297/2007 DPR ROD (476442)
(A PUBLICATION LAW)
Forced expropriation. Appeal against Implicit Rejection of Removal Application
of rhytotomous weight. Competence of the Three-member Administrative Court of First Instance.
Incidents of long-term encumbrance of a property with a ryotomous weight and
cancellation of an implied refusal to lift this burden.
Decision number 297/2007
THE ADMINISTRATIVE COURT OF FIRST INSTANCE OF RHODES
2nd DIVISION THREE MEMBERS
He met publicly in his audience (Court of Appeals conference room
Dodecanese) on January 23, 2006, Monday at 10:00 a.m. with
Their judges: Christina Lelou-Salmanidou, President of the Court of First Instance, Styliano
Mekra, Court of First Instance D.D. - Reporter, Tsambika Maria, First Judge D.D., and
Secretary Tsampika Makrakis, Court Clerk.
To hear the appeal dated February 25, 2003.
Of the Legal Entity under Public Law with the name "…….." which is based
in Athens and was represented by lawyer Ioannis Karamihalis.
Against: 1) N.P.D.D. "DODECANIS PREMIER SELF-GOVERNMENT", where
he is represented by the Prefect of Dodecanese and allegedly appeared through him
lawyer Georgios Filippakos, 2) Greek State, represented by
the Minister of Environment, Spatial Planning and Public Works and did not appear
and 3) Municipality of Rhodes, represented by its Mayor and presented
through the lawyer Theodoros Frarakis.
During the discussion the parties developed their claims and asked for what
are mentioned in the minutes.
After the meeting the Court met in conference.
His judgment is as follows:
Because, with the document in question, which is written as a request for revocation
decision-appeal and for which the legal fee was paid (see
311731 and 532527 Series A` receipts), requested by the
applicant NPDD to annul the implicit rejection by the Administration of
18-11- 1996 of his application and to accept his request for the removal of
long-held regulatory burden-binding property ownership
of which is located in the city of Rhodes and has been designated as a site
construction of a public building with the General Town Planning Plan of Rhodes,
which was approved by decision 2736/197 of the Ministry of Housing and Urban Development. (Official Gazette 193 D/11-3-1987).
With this content, the considered document is an appeal and as
such must be considered.
Because, with the first article of Law 2990/2002 "Sanction of December 21
2001 Act of Legislative Content "Jurisdiction of the courts in
cases of forced expropriations, tax and customs
regulations", (A` 30/21-2-2002), the above legislative act was ratified
content (Government Gazette 288 A`), in articles 1 and 3 of which it is defined that: 1.
Jurisdiction of the courts in cases of forced expropriations. 1. O
determination of compensation for the forced expropriation of property
falls under due to its relevance to the process of identification of beneficiaries
to the jurisdiction of the civil Courts, as defined
in particular in the Code of Compulsory Expropriations, which was ratified by
article one of Law 2882/2001 (Government Gazette 17 A`), as it applies each time. 2.
Competent to rule irrevocably and with the same procedure for disputes from
individual acts of administrative authorities, which concern the revocation of non
of joint expropriations and the removal of maintained on
long-term burdens, is the court of Article 11 paragraph 4 of
K.A.A.A" (article 1 of the P.N.P.). Besides, in article 11 of Law 2882/2001
"Code of Compulsory Expropriation of Real Estate" (C.A.A.A., A` 17/6-2-2001), the
which is valid from 6-5-2001, i.e. after the lapse of three (3) months from
its publication in the Government Gazette, in accordance with article two
of the same law, it is defined that: 1. The authority that declared the mandatory
expropriation may by its decision revoke it, in whole or in part. 2. H
forced expropriation is compulsorily revoked by act of the authority which
has declared it, following the request of any interested party who is likely
real right to the expropriated property, if within four years from
upon its declaration, no application for the judicial determination of the compensation shall be made
or it is not determined extrajudicially. The application is inadmissible if made after that
one year after the expiry of this four-year period, in any case
after the publication of the decision determining the compensation. The act of revocation
of expropriation is issued within four months of its submission
relevant application and is published in the Government Gazette.
