AS TO THE ADMISSIBILITY OF
Application no. 35859/02
by HOUSING ASSOCIATION OF WAR DISABLED AND VICTIMS OF WAR OF ATTICA and Others
The European Court of Human Rights (First Section), sitting on 27 January 2005 as a Chamber composed of:
Mr L. Loucaides, President,
Mr C.L. Rozakis,
Mrs F. Tulkens,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 25 September 2002,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
The first applicant, the Housing Association of War Disabled and Victims of War of Attica, is an association with legal personality under Greek law and is based in Athens. It is lodging the present application acting both on its own capacity and on behalf of 157 of its members, whose names have been submitted to the Court, on the basis of a decision taken by its general assembly on 8 September 2002. The applicants are represented before the Court by Mr N. Alivizatos and Mrs E. Kioussopoulou, both lawyers practising in Athens. The Government are represented by the delegates of their Agent, Mr V. Kyriazopoulos, Adviser at the State Legal Council and Mr D. Kalogiros, Legal Assistant at the State Legal Council.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. General background of the case
The first applicant was set up in 1951 by disabled Second World War veterans and relatives of soldiers who died in that war with the aim of providing housing to its members. It raised its capital by means of members' contributions. In 1957 it bought 50,000 sq. m. in the area of Aghios Ioannis in Cholargos. The Government claim that that land did not belong to the persons who sold it to the applicants but to the State. The applicants affirm that this argument is false.
In 1960 the land was requisitioned without compensation for the needs of the Greek Army. After an application by the association, the Supreme Administrative Court ruled that the requisition was null and void because it was serving permanent and not temporary needs (judgment no. 143/1963). In 1964, as a result of this judgment, the State bought and exchanged the unlawfully requisitioned land with 100,000 sq. m. of land owned by the National Defence Fund in the nearby area of Korakovouni. The area was public woodland outside the town plan and the understanding was that the association would be allowed to develop it after the State issued the appropriate changes to the local planning regulations. The first applicant paid one drachma per sq. m. to cover the difference in value between the old and the new land. The relevant decision approving the contract of sale and exchange was retroactively validated by virtue of Necessity Law no. 62/1967.
On 6 May 1966 a Royal Decree included the land in the revised town plan of Cholargos, following a proposal by the municipality of Cholargos and an affirmative opinion by the Supreme Administrative Court sitting in an administrative capacity with the power to give a non-binding advisory opinion.
In 1974 Legislative Decree no. 303/1974 declassified the land from being reafforestable (άρση αναδάσωσης). Further, the Minister of Agriculture issued a license for building roads and cutting down trees in order to implement the new town plan. In 1975 the applicant association started transferring plots of lands to its members and applied to the municipality of Cholargos for an altitude study, which was necessary under Greek law for the implementation of the town plan. The first building licenses were also issued.
In 1975 the new Constitution introduced new rules for the protection of the environment. In particular, it introduced a blanket prohibition to any development in forests (see below).
In 1976 the municipality of Cholargos rejected the association's application for an altitude study. Further, the Minister of Agriculture requested that the Minister of Public Works revoke the 1966 Royal Decree whereby the planning zone had been extended to the land owned by the first applicant, for the reason that it had been issued without the assent of the Ministry of Agriculture even though the area “was a forest”. In 1978 the Minister of Public Works replied that he would not revoke the decree because it had already been applied for twelve years and had been relied upon by third parties (decision no. Γ21046/3102/7.7.1978). He then issued a new decision approving the detailed zoning plan (ρυμοτομικό σχέδιο) and the altitude study. On an application by the municipality of Cholargos, the Supreme Administrative Court found both decisions illegal. It held in particular that under the 1975 Constitution the protection of the forest was more important than the expectations created by the fact that the land had already been in the process of being developed (judgment no. 2330/1980).
On 8 November 1980 the Minister of Planning, Housing and the Environment took a new decision which repeated in substance the annulled decision concerning the detailed zoning plan and the altitude study. The municipality of Cholargos again applied to the Supreme Administrative Court which quashed the new decision as well, considering that following its earlier ruling the administration had to revoke the zoning decree or give new reasons for not doing so (judgment no. 362/1982). A third party appeal (τριτανακοπή) by the first applicant was dismissed by the Supreme Administrative Court (judgment no. 2920/1985).
On 15 April 1988 a Presidential Decree abolished the 1966 Royal Decree insofar as it extended the town plan of Cholargos to the association's land. Members of the association brought their case unsuccessfully before the Supreme Administrative Court which on 26 April 1990 ruled that, even if the Necessity Law no. 62/1967 had ratified the inclusion of a forest to a zoning area, such law would have been considered abrogated by virtue of the 1975 Constitution (judgment no. 1403/1990).
From 1990 to 1999 the applicant undertook various initiatives aiming at a settlement of its dispute with the State but to no avail.
In 1999 the Forest Inspection of Penteli issued a decision declaring that the first applicant's land was a forest according to the Forests Code.
