In the case of the former King of Greece and Others v. Greece,
The European Court of Human Rights, sitting as a Grand Chamber
composed of the following judges:
Mr L. Wildhaber,
President,
Mrs E. Palm,
Mr J.-P. Costa,
Mr L. Ferrari Bravo,
Mr Gaukur Jörundsson,
Mr L. Caflisch,
Mr I. Cabral Barreto,
Mr W. Fuhrmann,
Mr B. Zupančič,
Mrs N. Vajić,
Mr J. Hedigan,
Mr M. Pellonpää,
Mrs M. Tsatsa-Nikolovska,
Mr T. Panţîru,
Mr E. Levits,
Mr K. Traja,
Mr G. Koumantos, ad hoc judge,
and also of Mrs M. de Boer-Buquicchio,
Deputy Registrar,
Having deliberated in private on 14 June and 25 October 2000,
Delivers the following judgment, which was adopted on the
last-mentioned date:
PROCEDURE
1. The case was referred to the Court, in accordance
with the provisions applicable prior to the entry into force of Protocol No. 11
to the Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) [Note by the Registry. Protocol No. 11 came into
force on 1 November 1998.], by the European Commission of Human Rights (“the
Commission”) on 30 October 1999 (Article 5 § 4 of Protocol No. 11 and former
Articles 47 and 48 of the Convention).
2. The case originated in an application (no.
25701/94) against the Hellenic Republic lodged with the Commission under former
Article 25 of the Convention by the former King of Greece and eight members of
his family, on 21 October 1994. The applicants alleged that Law no. 2215/1994,
which was passed by the Greek parliament on 16 April 1994 and came into force
on 11 May 1994, violated their Convention rights. The applicants were
represented by Messrs Nathene & Co., solicitors in London. The Greek
Government (“the Government”) were represented by their Agent, Mr L. Papidas,
President of the State Legal Council, and subsequently by his successor, Mr E.
Volanis.
3. The Commission declared the application partly
admissible on
21 April 1998 in so far as it concerned the former King of Greece, his sister,
Princess Irene, and his aunt, Princess Ekaterini (“the applicants”). In its
report of 21 October 1999 (former Article 31 of the Convention) [Note by the
Registry. The report is obtainable from the Registry.], it expressed the
unanimous opinion that there had been a violation of Article 1 of Protocol No.
1 and that it was not necessary to examine whether there had been a violation
of Article 14 of the Convention taken in conjunction with Article 1 of Protocol
No. 1.
4. On 6 December 1999 a panel of the Grand Chamber
determined that the case should be decided by the Grand Chamber (Rule 100 § 1
of the Rules of Court). Mr C.L. Rozakis, the judge elected in respect of
Greece, who had taken part in the Commission's examination of the case,
withdrew from sitting in the Grand Chamber (Rule 28). The Government
accordingly appointed Mr G. Koumantos to sit as an ad hoc judge (Article
27 § 2 of the Convention and Rule 29 § 1).
5. The applicants and the Government each filed a
memorial.
6. A hearing took place in public in the Human
Rights Building, Strasbourg, on 14 June 2000.
There appeared before the Court:
(a) for the Government
Mr P. Georgakopoulos, Senior Adviser,
State Legal Council, Delegate of
the Agent,
Mr M. Apessos, Adviser,
State Legal Council,
Mrs K. Grigoriou, Adviser,
State Legal Council,
Mr D. Pannick QC, Barrister,
Ms D. Rose, Barrister,
Prof. D. Tsatsos,
Prof. N. Alivizatos, Counsel,
Mr Ch. Pampoukis, Assistant Professor,
Mr G. Katrougalos, dikigoros (lawyer),
Mr E. Kastanas, Member of the Special Legal
Service,
Ministry of Foreign Affairs,
Mr P. Liakouras, Special Adviser,
Ministry of Foreign Affairs, Advisers;
(b) for the applicants
Lord Lester of Herne Hill QC,
Mr J. Bravos,
Mrs M. Carss-Frisk,
Mrs N. Arnaoutis,
Prof. A. Georgiades,
Mrs A.
Georgiades, Counsel.
The Court heard addresses by Lord Lester of Herne Hill, Mr
Pannick, Professors Tsatsos and Alivizatos.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
7. In 1864 a crowned democracy was established in
Greece, when George I, son of the Danish King Christian IX, was elected King
and ascended the throne. The former King Constantinos of Greece (the first
applicant) is a direct descendant of King George I. He ascended the Greek
throne in 1964, at the age of 24, in succession to his father King Paul I.
A. The applicants' property and their ownership titles
8. The applicants have produced the following
ownership titles relating to their property in Greece.
1. The Tatoi estate
9. The former King claimed that he was the owner of
an area of 41,990,000 sq. m. of land and a building at Tatoi. This property was
formed during the reign of King George I (the first applicant's
great-grandfather) through successive purchases of pieces of land.
– By deed no. 24101 of 15 May 1872, King George I
purchased from Scarlatos Soutzos the Liopessi-Mahonia estate and from Soutzos's
wife the adjacent Tatoi estate, for a total of 300,000 drachmas (GRD).
– Under Law no. 599 of 17 February 1877, the Greek
State transferred in full and absolute ownership to King George I the forest
known as Bafi, of approximately 15,567,000 sq. m. The applicants have produced
documents which demonstrate that, while the Greek government had expressed the
intention of donating the Bafi forest to King George I, the latter did not wish
to acquire this land through a donation, but insisted on purchasing it at a
price fixed by the government. In the event, a compromise was reached, whereby
the Bafi forest was expressed to be “conceded” (rather than “donated”) to King
George I. In return, the latter deposited GRD 60,000 with interest at the
National Bank.
Approximately 1,000,000 sq. m. of the above property were
subsequently exchanged for a property of equal surface area adjacent to Tatoi,
which belonged to local landowners, who were paid GRD 3,000 by King George I to
compensate for the difference in value between the exchanged properties.
– By deed no. 55489 of 4 April 1891, King George I
purchased from Andreas Syngros a part of the Kiourka estate, which is adjacent
to the Tatoi estate, for GRD 110,000.
– By certificate no. 382 of 20 October 1878, the
mortgage registrar of Marathonas attests that the Keramydi estate belonged to
King George I and was devolved to him by his predecessors in title, Ioannis
Malakindis, Dimitrios Vassilios and Panagis Dionyssiotis, George Kyriazis,
George Sardelis and Stamata Sykaminioti. These persons had acquired the
property in parts through successive purchases from 1844 to 1878.
10. By his holograph will dated 24 July 1904, King
George I made the Tatoi estate a family trust (familia-fideicommis) in
order to serve as a permanent residence of the reigning King of the Hellenes.
However, according to the then prevailing Byzantine-Roman law, a family trust
lasted only for four successions, which meant that the trust was released in
the fourth successor.
11. Following the death of King George I on 5 March
1913, Tatoi devolved to his successor, King Constantinos I, and following the
latter's deposition from the throne in 1917, to his second-born son, King
Alexander. After the latter's death in 1920, Tatoi came back to King
Constantinos I, who had in the meantime returned to the throne. After the
latter's abdication in September 1922, Tatoi passed to his first-born son,
Crown Prince
George II.
12. Then, following the abolition of the monarchy
and the proclamation of the Republic by resolution of the fourth Constituent
Assembly dated
25 March 1924, the Greek State expropriated Tatoi by Law no. 2312 of 14 and 20
August 1924, while the Bafi estate passed ipso jure and without any
compensation to the State.
13. Following the return of King George II to the
throne, the Emergency Law of 22 January 1936 gave Tatoi back to the King in
full ownership and possession, with the exception of the Bafi-Keramydi estate
(an area of 3,785,000 sq. m.) which, in the meanwhile, had been allotted to
landless refugees. The explanatory report on this Law stated, inter alia,
that the expropriation had been in breach of Article 11 of the 1911
Constitution, according to which a compulsory expropriation always had to be
preceded by compensation to the owner in an amount to be determined by the
courts.
