Last Updated on May 17, 2019 by LawEuro
FIRST SECTION
DECISION
Application no. 7090/12
Georgia PETROPOULAKOU and others
against Greece
The European Court of Human Rights (First Section), sitting on 16 October 2018 as a Committee composed of:
Aleš Pejchal, President,
Tim Eicke,
Gilberto Felici, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 30 December 2011,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. A list of the applicants is set out in the appendix. They were represented before the Court by Professor C. Chrysanthakis, a lawyer practising in Athens.
2. The Greek Government (“the Government”) were represented by their Agent’s delegate, Mrs A. Dimitrakopoulou, senior advisor at the State Legal Council.
A. The circumstances of the case
1. Facts prior to lodging of the application
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 14 March 2001 S.P. applied to the Piraeus Administrative Court of Appeal for the annulment of building permits nos. 414/13-7-2000, 758/24‑11-2000 and 754/22-11-2000, and other decisions authorising the continuation of construction work, which had been issued by the Cyclades Town Planning Authority allowing D.L. to build houses on plots of land adjacent to the land owned by S.P. Those houses were later bought by the applicants. The application for annulment was rejected by the court and S.P. lodged an appeal with the Supreme Administrative Court.
5. The Supreme Administrative Court, by its judgment no. 4220/2005, admitted the appeal and annulled all the contested building permits. In particular, it held that pursuant to its previous judgments nos. 3955/1995 and 3956/1995, limits should have been laid down for the development of new settlements in order to ensure protection of ecosystems. Therefore, the Prefect’s decision dated 4 December 1985 defining the limits of the Agios Giannis and Agios Sostis settlements on the island of Tinos had not been legal, as it had included in its limits at least part of the biotope existing in the area. Based on the above-mentioned considerations, the Supreme Administrative Court, by its aforementioned judgments of 1995, had annulled building permits that had been issued for properties within the critical region. As the contested building permits, that is to say nos. 414/13‑7-2000, 758/24-11-2000 and 754/22-11-2000, had been issued by the Cyclades Town Planning Authority in implementation of the same decision of the Prefect of Cyclades dated 4 December 1985, they were unlawful as they had been issued on the basis of an unlawful decision. On the basis of those considerations, the Supreme Administrative Court held that the contested permits should be annulled.
6. The applicants, among others, acting as owners of the properties in respect of which the annulled building permits had been issued, challenged the above-mentioned judgment, seeking the institution of third-party proceedings against S.P. to have judgment no. 4220/2005 revoked. Their application was rejected by judgment no. 4412/2010 of the Supreme Administrative Court.
7. On 29 May 2006 the applicants, among others, applied to the Directorate of Urban Planning and Environment of the Prefecture of Cyclades (hereinafter “the Cyclades planning directorate”) requesting the annulment of (a) decision no. 362/3683/8.8/1989 of the town planning authority approving the subdivision of a plot owned by S.P., adjacent to the plots on which the applicants’ residences were built; (b) building permits nos. 610/13.9.1988 and 527/8.11.1993 issued by the same authority, allowing S.P. to build residences on plots of land owned by him and adjacent to the ones owned by the applicants; and (c) decision no. 463/8.7.1987 approving the subdivision of the plots concerned by the two above-mentioned building permits.
8. On 8 November 2006, after a lapse of three months without receiving any reply, the applicants assumed that their request had been dismissed. They therefore lodged an application for annulment with the Piraeus Administrative Court of Appeal. They later completed their application for annulment by requesting the annulment of the explicit dismissal of their request as manifested by document no. 3942/2006/2.9.2008 from the head of the Cyclades planning directorate.
9. The Piraeus Administrative Court, by its judgment no. 2090/2009, held that the contested decisions the revocation of which had been requested from the planning directorate, were unlawful as they were based on the Prefect’s decision of 4 December 1985, which had been ruled unlawful by judgments nos. 3955/1995 and 3956/1996. The court also took into account that other building permits in the region had been annulled by judgment no. 4220/2005 of the Supreme Administrative Court. Based on the above-mentioned considerations, it considered that the Cyclades planning directorate had had an obligation to examine the applicants’ requests for the annulment of the contested permits. Therefore, it granted the application for annulment and referred the case back to the town planning authority in order to review the legality of the contested decisions and to revoke them as unlawful, after taking into account any grounds for overriding public interest that might support or preclude revoking them, the requirement to protect rights acquired bona fide by third parties by the implementation of the decisions and the time that had elapsed since their issuance.
2. Facts after the lodging of the application
10. In their observations dated 13 September 2017, the Government informed the Court that on 6 June 2013, S.P., among others, had applied for third-party proceedings to be initiated in order to have judgment no. 2090/2009 of the Piraeus Administrative Court set aside. By judgment no. 3081/2014 the court’s Annulment Chamber had admitted the application for third-party proceedings, set aside judgment no. 2090/2009, examined the applicants’ application for annulment and rejected it. The court had examined whether the applicants’ request addressed to the Cyclades planning directorate to annul the building permits had been lodged within a reasonable time. It had considered that in order to assess whether a reasonable time had elapsed, the starting point should be the date of the Supreme Administrative Court’s judgments nos. 3955/1995 and 3956/1995, by which the Prefect’s decision that had served as the legal basis for issuing those building permits had been declared unlawful for the first time, and not the date of judgment no. 4220/2005 of the Supreme Administrative Court, which had annulled some other building permits. Otherwise, a new starting point for the calculation of the reasonable time would start each time an irrevocable relevant decision was issued, which would be in clear breach of the principle of legal certainty. Having regard to the above, the court had held that the applicants’ request, which had been submitted eleven years after the above-mentioned judgments of the Supreme Administrative Court, had not been lodged within a reasonable time. On the basis of those considerations, the conditions for a review of the legality of the contested decisions by the planning directorate had not been met and therefore, the application for annulment had been rejected.
