FIRST SECTION
 
 
 
CASE OF TSIGARAS v. GREECE
(Application no. 12576/12)
 
 
 
 
JUDGMENT
 
 
 
 
 
 
STRASBOURG
14 November 2019
 
 
 
This judgment is final but it may be subject to editorial revision. In the case of Tsigaras v. Greece,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
 Krzysztof Wojtyczek, President,
 Armen Harutyunyan,
 Pauliine Koskelo, judges,
and Renata Degener, Deputy Section Registrar,
Having deliberated in private on 22 October 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 12576/12) against the Hellenic Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Greek national, Mr Ilias Tsigaras (“the applicant”), on 22 February 2012. 2. The applicant was represented by Mr V. Chirdaris and Mr A. Kandarakis, lawyers practising in Athens. The Greek Government (“the Government”) were represented by their Agent’s delegate, Mr K. Georgiadis, Senior Advisor at the State Legal Council. 3. On 15 January 2018 notice of the complaints concerning the date with reference to which compensation for the expropriated property was assessed, the length of the proceedings and the lack of remedy in this respect were given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. 4. The Government objected to the examination of the application by a Committee. After having considered the Government’s objection, the Court rejects it. THE FACTS
  THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1964 and lives in Amfithea. 6. On 31 December 2002 the Greek State, in a joint decision by the Minister of Finance and Economics and the Minister for the Environment, Regional Development and Public Works, expropriated some properties, including one which belonged to the applicant, in order to make improvements to the National Road of Ioannina-Antirrio in the vicinity of Amfilochia. The property expropriated from the applicant included a plot of 2,033 sq. m that was part of a larger piece of land measuring 2,991 sq. m. On the part of his land that was not expropriated there was a single-storey building used by the applicant as his domestic residence, measuring 101.60 sq. m, with a basement of equal dimensions. 7. On 30 April 2004 the Greek State brought an action before the Arta Court of First Instance with a view to determining a provisional unitary amount of compensation per square metre of each expropriated property. The case was initially scheduled to be heard on 4 June 2004 but was adjourned. The Court of First Instance held a hearing of the case on 1 October 2004 and issued its decision determining the provisional unitary amount of compensation on 12 November 2004 (judgment no. 798/2004). 8. On 10 May 2005 the applicant brought an action in the Ioannina Court of Appeal to determine the final unitary amount of compensation. He also sought special compensation for the remainder of his property, that is to say for the remaining portion of his land measuring 958 sq. m and the building on it. The hearing before the Court of Appeal took place on 21 September 2005. On 2 February 2006 the court issued decision no. 70/2006, adjourning the examination of the merits of the case on the grounds that an expert report was required to assess the value of the expropriated property. It subsequently scheduled a new hearing of the case for 17 May 2006. On that date the court adjourned the hearing until 18 April 2007, then adjourned it again until 16 April 2008. Following another adjournment, the hearing eventually took place on 5 November 2008. All adjournments were due to the fact that the expert’s report had not yet been completed. 9. In a judgment of 29 June 2009 (no. 224/2009) the Ioannina Court of Appeal set the final unitary amount of compensation at 40 euros per square metre. It also set the special compensation for the remainder of the land that had not been expropriated at 10 euros per sq. m. Lastly, it assessed the value of the building located on that part of the applicant’s land at 125,000 euros and its lost value at 50,000 euros. In total, the applicant was awarded 140,900 euros. The material date that the court took as the basis for calculating the compensation was 1 October 2004, that is to say the date of the hearing concerning provisional compensation, on the grounds that the first hearing concerning the setting of final compensation had been held on 21 September 2005, which was less than a year after the date of the hearing concerning provisional compensation (Article 17 § 2 of the Constitution). 10. On 14 September 2010 the applicant lodged an appeal on points of law with the Court of Cassation. He claimed, inter alia, that the Court of Appeal had erred in taking the date of the hearing concerning the provisional compensation as the material time for the setting of the compensation. He argued that in determining the final compensation, the court should have taken the date of the hearing concerning final compensation, 5 November 2008, when examination on the merits had taken place, resulting in judgment no. 224/2009 by which he had been awarded compensation. Therefore, pursuant to Article 17 § 2 of the Constitution, more than a year had elapsed between the hearing concerning the setting of provisional compensation and that concerning the setting of final compensation. In view of the above, the final compensation should have been set with reference to the hearing of 5 November 2008. In the applicant’s view, the hearing of 25 September 2005 should not have been taken into account, as it had resulted not in a ruling on the merits but rather in decision 70/2006 by which the examination on the merits had been adjourned and an expert report ordered. 11. The case was heard on 28 April 2011 by the plenary of the Court of Cassation because the issue at stake was of significant legal interest. On 29 September 2011 the plenary of the Court of Cassation dismissed the applicant’s appeal on points of law (judgment no. 14/2011). As regards the material time for determining the compensation, referring to Articles 111, 223, 224 and 281 of the Code of Civil Procedure, a majority of twenty-three judges of the Court of Cassation held that it was the first hearing (of 21 September 2005) that should have been taken into account ‒‑regardless of whether or not the examination on the merits had taken place on that date ‒ on the grounds that “during that hearing the subject of the evidence procedure and of judicial research was being determined”. A minority of thirteen judges disagreed with the above-mentioned conclusion on the grounds that Article 17 § 2 of the Constitution implied that its purpose was for individuals who had been deprived of their property to be given full compensation corresponding to the value of the property as at a date closer to the date of payment. Therefore, in the present case, the material time to be taken should have been the last hearing before the decision on the merits had been issued. 12. The judgment was finalised (καθαρoγραφή) on 4 October 2011 and it was archived on 4 November 2011, on which date it was possible to obtain a copy. RELEVANT DOMESTIC LAW AND PRACTICEThe Constitution

