Failure to pay compensation for expropriation violates the right to property. The lack of funds does not justify the no payment of the compensation.

JUDGMENT

Vlastaris v. Greece 20.2.2020 (no.  43543/14)

see here

SUMMARY

Forced expropriation in favor of the Municipality and obligation to pay compensation.

A decision was taken by the Municipal Council of the Municipality of Aigaleo to force the expropriation of the applicant’s property for public benefit. According to the Constitution (Article 17), the final unit price of compensation was set by the Civil Courts. The Municipality of Aigaleo and the neighboring owners were responsible for the payment of damages, but the property was never paid and the property was never returned to the applicant.

The Court recalls its case-law, according to which the inability of a party to execute a judgment in his favor constitutes an infringement of his right to the peaceful enjoyment of his possessions.

In the present case, the ECtHR found that the compensation had not been paid but that no authority had withdrawn the expropriation in order for the applicant to take possession of it.

The Court held that the lack of resources of a local authority and therefore of a State body could not justify a failure to comply with the obligations arising from a final judgment against it and held that the lack of redress in the applicant’s property disturbed the proper balance. between the requirements of the general interest of the community and the requirements of safeguarding fundamental human rights. Infringement of Article 1 of the 1st Additional Protocol.

PROVISION

Article 1 of the First Protocol

PRINCIPAL FACTS

The applicant, Nikolaos Vlastaris, is a Greek national who was born in 1939 and lives in Athens.
The case concerned an expropriation order concerning the applicant’s property and granting
compensation, which had not been executed.

Mr Vlastaris owns a 1,154 sq. m plot of land, containing an old family home, a garden and
professional premises, located on the territory of Aigaleo municipality. The Aigaleo municipal council
took the decision, published in the Official Gazette in May 1992, to create a green space. By a
decision of 6 June 1995, the relevant Athens body with responsibility for planning matters identified
fourteen owners of adjacent properties who, in addition to the municipality, were to pay
compensation to the applicant. On 30 April 2010 the Athens Court of Appeal assessed the final
amount of compensation, fixing it, according to the applicant, at EUR 1,264,327.48, of which
EUR 799,200 were to be paid by the owners of the adjacent plots of land and EUR 465,127.48 by
Aigaleo municipality. However, the compensation was not paid within the eighteen-month period
laid down by the law, with the result that the expropriation had to be considered as having
automatically lapsed.

On 24 February 2012 Mr Vlastaris asked the municipality to proceed with the expropriation, so that
he could receive the compensation sums determined by the court of appeal. His request was
dismissed. He subsequently filed several complaints about non-payment of the compensation.
Relying on Article 1 of Protocol No. 1 (protection of property), the applicant complained that he had
not received compensation for the expropriation of his land, despite the fact that the amount he
was to receive had been determined by the Athens Court of Appeal.

THE DECISION OF THE COURT…

The Court recalls its case-law that the failure of a party to execute a judgment in his favor constitutes an infringement of his right to peaceful enjoyment of his possessions, as set out in the first sentence of Article 1 (1) of Protocol No. 1 of the Convention. It also recalls that a ‘claim’ may be a ‘property’ within the meaning of Article 1 of Protocol No. 1, provided it is sufficiently proven to be demanding.

In the present case, the Court notes that, following the judgment of 30 April 2010, which was final, in which the Athens Court of Appeal had fixed the final amount of the compensation for the expropriation, the applicant had a definite claim that should paid within eighteen months of the publication of the judgment of 3 July 2008 by the court of first instance, which had fixed the provisional amount of that allowance, that is to say, for a period extending until 1 November 2011. However, at the latest At that date, neither the municipality nor the owners of the adjacent land had paid the applicant the specified compensation, so that the expropriation at issue was automatically waived in accordance with the relevant provisions of national law.

The Court then observed that, by making use of the option provided by Article 11 of the Expropriation Code, the applicant then requested the Municipality of Aigaleo to retain the expropriation, which, if favorable to that authority, would had given him the right to receive the compensation already fixed. It also notes that the Municipality has tacitly rejected this request. However, to date, the municipality of Aigaleo has not published an act certifying its abolition (as required by Article 11 § 3 of the Expropriation Code), nor has it imposed a new expropriation, nor has it amended, after the abolition of expropriation, the civil order. design so that the applicant’s ownership is no longer defined as ‘green’ space.

It is true that the Municipality could lift the expropriation and re-place another by modifying the apportionment of the applicant’s property but in this case, Article 32 § 11 of Law 4067/2012 should also have promoted the part of the compensation. which is the responsibility of the owners of the adjacent land. However, it appears that neither the owners of the adjacent properties responsible for most of the compensation for the expropriation nor the municipality had the means to pay the amounts owed. However, the Court has already ruled that the lack of resources of a local authority and therefore of a state body cannot justify a failure to comply with the obligations resulting from a final judgment against them.

Lastly, the Court observes that, so far, the applicant has not received the slightest payment of the damages awarded to him by the Court of Appeal, nor has his land been released by the municipal planning authority. Such a situation has struck the right balance between the demands of the community’s general interest and the requirements of safeguarding fundamental human rights.

Consequently, there has been a violation of Article 1 of Protocol No. 1 of the Convention.

Just satisfaction: The Court has held that the defendant State must proceed with the restitution of the applicant’s property rights in respect of his land. Alternatively, even in case of failure, Greece should pay Mr Vlastaris the sum of 620.020.30 euros as compensation. The Court also awarded the applicant EUR 20,000 in respect of non-pecuniary damage.


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