14. After the death of George II on 1 April 1947,
his brother Paul came to the throne. Legislative Decree no. 1136 of 5 and 11
October 1949 stated the following: “The Tatoi estate, which was returned ... to
the late King George II, has become the unreserved, free and exclusive property
of HM King Paul from his accession to the throne”. Following King Paul's
death on 6 March 1964, the property came to his son and successor Constantinos
II (the first applicant), by virtue of his father's holograph will dated 8
December 1959.
2. The Polydendri estate
15. The former King and Princess Irene claimed that
they each owned 101.5/288 of an area of 33,600,000 sq. m. of land at Polydendri,
and that Princess Ekaterini owned 36/288 of that area. This area was formed
through the following chain of transfers.
– By deed no. 38939/1906, Hassan Efendi Leondaritis,
a landowner of Larissa, transferred and sold to Crown Prince Constantinos I the
estate known as Polydendri, for the sum of GRD 397,500. Following the death of
Constantinos I, the estate devolved to his intestate heirs as follows: to his
wife Sophia 2/8 ab indivisio, and to each of his children
George II, Paul, Helen, Irene, Ekaterini (the third applicant) and the
daughter of his predeceased son Alexander, Alexandra, 1/8 ab indivisio.
– By deeds nos. 79847 of 18 February 1924 and 80452
of 24 March 1924, the above co-heirs and co-owners (with the exception of
Ekaterini) transferred and sold 7/8 ab indivisio of the estate to
Athanassios Galeos, a captain in the merchant navy, for the sum of GRD
4,585,000. As regards the 1/8 ab indivisio share of Princess Ekaterini,
a price of GRD 650,000 was initially agreed and the land was leased to the new
owner pending completion of the required formalities, whereupon the land would
be transferred to him.
– By deed no. 4289 of 20 March 1925, Athanassios
Galeos and others formed the “Forest Company”
(Αvώvυμoς Δασική
Εταιρία), to which Athanassios Galeos
transferred the 7/8 ab indivisio of the estate he had acquired. This
company was dissolved by resolution of its general assembly dated 12 May 1938.
By deed no. 22408 of 7 October 1939, the liquidators of the company transferred
and sold to Crown Prince Paul the 7/8 ab indivisio of the estate for the
sum of GRD 4,000,000 which was paid with funds from the dowry of his wife,
Princess Frederica. After his death, 14/32 of his share of Polydendri devolved
to his widow, and 14/96 to each of his three children, Sophia, Constantinos
(the first applicant) and Irene (the second applicant). In 1968 Princess Sophia
declined the inheritance, and her share of the estate was added to the share of
the remaining heirs pro rata. After the death of Queen Frederica on 6 December
1981, and in the absence of a will, her 49/96 ab indivisio share of
Polydendri devolved to her children in equal shares, each child thus receiving
49/288 of her share.
3. The Mon Repos estate on the island of Corfu
16. The original title on this property is minutes
no. 278 of 1 June 1864 of the Provincial Council of Corfu, by which the Council
decided to offer to King George I, in recognition of his contribution to the
accession of the Ionian islands to Greece, the use of the house in which the
British Magistrate of the Supreme Council once lived, together with the
surrounding area, situated at the place known as “Aghios Pandeleïmon of
Garitza”. The existing records from that time do not indicate the surface area,
exact location or boundaries of the donated estate. The donation was later
expressly recognised by deed no. 7870/1887.
17. Between 1870 and 1912 King George I enlarged the
above estate by successive purchases of certain smaller or bigger tracts of
land belonging to third parties, situated around or inside the farm. After two
purchases made by George II, Mon Repos attained its final surface area of
approximately 238,000 sq. m.
18. Following the death of King George I, Mon Repos
devolved to Prince Andreas, by virtue of King George's holograph will dated
24 July 1904.
19. After the 1922 Revolution and by decision no.
1767/1923, the compulsory expropriation of Mon Repos was proclaimed in favour of
the State in order to be used as the summer residence of the reigning King. In
1931 the administrative eviction of Prince Andreas was ordered. Legal
proceedings were then instituted and, by judgment no. 57/1934, the Corfu Court
of Appeal (Εφετείo) recognised Prince Andreas as
the lawful owner of the property and ordered the return of the estate to him.
Following the restoration of the “crowned democracy”, Emergency Law no.
514/1937 expressly provided that Mon Repos be conceded and transferred in full
ownership and possession to Prince Andreas.
20. By deed no. 11909/1937, Prince Andreas sold Mon
Repos to King George II against a life annuity of GRD 400,000. King George II
died on
1 April 1947. His co-heirs donated their shares to King George's brother, King
Paul, who acquired full ownership of Mon Repos (deeds
nos. 3650/1957, 3816/1957 and 5438/1959). Following King Paul's death, and by
virtue of his holograph will, Mon Repos devolved to his widow Frederica
(usufruct) and to his son, the first applicant (bare ownership). The usufruct
was terminated by the death of Queen Frederica on 6 December 1981, and the
first applicant acquired full title ownership of Mon Repos.
21. On or about 5 August 1994, following the
enactment of Law
no. 2215/1994 (see paragraph 41 below), the residence of Mon Repos was broken
into. It is now occupied by the municipality of Corfu.
B. The status of the property during the military
dictatorship (April 1967-July 1974) and after the restoration of democracy
22. On 21 April 1967 there was a military coup in
Greece. The former King remained in the country until 13 December 1967, when he
left for Rome.
23. On 15 November 1968 the military regime
promulgated a new Constitution (the former had been enacted in 1952), which was
amended in 1973 when the former King was deposed (see paragraph 25 below).
Article 21 of the 1968 Constitution (as amended in 1973) guaranteed the right
of property and provided that nobody was to be deprived of property save in the
public interest and following payment of full compensation, the amount of which
was to be determined by the civil courts. However,
Article 134 § 3 of the same Constitution provided for the enactment of a unique
legislative measure which would have the effect of confiscating the movable and
immovable property of the former King and the royal family.
24. Between 21 April 1967 and 31 May 1973 the
military dictatorship formally maintained the “crowned democracy”, despite the
former King's self-imposed exile.
25. On 1 June 1973 the military regime purported to
abolish the “crowned democracy”, to declare the former King and his heirs
deposed and to establish a presidential parliamentary republic.
26. In October 1973 the military dictatorship issued
a legislative decree (no. 225/1973), pursuant to Article 134 § 3 of the 1968
Constitution (as amended in 1973), whereby all movable and immovable property
of the former King and the royal family was confiscated with effect from the
date of publication of the decree in the Official Gazette (4 October 1973), and
whereby title to the confiscated property passed to the Greek State. The three
estates in question were specifically mentioned as forming part of the
immovable property being confiscated.
27. The above decree provided for compensation in
the sum of
GRD 120,000,000 to be distributed amongst the members of the royal family whose
property was to be confiscated, and this sum was deposited in a bank account
with a view to being claimed by the royal family. The former King's share of
the compensation was stated to be GRD 94,000,000 and Princess Irene's share GRD
12,000,000. No compensation was provided for Princess Ekaterini. It was further
specified that the compensation had to be claimed by 31 December 1975. No part
of it was ever claimed.
28. On 24 July 1974 the military dictatorship in
Greece was replaced by a civilian government under the leadership of Mr
Karamanlis.
29. By an Act of 1 August 1974 (“the First
Constitutional Act of 1974”), the government revived the 1952 Constitution,
except for the provisions relating to the form of government (Article 1).
30. Article 10 of this Act provided that, until the
National Assembly was reconvened, the legislative power vested in the Council
of Ministers was to be exercised through legislative decrees. Article 10 § 2
provided that such legislative decrees would be capable of having retrospective
effect as regards any issues arising from any Constitutional Acts after 21
April 1967. Article 15 provided that the 1968 Constitution (as amended), and
all other Constitutional Acts or Acts of a constitutional character passed
under the military dictatorship after 21 April 1967, were repealed.
31. Pursuant to Articles 1 and 10 of the First
Constitutional Act of 1974, the government issued a legislative decree (no.
