SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 37095/97

by Michael PIALOPOULOS, Aristophanes ALEXIOU, Nikolaos GEORGAKOPOULOS and Aristea PIALOPOULOS

against Greece

The European Court of Human Rights (Second Section) sitting on 15 June 1999 as a Chamber composed of

Mr M. Fischbach, President,

Mr C. Rozakis,

Mr G. Bonello,

Mrs V. Strážnická,

Mr P. Lorenzen,

Mr A.B. Baka,

Mr E. Levits, Judges,

with Mr E. Fribergh, Section Registrar;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 7 March 1997 by Michael PIALOPOULOS, Aristophanes ALEXIOU, Nikolaos GEORGAKOPOULOS and Aristea PIALOPOULOS  against Greece and registered on 29 July 1997 under file no. 37095/97;

Having regard to the reports provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 26 March 1998 and the observations in reply submitted by the applicants on 14 March 1998;

Having deliberated;

Decides as follows:

 

THE FACTS

The first applicant is a Greek citizen, born in 1951 and living in Pefki in Attika. The second applicant is also a Greek citizen born in 1930 and living in Filothei in Attika. The third applicant is the first applicant’s stepbrother. He is a Greek citizen, born in 1964 and living in Athens. The fourth applicant is the first applicant’s sister. She is a Greek citizen, born in 1949 and living in Geneva.

They are represented before the Court by Mr P. Bernitsas, a lawyer practising in Athens.

The facts of the case, as submitted by the parties, may be summarised as follows.

A. Particular circumstances of the case

On 11 February 1987 the first two applicants bought a plot of land in Neo Psihiko of a total surface of 7,723 m2 (block No 16 on the town plan). The first applicant became the owner of 83% of the plot and the second applicant of the rest. On 12 February 1987 the Prefecture (Nomarhia) of Eastern Attika gave the two applicants permission to demolish some old buildings that existed on the plot.

On 18 February 1987 the two applicants applied to the prefecture for a permit to build a multi-storey shopping centre thereon.

On 25 February 1987 at a meeting of the Municipal Council of Neo Psihiko the mayor informed the councillors that urgent action had to be taken to block the proposed development and accepted that unorthodox means were being used to forestall the delivery of the permit. However, a councillor drew the mayor's attention to the fact that the municipality lacked adequate means to expropriate the applicants' plot.

On 1 June 1987 the Prefect of Eastern Attika decided not to issue any new building permits in respect of commercial premises of a certain size (buildings exceeding 1/4 of the maximum authorised size) in Neo Psihiko for a year (decision No. 10311/1987 published in the Official Gazette on 10 June 1987). He exempted commercial premises for which an application had already been lodged, provided that the file was “complete” in accordance with the presidential decree of 8 September 1983.

On 5 June 1987 the Ministry for the Environment, Town Planning and Public Works advised the first two applicants that the file which they had submitted together with their application for a building permit was “complete”. However, given the prefect's decision of 1 June 1987, the file “would continue to be considered complete pending resumption of the delivery of new building permits”.

On 31 July 1987 the Prefect of Eastern Attika decided “to extend the freeze on new building licences in respect of block No. 16 in Neo Psihiko by six months as from 13 September 1987”.

On 1 March 1988 the prefect decided to change the authorised use of the applicants' plot from development land to park land (decision No. 13580/277/87/1988 published in the  Official Gazette on 24 March 1988). Following this decision, the first two applicants requested the town planning authorities of the prefecture to decide who should compensate them for the expropriation of their plot of land. On 16 June 1988 the town planning authorities decided that the applicants should be expropriated by, among others, the Municipality of Neo Psihiko (act No. 51/88). The municipality appealed to the prefect who, on 26 September 1988, confirmed act No. 51/88 of the town planning authorities and ordered the municipality to compensate the two applicants in respect of 5,697 m2. The municipality appealed against the prefect’s decision of 26 September 1988 to the Secretary General of the Ministry for the Environment, Town Planning and Public Works claiming that it should not bear on its own the cost of compensating the applicants for the 5,697 m2 in question. On 4 January 1989 the secretary general confirmed the decision of 26 September 1988 of the prefect (decision No. 84888/4910/1989).

