\оиг
On 22 July 1980 the applicants were informed by the Minister of Defence
that restitution was impossible, but that proceedings had been set in motion with a
view to allocating other plots of land to the applicants in exchange for those
267occupied by the Navy Fund On 16 October 1980 the Minister of Agriculture
proposed that the Prefecture of Attica should assign to the applicants local land
of a similar value to that occupied by the Navy Fund The Minister pointed out
that although the judgments handed down related only to some of the persons
dispossessed in 1967, future or pending actions brought by the other interested
parties were bound to lead to recognition of the lalter's rights of ownership A
committee of experts was set up by the Ministry of Agriculture to designate the
land to be assigned to the applicants The committee reported its findings on 3
February 1982
However the transfer of land did not take place
Act (nomos) No 1341 1983 explicitly made provision for the owners of the
land occupied by the Navy Fund to request land in exchange for their own in
accordance with the procedure laid down in Article 263 of the Agricultural Code
(Agrotikos kodix) Nevertheless a procedure for \erifying the applicants' title had
to be followed
In accordance with the above mentioned Act. the applicants submitted their
case to the Expropriation Board (Epitropi Apallotrioseon), which recognised their
rights of ownership in a decision dated 19 September 1983
On 8 December 1983 the Navv Fund appealed against the above decision to
the Athens Court of First Instance The Greek State joined m these proceedings
on 25 January 1984
In a judgment dated 31 May 1984 the court dismissed the appeal
On 29 December 1986 the Athens Court ol Appeal upheld the judgment
given by the Athens Court of First Instance on 31 May 1984
In a judgment dated 8 January 1988 the Court of Cassation dismissed the
appeal on points of law lodged against the judgment of the Court of Appeal by
the Greek State In a judgment dated 24 June 1988 it also dismissed the appeal
lodged by the Navy Fund
In concurrent proceedings instituted in 1979 the applicants had brought an
action for damages against the Navy Fund and the Greek State before the Athens
Court of First Instance In two judgments dated 21 June 1985 the court adjourned
these cases on the ground that the question whether the applicants were the
owners of the occupied land was at issue in other proceedings in progress
268In the meantime the Minister of Agriculture had informed the applicants that
the exchange of land proposed by the committee of experts in 1982 was no longer
possible and that there was no land available m Attica for such an exchange In
November 1987 the assignment of land situated m the department of Pieria, 450
kilometres away from the occupied land, was proposed In the desire to settle the
dispute the applicants accepted in pnnciple and asked for a valuation of the land
being offered to be conducted by the Prefecture of Pieria However, no adminis
trative measures were taken
The applicants wrote to the competent Ministers on a number of occasions
In November 1988 the Ministers of Defence and Agriculture informed parliament
that the competent departments of their Ministries were looking into the possibility of assigning land in Pieria to the applicants
The applicants consider that they have been arbitrarily deprived of their
possessions They point out that numerous judicial and administrative decisions
have recognised their propnetary rights and the illegality of the occupation of
their land by the Navy Fund, but that to date they have been unable either to
dispose of their property or to obtain compensation in accordance with the law
The applicants rely on Article I of Protocol No 1 to the Convention
The applicants complain that since the occupation of their land by the Navy
Fund m 1967 they have been unable either to dispose of their property or to
obtain compensation m accordance with the law They rely on Article 1 of
Protocol No 1 to the Convention, which provides as follows
"Every natural or legal person is entitled to the peaceful enjoyment of his
possessions No one shall be deprived of his possessions except in the public
interest and subject to the conditions provided for by law and by the general
principles of international law
The preceding provisions shall not, however, in any way impair the right of a
State to enforce such laws as it deems necessary to control the use of
property m accordance with the general interest or to secure the payment of
taxes or other contributions or penalties '
269The respondent Government maintain that the applicants have not exhausted
domestic remedies according to the generally recognised rules of international
law in that connection they observe that the applicants have brought actions for
damages against the Navy Fund and the Greek State seeking compensation for
the prejudice they have suffered as a result of the occupation of their land and
that these actions are still pending before the domestic courts The applicants
admit that such actions are pending but observe that their purpose is different
from that of the present application They maintain that the objection raised by
the Government on the ground of non-exhaustion of domestic remedies must be
rejected
The Commission obser\'es that in order to satisfy the exhaustion of domestic
remedies condition the applicants must use effective remedies available to them
under domestic law It notes that the actions for damages brought by the applicants are intended to secure compensation for the prejudice they allege they have
suffered as a result of the unlawful occupation of their land Consequently, were
the applicants to win these cases, that outcome i.ould to a certain extent remedy
the situation resulting from the occupation, but it nevertheless depends on the
administrative procedure concerning the exLhange of other properties for ihe
occupied land In this connection the Commission notes that the proceedings
relating to the actions for damages had to be suspended throughout the procedure
for the verification of the applicants' title In addition, it will not be possible to
determine the extent of the damage caused by the occupation until after the
proposed land exchange, when by means of a fiction the occupation will be
deemed to have ceased
The Commission observes that since 1974 the applicants have come up
against a whole series of obstacles , first the impossibility of securing enforcement
of the decisions ordering restitution of their land, then the lack of appropriate
legal provisions for the exchange of land, a five-year procedure for the verifi
cation of their title and finally a further procedure for the exchange of land,
which is still in progress The proceedings in the actions for damages have been
pending at first instance since 1979 in the case of some applicants and since 1984
in other cases Moreover, there is no doubt that the ongoing occupation of their
land is prejudicial to the applicants
The Commission reiterates that, according to the generally recognised rules
of international law, where there are protracted domestic proceedings together
with a continuing prejudicial situation an individual is absolved from the
obligation to exhaust domestic remedies (cf No 6699/74, Dec 15 12 77, D R 11
p 16) Having regard to the particular circumstances mentioned above, the
any longer for the outcome of the proceedings they instituted
270It follows that the objection relating to the failure to exhaust domestic
remedies raised by the Government cannot be accepted
With regard to the merits of the complaint, the Government maintain that
the questions raised by the occupation of the applicants' land should be answered
in the context of the domestic judicial proceedings. These proceedings did not
close until 1988 and it was thus only then that the authorities were called upon to
take the necessary steps to resolve the problem of the occupation of the applicants' land. The period of time since the Court of Cassation's judgment of 8
January 1988 can by no means be regarded as excessively long, in the light of the
complexity of the situation. No infringement of the applicants' right to the
peaceful enjoyment of their possessions can be discerned in this case.
The applicants maintain that the Greek State has chosen to follow
time-wasting procedures with the sole intention of putting off a solution of the
problem caused by the occupation of their land. They assert that in practice they
have been deprived of their property for more than twenty years without receiving
any consideration whatsoever.
The Commission has conducted a preliminary examination of the application in the light of the parties' submissions. It considers that it raises complex
factual and legal issues which require an examination of the merits and can
accordingly not be held to be manifestly ill-founded. The Commission further
notes that the application is not inadmissible on any other grounds.
For these reasons, unanimously, the Commission
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the
merits of the case.
271
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