72/1974) which provided for the property of the former King and the royal
family to be administered and managed by a seven-member committee until the
form of regime had been finally determined.
32. The above decree was implemented by three
ministerial decisions.
(i) By decision no. 18443/1509 of 1 October 1974, a
seven-member committee was formed “for the purposes of managing and
administering the estate of the royal family”.
(ii) By decision no. 21987 of 24 October 1974, it
was provided that “the handing over [of the property] of the royal family from
the State to the committee” was to be made by 31 December 1974.
(iii) By decision no. 25616 of 23 December 1974, it
was provided that the handing over of the property of the royal family to the
committee would continue until completion, before the handing over to its
owners or to a person nominated by them.
33. Between 1974 and 1979 all the movable and
immovable property of the former King and the royal family in Greece was
administered and managed in the name of the committee established pursuant to
Legislative Decree no. 72/1974, on behalf of the former King and the royal
family. In 1979 the movable property was handed over to them.
34. On 17 November 1974 there were elections to the
National Assembly, and the Assembly was thereafter reconvened. A referendum was
held on 8 December 1974, the outcome of which was in favour of a parliamentary
republic. By Resolution D18 of 18 January 1975, the National Assembly resolved
and declared, inter alia, that democracy in Greece was never lawfully
abolished, and that the revolutionary coup of
21 April 1967, as well as the situation which resulted as a consequence up to
23 July 1974, constituted a coup d'état which aimed to usurp power and
the sovereign rights of the people.
35. In 1975 the National Assembly enacted the
present Constitution, which came into force on 11 June 1975.
36. In 1981 the PA.SO.K. (Panhellenic Socialist
Party), under the leadership of Mr Papandreou, was elected to power in Greece.
From January 1984 onwards, discussions were held with the former King regarding
his property. By 1988 an agreement on principle had been reached between the
government and the former King relating to the property and tax liabilities of
the royal family. However, the agreement was never executed.
C. The 1992 agreement
37. In 1990 the conservative “New Democracy” Party
was elected to power.
38. In 1992 an agreement was reached between the
former King and the Greek State, which provided as follows.
(i) The former King transferred an area of 200,030
sq. m. of his forest at Tatoi to the Greek State for the sum of GRD
460,000,000.
(ii) The former King donated an area of 401,541.75
sq. m. of his forest at Tatoi to a foundation for the benefit of the public,
namely the Universal Hippocration Medical Foundation and Research Centre.
(iii) A foundation for the benefit of the public,
namely the National Forest of Tatoi Foundation, was created and the former King
donated an area of 37,426,000 sq. m. of his forest at Tatoi to the foundation.
(iv) The former King, the royal family and the Greek
State waived all legal rights in connection with and discontinued all pending
legal proceedings concerning the royal family's tax liabilities.
(v) The former King and the royal family agreed to
pay to the Greek State the sum of GRD 817,677,937 in respect of inheritance
tax, income tax and capital taxes, together with interest and surcharges. The
payment to be made by the former King would be set off against any sums due to
the former King pursuant to the agreement.
39. The agreement was contained in and evidenced by
notarial deed
no. 10573/1992 of 3 June 1992. On 28 September 1992 the Division of Scientific
Studies (διεύθυvση
Επιστημovικώv
Μελετώv) of the Greek parliament issued a
report on a draft bill ratifying the above-mentioned notarial act. The report
stated, inter alia, that Legislative Decree
no. 225/1973 was repealed by Legislative Decree no. 72/1974 and that the
property thereby “reverted to its former ownership status”. Subsequently the
agreement was incorporated in and given the force of law by Law
no. 2086/1992.
D. Invalidation of the 1992 agreement – Law no.
2215/1994
40. In the summer of 1993 the former King and his
family visited Greece.
41. Following the autumn 1993 elections, a
government under the leadership of Mr Papandreou was again returned to power in
Greece. The new government declared their intention of dealing with the matters
relating to the property of the former royal family, in order to restore
“constitutional legality and historical memory” and to satisfy “the democratic
sensibility of the Greek people as this was expressed by the referendum of
1974” [Statement of 1 April 1994 of the then Minister of Finance.].
They eventually introduced Law no. 2215/1994 which was passed by Parliament on
16 April 1994 and became law with effect from 11 May 1994. It was entitled
“Settlement of matters pertaining to the expropriated property of the deposed
royal family of Greece”, and provided as follows.
(i) Law no. 2086/1992 was repealed and deed no.
10573/1992 rescinded. Any acts carried out pursuant thereto were void and of no
legal effect (section 1). The acts so declared void and of no legal effect
included the donation to the Universal Hippocration Medical Foundation and
Research Centre at Tatoi and to the National Forest of Tatoi Foundation [Note:
On 8 December 1997 the National Forest of Tatoi Foundation lodged an
application with the European Commission of Human Rights under former Article
25 of the Convention. The application was registered on 4 February 1998 (no.
39654/98). On 1 November 1998, by virtue of Article 5 § 2 of Protocol No. 11,
the application fell to be examined by the European Court of Human Rights.].
(ii) The Greek State became the owner of the movable
and immovable property of the former King, Princess Irene and Princess
Ekaterini. Legislative Decree no. 225/1973 was deemed to have remained in force
(section 2).
(iii) Title to the Mon Repos property on the island
of Corfu was transferred to the municipality of Corfu (section 4(2)).
(iv) Taxes already assessed were written off. All
legal proceedings pending before the administrative courts or the Supreme
Administrative Court (Συμβoύλιo
της
Επικρατείας) in
respect of inheritance and other taxes, surcharges and penalties were
discontinued. Amounts paid by the former King and other members of the royal
family in respect of tax could be claimed back from the Greek State, but the State
could oppose any set-off of such a claim against any claim of the State against
the royal family (section 5(1)).
(v) Any agreements concerning any property of the
royal family, except leasehold agreements, would be declared void. Any leases
of land belonging to the royal family would continue as if entered into between
the lessees and the Greek State (section 5(2)).
(vi) Any legal proceedings brought by the former
King or other members of the royal family before any Greek court using the
designation “King” or any other royal designation, even if combined with the
prefix “ex” or “former”, would be regarded as void (section 6(4)).
(vii) Preconditions were imposed for the continued
recognition of the Greek nationality of the former King and the royal family,
and for the retention of their Greek passports:
– a declaration was to be submitted to the Registrar
of Births, Marriages and Deaths (ληξιαρχείo)
of Athens to the effect that the former King and the royal family unreservedly
respected the 1975 Constitution and accepted and recognised the Hellenic
Republic;
– a further declaration was to be submitted to the
Registrar to the effect that the former King and the royal family unreservedly
waived any claim relating to the past holding of any office or possession of
any official title;
– the former King and the members of the royal
family were to register in the Municipal Register of Citizens (μητρώα
αρρέvωv ή
δημoτoλόγια) under a name
and a surname;
(viii) any legislative provision contrary to this
legislation was automatically repealed (section 6(5)).
E. Proceedings in the Greek courts
42. The applicants brought several proceedings in
the Greek courts concerning the titles to their estates.
43. The applicants also challenged the
constitutionality of Law
no. 2215/1994. Following two conflicting judgments of the Court of Cassation (Αρειoς Πάγoς) and
the Supreme Administrative Court, the case was referred to the Special Supreme
Court (Αvώτατo
Ειδικό
Δικαστήριo).
The Special Supreme Court judgment of 25 June 1997
44. The court first examined whether the applicants
were entitled to bring legal proceedings before it without using a surname. The
court held that “the indication 'former King' is mentioned in the legal
documents not as a title of nobility which is forbidden by the Constitution,
but in order to define the identity of this litigant, who for the reasons
stated earlier, has no surname ... It concerns a reference to a historic fact
which, like other elements, can indeed designate the identity of the above
person, so that this person may enjoy judicial protection”.