The provisions of this paragraph do not apply in the case of
of expropriations to implement city plans, development of residential areas and
for archaeological purposes. 3. The forced expropriation is automatically lifted
if it is not done within a year and a half from the publication of the decision
temporary determination of the compensation and, in the case of directly definitive
determination thereof, from the publication of the relevant decision. The person responsible for
declaration of expropriation authority is required to issue within four months
from the expiration of the deadline of the previous paragraph, a certificate for the
imminent self-righteous removal. This act is published in its Gazette
Government. 4. If those mentioned in the previous paragraphs 2 are inactive
and 3 deadlines or a negative act is issued, any interested party may
request from the three-member administrative court of first instance, in whose district
the expropriated property is located, the issuance of a court decision, with the
which the contested act or omission be annulled and the
self-righteous or compulsory removal of expropriation. In case
the procedure defined by the Code is applied accordingly
of Administrative Procedure (law 2717/1999), except for article 66 thereof. At the trial
the expropriation and the State are invited. The issued decision is
irrevocable. 5... 6... Besides, in article 29 (par. 2 and 5) of the same law
2882/2001 it is defined that: Expropriations declared from February 1
1971 and henceforth shall be governed by the provisions herein from point to
which are at the time of its entry into force. Subjects are excluded
those for which at the entry into force of this has been notified
introductory document of the relevant trial before the competent court or
a relevant administrative act has been issued, in respect of which only the
procedural provisions herein (par. 2). Expropriations to be implemented
of town plans and development of residential areas declared at any time
until the entry into force of this Code are governed, to the extent that
defined by paragraph 2 of the provisions of this Code, with
subject to the exceptions defined by these provisions.
Because, from the combination of the above provisions, it follows that competent for the
Adjudication of the administration's failure to lift the administrative expropriation
or the lifting of long-maintained rheumatism weights, is the three-membered
administrative court of first instance of the place where the property is located and in this case, the
present Court. The difference established by the above omission
administration, it is an administrative dispute of substance and in the legal remedies that
were exercised after the entry into force of Law 2882/2001, such as the present application,
both its substantive and procedural provisions are applied
of this law, since when this law came into force (6-5-2001) no
a document of introduction of the present trial had not been served, nor had it been issued
relevant administrative act.
Because, article 11 par. 2 of the n.d. 797/1971 (1 A`), as it had
replaced by Article 1 of Law 212/1975 (f. 252 A`) provided that the
forced expropriations are automatically revoked, if a certain person passes away
time from their declaration, without having determined the compensation due,
and in particular, that forced expropriations, which are declared by
application of the legislation on city plans, are revoked, if lapsed
eight years. With the provision of article 36 par. 2 of Law 1337/1983 (A' 33)
Article 11 par. 2 of the n.d. was repealed. 797/1971 and, therefore, the institution
of the automatic revocation of the expropriation after the impracticable lapse
eight years since its proclamation. But every expropriation, which does not have
performed, remains in force only for a reasonable period of time h
duration of which is subject to the discretion of the judge. Therefore, the
forced expropriations, which had been declared after entry into force
of n.d. 797/1971 pursuant to the legislation on city plans, as well as
the forced expropriations, which had been announced before the start
validity of the above law d/tos, as long as they are maintained after their declaration,
without carrying out their composition in accordance with the law, for a long time
period of time, which, under the particular circumstances, occurring in
in any case, exceeds reasonable limits in the judgment of the court,
constitute a legal and financial burden of ownership, which is
contrary to its constitutional protection. Therefore, in the cases
the Administration is obliged to lift the forced expropriation
(see S.t.E. 5250/1996, 2499/2003).
Because, furthermore, Article 29 of Law 2831/2000 (Official Gazette A` 140 - amendment of Law
1577/1985-G.O.K. & other provisions), as replaced by Article 10 thereof
Law 3044/2002, stipulates that: 1... 2... 3... 4. Where in the previous
paragraphs provide for modification of approved city and settlement plans,
the relevant urban planning regulations must: a) not bring about a reduction of
of the total area of common areas nor of the necessary communal areas
according to the general land use frameworks (G.P.S.S.X.O.O.A.P.). It is allowed
reduction when the modification is due to the lifting of forced expropriation, h
which is done in compliance with decisions of the competent Courts, with which
the administration's refusal to lift the expropriation is annulled, b)... c)...".