2. The Supreme Administrative Court's 2001 ruling
On 17 March 1999 the applicant association and three of its members (applicants nos. 8, 12 and 26) invited the State to exchange the association's land with new land of equal value belonging to the State, or to expropriate it, according to the provisions of Law no. 998/1979 (see below). The authorities did not reply. The case was then brought before the Supreme Administrative Court.
On 4 October 2001 the Supreme Administrative Court, by a majority, dismissed the application on the ground that the relevant provisions of Law no. 998/1979 were unconstitutional. However, one judge expressed the opinion that the expropriation or the exchange of land which was purchased before the entry into force of the 1975 Constitution was not contrary to it (judgment no. 3403/2001). The judgment was certified (θεώρηση) on 23 March 2002.
B. Relevant domestic law
1. The Constitution
Article 24 § 1
“The protection of the natural and cultural environment is an obligation of the State. The State is bound to take special preventive or repressive measures for the preservation of the environment. Matters pertaining to the protection of forests and woodlands in general shall be regulated by law. It is forbidden to alter the status and use of State forests and woodlands, except where agricultural development or other use is paramount for the national economy and serves the public interest.”
Article 117 § 4
“The expropriation of forests or woodland that belong to private individuals or corporations is allowed only for the benefit of the State, according to Article 17 of the Constitution [which provides the conditions for the taking of property], for the public interest; their status as forests or woodlands is not thereby changed.”
2. Law no. 998/1979 relating to the protection of forests and woodlands
Section 50 § 3
“Forests and private woodlands belonging to Housing Associations at the time of entry into force of this law and which cannot lawfully become a residential area or be included in such an area according to [§§ 1 and 2 of this Section], are expropriated by the State at the expense of the Central Fund of Agriculture and Forests, or are exchanged with land of equal value or other land not built which is under the management of the Ministry of Agriculture and has been included into a residential area according to current legislation. The expropriation takes place by a joint decision of the Ministers of Finance and Agriculture, on the basis of an opinion by the Technical Council of Forests...”
The applicants complain under Article 1 of Protocol no. 1 about an interference with their property rights.
The applicants complain that they have been deprived of their right to build on their land and use it for the purpose for which they had bought it. Their rights were unlawfully reversed without the payment of any compensation, since the State has not granted their request to exchange their land with new land of equal value or to expropriate it. Moreover, their funds diverted to their housing projects are now lost, since the value of land at this particular part of Athens, if one cannot secure planning permission for building purposes, is close to zero. The applicants affirm that the interference complained of did not take place by means of any law and did not respect the fair balance which must be struck between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. They rely on Article 1 of Protocol no. 1, which reads 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 in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
The Government argue that the application was lodged out of time. They consider that the six months period runs from judgment no. 1403/1990, by which the Supreme Administrative Court ruled that, even if the Necessity Law no. 62/1967 had ratified the inclusion of a forest to a zoning area, such law would have been considered abrogated by virtue of the 1975 Constitution. Since that judgment, the applicants had no hope that they could ever build on their land.
As to the merits, the Government argue that the application is ill-founded. They affirm that from the outset the applicants were aware that they could not build on the land in question, because that land had long before been qualified as “to be reforested”. In that respect, the Government stress that the protection of forests is guaranteed without limitation in time and notwithstanding illegal destruction or deforestation. Moreover, the designation of an area as an area to be reforested and the prohibition of any use that would prevent reforestation is not left to the discretion of the authorities but is mandatory and the Supreme Administrative Court has scrupulously enforced these principles in order to safeguard the country's forestry resources.
The applicants respond that the scope of their application to the Supreme Administrative Court, which resulted in the 1403/1990 judgment, had nothing to do with the scope of their application before the same court which was concluded with judgment no. 3403/2001. In 1990 they had unsuccessfully asked the reinstatement of the 1966 inclusion of their land in the town plan of Cholargos, whereas in 1999 they had invited the State to exchange their land with new land of equal value belonging to the State, or to expropriate it.
As to the merits, the applicants stress that at the time the land in question was transferred to them, forests and woodlands did not enjoy a legal status comparable with their constitutional status after the enactment of the 1975 Constitution. Thus, they had every reason to believe that they could build their homes on the land in question.
As regards the question of compliance with the six months time-limit the Court considers that the objection made by the Government raises issues which are closely linked to the merits of the applicants' complaints. It should therefore be joined to the merits of the application and reserved for later consideration.
The Court considers, in the light of the parties' submissions, that the application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court unanimously
Joins to the merits the objection raised by the Government as regards the question of compliance with the six months rule;
Declares the application admissible, without prejudging the merits of the case.
Søren Nielsen Loukis Loucaides
HOUSING ASSOCIATION OF WAR DISABLED AND VICTIMS OF WAR OF ATTICA AND OTHERS v. GREECE DECISION
HOUSING ASSOCIATION OF WAR DISABLED AND VICTIMS OF WAR OF ATTICA AND OTHERS v. GREECE DECISION