45. As regards the question of the royal property,
the court stressed that “it was from the beginning a political question”, that
the property rights of the applicants were linked to the form of government and
that “during the reign of the royal family, the property that belonged to the
King and the royal family was treated like a special category of property”. The
court noted, inter alia, the following:
“When the Constitution by Article 1 defines the form of the
regime, by the same provision, which [should be] historically interpreted in
the framework of the political and constitutional conjuncture ... in which it
was voted, pursuant to the provisions of the First Constitutional Act and of
Legislative Decree no. 72/1974 that was issued on the basis of its Article 10,
it also solves the issue of the royal property. In other words, the referendum
renders irrevocable the devolution of this property to the State, so that its
return by law to the former King would be contrary to the Constitution.
Therefore, section 1 of Law no. 2086/1992 ..., which implies that the former
royal property would continue to belong to the deposed monarch and the members
of the former royal family, and actually connects those persons with the
property, contravenes the Constitution.”
46. Consequently, the Special Supreme Court, by
thirteen votes to four, held that Law no. 2215/1994 was constitutional. Under
the Constitution, the judgments of the Special Supreme Court are final and
binding on all Greek courts (Article 100 § 4).
II. RELEVANT DOMESTIC LAW
47. The relevant Articles of the 1975 Constitution
provide as follows:
Article 4
“1. All Greeks are equal before the law.
2. Greek men and women have equal rights and equal
obligations.”
Article 17
“1. Property is protected by the State; rights
deriving therefrom, however, may not be exercised contrary to public interest.
2. No one shall be deprived of his property except
in the public interest, which must be duly shown, when and as specified by law
and always following full compensation corresponding to the value of the
expropriated property at the time of the court hearing on the provisional
determination of compensation. In cases in which a request for the final determination
of compensation is made, the value at the time of the court hearing of the
request shall be considered.
...
4. Compensation shall in all cases be determined by
civil courts. Such compensation may also be determined provisionally by the
court after hearing or summoning the beneficiary, who may be obliged, at the
discretion of the court, to furnish a commensurate guarantee for collecting the
compensation as provided by law.”
48. In Greece the number of property rights is
limited (numerus clausus). The real rights that a person may have are
ownership, easements, pledge and mortgage (Article 973 of the Civil Code).
49. Articles 999 to 1141 of the Civil Code deal with
the institutions of ownership and co-ownership. Ownership may be acquired in a
variety of ways, as by occupancy of things that belong to no one, by transfer
from a previous owner or even by a non-owner, by operation of law, by the
effect of judgments, and by acts of the public authorities. For the transfer of
the ownership of immovables, the law requires an agreement between the owner
and the transferee that the ownership is transferred for a lawful cause, the
incorporation of this agreement in a notarial deed and its transcription at the
transcription registry in the district in which the immovable is located
(Article 1033).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
50. The applicants complained that Law no. 2215/1994
violated their right of property. 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.”
This provision comprises three distinct rules. The first, which
is expressed in the first sentence of the first paragraph and is of a general
nature, lays down the principle of peaceful enjoyment of property. The second
rule, in the second sentence of the same paragraph, covers deprivation of
possessions and subjects it to certain conditions. The third, contained in the
second paragraph, recognises that the Contracting States are entitled, amongst
other things, to control the use of property in accordance with the general
interest. These rules are not “distinct” in the sense of being unconnected: the
second and third rules, which are concerned with particular instances of
interference with the right to peaceful enjoyment of property, are to be
construed in the light of the general principle laid down in the first rule.
A. Whether there was a “possession” within the meaning
of Article 1 of Protocol No. 1
1. Arguments before the Court
51. The principal thrust of the Government's
argument was that the contested estates were inextricably linked to the
institution of the Head of State and therefore did not fall under the notion of
“possessions” protected by Article 1 of Protocol No. 1.
As a general remark they noted that a common feature all over
Europe was the existence of a clear-cut distinction between public and private
possessions of monarchs. Public possessions were owned by the States and at the
disposal of the monarchs to use in the performance of their duties as Heads of
State. The Government submitted that such properties, held under special
privileges and immunities, did not come within the concept of property or
possessions protected under Article 1 of Protocol No. 1. On the other hand, the
private property of European monarchs was not treated differently in any way
from the property of ordinary citizens. It was acquired, used and transferred
in accordance with the ordinary rules of domestic civil law, as applied to all
transactions between private individuals. According to the Government, it was
reasonable to suppose that such private possessions were protected under
Article 1 of Protocol No. 1.
52. In the present case the Government submitted
that the most significant special feature of the legal status of the alleged
“royal property” of the Greek Crown was that it had always had a sui generis
and quasi-public character. This was demonstrated by various facts. First, the
three contested estates had not been acquired by the former royal family in
accordance with the general provisions of Greek civil law, but because of the
functions of the beneficiaries. A substantial part of these properties were
donated to the former Greek kings by the Greek State as a sign of respect
towards the royal institution. Second, whenever a succession to the throne
occurred, the general rules of inheritance law did not apply. On the contrary,
a special law was always enacted to avoid the ordinary order of succession and
settle the relevant disputes. Third, the alleged properties enjoyed full tax
exemption, including exemption from inheritance tax. Had inheritance tax been
applied in each of the four successions to the Greek throne from 1913 to 1964,
the relevant tax burden would have exceeded the current market value of the
contested estates. Fourth, the property in question had not only been
assimilated to State property for procedural purposes (for example special
time-limits, award of State privileges for the recovery of debts, prohibition
of provisional forced execution), but had also benefited from substantial State
prerogatives (non-prescription of claims, plain prohibition of usucaption,
criminalisation of trespass, etc.). Therefore, no matter how each of the
contested estates had been acquired, the land, which included constitutionally
protected forests, historical and archaeological sites, had only been kept
wholly intact and even added to because of the privileges attached to the monarchs'
public status. No ordinary Greek citizen would ever have succeeded in legally
acquiring and transferring this land.
53. In the light of the above, the Government
considered that the contested estates were not privately owned; consequently,
they did not fall under the notion of “possessions” protected by Article 1 of
Protocol No. 1.
54. The applicants replied that there was manifestly
no foundation whatever, as a matter of historical fact or Greek law, for the
Government's novel and bizarre argument that the property which was the subject
of their claim never belonged to the royal family. The applicants stressed that
this argument had never been advanced by any Greek government except in the
course of the proceedings before the Convention organs. The fact that
individual members of the royal family had owned private property had been
consistently recognised by Greek public authorities throughout the period of
the so-called “crowned democracy” which had been established when the first
applicant's ancestor, George I, was elected King in 1863. It had also been
consistently recognised after the creation of the Republic. Such private
property had always been recognised as being distinct from any property that was
made available to the royal family by virtue of the constitutional status of
the King, for example, the Royal Palace in Athens, which was not and had never
been the private property of the royal family. As regards certain privileges
which were historically afforded in respect of their property, the applicants
considered that those privileges had no bearing on the status of the royal
family's private property. In any event, maintenance payments by the State some
fifty years earlier had been made in recognition of the damage which had been
caused to the properties during the period when they were in the possession of
the State and had been neglected. As for the tax exemption, the applicants
invited the Court to bear in mind that the King had paid all of the very
considerable expenses incurred by him in the exercise of his official duties in
his capacity as Head of State. Until 1949, the King had also had to pay all the
maintenance and running costs of the palaces made available to him by the State
in his capacity as Head of State out of the Civil List.
55. The applicants further submitted that the fact that the
royal family owned private property had been clearly recognised even during the
period of the unconstitutional military dictatorship between 21 April 1967 and
24 July 1974. The 1968 Constitution included a provision (Article 134 § 3),
which provided for a unique legislative measure to be enacted to expropriate or
confiscate the movable and immovable property of the former King and his
family. A legislative decree (no. 225/1973) had subsequently been issued by the
dictatorship to confiscate the property of the royal family. These measures
would have served no purpose if the royal property had always belonged to the
State. After the fall of the dictatorship, a legislative decree of 1974 had
recognised that the property confiscated by the dictatorship belonged to the
royal family, on whose behalf it was administered by a special committee. In
1979 the movable property was handed over to the royal family. Protocols
governing the handing over of the immovable and movable property had been duly
signed by the appropriate governmental authorities and by the special
committee. The status of the property had in no way been affected by the outcome
of the referendum of 8 December 1974 which had resulted in the establishment of
a presidential parliamentary republic. The status of the property of the royal
family had simply not been in issue in that referendum. Nor had the status of
the property been affected by the enactment of the 1975 Constitution. If this
had been the case, the State would not have returned the movable property to
the royal family in 1979, thus recognising their rightful ownership.
