Judicial decisions must be enforced. Inaction of the authorities regarding the non-execution and non-delivery of the property to the owner violated the fair trial

JUDGMENT

Nikoloudakis v. Greece  26.3.2020 ( no. 35322/12)

see here 

SUMMARY

Rule of law and enforcement of judgments. The applicants, by irrevocable judgments, were recognized as owners of a property owned by their mother but had been encroached upon by third parties and ordered to return the property to them and demolish the illegal buildings that had been built on the property. The authorities, despite repeated appeals from the applicants, failed to take appropriate measures to enforce both the return of the property and the demolition of the illegal buildings.

The Court recalls that States have a positive obligation to put in place a system that is practical and legally effective and ensures the enforcement of irrevocable judgments between individuals.

In the present case, the ECtHR found that the perpetrators had no intention of complying with the enforcement of the judgments. State assistance was therefore necessary. As the owners have never expressed any intention to enforce the decisions, the inaction of the State is not justified. The ECtHR held that the State had not been able to enforce the decisions in favor of the applicants for a long time and the delay led to an infringement of the right to a fair trial. Violation of Article 6-1 of the ECHR.

COMMENT

Particularly important decision regarding the non inforcement of judicial decisions. The execution of judicial decisions constitutes the principal of fair trial which is otherwise incomplete since its main point is the enforcement of judgments. Without enforcement, the judgment is of no use and effectiveness and the party’s recognized right becomes virtual rather than real. The ECtHR’s ruling creates a state obligation for the enforcement of judicial decisions to be effective. It is unacceptable and dangerous for a rule of law that judicial decisions cannot be enforced by dissenting parties!

PRINCIPAL FACTS

The applicants, Georgios Iakovos Nikoloudakis and Emmanouil Nikoloudakis, are Greek nationals
who were born in 1939 and 1946 respectively. They live in Chania in Crete (Greece).

The applicants complained of the failure to execute judgments delivered by the civil and
administrative courts recognising their ascendants as the owners of a plot of land in Sfakia (Greece) and ordering eight persons unlawfully occupying the plot to vacate it and demolish the buildings
erected there.

They relied in particular on Article 6 (right to a fair trial).

THE DECISION OF THE COURT…

The Court reiterates that the right to a fair trial guaranteed by Article 6 also protects the application of irrevocable and binding judicial decisions which,  a State which respects the rule of law, cannot remain unenforceable. Accordingly, the enforcement of a judgment cannot be unjustifiably prevented, annulled or delayed.

The Court also recalls that States have a positive obligation to establish a system which is practical and legally effective and to ensure the enforcement of final judgments between individuals.

The Court notes that the Government argued that the administration has discretion rather than captive jurisdiction when it came to complying with a decision. It notes that the Government relies in this regard on the wording of Article 17 (5) of Law 1337/1983 which states that “the competent planning authority may automatically carry out demolition of an illegal structure”, which means, according to the Government, that the administration has the discretion, not the jurisdiction, to decide whether or not to demolish it.

The Court cannot accept this position of the Government.

In the present case, the Court has noted that in its judgment in Case Nr. And Council Decision No 367/1995. 361/1997 respectively, the Court of First Instance and the Court of Appeal recognized the applicants’ mother as the proprietor of the property and ordered the occupiers to attribute the use of the property to her. By Decision No. And Decision No. 50/2000, respectively, the Court of First Instance and the Court of Appeal of Crete dismissed opposing actions by the parties against the applicants’ mother. Decision No. 27/2007 of the Administrative Court of Appeal, affirmed by Decision no. Council of State Regulation (EC) No 3355/2008 rejected an application for annulment filed by the landowners against the decision no. 61/1998 of the Prefect who ordered the demolition of the illegal constructions on the property.

There is no doubt that, following the publication of these six judgments, the status of ownership of the disputed property was clear and that the obligation of the illegal owners – occupiers to demolish the illegal constructions was beyond any doubt. However, it appears from the file and the measures taken by the invaders that they did not intend to comply with those decisions. Therefore, the assistance of the State, in its capacity as the executive with the assistance of the police, was necessary for the implementation of the abovementioned decisions.

The Court recognized that the administration had taken steps, on its own initiative, to implement these decisions. Thus, on 13 January 1998, the Prefect ordered the demolition of illegal constructions. To implement this decision, the Chania Spatial Directorate and the Chania Prefectural Commission launched several calls for tender in 2001, 2002, 2005 and 2010 to award, among other public works companies, a contractor who would be responsible for demolition of illegal constructions. However, all of these invitations were unsuccessful, as no company expressed interest in participating in the auction.

For their part, the applicants repeatedly requested – on 05.11.2010, then on 20.07, 27.10, 31.10 and 15.12.2011 – the authorities to take the necessary measures to accelerate the demolition process. Consequently, the Government could not reasonably rely on the applicants’ negligence in seeking enforcement of those judgments.

However, the demolition of the illegal buildings was a prelude to the return of the assets in question to the applicants because, according to the latter, which were not disputed by the Government, the occupants lived there and the efforts of the police to remove them were unsuccessful, as police officers were shot and wounded. In these circumstances, the Government’s argument that the owners should have taken the necessary measures to evict the trespassers is completely unfounded. In addition, the Court noted that following the Prefect’s ruling No. 61/1998, no formal order was given to the police to proceed with the demolition.

The Court recalls that the delay in the enforcement of a judgment may be justified in specific circumstances, but that the delay cannot lead to the actual annulment of the very substance of the right protected by Article 6 § 1 of the Convention. In the present case, however, it points out that the authorities have not been able, for a very long time, to enforce the decisions taken in favor of the applicants or to offer them alternatives.

There has therefore been a violation of Article 6 § 1 of the Convention.

The Court held that it was not necessary to examine the complaint under Article 1 of the First Protocol separately.

Just satisfaction: EUR 12,000 (non-pecuniary damage) to the applicants jointly

 

 


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