On 19 January 1989 the first two applicants asked the single-member first instance civil court (monomeles protodikio) of Athens provisionally to determine their compensation. On 16 November 1989 the court decided that the two applicants should receive 732,300,000 drachmas.

On 20 February 1989 the Municipality of Neo Psihiko applied to the Council of State (Simvulio Epikratias) for judicial review of decision No. 84888/4910/1989 of the Secretary General of the Ministry for the Environment, Town Planning and Public Works. The first two applicants intervened in favour of the secretary general.

On 28 September 1989 the Secretary General of the Ministry for the Environment, Town Planning and Public Works approved a new town plan for Neo Psihiko, which was published in the Official Gazette on 9 October 1989.

On 21 May 1990 the Prefect of Eastern Attika decided to amend the new town plan of Neo Psihiko. It was again provided that the applicants' plot could only be used as a park and for underground parking. The decision was published in the Official Gazette on 5 June 1990.

On 31 July 1991 the first two applicants requested the Court of Appeal (efetio) of Athens to declare under Article 17 § 4 of the Constitution and Article 11 of legislative decree No. 727/1971 that the prefect’s decision No. 13580/277/87/1988 concerning the expropriation had been revoked ipso jure on 16 May 1991 because the compensation fixed provisionally had not been paid within eighteen months from the first instance civil court’s decision of 16 November 1989. The State and the Municipality of Neo Psihiko were parties to the proceedings. On 8 November 1991 the Athens Court of Appeal acceded to the applicants' request (decision No. 9779/1991).

On 21 and 26 February 1992 the Municipal Council of Neo Psihiko discussed the future of the applicants’ plot. On the second occasion, the mayor stated that he had been unable to conclude a loan in order to compensate the applicants in full. He also stated that the owners of neighbouring plots of land had informed him that they lacked the funds to pay part of the applicants’ compensation. Some councillors made proposals which would have lowered the value of the applicants’ plot.

On 4 March 1992 the first two applicants received a letter from the Municipality of Neo Psihiko referring to negotiations which had been conducted with them. The two applicants were invited to agree to a plan for the development of the plot. According to the plan, the municipality would acquire part of the plot and transform it into a park. The applicants would be allowed to construct a building with a two-storey underground garage. There would be shops on the ground floor and offices on the other floors.

On 23 March 1992 the Legal Advisory Council of the State (Nomiko Simvulio tu Kratus) decided not to appeal in cassation against the decision of the Court of Appeal. On 13 May 1992 it informed the Prefecture of Eastern Attika and the Ministry for the Environment, Town Planning and Public Works accordingly and requested them to take the necessary steps to give effect to that decision.

On 6 July 1992 the Municipal Council of Neo Psihiko discussed the outcome of the negotiations with the first two applicants. The mayor invited the members of the council not to lose sight of the fact that the municipality risked finding itself in a position where it would be unable to pay full compensation to the two applicants for the expropriation of their plot. In the end, the council decided to request the prefecture to expropriate the plot (decision No. 96/92). It proposed the creation of a park, an underground garage and a public building. The two applicants protested.

On 8 July 1992 the first two applicants requested the Prefect of Eastern Attika formally to revoke decision No. 13580/277/87/1988, as he was required to do by the law.

On 30 November 1992 the Council of State examined the Municipality of Neo Psihiko's application for judicial review of decision No. 84888/4910/1989 of the Secretary General of the Ministry for the Environment, Town Planning and Public Works. The first two applicants, who had intervened in favour of the Secretary General, claimed that this decision did not produce any legal effects because on 8 November 1991 (decision No. 9779/1991) the Court of Appeal had declared that it had been ipso jure revoked. However, the Council considered that, the decision of the appeal court notwithstanding, the administration was under an obligation formally to revoke decision No. 13580/277/87/1988 expropriating the plot. As long as this had not happened, decision No. 84888/4910/1989 could be judicially reviewed. Moreover, the Council considered that the Secretary General of the Ministry for the Environment, Town Planning and Public Works had illegally ordered the Municipality of Neo Psihiko to bear on its own the cost of compensating the applicants for the 5,697 m2 in question. The owners of other neighbouring property were liable as well. The Council of State, therefore, decided to quash decision No. 84888/4910/1989 (decision No. 3730/1992).