56. Furthermore, the applicants stressed that from
1974 to 1996, namely even after the enactment of the 1994 Law, they had filed
tax returns and paid tax in respect of the property in question. They could not
understand how tax on the land could properly be payable by anyone other than
the owner, or how the government could properly and in good faith have demanded
and accepted the payment of such tax except on that basis.
57. Moreover, in 1992 the former King and the Greek
State concluded an agreement, which was ratified by Law no. 2086/1992, by which
large parts of the Tatoi property were transferred by the former King to the
Greek State and donated to two foundations for the benefit of the public. This
agreement was concluded on the basis that he was the owner of the property in
question; otherwise it would have served no purpose. That the relevant property
belonged to the royal family had even been acknowledged by Law no. 2215/1994
itself, which in its preamble referred to “Settlement of matters pertaining to
the expropriated property of the deposed royal family of Greece”
(emphasis added by the applicants). Furthermore, the applicants stressed that
the 1994 Law expressly mentioned Legislative Decree
no. 225/1973 enacted by the military dictatorship, under which the property of
the royal family had been confiscated. Reference to that decree was wholly
inconsistent with the Government's argument that the royal family never owned
any private property; if the property already belonged to the State, the latter
would not have needed to rely on a prior confiscation.
58. The applicants concluded that there was no basis
in Greek law for making any connection between the constitutional role of the
former King and the status of his property. Greek civil law did not recognise a
so-called sui generis concept of ownership. Article 973 of the Greek
Civil Code provided an exhaustive definition of ownership rights that were
recognised as a matter of Greek law. These were ownership, easements, pledge
and mortgage. There was no category of quasi-public ownership (see
paragraph 48 above).
59. The Commission considered that before the coming
into force of Law no. 2215/1994 the property in question belonged to the
applicants.
2. The Court's assessment
60. The Court points out
that the concept of “possessions” in the first part of Article 1 of Protocol
No. 1 has an autonomous meaning which is independent from the formal
classification in domestic law (see Beyeler
v. Italy [GC], no. 33202/96, § 100, ECHR 2000-I). The issue that needs to
be examined is whether the circumstances of the case, considered as a whole,
conferred on the applicants title to a substantive interest protected by
Article 1 of Protocol No. 1. The Court considers that that approach requires it
to take account of the following points of law and of fact.
61. To start with, the
Court is unable to agree with the Government when they suggest, at least by
implication, that the members of the royal family did not have any private
property at all in Greece.
It notes that at least part of the
royal property was purchased by the applicants' ancestors and paid for out of
their private funds. Furthermore, on many occasions, the royal property,
irrespective of its original title, was subsequently transferred inter vivos
or mortis causa, in accordance with the requirements of Greek civil law,
between members of the royal family and on some occasions between members of
the royal family and third parties.
62. Moreover, the Court
takes particularly into account the fact that before the coming into force of
Law no. 2215/1994, the Greek State had on several occasions treated the members
of the royal family – and among them the applicants – as being the private
owners of the estates in question. The Court refers by way of example to the
following facts.
– After the abolition of
the monarchy in 1924, the Greek State expropriated the Tatoi estate, which was
later given back to the King in full ownership and possession upon his return
to the throne in 1936 (see paragraphs 12-13 above).
– Following a compulsory
expropriation which took place in 1923, Emergency Law no. 514/1937 expressly
provided that Mon Repos be conceded and transferred in full ownership and
possession to Prince Andreas (see paragraph 19 above).
– It was not disputed
that from 1974 to 1996 the applicants filed tax returns and paid tax in respect
of their property (see paragraphs 36, 38, 41 and 56 above).
– In 1992 a binding
agreement was concluded between the former King and the Greek State whereby,
among other things, 200,030 sq. m. of the Tatoi estate were sold by the first
applicant to the Greek State and most of the rest of the estate was donated to
two foundations for the benefit of the public. On 28 September 1992 the
Division of Scientific Studies of the Greek parliament issued a report on a
draft bill ratifying this agreement, which stated, inter alia, that
Legislative Decree no. 225/1973 was repealed by Legislative Decree no. 72/1974
and that the property thereby “reverted to its former ownership status” (see
paragraphs 38-39 above).
63. Like the Commission,
the Court is of the view that all these acts could only be carried out on the
basis that the applicants and their ancestors were the owners of the property
in question, since if the contested estates had never belonged to the royal
family, or if they had been validly expropriated in 1973, with the result that they
were already owned by the Greek State, the said acts would have served no
purpose.
64. Finally, as regards
the Government's reference to special rules which applied to royal property,
such as rules on tax exemption, the Court cannot see why such rules should per
se exclude the fundamentally private character of these properties. It is
not, for example, unknown for Heads of States to enjoy tax immunity as far as
their private property is concerned. Likewise, the Government have failed to
provide any documentation, such as a register of State property or the
so-called Civil List, showing that the royal property has been considered or
treated as State property.
65. In view of the above,
the Court cannot but discern a contradiction in the Government's attitude to
the relevant properties. Consequently, although the Court accepts that the
royal property in many ways enjoyed a special status, the fact that the Greek
State itself repeatedly treated it as private property and had not produced a
general set of rules governing its status prevents the Court from concluding
that it had a sui generis and quasi-public character to the effect that
it never belonged to the former royal family.
66. Therefore, the Court
is of the opinion that the relevant properties were owned by the applicants as
private persons rather than in their capacity as members of the royal family;
accordingly the contested estates constituted a “possession” for the purposes of
Article 1 of Protocol No. 1, which is applicable to the instant case.
B. Inventory of the applicants' possessions
67. The Court must now consider what exactly are the
applicants' possessions.
1. The
Tatoi estate (of a total surface area of 41,000,000 sq. m. approximately)
68. The Government argued that more than one-third
of the estate, namely the Bafi forest, was donated to King George I (the first
applicant's great-grandfather) by an Act of Parliament in 1877. Obviously, the causa
traditionis and/or the iusta causa of this donation was the royal
function of the transferee. That was the reason why, after the abolition of the
monarchy in 1924, the Bafi land came ipso jure and without any
compensation to the State. Moreover, 3,785,000 sq. m. of this land were donated
to homeless refugees in 1925; this area was never returned to the royal family
after the restoration of the monarchy in 1935.
Furthermore, the Government noted that in 1992 the first
applicant had donated to a non-profit foundation (the National Forest of Tatoi
Foundation) more than 90% of the Tatoi land. Subsequently, the foundation had
lodged an application with the Commission, which was now pending before the
Court (application no. 39654/98). It was true that Law no. 2215/1994 had
repealed the 1992 agreement, but at the time the 1994 Law had been enacted, the
applicants had had ownership rights over less than 10% of the Tatoi estate.
69. The applicants alleged that the Bafi forest had
not been donated to King George I, but had been purchased by him. In this
connection, the applicants relied on documents which had come to their
attention since the adoption of the Commission's report, which demonstrated
that while the Greek government had expressed the intention of donating the
Bafi forest to King George I, the latter had not wished to acquire this land
through donation, but had insisted on purchasing it at a price fixed by the
government. In the event, a compromise had been reached, whereby the Bafi
forest was expressed to be “conceded” (rather than “donated”) to King George I.
In return, the latter had deposited 60,000 drachmas (GRD) with interest at the
National Bank.
70. The Court notes that part of Tatoi was
originally purchased by King George I as his private property. The estate was
subsequently added to through the acquisition by King George I from the Greek
State of an area of land known as the Bafi forest (see paragraph 9 above).