11. It appears from judgment no. 3081/2014 that the applicants did not attend the hearing or submit observations, even though they had been served with notification of the third-party proceedings and the date of the hearing. No legal remedy has been sought against the judgment of the Piraeus Administrative Court.
B. Relevant domestic law and practice
12. The relevant domestic law and practice is described in Vasiliadou v. Greece (no. 32884/09, §§ 25-26, 6 April 2017).
COMPLAINT
13. The applicants complained under Article 6 of the Convention of the non-enforcement of judgment no. 2090/2009 of the Piraeus Administrative Court.
THE LAW
14. The Government argued first that the application should be declared inadmissible as regards two of the applicants, namely Ms Anthi Kakogianni and Mr Vasileios Vasileiou, as they had not been included in the application form sent to the Court on 30 December 2011, but their names had later been included in a letter sent by their representative on 5 March 2012, along with their powers of attorney. The Government also maintained that the application should be declared inadmissible as a whole, as all of the applicants lacked victim status, in view of the fact that judgment no. 2090/2009 of the Piraeus Administrative Court, the non-enforcement of which the applicants complained of, had been set aside by judgment no. 3081/2014.
15. The applicants did not contest the Government’s submissions but maintained that they were victims of a violation of the Convention.
A. As regards the applicants’ failure to inform the Court of judgment no. 2090/2009 having been set aside
16. In the present case, the applicants failed to inform the Court that judgment no. 2090/2009 had been set aside. Moreover, they did not comment on the Government’s submissions, but continued to seek redress before the Court for the alleged non-enforcement of the judgment in question.
17. The Court has concluded in similar cases that the application was lodged in abuse of the right of individual petition. In this regard, it reiterates that an application may be rejected as an abuse of the right of individual application within the meaning of Article 35 § 3 (a) of the Convention if, among other reasons, it was knowingly based on false information (see Kerechashvili v. Georgia (dec.), no. 5667/02, 2 May 2006; Bagheri and Maliki v. the Netherlands (dec.), no. 30164/06, 15 May 2007; Poznanski and Others v. Germany (dec.), no 25101/05, 3 July 2007; and Simitzi‑Papachristou and Others v. Greece (dec.), no. 50634/11, § 36, 5 November 2013), or if significant information and documents were deliberately omitted, either where they were known from the outset (see Kerechashvili, cited above), or where new significant developments occurred during the procedure (see Predescu v. Romania, no. 21447/03, §§ 25-27, 2 December 2008, and Tatalović and Dekić v. Serbia (dec.), no. 15433/07, 29 May 2012). Incomplete and therefore misleading information may amount to an abuse of the right of application, especially if the information in question concerns the very core of the case and an insufficient explanation is given for the failure to disclose that information (see Hüttner v. Germany (dec.), no. 23130/04, 9 June 2006; Poznanski and Others, cited above; Predescu, cited above, §§ 25-26; and Komatinović v. Serbia (dec.), no. 75381/10, 29 January 2013).
18. Turning to the circumstances of the present case, the Court notes that it is not clear from the material in the case file whether the applicants were served with decision no.3081/2014 setting aside judgment no. 2090/2009. Consequently, it cannot be ascertained with sufficient certainty that the applicants intentionally misled the Court in order to conclude that the application was lodged in abuse of the right of individual petition within the meaning of Article 35 § 3 (a) of the Convention (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014).
B. As regards the substance of the complaint
19. The Court notes that it is not necessary to reply to the Government’s objection on the locus standi of Ms Anthi Kakogianni and Mr Vasileios Vasileiou, as, in any event, the application as a whole is inadmissible for the following reasons.
20. The applicants complained of the non-enforcement of judgment no. 2090/2009 of the Piraeus Administrative Court. However, that judgment was set aside following the third-party proceedings instituted by S.P. There was therefore no obligation for the Administration to enforce that judgment.
21. The Court notes that the applicants do not have an enforceable and final judgment adopted in their favour and therefore they can neither complain of the lengthy non-enforcement of the judgment, nor claim to be victims of the alleged violation of their Convention rights (see Khvorostyanoy and Others v. Ukraine [Committee], nos. 54552/09 and foll., §§ 27-29, 25 July 2013, and Koval and Others v. Ukraine (dec.) [Committee], no.16838/16 and foll., §§ 18-20, 5 October 2017).
22. It follows that this application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 8 November 2018.
Renata Degener Aleš Pejchal
Deputy Registrar President
Appendix
1. Georgia PETROPOULAKOU is a Greek national who was born in 1962, lives in Athens
2. Mary CLEARY PATRIS is a Greek national who was born in 1950, lives in Dublin
3. Maria GEORGOPOULOU is a Greek national who was born in 1937, lives in Athens
4. Christina KARAVATA is a Greek national who was born in 1975, lives in Athens
5. Dimitrios POLITIS is a Greek national who was born in 1960, lives in Athens
6. Georgios SPYRATOS is a Greek national who was born in 1979, lives in Athens
7. Ioanna SPYRATOU is a Greek national who was born in 1984, lives in Athens
8. Anthi KAKOGIANNI is a Greek national, who was born in 1960, lives in Athens
9. Vasileios VASILEIOU is a Greek national, who was born in 1957, lives in Patra
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