The ECHR found a violation of the requirements of Article 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms.

Заголовок: The ECHR found a violation of the requirements of Article 1 of Protocol No. 1 to the Convention for the Prot Сведения: 2018-09-20 14:13:56

The ECHR judgment of 27 October 2016 in the case of Kanaginis v. Greece (application No. 27662/09).

In 2009, the applicant was assisted in the preparation of the application. Subsequently, the application was communicated to Greece.

In the case, the applicant's complaint was successfully considered that the amount he had to reimburse for the return of the land was not reasonably proportional to that received as compensation for expropriation. 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


In 1976, the land plot belonging to the applicant was expropriated. However, at the request of the applicant, the expropriation order was abolished by the State Council in 2002, since the public interest purpose, taking into account which the land was expropriated, was not realized. While the applicant received approximately 23,000 euros in compensation for expropriation, the authorities specified this amount in accordance with article 12 of Law No. 2882/2001 in accordance with the annual average consumer price index and offered him to reimburse about 602,000 euros for his land. Then the applicant appealed to the State Council on the question of the cancellation of this decision, but his complaint was canceled.

The applicant complained that the amount he had to reimburse for the return of the land was not reasonably proportional to that received as compensation for expropriation. He pointed out that a disproportionate and excessive burden was imposed on the state, which could not be justified by any general cause of public interest.


ISSUES OF LAW


Concerning compliance with Article 1 of Protocol No. 1 to the Convention. (a) Applicability of the complaint. Greek law allowed the abolition of expropriation provided that the landlord compensated the compensation paid with the amount specified, and the State Council abolished the authorities' refusal to abolish expropriation after establishing that the purpose of expropriation had been lost. Consequently, the applicant had material interest which was recognized under Greek law and protected in accordance with Article 1 of Protocol No. 1 to the Convention.

(b) Merits. The interference with the applicant's right to respect for his property consisted in the impossibility of returning the expropriated land after the expropriation had been canceled by the decision of the State Council on the grounds that it had not achieved its goal because of the allegedly excessive price that he had to pay to the State. It was not disputed that the interference was prescribed by law and that it pursued a legitimate aim, namely ensuring that the applicant's redemption of the land did not damage the financial interests of the state.

According to the decision of the State Council, the applicant obtained the cancellation of the expropriation of the land he owned, which gave him, at least, a legitimate expectation of the return of his property. However, he could not be allowed to regain land in a manner detrimental to public interest. Thus, since he was paid full compensation, when his land was expropriated, it was not unreasonable for the state 30 years later to use the applicable law to clarify the amount he had received. The recalculation formula provided for in Article 12 of Law No. 2882/2001 included the equation according to which the compensation for expropriation received by the interested person was multiplied by the ratio of the average annual consumer price index for the year of establishing compensation for the return of property and for the year of receiving compensation for expropriation.

The application of this formula has exempted the competent authority from accounting for other relevant, really necessary factors to ensure proper calculation of the amount to be reimbursed to the state, such as the commercial value of land in the period relevant to the circumstances of the case and the value of neighboring land plots or others in the same area that were expropriated at the time. In fact, according to the judgment of the Grand Chamber of the European Court in the case of Guizo-Gallisay v. Italy (Guiso-Gallisay v. Italy) of 22 December 2009, complaint No. 58858/00, compensation for the expropriation of the construction land must be in accordance with commercial value of land. In order to assess the proportionality between the re-calculated compensation and the real value of the applicant's property, it is necessary to take into account the tendencies of the Greek real estate market and the approximately 17-year duration of the return procedure. There was a significant difference between the amount required by the state and the real value of the land indicated in the materials submitted to the Court. In the present case, this difference could not be considered reasonable.

In addition, according to the new wording of article 12 of Law No. 2882/2001, the administrative authority or the independent expert had to take into account several relevant factors in assessing the value of the property, such as the value of adjacent or similar land plots and the potential income from land development. In addition, in case of disagreement between the state and the person about the compensation due, the competent courts could settle the dispute in the absence of a legislative requirement to apply criteria such as the annual average consumer price index.

In addition, two administrative decisions, according to which the competent authority has determined the amount to be paid upon return of land, are still in effect. The authorities had unlimited discretion in the recalculation of the compensation to be paid in the event that the applicant presented additional claims on this matter. The current value of land, calculated by the tax authority, was much lower than that established in accordance with the administrative decision. Accordingly, it is obvious that the applicant was in a deadlock situation of the actual impossibility of returning his property.

In addition, the State Council established without explaining the reasons that the applicant's right to respect for his property was not violated. Thus, the applicant had no real opportunity to effectively challenge measures that violated his right guaranteed by Article 1 of Protocol No. 1 to the court. In view of the foregoing considerations, the formula used in the applicant's case during the period relevant to the circumstances of the case in accordance with article 12 of Law No. 2882/2001 and the reasoning of the Council of State in its decision violated the fair balance that had to be established between the requirements of public interest and imperatives protection of the applicant's right to respect for his property.


DECISION


The case involved a violation of the requirements of Article 1 of Protocol No. 1 (unanimously adopted).


COMPENSATION


In the application of Article 41 of the Convention. The question is not ready for consideration.

 

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