Notwithstanding the manner of acquisition of these lands, disputed by the
parties, their ownership status was settled as follows: In 1924 Tatoi,
including the Bafi forest, was compulsorily expropriated by the Greek State
without payment of any compensation. In 1936, following the restoration of the
monarchy, a law returned Tatoi to the ownership and possession of King George
II. This reinstatement of property included the Bafi land except an area of
3,785,000 sq. m. which had in the meantime been allotted to homeless refugees.
Therefore, the Court is of the opinion that, with the exception of this area
which was never returned to the applicants' predecessors in title, the Tatoi
lands constituted part of the property which was expropriated in 1994.
71. Furthermore the Court is unable to agree with
the Government when they argue that, at the time the 1994 Law was enacted, the
applicants had ownership rights over less than 10% of Tatoi. It is true that in
1992 large parts of the estate were donated by the first applicant to two
foundations for the benefit of the public and that an area of 200,030 sq. m.
was sold to the Greek State. However, Law no. 2215/1994 repealed the 1992
agreement and declared void and of no legal effect any acts carried out
pursuant to it (see paragraph 41 above). To suggest that, although the 1992
agreement was repealed by a later law, its legal consequences were still valid
and should be taken into account is not only contradictory as such, but also
runs against the principle lex posterior derogat anteriori.
72. Having regard to the foregoing, the Court
considers that before the entry into force of Law no. 2215/1994 the Tatoi
estate, with the exception of an area of 3,785,000 sq. m. which was expropriated
in 1924 and allotted to homeless refugees, belonged to the first applicant.
2. The
Polydendri estate (of a total surface area of approximately 33,600,000 sq. m.)
73. The Court notes that the Government have not
argued that the Polydendri estate had in any respect a special status
comparable with that of the Tatoi and the Mon Repos estates. There is no
evidence to suggest that the ownership titles relating to this property, which
the applicants have produced, are not accurate (see paragraph 15 above). It
therefore considers that before the entry into force of Law no. 2215/1994 the
Polydendri estate belonged to the three applicants.
3. The Mon Repos estate (of a total surface area of
238,000 sq. m.)
74. The Government submitted that the use of this
estate had been given to King George I in his capacity as Head of State, his
royal function being the only causa traditionis. Even assuming that by
virtue of these donations the former royal family had acquired ownership rights
over Mon Repos, its transfer both in 1864 and in 1937 was legally valid only
under the implicit but self-evident condition that the transferees would
continue to exercise their functions.
Moreover, the Government claimed that the applicants could not
have acquired ownership rights over Mon Repos through usucaption, since, as of
9 September 1915, Greek law explicitly excluded usucaption as a mode of
acquisition of State properties.
75. The applicants maintained that this property had
never belonged to the Greek State. It had been donated to King George I in 1864
by the Provincial Council of the island of Corfu, in recognition of his
contribution to the accession of the Ionian islands to Greece. This donation
was expressly recognised by deed no. 7870/1887. The property had been added to
by private purchases of land by King George I and, subsequently, by King George
II.
76. The Court accepts that the original title on Mon
Repos is a donation by which the Provincial Council of the island of Corfu
transferred to
King George I the use of what formed the first part of the estate. However, it
notes that, according to the ordinary provisions of Greek civil law, property
rights may be acquired by a variety of ways, as by transfer from a previous
owner, and that donation is undoubtedly one of the valid ways of transferring
and acquiring property rights. Moreover, the Court considers that the
Government have failed to substantiate their argument that the capacity of King
George I as Head of State was the only causa traditionis of Mon Repos.
Furthermore, it notes that the estate was subsequently enlarged by successive
purchases of land belonging to third parties, and that the State does not seem
to have been involved in the relevant contracts. In 1937 a law transferred the
estate in full ownership and possession to Prince Andreas. Following a chain of
transfers, the first applicant acquired full ownership of Mon Repos, by virtue
of his father's holograph will (see paragraph 20 above).
77. Having regard to the foregoing, the Court
considers that before the entry into force of Law no. 2215/1994 the Mon
Repos estate belonged to the first applicant.
C. Compliance with Article 1 of Protocol No. 1
1. Whether there has been an interference with the
right of property
78. Having accepted that before the entry into force
of Law
no. 2215/1994 the property in question belonged to the applicants, the Court,
like the Commission, considers that in 1994 there was an interference with the
applicants' right to the peaceful enjoyment of their possessions which amounts
to a “deprivation” of possessions within the meaning of the second sentence of
the first paragraph of Article 1 of Protocol No. 1.
The Court must therefore examine whether the interference
complained of can be justified under that provision.
2. Whether the interference was “provided for by law”
79. The Court reiterates that the first and most
important requirement of Article 1 of Protocol No. 1 is that any interference
by a public authority with the peaceful enjoyment of possessions should be
lawful: the second sentence of the first paragraph authorises a deprivation of
possessions only “subject to the conditions provided for by law” and the second
paragraph recognises that the States have the right to control the use of
property by enforcing “laws”. Moreover, the rule of law, one of the fundamental
principles of a democratic society, is inherent in all the Articles of the
Convention (see the Amuur v. France judgment of 25 June 1996, Reports of
Judgments and Decisions 1996-III, pp. 850-51, § 50).
80. The Government submitted that both Legislative
Decree
no. 225/1973 and Law no. 2215/1994 were “laws” within the meaning of Article 1
of Protocol No. 1 since they were adequately accessible and sufficiently
precise. The first had remained in force after the restoration of democracy and
the second was voted in Parliament following an open and democratic debate.
Undeniably, both these laws had an individual character. However, the
circumstances of the case were unique: in any recent republic there was only
one former royal family. Such a family was not in a position comparable to that
of any other family. Legislation relating to their property would, by
definition, relate to that family alone; still, that could not deprive the
legislation of its legitimacy.
81. The applicants alleged that, although Law no.
2215/1994 purported retrospectively to authorise a deprivation of their
property, it lacked the essential requirement of a “law”, since not only was it
arbitrary, punitive and discriminatory, but it also breached Article 17 of the
Greek Constitution, which required a taking of property to be in the public
interest and against payment of full compensation. As for Legislative Decree
no. 225/1973, the applicants submitted that it amounted to an arbitrary act of
confiscation by the military dictatorship, which was in any event completely
irrelevant to the taking of their property in 1994.
82. Like the Commission, the Court considers that
Law no. 2215/1994 constitutes the sole legal basis for the interference
complained of. The Court notes that the law upon which the interference is
based should be in accordance with the internal law of the Contracting State,
including the relevant provisions of the Constitution. It is true that in the
present case the applicants have contested the constitutionality of this Law
before the domestic courts and the Convention organs and have argued that the
challenged provisions, being unconstitutional, did not offer a valid legal
basis for the deprivation of property of which they complain. However, the
applicants' complaints of the unconstitutionality of Law no. 2215/1994 have
been examined and rejected by the Special Supreme Court in its judgment of 25
June 1997 (see paragraph 46 above). The Court observes that it is in the first
place for the domestic authorities, notably the courts, to interpret and apply
the domestic law and to decide on issues of constitutionality. Having regard to
the judgment of the Special Supreme Court, the Court cannot find that Law no.
2215/1994 was unconstitutional. To sum up, the deprivation was provided for by
law, as required by Article 1 of Protocol No. 1.
3. Whether the interference was “in the public
interest”
83. The Court must determine next whether this
deprivation of possessions pursued a legitimate aim “in the public interest”,
within the meaning of the second rule under Article 1 of Protocol No. 1.
84. The Government submitted that in addition to the
State's legitimate interest in protecting the forests and the archaeological
sites within the three contested estates, the 1994 Law was linked to the major
public interest in preserving the constitutional status of the country as a
republic. History showed in all abolished European monarchies that, with the
exception of the private property of King Manuel II of Portugal, the private
possessions of all former monarchs or emperors were in one way or another
expropriated without compensation or without full compensation. Moreover, the
reason why the Law of which the applicants complained had been enacted only in
1994 was simply that complicated legal and political issues took a long time to
resolve.
