The ECHR judgment of 29 June 2017 in the case of Kosmas and Others v. Greece (application No. 20086/13).
In 2013, the applicant was assisted in preparing the application. Subsequently, the application was communicated to Greece.
The applicant successfully complained of the applicant's insufficient account of the applicant's situation in settling the dispute over land acquired by the monastery through illegal possession. The case involved a violation of the requirements of Article 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
Monasteries of Mount Athos are public legal entities that have a special status. Under the law, their property could not be acquired through illegal possession, except in cases where continuous possession can be proved for more than 30 years until 1915.
In 2004, the monastery appealed to the courts to recognize the ownership of the land used by the first applicant (hereinafter - the applicant). The monastery referred to the deed, dated 1824, and as an alternative to continuous possession from 1882 to 1915. The applicant objected, referring to a number of transfer acts dating back to 1883, and various measures of possession taken since 1974. He also argued that the lawsuit was an abuse of the law. The courts recognized the monastery as the owner, at least due to illegal possession of property since 1912, since the applicant did not prove the continued possession of his predecessors in the same period. Accordingly, the courts acknowledged that subsequent acts committed by the applicant could not be accounted for because of the fact that monastic property could not be acquired through illegal possession. The allegation of abuse of rights was also rejected.
ISSUES OF LAW
(a) The existence of "property" and the applicable rule. The title or possession of the applicant or his predecessors was never contested (the applicant even received an administrative permit to operate the restaurant and build the building). The fact that this situation was not contested over a long period shows that the authorities and the monastery actually agreed that the applicant and his predecessors had property interest in the land constituting property recognized and protected by domestic legislation and that they had never taken any action, allowing to assume that the situation will change.
As a result, the applicant's pecuniary interest was sufficiently established and significant to constitute "property" within the meaning of the first sentence of Article 1 of Protocol No. 1, hence this provision of the Convention was applicable.
(b) Intervention and proportionality. Eviction of the applicant after the decision of the Court of Cassation was provided by law and pursued a legitimate aim (protection of monastic real estate from the encroachments of third parties). Nevertheless, the following reasons compelled the Court to conclude that the applicant had to bear an individual and excessive burden which was not justified by lawful interest.
The applicant, believing that he acquired the land legally and in good faith, on the basis of legal documents dating back to 1883, created and carried out business there with his family.
The Greek courts did not take into account these legal documents, the fact that the applicant received various permits for exploitation and construction, as if he were the owner of the land, or the fact that he paid the property tax. Indeed, the administrative authorities could not have known at that time that the monastery successfully claimed the right of ownership in 2004.
At the same time, administrative legal acts drawn up by state bodies could only reinforce the conviction of beneficiaries that the system of acquisition and transfer of ownership was stable and reliable and that they legally own this property.
In any event, the applicant also submitted that the claim brought by the monastery constituted an abuse of the law. If this argument were accepted, the applicant, at least, would have had the opportunity to maintain "possession" of the land. However, the claim was dismissed on the grounds that the costs incurred when using the land for commercial purposes were overlapped with the profit gained and the fact that the rent to the monastery was not paid.
Accordingly, the courts did not take into account the loss in the absence of compensation of the applicant's trading instruments, which constituted the source of his and his family's existence since 1986.
In the case there was a violation of the requirements of Article 1 of Protocol No. 1 to the Convention (adopted by five votes "for" with two - "against").
In the application of Article 41 of the Convention. The Court awarded the applicant EUR 75,000 in respect of pecuniary and non-pecuniary damage.