Retrospective legislative intervention in a pending case violates the fairness of the case
JUDGMENT
Dimopulos v. Turkey 02.04.2019 (no. 37766/05)
SUMMARY
Right to a fair trial. Retroactive legislative intervention against the applicant and registration of her property with the State. The ECtHR concluded that the legislative intervention in question, which definitively fixed retrospectively the dispute between the applicant and the State before the national courts, was not justified by overriding reasons relating to the public interest. Infringement of Article 6 § 1.
PROVISION
Article 6
PRINCIPAL FACTS
The applicant, Ms Agathi Teodora Dimopulos, is a Turkish national who was born in 1976 and lives in
Thessaloniki (Greece).
The case concerned a request for the reassignment of property classified as a “natural site”, which
had been assigned to the Treasury when the land-use plan was amended.
Ms Dimopulos had inherited property on the Turkish island of Gökçeada (Imroz), which was
classified as “land for building” and located at Yeni Mahelle Kuzulimanı. The property was also
classified as a “natural site”.
On 3 January 1997, following a review of the land-use plan, the property was listed on the land
register in the name of the Treasury. On 18 June 2003, Ms Dimopulos brought proceedings seeking
the annulment of the property deed in the Treasury’s name and the assignment of the land to her.
On 27 July 2004 section 11 of Law no. 2863 on the protection of cultural and natural heritage was
amended. The new provision stated that land classified as a “natural site” could not be acquired by
way of adverse possession. In a judgment of 26 October 2004 the domestic court dismissed the
applicant’s request, finding that it was not necessary to examine the conditions of adverse
possession, on the grounds that it was no longer possible to acquire a natural or cultural site by
adverse possession since the July 2004 legislative reform. As a public policy rule, the legislative
amendment was applicable to pending cases which had not been settled by a final decision.
Ms Dimopulos lodged an appeal on points of law disputing the refusal she had met with following
the legislative amendment which post-dated the bringing of her civil action. The Court of Cassation
dismissed her appeal, then her request for rectification of the judgment.
Relying in particular on Article 6 § 1 (right to a fair trial), the applicant alleged that the retroactive
application of a legislative amendment to her case had constituted a breach of her right to a fair
hearing.
THE DECISION OF THE COURT
The Court reiterates that retroactive legal intervention during the court proceedings may undermine the fairness of the proceedings and, in particular, equality of arms, and thus affect the outcome of the dispute. In the present case, however, the Government failed to explain the reasons for the retroactive application of a legislative amendment in judicial proceedings in which the State was a contracting party. In addition, the Court recalls that simply referring to the notion of ‘public order’ in the judgment of the Court of First Instance is not sufficient to justify such a retroactive application of a law.
The Court has therefore come to the conclusion that the legislative intervention in question, which retroactively established the dispute between the applicant and the State before the national courts, was not justified by overriding reasons in the public interest.
Violation of Article 6 § 1
Just satisfaction: 6,000 euros (EUR) (non-pecuniary damage) and EUR 3,000 (costs and expenses)(echrcaselaw.com editing).