85. The applicants claimed that the taking of their
property was not part of any national economic or social programme and that the
1994 Law did not itself explain why it was necessary. In particular, as regards
the allegation that the taking of their property was motivated by the need to
protect the forests and the archaeological sites within the three estates in
question, the applicants maintained that during all the years when the relevant
forests and archaeological sites were in the possession of the royal family,
there had never been any complaint as to the way in which they were looked
after; in the applicants' eyes that argument by the Government wholly lacked
credibility. Furthermore, they considered that the Government had not explained
how the public interest was served by a taking of the private property of the
former monarch. The private property of a former monarch and his family was by
definition unconnected with his former role as Head of State, and was in no way
linked to the constitutional transition from a monarchy to a republic. And, in
any event, this transition took place in 1975, almost twenty years before the
enactment of Law no. 2215/1994. The applicants stressed that the former King
had on several occasions formally acknowledged the Hellenic Republic, to which
he presented no threat whatsoever. Moreover, there had been no disputes between
the applicants and the Greek State concerning the applicants' property or any
other matters at the time of the enactment of the 1994 Law .
In the light of all the above, the applicants considered that
the Government had failed to offer any credible or sufficient justification for
the taking of their property, which had been motivated by political and
personal antipathy, rather than by any genuine desire to serve the public
interest.
86. The Commission considered that the Greek State's
belief in the existence of a political need to settle the matters relating to
the property of the former royal family could not be characterised as
manifestly unreasonable.
87. The Court is of the opinion that because of their
direct knowledge of their society and its needs, the national authorities are
in principle better placed than the international judge to appreciate what is
“in the public interest”. Under the system of protection established by the
Convention, it is thus for the national authorities to make the initial
assessment as to the existence of a problem of public concern warranting
measures of deprivation of property. Here, as in other fields to which the
safeguards of the Convention extend, the national authorities accordingly enjoy
a certain margin of appreciation.
Furthermore, the notion of “public interest” is necessarily
extensive. In particular, the decision to enact laws expropriating property
will commonly involve consideration of political, economic and social issues.
The Court, finding it natural that the margin of appreciation available to the
legislature in implementing social and economic policies should be a wide one,
will respect the legislature's judgment as to what is “in the public interest”
unless that judgment is manifestly without reasonable foundation (see the James
and Others v. the United Kingdom judgment of 21 February 1986, Series A no. 98,
p. 32, § 46). The same applies necessarily, if not a fortiori, to such
fundamental changes of a country's constitutional system as the transition from
a monarchy to a republic.
88. The Court notes that there is no evidence to
support the Government's argument on the need to protect the forests and
archaeological sites. On the other hand, it does not doubt that it was
necessary for the Greek State to resolve an issue which it considered to be
prejudicial for its status as a republic. The fact that the constitutional
transition from a monarchy to a republic took place in 1975, namely almost
twenty years before the enactment of the contested Law, might inspire some
doubt as to the reasons for the measures, but it cannot suffice to deprive the
overall objective of Law no. 2215/1994 of its legitimacy as being “in the
public interest”.
4. Proportionality of the interference
89. An interference with the peaceful enjoyment of
possessions must strike a fair balance between the demands of the general
interest of the community and the requirements of the protection of the
individual's fundamental rights (see, among other authorities, the Sporrong and
Lönnroth v. Sweden judgment of 23 September 1982, Series A no. 52,
p. 26, § 69). The concern to achieve this balance is reflected in the structure
of Article 1 of Protocol No. 1 as a whole, including therefore the second
sentence, which is to be read in the light of the general principle enunciated
in the first sentence. In particular, there must be a reasonable relationship
of proportionality between the means employed and the aim sought to be realised
by any measure depriving a person of his possessions (see the Pressos Compania
Naviera S.A. and Others v. Belgium judgment of 20 November 1995, Series A no.
332, p. 23, § 38).
Compensation terms under the relevant legislation are material
to the assessment whether the contested measure respects the requisite fair
balance and, notably, whether it imposes a disproportionate burden on the
applicants. In this connection, the Court has already found that the taking of
property without payment of an amount reasonably related to its value will
normally constitute a disproportionate interference and a total lack of
compensation can be considered justifiable under Article 1 of Protocol
No. 1 only in exceptional circumstances (see the Holy Monasteries
v. Greece judgment of 9 December 1994, Series A no. 301-A, p. 35, § 71).
90. In the present case there is no provision for
compensation in Law
no. 2215/1994. Having regard to the fact that it has already been established
that the interference in question satisfied the requirement of lawfulness and
was not arbitrary, the lack of compensation does not make the taking of the
applicants' property eo ipso wrongful (see, a contrario,
the Papamichalopoulos and Others v. Greece (Article 50) judgment of
31 October 1995, Series A no. 330-B, pp. 59-60, § 36). It remains therefore to
be examined whether in the context of a lawful expropriation the applicants had
to bear a disproportionate and excessive burden.
91. The Government stated that in assessing fair
balance and proportionality the Court should allow the Contracting State a
broad margin of appreciation. That was because there was no requirement of
“necessity” in Article 1 of Protocol No. 1 and decisions in this area commonly
involved the assessment of political, economic and social questions on which
opinions within a democratic society might genuinely and reasonably differ
widely. The margin of appreciation was especially wide when, as here, the
former royal family had come into possession of the relevant properties for
reasons based on their royal status. The democratic legislature was entitled to
consider that, as part of the constitutional settlement, the former royal
family had no right to demand compensation (far less full compensation) for
what they had acquired because of their royal duties. In other words,
exceptional circumstances – such as the ways in which the property was acquired
and used, the privileges which were in the past afforded to the former royal
family, the tax exemptions for the royal estates and the maintenance of the
latter at the expense of the Greek State – justified the absence of any
compensation.
92. In any event, the Government noted that Law no.
2215/1994 covered indirectly the issue of compensation by providing for the
writing off of all the taxes owed by the former royal family to the Greek State
from 1974 onwards. In this way, the former royal family had been spared payment
of substantial tax debts. Furthermore, Legislative Decree no. 225/1973, which
the 1994 Law maintained in force, provided for pecuniary compensation as well,
amounting to GRD 120,000,000. This sum had been placed at the disposal of the
applicants but was never collected by them, no doubt for political reasons
associated with their wish to remain on the throne.
93. Finally, the Government submitted that the
commercial value of the contested estates had been significantly reduced. Both
Tatoi and Polydendri were forest land, therefore subject to a special protected
status: their use could not be changed and they would always remain forests;
they could not be divided up into smaller parcels of land; their exploitation
was under the supervision of the State. Consequently, there was no buyer
interest in them and their real commercial value was insignificant. Moreover,
the restrictions on their exploitation, in connection with the high cost of
maintaining, guarding and operating them, reduced their real market value.
Their commercial value was further reduced by the fact that they included
archaeological sites, which could not be commercially exploited by private
citizens. In this connection, the Government stressed that at the Mon Repos
estate there was an extensive archaeological site, Paleopolis, which was
believed to have been the capital of the Phaecians in Antiquity. For this
reason, the Ministry of Culture had already designated 23 ha of the estate as a
protected area.
94. The applicants submitted that the taking of
their property with no provision for the payment of compensation was wholly
disproportionate. They considered that, as a matter of legal principle and
logic, the manner of acquisition of a property had no bearing on the extent to
which proportionality required that there should be compensation for its
taking. The fact that a person had acquired a piece of property as a gift, or
by inheritance, did not mean that the property had no value for the owner, so
that it could be taken without compensation. The requirement of proportionality
demanded that the owner be fairly compensated for what he had lost, regardless
of how he (or his predecessors in title) had acquired the property which had
been taken.
95. Furthermore, they submitted that any privileges
afforded in the past to the former King and his family by virtue of the former
King's position as Head of State, or any tax exemptions which were available to
the royal family, were irrelevant to the question of proportionality as regards
the arbitrary taking of their private property. This was so a fortiori
in relation to privileges or tax exemptions which might have been available to
the applicants' predecessors, but which had not been afforded to the applicants
themselves; further, since 1974, the applicants had had no tax privileges
whatsoever. In any event, this was not a case in which there were cross-claims
as between a creditor and a debtor, which could properly be set off against
each other so as to extinguish or reduce the creditor's claim. The Government
were obliged under the Greek Constitution and the Convention to compensate the
applicants for the value of their property. There were no reciprocal or mutual
debts to be set off against each other.
