Katikaridis and others v. Greece (72/1995/578/664) 15 November 1996: Impossibility of obtaining full compensation for expropriation of part of properties fronting a road because of irrebuttable presumption that the benefit derived from road improvements amounted to sufficient compensation. Expropriation pursued lawful end in the public interest

Greece - impossibility of obtaining full compensation for expropriation of part of properties fronting a road because of irrebuttable presumption that the benefit derived from road improvements amounted to sufficient compensation (section 1 (3) of Law no. 653/1977)

III. Article 1 of Protocol No. 1

Applicants deprived of their property - expropriation pursued lawful end in the public interest, namely improving a major road.

Statutory presumption which Court of Cassation had held to be irrebuttable meant that compensation was reduced by an amount equal to the value of an area fifteen metres wide - owners not allowed to argue that in reality the works had caused them to sustain varying degrees of loss.

System too inflexible - manifestly without reasonable foundation - upset fair balance between protection of right to property and requirements of the general interest - individual and excessive burden on applicants which could have been rendered legitimate only if they had had possibility of obtaining payment of compensation assessed by the domestic courts.

Conclusion: violation (unanimously).

A. Background

6. On 28 July 1981, by means of a joint decision of the Ministers of Finance and Public Works taken under Law no. 653/1977 "on the obligations of adjoining owners where major roads are built", the State expropriated part of each of the properties belonging to the applicants for the purpose of constructing a flyover on the road between Salonika and Langadas.

Law no. 653/1977 creates a presumption that the owners of properties on major roads benefit when such roads are widened and provides that they must accordingly contribute to the cost of expropriation if they are expropriated (see paragraph 29 below).

The properties, which bordered the road, were used for business purposes.

The first two applicants, Mr Savvas Katikaridis and Mr Nicolaos Katikaridis, sold car tyres from their premises, of which they lost 174.38 sq. m. The third applicant, Mr Tormanidis, who was in the fuel business, owned a service station, of which he lost 68.68 sq. m. The fourth applicant, Agrotikes Syneteristikes Ekdosis, AE, a publishing and printing firm, had 347.36 sq. m expropriated.

PROCEEDINGS BEFORE THE COMMISSION

31. The applicants applied to the Commission on 24 October 1991. They alleged breaches of Article 6 1 of the Convention and Article 1 of Protocol No. 1.

32. On 31 August 1994 the Commission declared the application (no. 19385/92) admissible as to the applicants' complaints concerning the length of the proceedings and the interference with their right to the peaceful enjoyment of their possessions; the remainder of the application it declared inadmissible. In its report of 28 June 1995 (Article 31), it expressed the unanimous opinion that there had been a breach of Article 6 1 of the Convention and Article 1 of Protocol No. 1.

AS TO THE LAW

III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1

44. The applicants alleged that the presumption created by section 1 (3) of Law no. 653/1977 and the fact that the Court of Cassation had held that it was an irrebuttable one had prevented them from obtaining in the courts the compensation to which they were entitled by virtue of a final court decision following the expropriation of part of their properties. They relied on Article 1 of Protocol No. 1, which provides:

"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."

45. It was not contested that the applicants had been deprived of their property in accordance with the provisions of Legislative Decree no. 797/1971 and Law no. 653/1977, so that improvements could be made to a major road, and that the expropriation thus pursued a lawful aim in the public interest.

46. The applicants objected to the irrebuttable presumption that adjoining owners derived a benefit from improvements to major roads and the basis for it - everyday experience - indicated by the Court of Cassation in its judgment of 13 June 1989 (see paragraph 18 above). They submitted that in certain decisions of the Salonika Court of Appeal and the Court of Cassation, and in the dissenting opinions of several of the Court of Cassation judges, it had been questioned whether the presumption was irrebuttable where, as here, it was evident that adjoining owners not only did not derive any benefit from the expropriation but, on the contrary, sustained a loss in the value of the remaining part of their property. They complained that the burden of expropriations for the purpose of making improvements to major roads, which benefited society as a whole, fell mainly on the shoulders of the adjoining owners. The amount of benefit derived by those owners varied from case to case and should not have been predetermined irrebuttably in a provision of general application.

47. In the Government's submission, the presumption did not of itself warrant the conclusion that there was a real or apparent disproportion between the general interest pursued and the expropriated owners' alleged loss. Even supposing that the wording of section 1 of Law no. 653/1977 at first sight suggested such a disproportion, it would be reduced to a minimum as the section limited adjoining owners' contributions to the cost of expropriation to an area fifteen metres wide on either side of the road and provided that that obligation could not exceed half the surface area of the property concerned (see paragraph 29 above).

48. In the Commission's opinion, the fact that, owing to the application of the presumption which had been held to be irrebuttable, it was impossible for the applicants to obtain the compensation declared due to them amounted to a violation of Article 1 of Protocol No. 1.

49. The Court recognises that when compensation due to the owners of properties expropriated for roadworks to be carried out is being assessed, it is legitimate to take into account the benefit derived from the works by adjoining owners.

It observes, however, that in the system applied in this instance the compensation is in every case reduced by an amount equal to the value of an area fifteen metres wide, without the owners concerned being allowed to argue that in reality the effect of the works concerned either has been of no benefit - or less benefit - to them or has caused them to sustain varying degrees of loss.

This system, which is too inflexible, takes no account of the diversity of situations, ignoring as it does the differences due in particular to the nature of the works and the layout of the site. It is "manifestly without reasonable foundation" (see, mutatis mutandis, the James and Others v. the United Kingdom judgment of 21 February 1986, Series A no. 98, p. 32, 46, and the Mellacher and Others v. Austria judgment of 19 December 1989, Series A no. 169, p. 26, 45). In the case of a large number of owners, it necessarily upsets the fair balance between the protection of the right to property and the requirements of the general interest.

50. In the instant case the applicants had strong arguments to put forward in an attempt to show that the construction of a flyover near their premises, instead of increasing the value of the properties they retained, reduced their value by depriving them of direct access to the major road, which had by then been raised six metres. Moreover, the Salonika Court of Appeal had found that the applicants had sustained loss as a consequence of the works and held that the State was to pay commensurate compensation (see paragraph 16 above).

51. The applicants thus had to bear an individual and excessive burden which could have been rendered legitimate only if they had had the possibility of obtaining payment of the compensation in question.

There has therefore been a violation of Article 1 of Protocol No. 1.

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