Depriving the Jewish Community of Thessaloniki of its ownership of a plot of land acquired before the Second World War was not lawful (ECtHR)
In Chamber’s
judgment in the case of Jewish Community of Thessaloniki v. Greece (application
no. 13959/20) the European Court of Human Rights held, unanimously, that there
had been a violation of Article 1 of Protocol No. 1 (protection of property) of
the European Convention on Human Rights.
The Court
found in particular that the Court of Cassation’s 2019 interpretation of the
relevant domestic legislation and its application to this case had not been
foreseeable. It was not reasonable to expect the applicant community to have
known that the property which had already come under its ownership in 1934
would be affected in 1950 and 1955 by the legislation concerning enemy
property.
The
community could not have anticipated the change in the State’s stance as regard
its ownership of the plot, and nor could it have anticipated the interpretation
given to the legislation by the domestic courts as late as 2019.
Principal
facts
The
applicant, the Jewish Community of Thessaloniki, is a public-law entity (νομικό πρόσωπο δημοσίου δικαίου), founded by royal decree in 1920
and based in Thessaloniki. Following a fire in 1917 that devastated the centre
of Thessaloniki, which for centuries had been home to a Jewish community, a
large area in the centre was expropriated in December 1920 to house Jews whose
property had been destroyed.
One of the
expropriated plots, no. 26, which was around 7,400 sq. m in size, belonged to
I.S.M., an Italian citizen of Jewish origin. The applicant community paid the
amount set in 1934 as provisional compensation for the expropriation into the
Deposits and Loans Fund (Ταμείο Παρακαταθηκών και
Δανείων) in the name of
the former owner and published a notice of that payment in the Government
Gazette.
Following
the invasion of Greece by Italy in October 1940, properties belonging to
Italian citizens were deemed to constitute enemy property (Εχθρικές περιουσίες) and were sequestrated (μεσεγγύηση). Following a peace treaty signed
between Italy and the Allies and ratified by Greece in 1947, the Allied
signatories were empowered to seize and dispose of enemy properties.
The Greek
authorities appointed commissioners to handle sequestrated properties; two
commissioners were appointed for plot no. 26. As I.S.M. had been executed by
the Nazis in November 1943, I.S.M.’s heirs lodged applications in 1952 seeking
the fixing of the final amount of compensation for plot 26; the final amount
was fixed by the Thessaloniki Court of Appeal in 1957.
At around
the same time, in June 1957, the two commissioners issued a report on the
handover of half of the plot to the State. The Jewish community paid final
compensation to three of the six heirs in 1967; it paid the other half of the
final compensation due into the Deposits and Loans Fund in 1969. The Greek
State had told the applicant community, in December 1955, not to pay the
compensation to three of the heirs, as it had assumed their right to
compensation following a Royal Decree (no. 4 of 13 May 1955), which had
extended a 1950 Law (no. 1530/1950) to Italian properties, thus transferring
relevant properties of Italian citizens to the Greek State “with no further
formalities”.
The Royal
Decree had provided a threemonth time-limit for third parties claiming property
rights to lodge an objection. In January 1966, the Greek State lodged a request
for the final compensation that was due to the government.
The
Thessaloniki Multi-Member Court of First Instance set the final price in 1973,
but it cannot be seen from the applicant community’s case file whether any
proceedings followed that judgment.
According
to the Jewish Community of Thessaloniki, it had exercised full property rights
over the plot – including sales, leasing and construction on it – until the end
of the 1970s, when the Greek State started making various assertions about
ownership.
In
response, the applicant community brought a declaratory action (αναγνωριστική αγωγή) against the State on 7 February 1981, aiming to secure recognition of
its property rights. In particular, it referred to the 1920 expropriation,
which, as far as plot no. 26 was concerned, had been finalised in 1934, with
the payment to the Deposits and Loans Fund of the amount set as provisional
compensation.