On 3 December 1992 the town planning authorities of the Prefecture of Eastern Attika asked the Municipality of Neo Psihiko whether it wished to expropriate the applicants’ plot again and drew its attention to the conditions for doing so. On 19 February 1993 the town planning authorities informed the municipality that, if it wanted the plot to be expropriated, a decision by the municipal council concerning the necessary funds should be adopted before 26 April 1993. On both occasions the town planning authorities informed the municipality that, if it did not take the necessary measures for a fresh expropriation, the prefecture would proceed to the revocation of the first expropriation as it was required to do by law.

On 23 March 1993 the first two applicants applied to the prefecture for a building permit.

On 12 April 1993 the Ministry for the Environment, Town Planning and Public Works informed the Prefecture of Eastern Attika that, decision No. 3730/1992 of the Council of State notwithstanding, the prefecture had to comply with decision No. 9779/1991 of the Athens Court of Appeal and officially revoke the expropriation decision. The ministry also considered that the amendment of the town plan of 21 May 1990 amounted to a new expropriation. According to the case-law of the Council of State, this would be lawful only if there was a serious town-planning need and the money for the compensation was readily available. 

On 25 May 1993 the Municipal Council of Neo Psihiko requested the Prefect of Eastern Attika to re-issue act No. 51/88 on the persons liable to pay compensation taking into consideration decision No. 3730/1992 of the Council of State or else to adopt a new decision expropriating the applicants' plot of land. The municipal council declared that it was ready to pay the compensation required in order for the expropriation to be completed (decision No. 87/1993).

On 17 June 1993 the first two applicants, with a view to reaching a friendly settlement, applied for a building permit offering, at the same time, to construct at their expense a public building for the municipality.

On 19 August 1993 the Prefect of Eastern Attika considered that the municipality's case for a new expropriation was not convincing and decided to free part of the applicants' plot for development (decision No. 26224/839/1993 published in the Official Gazette on 3 September 1993). On 20 October 1993 the Municipality of Neo Psihiko applied to the Council of State for the judicial review of this decision. The first two applicants intervened in the proceedings in favour of the prefect.

On 10 July 1995 the Council of State considered that its previous decision No. 3730/1992 could not affect the obligation of the Prefect of Eastern Attika to comply with decision No. 9779/1991 of the Athens Court of Appeal of 8 November 1991 and officially revoke the first expropriation decision. The Council of State found that the Prefecture of Eastern Attika had complied with the above-mentioned decision of the Court of Appeal by issuing decision No. 26224/839/1993. However, this decision had not taken into consideration the fact that the Municipality of Neo Psihiko had fully cooperated in the first expropriation procedure. Neither had it taken into consideration the fact that the main reason for the non-completion of the first expropriation procedure had been the dispute which had arisen as to who should have compensated the first two applicants. In the light of all the above, the Council found that the Prefect of Eastern Attika's decision not to accede to the municipality's request for a second expropriation did not contain adequate reasons. The Council of State, therefore, quashed decision No. 26224/839/1993 of the Prefect of Eastern Attika (decision No. 3927/95)

On 2 May 1996 the second applicant requested the Mayor of Neo Psihiko to provide him with a certified copy of the municipality’s budget and of the minutes of the meeting of the municipal council at which the budget had been approved.

On 9 May 1996 the town planning authorities of the Prefecture of Athens, which had taken over the functions of the Prefecture of Eastern Attika, informed the Municipality of Neo Psihiko that, since decision No. 26224/839/1993 of the Prefect of Eastern Attika had been quashed, it was still under an obligation to comply with decision No. 9779/1991 of the Athens Court of Appeal. It also invited the municipality to inform it within 30 days whether there existed a serious town-planning need for the expropriation of the applicants' plot of land and whether there existed sufficient funds in the municipality' budget for compensating the applicants. Finally, the prefecture warned the municipality that, in the absence of a prompt reply, it would change the authorised use of the applicants' plot to development land.

