The non enforcement of an administrative decision for the demolition of dangerous parts of a building violated the right of ownership of the neighboring endangered owner.
JUDGMENT
Chatzigiannakou v. Greece (application no. 58774/12) 18.07.2019
SUMMARY
The case concerned the failure to enforce a decision entailing the demolition of parts of a building in
Athens on account of its non-compliance with anti-seismic regulations. Ms Chatzigiannakou lived
next door to the building and she alleged that her house would be at risk if it were to collapse.
The Court noted that the authorities had called for measures to be taken to rectify the illegality of
the building. They had then recorded the failure to implement those measures and had
acknowledged that they were powerless to ensure enforcement.
Ms Chatzigiannakou’s inability to obtain the enforcement of an administrative decision – of which
the relevance and validity had never been challenged and which had significant repercussions for
her property – had thus upset the fair balance between the requirements of the general interest of
the community and the imperatives of safeguarding individual rights.
The Court further found that the domestic remedy invoked by the Government was purely
compensatory and would not have enabled Ms Chatzigiannakou to make an effective complaint on
the basis that the authorities had not acted to force the building company to comply with the
decision entailing the mandatory evacuation of the flats in the building and the immediate
demolition of the dangerous parts.
PROVISIONS
Article 13
Article 1 of the First Additional Protocol
PRINCIPAL FACTS
The applicant, Maria-Aggeliki Chatzigiannakou, is a Greek national who was born in 1982 and lives in
Uppsala (Sweden). She owns a house in Athens that she acquired from her mother and grandmother
in 2009.
In 2000, when a company began building a block of flats on land adjacent to her mother’s house, she
asked the planning department of the Athens municipal authorities to verify certain aspects of the
new construction to ensure conformity with anti-seismic regulations. That department, which found
defects, asked the directorate for illegal and dangerous buildings to order the discontinuance of the
work and impose sanctions on the company.
On 31 October 2001 the Secretary General of the Attica Region decided to apply the provisions of
the decree2 on dangerous building work and gave the company a deadline to bring the construction into conformity with anti-seismic regulations. That decision became final but the necessary work was
never completed by the company even though the deadline had passed.
On 27 September 2002 Ms Chatzigiannakou’s mother asked the Secretary General for the Attica
Region to take all the necessary measures to enforce the decision of 31 October 2001, namely the
mandatory evacuation of the flats in the building and the immediate demolition of its dangerous
parts. Following the tacit rejection of her request, her mother appealed to the Supreme
Administrative Court. Later, by 2010, Ms Chatzigiannakou had become the owner and replaced her
mother in the proceedings.
On 7 March 2012 the Supreme Administrative Court declared Ms Chatzigiannakou’s appeal
inadmissible. It noted that the decision of 31 October 2001 had become final but had not been
enforced. It was of the view, however, that the authorities’ failure to enforce the decision was not
subject to an administrative appeal.
THE DECISION OF THE COURT
Article 1 of Protocol No. 1 (protection of property)
The Court began by observing that the failure of the administrative authorities to comply with the
decision of the Secretary General of the Attica region of 31 October 2001 resulted in the erected
building remaining in breach of the anti-seismic safety norms, thus exposing Ms Chatzigiannakou’s
house to the risk of serious damage in the event of an earthquake and diminished its value. The
Court thus found that the authorities were responsible for the interference with Ms Chatzigiannakou’s property rights.
The Court further noted that the authorities had been aware of the illegality and had called for
measures to be taken to rectify the situation. They had then recorded the failure to implement those
measures, while acknowledging that they were powerless to ensure enforcement. The Supreme
Administrative Court had subsequently taken the view that the non-enforcement fell outside its
remit.
Lastly, Ms Chatzigiannakou’s inability to obtain the enforcement of an administrative decision – of
which the relevance and validity had never been challenged and which had significant repercussions for her property – had thus upset the fair balance between the requirements of the general interest of the community and the imperatives of safeguarding individual rights. There had thus been a violation of Article 1 of Protocol No. 1.
Article 13 (right to an effective remedy)
The Government had argued that the action for damages under sections 105 and 106 of the Civil
Code Implementation Act was an effective remedy for the protection of property rights in the event
of failure to demolish illegal constructions.
The Court nevertheless took the view that this remedy was purely compensatory, only enabling
claims for damages in the event of illegal acts or omissions on the part of the authorities, and would
not have enabled Ms Chatzigiannakou to make an effective complaint on the basis that the
authorities had not acted to force the building company to comply with the decision of 31 October
2001. There had thus been a violation of Article 13 of the Convention.
Just satisfaction (Article 41)
The Court held that Greece was to pay Ms Chatzigiannakou 10,000 euros (EUR) in respect of nonpecuniary damage and EUR 4,515.39 in respect of costs and expenses(echracselaw.com).