It claimed
acquisition by way of usucapio (that is, ownership acquired by length of
possession) since, between 1920 and 1955, it had been using the property
without interruption for more than 30 years – which was the minimum period
required by the law at the time for usucapio.
It further
asserted that the Greek government had not acquired any property rights from
the heirs of I.S.M., given that in 1955 the plot had already belonged to the
Jewish community. Moreover, the Greek government had had no right to receive
any compensation, given that it had taken no action since 1955 to assert its
ownership of the plot. The case was heard by the Thessaloniki Court of First
Instance in June 1983 and in April 1999.
In December
1999, the court ruled that the Jewish Community had acquired property rights by
way of usucapio prior to the enactment of Royal Decree no. 4 of 13 May 1955, as
it had occupied the plot in question in good faith and as owner (με καλή πίστη και διάνοια κυρίου) since
1921 – that is to say for more than 30 years.
The fact
that the community had acted as owner was proved by various building work that
it had carried out, by taxes paid, and by sales and leases of parts of the plot
carried out after 1950.
Following
an appeal by the Greek State, in July 2005 the Thessaloniki Court of Appeal
confirmed that the Jewish community had acquired property rights in respect of
the plot in question by virtue of usucapio – but only as regards a part
measuring 4,588 sq. m, rather than the entire plot measuring 7,332.94 sq. m
(which the first-instance court had erroneously awarded to it).
Following
an appeal on points of law, the Court of Cassation reversed the appellate
court’s judgment in March 2008 on the grounds that that court had failed to
examine the argument (which had not been raised before the first-instance
court) advanced by the Greek State that the 30-year usucapio period had been
interrupted in 1947 when the Greek State had appointed commissioners and that,
in order to secure its property rights over the plot in question, the applicant
community ought to have requested that those rights be recognised during the
three-month time-limit provided by the Laws of 1950 and 1955. It remitted the
case to the Thessaloniki Court of Appeal.
In April
2016 the Court of Appeal upheld the objection, deeming that the Jewish
community ought to have sought the recognition of its property rights over the
plot within the three-month time-limit, its intention to- by its appointment of commissioners -given that the Greek State had indicated exercise its rights. It dismissed the initial
declaratory action of 1981 on the grounds that the applicant community had not
claimed its property rights within the time-limit provided by the 1955 Law.
In October
2016 the applicant community appealed on points of law to the Court of
Cassation. It argued, amongst other things, that the appellate court had failed
to examine its argument that – in any event and regardless of whether or not it
had acquired the plot in question by way of usucapio – it had acquired title to
the plot in question by completing the expropriation through its payment to the
Deposits and Loans Fund in 1934 of the amount set as provisional compensation
and by the publication of notice of that payment in the Government Gazette.
That meant that any property rights of other persons had ceased to exist in
1934 and that the plot in question could therefore not have been considered to
constitute “enemy property” – and nor could it have been deemed to be under
sequestration during the term of office of the commissioners (1947-1957).
The
applicant community further argued that the three-month deadline had been very
short, and in any case, it had received no notification that the plot would be
seized. In March 2018 the Court of Cassation held that the appellate court had
failed to examine the applicant community’s argument that the expropriation had
already been completed in 1934 and that it had thus acquired title to the plot
in question; it could therefore not have been deemed enemy property and
sequestrated.
The court
further held that it should hear the applicant community’s 1981 initial
declaratory action on the merits and render a final judgment on those. In
September 2019 the Court of Cassation dismissed the applicant community’s
initial declaratory action. It acknowledged that the 1920 expropriation had
been finalised in 1934 (with the payment of the amount set as provisional
compensation in the name of the former owner and with the publication of the
official notice), and that the title to plot no. 26 had indeed thus been
transferred to the applicant community at that time, resulting in the
suppression of any other property rights of I.S.M. (and anyone else).
However, it
deemed that, as the Greek State had sequestrated the plot in question in 1947
when it had appointed commissioners to manage the plot, and the commissioners
had then handed over half of the plot to the State on 21 June 1957, the applicant
community should have asserted ownership of the plot by bringing an action
within the three-month time-limit set provided by Law no. 1530/1950.