The Mayor of Neo Psihiko replied to the Prefecture of Athens on 9 July 1996 requesting that the applicants’ plot should be expropriated for the following reasons. On the one hand, a number of supermarkets and banks had been recently built in the area, which attracted 5,000 persons and a lot of traffic every day. On the other hand, there were no parks or parking space. As a result, if a new development were authorised, the situation would become intolerable. The mayor referred to the Prefect of Eatern Attika’s decision of 21 May 1990 according to which the applicants' plot could only be used as a park and for underground parking. The mayor also informed the prefecture that provision had been made for 450,000,000 drachmas in the municipality's budget for 1996 and an additional sum would be made available in 1997.

On 27 September 1996 the Prefecture of Athens asked the municipality to clarify within ten days whether the sum of 450,000,000 drachmas had been earmarked for the expropriation of the applicants' plot, what was the estimated total cost of the expropriation, whether the additional sum required existed and, if not, which were the sources from which it could be obtained and what were the prospects of obtaining it. The municipality was again threatened with a decision changing the authorised use of the applicants' land.

On 16 November 1996 the first two applicants invited the Prefect of Eastern Attika (a clerical error, since it was the Prefect of Athens who had become competent) to comply with decision No. 3927/1995 of the Council of State and decision No. 9779/1991 of the Athens Court of Appeal.

Having received no reply, on 6 February 1997 the second applicant requested the Prefecture of Athens to inform him of the conditions for the development of his plot in Neo Psihiko. On 14 February 1997 the Prefecture of Athens informed the second applicant that, according to the decision of the Prefect of Eastern Attika of 21 May 1990, the plot could only be used as a park and for underground parking. Decision No. 26224/839/1993 of the Prefect of Eastern Attika had been quashed by the Council of State. When the two applicants had originally applied for a building permit there were no restrictions on their plot of land. However, on 1 June 1987 and 31 July 1987 the prefect of Eastern Attika had decided to suspend the delivery of building permits of the kind requested by the two applicants.

On 14 October 1997 the second applicant applied to the town planning authorities of the prefecture for permission to construct an open-air parking area on his plot. The authorities turned his application down referring, inter alia, to the decision of the Prefect of Eastern Attika of 21 May 1990. On 17 October 1997 the second applicant applied to the town planning authorities for permission to construct an underground garage. On 4 November 1997 the authorities replied that the garage would be built by the appropriate organ after the conclusion of the expropriation.

Following a further query by the first two applicants, on 11 December 1997 the Prefecture of Athens informed them that, according to the decision of the Prefect of Eastern Attika of 21 May 1990, their plot of land could only be used as a park and for underground parking and that the decision in question had not been revoked.

On 19 December 1997 the first applicant transferred 20.75% of the plot to the third applicant and 20.75% to the fourth applicant.

On 16 March 1998 the town planning authorities of the Prefecture of Athens informed the Legal Advisory Council of State that the decision of 21 May 1990 of the Prefect of Eastern Attika amounted to an expropriation of the applicants’ plot. However, when the town planning authorities wrote to the Municipality of Neo Psihiko on 9 May 1996, they were not aware of this decision. Following the quashing of decision No. 26224/839/1993 of the Prefect of Eastern Attika by the Council of State, the use of the applicants’ plot is governed by the decision of 21 May 1990. Moreover, the existence of such a decision renders unnecessary the formal revocation of decision No. 13580/277/87/1988 of the Prefect of Eastern Attika. The town planning authorities, further to a request by the Municipality of Neo Psihiko, were in the course of determining those liable to pay compensation because of the expropriation.

B. Relevant domestic law and practice

According to decision No. 3284/86 of the Council of State, an expropriation that has been revoked may be re-imposed only if there is a serious town-planning need and the authorities are able to pay appropriate compensation immediately. In 1986 the Ministry for the Environment, Town Planning and Public Works issued a circular informing the authorities of this development (circular No. 141/1986).

According to the case-law of the Council of State, amendments to town plans must be published in the Official Gazette together with a detailed plan. Otherwise they are null and void (decisions Nos. 488/91 and 489/91).