96. Finally, the applicants disputed the
Government's argument that the contested estates had very little commercial
value.
97. The Commission concluded that Law no. 2215/1994
did not preserve a fair balance between the various interests in question as
required by Article 1 of Protocol No. 1.
98. The Court considers that the Government have
failed to give a convincing explanation as to why the Greek authorities have
not awarded any compensation to the applicants for the taking of their
property. It accepts that the Greek State could have considered in good faith
that exceptional circumstances justified the absence of compensation, but this
assessment is not objectively substantiated.
In the first place, the Court points out that at least part of
the expropriated property was purchased by the applicants' predecessors in
title and paid out of their private funds. Moreover, compensation was provided
for the last time the property was expropriated, in 1973. Therefore, the Court
considers that the applicants had a legitimate expectation to be compensated by
the Greek legislature for the taking of their estates.
Furthermore, as regards the Government's argument that the
issue of compensation was indirectly covered, the Court notes first that
compensation provided for by Legislative Decree no. 225/1973 is irrelevant to
the instant case, Law no. 2215/1994 being the sole legal basis for the
interference of which the applicants complain. Nor can the circumstances to
which the Government refer be regarded as payment of compensation. In this
respect the Court agrees with the applicants when they argue that in the
context of the expropriation in question there are no reciprocal or mutual debts
to be set off against each other. The privileges afforded in the past to the
royal family or the tax exemptions and the writing off of all the taxes owed by
the former royal family have no direct relevance to the issue of
proportionality, but could possibly be taken into account in order to make an
accurate assessment of the applicants' claims for just satisfaction under
Article 41 of the Convention.
99. Therefore the Court is of the opinion that the
lack of any compensation for the deprivation of the applicants' property
upsets, to the detriment of the applicants, the fair balance between the
protection of property and the requirements of public interest.
There has accordingly been a violation of Article 1 of Protocol
No. 1.
ii. ALLEGED
VIOLATION OF ARTICLE 14 oF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 1
OF PROTOCOL
No. 1
100. The applicants complained that they have been
the victims of discrimination in relation to the enjoyment of their property
rights protected by Article 1 of Protocol No. 1, in breach of Article 14 of the
Convention. Article 14 of the Convention reads as follows:
“The enjoyment of the rights and freedoms set forth in [the]
Convention shall be secured without discrimination on any ground such as sex,
race, colour, language, religion, political or other opinion, national or
social origin, association with a national minority, property, birth or other
status.”
101. The applicants submitted that Law no. 2215/1994
was a unique measure directed at one particular family. The Law itself
contained no explanation as to why it was enacted, but it was clear that it was
motivated by personal and political antipathy towards the applicants, on the
ground of their status as members of the royal family. They considered that
they had been singled out for adverse treatment based on vindictive and
punitive reasons, and that the difference of treatment lacked any objective and
reasonable justification.
102. The Government submitted that Law no. 2215/1994
was directed exclusively at the former royal family because no other persons
were in a comparable situation of having enjoyed such privileges and benefits
which needed to be reconsidered on the abolition of the monarchy and the
restoration of democracy.
103. In view of its finding of a violation
concerning the applicants' right to the peaceful enjoyment of their possessions
(see paragraph 99 above), the Court, like the Commission, does not consider it
necessary to examine the applicants' allegation of a breach of Article 14 of
the Convention taken in conjunction with Article 1 of Protocol No. 1.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
104. Article 41 of
the Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
105. As their main claim, the applicants sought the
annulment of Law no. 2215/1994 and the return of the disputed estates
together with compensation for non-pecuniary damage and costs and expenses
incurred in vindicating their rights. In the event of the estates not being
returned they said that they could see no reason why the amount of compensation
should be less than the full current value of the property.
In particular, the applicants claimed GRD 165,562,391,740 for
their immovable property, plus 3,416,330 pounds sterling (GBP) for their
personal movable property (furniture, paintings, books, etc.). They further
claimed GBP 100,000 for non-pecuniary damage, but on the basis that this sum
was to be given to the victims of the earthquake which had struck Athens in
September 1999. Lastly, they claimed GBP 644,502.42 in respect of costs and
expenses in the national courts and before the Convention institutions up to
the date of the hearing before the Court.
106. The Government submitted that if the Court were
to find a breach of Article 1 of Protocol No. 1, it would be necessary to give
the parties an opportunity to make further observations on the issue of just
satisfaction.
107. The Court considers that the question of the
application of Article 41 is not ready for decision. Accordingly, it shall
be reserved and the subsequent procedure fixed having regard to any agreement
which might be reached between the Government and the applicants (Rule 75 § 1
of the Rules of Court).
FOR THESE REASONS, THE COURT
1. Holds
by fifteen votes to two that there has been a violation of Article 1 of
Protocol No. 1;
2. Holds
unanimously that it is not necessary to examine the applicants' complaint under
Article 14 of the Convention taken in conjunction with Article 1 of Protocol
No. 1;
3. Holds unanimously that the question of the
application of Article 41 is not ready for decision; accordingly,
(a) reserves the said question in whole;
(b) invites the Government and the applicants
to submit, within the forthcoming six months, their written observations on the
matter and, in particular, to notify the Court of any agreement that they may
reach;
(c) reserves the further procedure and delegates
to the President of the Grand Chamber power to fix the same if need be.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 23 November 2000.
Luzius
Wildhaber
President
Maud de Boer-Buquicchio
Deputy Registrar
In accordance with Article 45 § 2 of the Convention and
Rule 74 § 2 of the Rules of Court, the partly dissenting opinion of Mr
Koumantos joined by Mr Zupančič is annexed to this judgment.
L.W.
M.B.
PARTLY DISSENTING OPINION OF JUDGE KOUMANTOS JOINED BY JUDGE
ZUPANČIČ
(Translation)
I voted against the finding of a violation of Article 1 of
Protocol No. 1. Article 1 is intended to protect private property belonging to
natural or legal persons. It is not applicable to property assigned to certain
persons in connection with their public duties, even where such property also
retains some features governed by private law. In such cases the property is
subject to a sui generis regime, part public and part private, which
excludes application of Article 1 of Protocol No. 1.
That is the case with regard to the possessions of the former
royal family of Greece for the following reasons, which apply to all the separate
pieces of property making up those possessions: (a) a large proportion of the
property concerned originated in gifts from the State or other public entities
which would not have been made and could not have been made under the
Constitution if the donee had not exercised royal powers; (b) these possessions
have always been subject to a favourable special regime concerning the rules of
succession, taxation (inheritance, transfer and, until 1974, income),
procedural and substantive privileges (no limitation period for claims, no
acquisition by adverse possession, criminal penalties for trespass),
maintenance costs and remuneration of the staff employed there; (c) whenever
the political circumstances were favourable, the royal family's rights over
these possessions were confirmed by special laws, which would have been
unnecessary if these rights had been governed solely by “ordinary” civil law;
(d) Legislative Decree no. 72/1974 (after the fall of the dictatorship and the
re-establishment of democracy) provided for special administration of the royal
possessions “until final determination of the form of government”, thus
expressly linking the fate of these possessions with the form of government
(republic or monarchy).
With regard to specific possessions of the former royal
family, the following facts must be taken into consideration: (a) the property
Mon Repos in Corfu was, at the outset, placed at the King's disposal for his
“use”; (b) the will signed by King George I in 1904 stipulated that the
property of Tatoi was to be used as the “permanent residence of the reigning
King of the Hellenes”; (c) when, in 1917, King Constantine was obliged to
abdicate in favour of his second son, who became King Alexander I, the latter
acquired the property of Tatoi in his father's lifetime despite the existence
of co-heirs as defined by the “ordinary” civil law; (d) after the
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