Relying on
Article 1 of Protocol 1 (protection of property) to the European Convention,
the Jewish Community of Thessaloniki complained that the Court of Cassation’s
decision had deprived them of their property. It asserted that it had not been
informed of the appointment of the commissioners in 1947, and had remained
unaware of their appointment, as neither the commissioners nor any governmental
official had prevented it from exercising its full ownership rights.
Furthermore,
it had not reacted within the three-month time limit set by the 1950 and 1955
Laws because that time-limit had only concerned “enemy properties” and not
Greek legal entities. They also complained under Article 6 § 1 of the
Convention that they had not had a fair hearing.
Decision of
the Court
Article 1
of Protocol No. 1
The Court
observed that Greece’s acceptance of the right of individual application under
the Convention was limited to events taking place after 20 November 1985. As
the applicant community had lost its ownership of the contested plot only by
the final decision in a series of sets of judicial proceedings that had ended
with the Court of Cassation’s ruling of 3 September 2019, the applicant
community’s complaint under Article 1 of Protocol No. 1 fell within that scope.
In
examining whether that finding had been foreseeable for the applicant
community, the Court observed that the Court of Cassation had acknowledged that
plot no. 26 had come under the ownership of the applicant community in 1934
upon payment of the amount set as provisional compensation owed for the
expropriation.
Even the
appointment of commissioners in 1947, whether the applicant community had been
informed or not, had not changed the ownership of the plot: the commissioners
had been appointed to merely manage the plot, which had been sequestrated but
not transferred to the ownership of the commissioners or the State.
Nevertheless,
the Court of Cassation had concluded that the plot had become the property of
the State under the legislation of 1950 and 1955 concerning enemy property even
though the plot had not belonged to Italian citizens since 1934. That had
contradicted the Court of Cassation’s own case-law, given the fact that it had
previously held that, in order for the legislation concerning the transfer of
enemy property to have applied to a particular property, the property had to
have belonged to Italy or to an Italian citizen on 22 October 1947 or to
Germany or to a German citizen on 24 January 1946. By the Court of Cassation’s
own acknowledgement, that condition had not been met; even the appointment of commissioners
had not changed that fact. No explanation as to why the circumstances had
warranted a different conclusion had been given. Such obviously conflicting
decisions could not be considered lawful for the purposes of Article 1 of
Protocol No. 1 to the Convention. The Court failed to see how the applicant
community could have foreseen that the legislation regarding enemy property had
concerned its own property. As a consequence, the Court of Cassation’s 2019
interpretation of the relevant legislation and its application had not been
foreseeable.
Moreover,
the Court took note of the letter from the State in December 1955 acknowledging
that it had succeeded the heirs of I.S.M. in respect of the right to
compensation, and the action brought in 1966 seeking the determination of the
final price. It followed that until the mid-late 1970s, its longstanding stance
had been to take actions aimed at securing compensation, which could only have
reinforced the applicant community’s belief that it was the legal owner of the
plot; it was only after 1975 that it had begun to assert that it actually owned
the plot.
The lack of
consistency in the State’s actions over the years had contradicted the
principle of “good governance”, which required public authorities to act in
good time, in an appropriate manner and with the utmost consistency.
The applicant community could not have anticipated the change in the State’s stance, and neither could it have anticipated the interpretation given to the domestic legislation by the domestic courts in 2019.
There had therefore been a violation of Article 1 of Protocol No. 1.
Article 6 §
1
Having already found a violation of Article 1 of Protocol No. 1, the Court did not find it necessary to examine the complaint under this article.
Just satisfaction (Article 41)
The Court held that Greece was to pay the applicant community
5,000 euros (EUR) in respect of nonpecuniary damage and EUR 40,000 in respect
of costs and expenses.
(source echr.coe.int/photo freepik.com)
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