COMPLAINTS

1. The applicants complain that their plot has been expropriated contrary to Article 1 of Protocol No. 1. They submit in this connection that it has not been substantiated that this expropriation has been imposed in the public interest and that there is no fair balance between the act of interference and the legitimate aim pursued. Moreover, domestic law has been violated since the authorities refuse to comply with court judgments and to pay the applicants prior compensation as provided for under the Constitution.

2. The applicants also complain under Articles 6 § 1 and 13 of the Convention that they do not have an effective remedy for the above violations, because that they cannot enforce the court decisions in their favour given that all the public authorities enjoy immunity from execution.  

PROCEDURE

The application was introduced on 7 March 1997 and registered on 29 July 1997.

On 3 December 1977, the European Commission of Human Rights decided to communicate the application to the respondent Government.

The Government’s written observations were submitted on 26 March 1998, after an extension of the time-limit fixed for that purpose. The applicants replied on 14 May 1998.

By virtue of Article 5 § 2 of Protocol No. 11, which entered into force on 1 November 1998, the application shall henceforth be examined by the European Court of Human Rights.

THE LAW

1. The applicants complain under Article 1 of Protocol No. 1 that since 1987 they cannot enjoy, use or dispose of their property.

Article 1of Protocol No. 1 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 in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

The Government submit that the applicants’ complaint is so vague that it cannot constitute an individual petition within the meaning of Article 34 of the Convention.

They also contend that the applicants have not exhausted domestic remedies. Their property is currently affected by the prefect’s decision of 21 May 1990. When adopted this decision did not amount to an expropriation, given that the first expropriation (prefect’s decision No. 13580/277/87/1988) was still in force. However, decision No. 3927/95 of the Council of State entailed the revival of the regime imposed by the prefect’s decision of 21 May 1990, which then became a formal expropriation. In the Government’s view, the applicants should have either requested the completion of this expropriation or challenged the prefect’s decision of 21 May 1990 before the minister and then before the Council of State. Even if the applicants did not know of the existence of this decision, they must have become aware of it at the latest on 14 February 1997 or 11 December 1997. In any event, at no stage of the various expropriation proceedings did the applicants raise their complaints before the domestic authorities.

If the applicants wish to complain about the quashing of the prefect’s decision No. 26224/839/1993 which was favourable to them, the Government argue that they have not respected the six-month time-limit, given that the relevant decision of the Council of State (No. 3927/95) was issued on 10 July 1995 and the application was lodged on 7 March 1997.

As regards the substance of the applicants’ complaint, the Government submit that the prefect’s decision of 21 May 1990, which provides that the applicants’ plot can only be used as a park and for underground parking, is a reasonable measure taken in good faith in order to protect the environment. Governments enjoy a broad margin of appreciation in the difficult area of town planning. In any event, turning the applicants’ plot into a park was the only measure which can achieve the goal pursued by the authorities. National law has been complied with. Moreover, a proper balance has been struck between the public interest and individual rights. The time that has lapsed since the last expropriation effected by the revival of the decision of 21 May 1990 is reasonable. The municipality has the means for compensating the applicants. In any event, the applicants did not try to expedite the expropriation proceedings.

As regards the restrictions to which the applicants’ property was previously subjected, the Government submit that the freeze imposed on building permits on 1 June 1987 was a temporary measure necessary for town-planning reasons under Article 1 § 2 of Protocol No. 1. Moreover, although no building permits are issued in respect of plots of land that are in the process of being expropriated, there was nothing preventing the applicants from obtaining a building permit between 8 November 1991 and 10 July 1995. Their situation is not in any way comparable to that examined by the Court in its Sporrong and Lönnroth v. Sweden judgment of 23 September 1982 (Series A no. 52).

The applicants submit that they have exhausted domestic remedies given that they went to the first instance and the appeal court and intervened twice in the proceedings before the Council of State. As regards the Government’s arguments concerning the second expropriation, which was allegedly effected by the revival on 10 July 1995 of the prefect’s decision of 21 May 1990, the applicants submit that there was no point in trying to expedite the expropriation proceedings once again. Moreover, by then they had missed the time-limit for applying for judicial review.

As regards the six-month rule, the applicants stress that they complain of a continuing violation.

