The ECtHR sentenced Greece to compensation for violation of property rights in an expropriation case

JUDGMENT

Moustakidis v. Greece 29.10.2020 (app. no.  58999/13)

see here 

SUMMARY

Expropriation and calculation of compensation.

The applicant was deprived of the use of part of his property due to expropriation, in which his business was housed. He was compensated for the value of the land he was deprived of and for the impairment of the value of the remaining part. He appealed to the national civil courts seeking full compensation, which included the lost profits of his business for as long as it did not work and the costs of relocating it. The domestic courts rejected his appeals due to lack of jurisdiction.

The Court in its decision of 03.10.2019 pointed out that the overall assessment of the consequences of the expropriation can not be limited to the determination of the special compensation, but must also include other issues, assessing the total damage of the owner. Thus, Strasbourg considered unjustified the refusal of the Greek Civil Courts to consider the applicant’s claims for full compensation in so far as they had jurisdiction over such matters, and subsequently found a violation of Article 1 of the 1st Additional Protocol of the interest of the individual. He reserved his decision of 03.10.2019 to decide later on the amount of compensation.

In this decision, the ECtHR set the amount of compensation at 50,000 euros and awarded 3,826 euros for costs.

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’ property (a plot of land, a factory
and a storage facility) and the amount of the compensation paid to him.

In a principal judgment delivered on 3 October 2019, the Court found a violation of Article 1 of
Protocol No. 1 (protection of property) to the European Convention of Human Rights.

The Court examined the question of the application of Article 41 (just satisfaction) of
the Convention

THE DECISION OF THE COURT…

The Court recalled its case-law according to which a decision finding an infringement results in a general legal obligation for the defendant State to put an end to the infringement and to delete the consequences in order to remedy the situation as close as possible to the previous one. (Kurić and Others v. Slovenia (just satisfaction) [GC], no. 26828/06, § 79, ECHR 2014). The parties to a case are, in principle, free to choose the means at their disposal to comply with a judgment of the Court which finds a violation. This ability to assess the manner in which a judgment is enforced reflects the freedom of choice associated with the Convention’s primary obligation in the Contracting States: to ensure respect for the rights and freedoms guaranteed (Article 1 of the Convention).

The Court noted from the outset that the pecuniary damage (compensation) claimed by the applicant consisted of three factors: that it suffered a devaluation of 30% of its value; of the business until it reaches a level of activity comparable to that before the expropriation.

The Court also notes that the applicant ‘s claims concerning compensation are based in particular on a technical report of 10 January 2008, drawn up at the latter’ s request by an engineer and submitted to the Court of Appeal at the hearing on 5 March 2007. extension of the road, the applicant’s property was cut off from the road below it and the possibility of construction on that plot was reduced. The report also found that relocating the applicant’s company would be costly.

The Court noted that, although the Government contested the quantified estimates in this report, it did not dispute its findings as to the facts concerning the applicant ‘s damage. However, the Government did not mention any other method of calculating the compensation to which the applicant would be entitled and limited themselves to arguing that the sums claimed had been excessive and unjustified.

The Court noted that the applicant had set out in detail the estimated amount of his damage: 2611/2000 or 96 euros / m2) compensation for the amortization of the non-expropriated part of its property, c) an amount for the transfer costs of the business and the loss of profit, which corresponds to 60% of what is stated in the technical report of 10 January 2008.

Among these three allegations, the Court noted that, as regards the second, the Court of Appeal, in its decision no. 2611/2000, granted the applicant an amount corresponding to 30% of the amount granted for the expropriation and that, with its subsequent decision no. 2228/2015, also awarded him an amount of 6,740.60 euros. However, this amount was not paid to the applicant because the State had appealed against that decision, which is still pending, hence the Government ‘s objection that this request was premature.

The Court also pointed out that, in accordance with the principles laid down in its settled case-law, the form and amount of just satisfaction sought in compensation differ from case to case and depend directly on the nature of the infringement found. This necessarily has an impact on the criteria to be used to determine the compensation owed by the State (see Sovtransavto Holding v. Ukraine, no. 48553/99, § 55, 02.10.2003).

In this case, it should be noted that the Court found in its first decision of 03.10.2019 that there had been a violation of Article 1 of the First Protocol, due to the refusal of the Greek courts to consider the applicant’s additional claims and the applicant’s refusal. to refer his case to other courts, facts which weakened the adequacy of the compensation to which he was entitled.

However, in view of the large number of unbalanced factors in the present case, the Court has not been able to estimate the amount the applicant would have received if the national courts had ruled on his claims. The Court, on the other hand, held that the applicant had suffered a loss of factual opportunity to see his claims examined by the court.

Considering that it is impossible to determine precisely this loss of factual opportunities on the basis of the information contained in the file provided by the parties, the Court has ruled that (Centro Europa 7 Srl and Di Stefano v. Italy) [GC] no. 38433/09, §§ 220-222, Varfis v. Greece no. 40409/08, § 22, 13 November 2014 (compensation decision), Kosmas et al. against Greece, no. 20086/13, §§ 94-96, 29 June 2017 and Kanaginis v. Greece (compensation decision), no. 27662/09, § 26, 8 March 2018).

In the light of those considerations, the Court awarded the applicant EUR 50,000 in damages and EUR 3,826 in costs and expenses. (Edited by echrcaselaw.com)

 


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