13. The relevant Article of the Greek Constitution reads as follows:
Article 17
“... 2. No one may be deprived of his property unless it is for the public benefit, which must be duly proved, in the circumstances and manner laid down by law and only after payment of full compensation corresponding to the value of the expropriated property at the time of the court hearing on the provisional setting of compensation. In cases in which an application is lodged directly requesting a final determination of the compensation, the value of the expropriated property at the time of the court hearing of that application shall be taken into account. If more than a year has elapsed between the hearing date concerning provisional setting of compensation and the hearing date concerning final setting of compensation, then the value shall be assessed with reference to the latter date. 3. Any change in the value of the expropriated property occurring after and solely as a result of publication of the decision to expropriate shall not be taken into account.
...”
Code of Civil procedure
14. The relevant Articles of the Code of Civil Procedure read as follows:
Article 111
“1. The proceedings in a hearing shall be based on the written pre-trial proceedings. 2. No main or incidental action for judicial protection can be lodged with a court, unless specified otherwise by law. An action which has been lodged without pre-trial proceedings shall automatically be dismissed as inadmissible”. Article 223
“When an action is pending before the court it is not permissible to modify its claims. Exceptionally, the claimant, in his submissions up until the end of the first‑instance procedure, may limit his claims or request a) whatever is associated with the main subject-matter of the action (τα παρεπόμενα του κύριου αντικειμένου της αγωγής); b) another object instead of that initially requested, or the difference in value caused by a change that has taken place”. Article 224
“It is inadmissible to change the legal basis of an action. The applicant by means of submissions before the first-instance court in accordance with Article 237 § 1 may supplement, clarify or correct his allegations, provided that they do not change the action’s legal basis”. Article 281
“The ‘date of the hearing’ is deemed to be the date on which the case was called and the trial started, irrespective of whether the court started the examination on the merits”. Introductory Law to the Civil Code
15. Article 105 of the Introductory Law to the Civil Code provides as follows:
“The State shall be duty-bound to make good any damage caused by unlawful acts or omissions attributable to its organs in the exercise of public authority, except where such unlawful act or omission was in breach of an existing provision but was intended to serve the public interest. The person responsible and the State shall be jointly and severally liable, without prejudice to the special provisions on ministerial responsibility.”
THE LAW
  ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION
16. The applicant complained that the Greek authorities had failed to apply properly the relevant domestic law concerning the date with reference to which compensation for his expropriated property should have been set. This had resulted in a violation of his right of property, as provided for in Article 1 of Protocol No. 1 to the Convention, which reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
AdmissibilityThe parties’ arguments

17. The Government argued that the application should be rejected for non-exhaustion of domestic remedies. In particular, they contended that an action for damages in the administrative courts under Article 105 of the Introductory Law to the Civil Code would have constituted an effective remedy in the instant case. Under that provision, the State was obliged to provide redress for damage caused by the acts or omissions of its organs in the exercise of public authority. The sole condition was that the act or omission had to be unlawful, that is to say, it had to infringe a rule of law establishing a specific individual right or interest. In the present case the applicant could have complained before the domestic courts even about the judgments of the civil courts, given that the Supreme Administrative Court had ruled that Article 105 of the Introductory Law to the Civil Code applied by analogy to any damage caused by acts of organs of the judiciary that could be attributed to an obvious error on their part. 18. The Government further argued that the application should be rejected as manifestly ill-founded and that the applicant could not claim to be a victim of the alleged violation. In this regard, they argued that the domestic courts had never had an opportunity to rule on the value of the applicant’s property on the date he considered as material, that is to say on 5 November 2008, therefore it had not been established whether the applicant had suffered damage in respect of his property. In their view, that meant that the Court could not substitute itself for the domestic authorities in this regard. 19. The applicant contested the Government’s argument relating to non-exhaustion of domestic remedies. In his view, he had used all legal remedies available to him. In any event, Article 105 of the Introductory Law to the Civil Code, which was a remedy to be used before the administrative courts, could not be used to complain about the setting of compensation awarded in expropriation proceedings. 20. The applicant did not offer any comments in respect of the Government’s objection alleging lack of victim status.

Outcome for Article 13: violation