The applicants further submit that since 1987 their property has always been in the process of being expropriated. The first expropriation remains in force, the prefect’s decision No. 13580/277/87/1988 not having been officially revoked. The prefect’s decision of 21 May 1990 was a second expropriation, as admitted in the prefecture’s letter of 16 March 1998. However, it was ignored by the authorities for a number of years, as evidenced in the prefecture’s letters of 27 September 1996 and 16 March 1998. The second expropriation (prefect’s decision of 21 May 1990) is null and void because no detailed plan was published in the Official Gazette together with it. However, this did not prevent the authorities from starting invoking it as from 14 February 1997 in order to prevent the applicants from enjoying their property. In any event, this expropriation should now be revoked given that no compensation has been paid in eight years.

The applicants could not have relied on the partial freeing of their plot for development, which occurred on 3 September 1993, given that the relevant decision of the prefect (No. 26224/839/1993) was immediately challenged in the Council of State. In any event, the second expropriation of 21 May 1990 had already been decided.

Moreover, the applicants argue that it is apparent from the minutes of the municipal council that the authorities did not act in good faith. Their aim was not to protect the environment. This is clear from the changes in the authorised usage of the land in the various expropriation decisions, the last of which allows for the development of part of the property. It is also clear from the municipality’s proposal to have a public building constructed on the plot. The aim of the authorities was the spoliation of the applicants’ property. The authorities acted illegally when postponing the revocation of the first expropriation in order to facilitate the enactment of a fresh one, as evidenced by the prefecture’s letters of 3 December 1992 and 19 February 1993. The time that has lapsed is not reasonable and the municipality does not have the required funds to compensate them. No reasonable balance has been struck, given that the applicants have not been paid any compensation for the years during which they have been unable to enjoy their property. In addition to all the above, the applicants are now threatened with a fourth expropriation.

The Court recalls that the only remedies which an applicant is required to exhaust are those that relate to the breaches alleged and which are at the same time available and sufficient. It falls to the respondent State to establish that these various conditions are satisfied (Eur. Court HR, T.W. v. Malta judgment of 29 April 1999, to be published in Reports of Decisions and Judgments, para. 34). Failure to exhaust domestic remedies cannot be invoked against someone who, at the time a remedy was available, could not have thought that he was adversely affected by the situation (No. 11683/85, Dec. 8.2.90, D.R. 62, p. 269). The rule in Article 34 § 1 of the Convention normally requires that the complaints intended to be made subsequently at Strasbourg should have been raised before the domestic courts, at least in substance (Eur. Court HR, Cardot v. France judgment of 19 March 1991, Series A no. 200, p. 18, § 34). Finally, the six-month rule in Article 35 § 1 of the Convention does not apply in respect of continuing violations of the Convention (Eur. Court HR, Agrotexim and Others v. Greece judgment of 24 October 1995, Series A no. 330-A, p. 22, § 58)

The Court notes that, although the applicants claim that the prefect’s decision of 21 May 1990 is null and void, they never sought to challenge it before the competent administrative and judicial authorities. However, according to the information in the file, the authorities started invoking this decision against the applicants on 14 February 1997. In the intervening period the applicants had been involved in judicial proceedings concerning two attempts to expropriate their plot, or part thereof, and the municipality had already proposed yet another expropriation. As a result, the Court considers that the applicants could not be expected to have anticipated the adverse effects of the prefect’s decision of 21 May 1990 before 14 February 1997. However, the applicants contend that by then the time-limit for challenging the decision of 21 May 1990 had lapsed.

Even assuming that it was open to the applicants to challenge the prefect’s decision of 21 May 1990 after 14 February 1997, the Court notes that the applicants had already obtained a court decision (Athens Court of Appeal decision No. 9779/91) concerning the revocation of the prefect’s decision No. 13580/277/87/1988 by which their plot had been expropriated the first time. However, the authorities never proceeded to the official revocation of this decision, although during a particular period of time it was repeatedly pointed out to them that they were under an obligation to do so. Given the authorities’ non-compliance with this court decision and their successive attempts to have the applicants’ plot expropriated, the Court considers that the applicants could not reasonably expect that challenging the decision of 21 May 1990 would bring them the result they sought, namely freeing their property from the expropriation threat. In these circumstances, the Court considers that the applicants can be exempted from the obligation to exhaust the particular remedy.

