Failure to pay full compensation for the total damage suffered by the owner in case of expropriation of property violates the right to ownership.

JUDGMENT

 Moustakidis v. Greece 3-10-2019 (appl. no. 58999/13)

see here

SUMMARY

Expropriation, percentage of compensation and jurisdiction of the Courts.

The applicant was denied the use of part of his property for the purpose of expropriation on which his business was housed. He was compensated for the value of the deprived land and for the depreciation of the remaining part. He appealed before the national Civil Courts for a full compensation claim, which included the loss of profits of his business for as long his business was not operating and the costs of relocating it. The domestic courts dismissed his actions due to lack of jurisdiction.

The Court noted that the overall assessment of the effects of the expropriation cannot be confined to the determination of specific compensation, but must also include other considerations, assessing the total damage of the owner. Thus, the Court ruled that the Greek Civil Courts’ refusal to consider the applicant’s claims for full compensation as having jurisdiction over such matters was justified, thereafter finding that there had been a breach of Article 1 of the First Additional Protocol between the public’s and the individual’s interest.

PROVISION

Article 1 of the First Additional Protocol

PRINCIPAL FACTS

The applicant, Dimitrios Moustakidis, is a Greek national who was born in 1956 and lives in
Thessaloniki (Greece).

The case concerned the expropriation of part of Mr Moustakidis’s property (a plot of land, a factory and a warehouse) and the amount awarded to him in compensation.

The courts established the final amount of the award in compensation for the expropriated part of the property. Subsequently, relying on the relevant domestic law, Mr Moustakidis sought
compensation for a non-expropriated section of this property as well as for the cost of transferring his business, for the loss of opportunities during the interruption of business and for the further
damage sustained by the remainder of his property owing to the nature of the activity for which the expropriation had taken place. The court of appeal and the Court of Cassation dismissed his
requests, on the grounds that the civil courts had no jurisdiction to consider them.

Relying, in particular, on Article 1 of Protocol No. 1 (protection of property), Mr Moustakidis complained of an infringement of his right to property, submitting that the domestic courts had
refused to adjudicate on specific aspects of his claim for compensation, advising him to apply to the European Court of Human Rights or the administrative courts for that purpose.

THE DECISION OF THE COURT

The Court notes that the situation in question falls within the first sentence of the first paragraph of Article 1 of Protocol No. 1, which lays down the principle of respect for property generally. The Court must therefore consider whether a fair balance has been maintained between the requirements of the general interest of the community and the imperatives of safeguarding the fundamental rights of the individual. The concern to ensure such a balance is reflected in the structure of Article 1 of Protocol No. 1 as a whole. In particular, there must be a reasonable relationship of proportionality between the means employed and the purpose of any measure depriving a person of his property.

The Court recalled that it considered that where the property of an individual is the object of an expropriation, there must be a procedure which ensures an overall assessment of the consequences of the expropriation, including the award of compensation in relation to with the value of the expropriated property, the determination of the right holders to compensation and any other matter relating to the expropriation, including the costs of proceedings.

The Court has also emphasized that the overall assessment of the consequences of expropriation can not be limited to the recognition of the right holders to compensation, the determination of the special allowance, the assessment of the existence of a benefit derived by the owner and the setting of legal costs. It must also include other issues, such as, for example, those relating to the possible reassessment of compensation.

In this case, the Court notes the Court of Appeal awarded the applicant compensation for the expropriated part of his land and compensation for the decrease in the value of the non-expropriated part resulting from the division of the property. Compensation for any other damage that was not directly related to the value of the expropriated property.

In appealing before the Court of Appeal, the Applicant requested that (a) the question of the alleged benefit derived by the Applicant be examined as a result of the performance of the work and that compensation be fixed for the party who was considered self-compensated; (b) it should be recognized that, because of the expropriation and the nature of the work, the non-expropriated property had been depreciated by 90% and had to be compensated; (c) that he should be awarded 1) the sum of EUR 150.000 for transfer costs of the undertaking, 2) the sum of EUR 120.000 for loss of chances due to the interruption of the operation of the undertaking.

However, all these requests were related issues relating to the expropriation and should have, especially following the Azas judgment and in view of the jurisprudence of the Court of Cassation subsequent to that judgment, be the subject of a review by them.

The Court therefore considers that the refusal of the Greek courts to examine the applicant’s above-mentioned applications and the reference of the applicant to another court of jurisdiction, or to the courts of first instance, or finally to the Court, altered the character compensation and have thus broken the proper balance that must exist between the general interest and the interest of the individual.

Accordingly, there has been a violation of Article 1 of Protocol No. 1(echrcaselaw.com).


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