The Court also notes that the applicants never sought to expedite the proceedings concerning the expropriation imposed by virtue of the prefect’s decision of 21 May 1990 by applying for the determination of the compensation. However, quite apart from the fact the applicants did pursue this course of action on the occasion of the first expropriation without ever receiving any compensation, the Court considers that this would not be a remedy for the violation complained of, since the applicants wanted to free their property from the expropriation threat and not to bring about its definite loss.

Moreover, the Court considers that the proceedings which the applicants instituted or in which they intervened were of such a nature that their complaints concerning the right to property have been raised in substance. In the light of all the above, the Court considers that this part of the application cannot be rejected for failure to exhaust domestic remedies in accordance with Article 35 § 1 of the Convention.

Furthermore, the Court notes that the applicants’ complaint concerns in part the allegedly continuing failure of the authorities to comply with decision No. 9779/91 of the Court of Appeal of Athens by officially revoking the first expropriation. According to the case-law, the six-month time-limit of Article 35 § 1 of the Convention does not apply in respect of complaints concerning the failure of the authorities to comply with court decisions issued against them (Eur. Court HR, Hornsby v. Greece judgment of 19 March 1997, Reports 1997-II, p. 508, § 35). The Court also notes that the application was lodged within less than six months from 14 February 1997, the date when the prefect’s decision of 21 May 1990 was first invoked against them. In addition, the Court considers that the successive measures affecting the applicants’ property can be seen as a series of steps amounting to a continuing situation (see, mutatis mutandis, above-mentioned Agrotexim and Others v. Greece judgment, loc. cit.). It follows that this part of the application cannot be rejected for failure to respect the six-month time-limit in Article 35 § 1 of the Convention.

In the light of the parties’ observations, the Court considers that this part of the application raises serious questions of fact and law which are of such complexity that their determination should depend on an examination on the merits. It cannot, therefore, be considered manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other ground for declaring it inadmissible has been established.

2. The applicants complain under Articles 6 § 1 and 13 of the Convention that they do not have an effective remedy for the violation of their property rights, because they cannot enforce the court decisions in their favour given that all the public authorities involved enjoy immunity from execution.

Article 6 § 1 of the Convention, in so far as relevant, provides as follows:

“In the determination of his civil rights and obligations …, everyone is entitled to a fair … hearing … by an independent and impartial tribunal established by law. …”

The Court recalls that the failure of the authorities to comply with court decisions issued against them in disputes involving the determination of civil rights and obligations raises an issue under Article 6 § 1 of the Convention (see the above-mentioned Hornsby v. Greece judgment, op. cit.).

Article 13 of the Convention provides as follows:

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Government submit that the applicants’ complaint is so vague that it cannot constitute an individual petition within the meaning of Article 34 of the Convention. In the alternative, they argue that the authorities have complied with all the decisions issued in the applicants’ favour. In particular, they have complied with decision No. 9779/91 of the Court of Appeal by amending the town plan for Neo Psihiko on 19 August 1993 (prefect’s decision 26224/839/1993). The revival of the prefect’s decision of 21 May 1990 amounted to a new expropriation of the applicants’ plot and ensured that decision No. 3927/95 of the Council of State was also complied with. There was no need to comply with decision No. 3730/92 of the Council of State given that it concerned the first expropriation which has been revoked.

The applicants submit that the Court of Appeal’s decision No. 9779/91 has not been complied with because the first expropriation (prefect’s decision No. 13580/277/87/1988) has not been officially revoked. The expropriation of 19 August 1993 (prefect’s decision No. 26224/839/1993) was quashed by the Council of State (decision No. 3927/95), while the expropriation of 21 May 1990 is not valid because no detailed plan was published in the Official Gazette together with it.

In the light of the parties’ observations, the Court considers that this part of the application raises serious questions of fact and law which are of such complexity that their determination should depend on an examination on the merits. It cannot, therefore, be considered manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other ground for declaring it inadmissible has been established.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case.

Erik Fribergh Marc Fischbach 
 Registrar President

37095/97 - -


- - 37095/97.