Because, finally, in article 63 of Law 2717/1999 "Administrative Code
of Procedure" (Government Gazette 97 A), it is defined that: "1... 2. An omission exists when the
administrative authority, although obliged by law, does not issue an enforceable individual
administrative act to regulate a certain legal relationship. The omission
it takes place after the expiration of the deadline that may be prescribed by law
for the issuance, either ex officio or upon request of the interested party,
of this act. In this last case (implicit denial), if from the
the law does not stipulate such a deadline, the omission is made with the lapse of time
non-working quarter from the submission of the relevant application to the Administration...".
Because, in the present case, from the evidence in the case file
the following results: the applicant, according to certificate 11416/2005
property of the Land Registry of Rhodes, has full ownership, the me
KM data (cadastral portion) ……. Rhodes Buildings, File....
Volume ... (old ...) Sheet ... (old ...) plot, original area
1,700 sq.m. and today 1,372 sq.m., which he acquired by virtue of 437/
16-11-1972 contract of gift during life of the notary public of Athens F. A. from
NPDD "Israeli Community of Rhodes" and is located in the district of Agios Georgios
of the Municipality of Rhodes and at the junction of K., X. and B. The above property,
it was characterized as a "Shared Space" with the city's urban plan
of Rhodes (Government Gazette 36 D/27-1-1956) and as "Construction Area of a Nursery School" with
the General Town Planning Plan of Rhodes, approved by decision 2736/197 of
H.E.HO.DE. (Official Gazette 193 D/11-3-1987). With his application of 18-11-1996
of the applicant to the defendants (the evidence of service from 21,
26 and 21-11-1996 respectively), requested the lifting of his commitment as above
property, on the grounds that the aforementioned characterization constitutes
seizure of his property in accordance with article 37 par. 3 of the n.d. of the year
1923, which, due to the passage of a long time without the authorities taking action
authorities in declaring expropriation and utilizing the property for the purpose
intended, violates article 17 par. 2 of the Constitution and article 1
of the First Additional Protocol to the Rome European Convention on
human rights. The above application was implicitly rejected by the defendants
(although the defendant Municipality invokes and provides 124/17-2-1997
his response to the above request, that is, before completing the draft
three months from the submission of the application to the competent administrative authorities, excl
but does not provide any proof of notification of this individual
administrative act to the applicant NPDD, therefore, it is not proven whether
and when he received full knowledge of it and therefore, the implied term is legally violated
denial of the defendants). Against this implicit rejection, he is already appealing
K.I.S. and requests that the lien be lifted for the same reasons.
Besides, the defendant Municipality, first of all, asserts that the present appeal
was improperly brought before this Court. In addition to the fact that
this claim is made vaguely, is in any case unfounded,
as this Court is competent according to Article 29 of Law 2882/2001 and
according to the first article of Law 2990/2002, according to what was mentioned above in the main
present proposal. He also points out that according to Article 29 of Law
2831/2000 as amended by Article 10 of Law 3044/2002, the
amendments to town plans must not result in a reduction of the overall
of the surface of the common spaces nor of the necessary communal spaces and
therefore, any modification that
would make the specific site buildable. This claim
it is unfoundedly presented, as according to the letter of the law (article 10 of n.
3044/2002) as stated above, this commitment does not apply to
amendment made due to removal of compulsory expropriation, which
is done in compliance with the decisions of the competent Courts, with which
the administration's refusal to lift the expropriation is annulled. Finally, O
claim of the defendant that in order to have the characterization of the property
binding character, the city plan should be amended, it is projected
useless, since the General Town Planning Plan of Rhodes has been approved
(Government Gazette 193 D/1987), in accordance with the provisions of article 37 par. 3 sub. his b
n.d. of the year 1923 and according to established jurisprudence of the Council of State,
with the act of approving, amending or extending a zoning plan no
the forced expropriation of properties intended for construction is declared
public utility buildings, however, the above-mentioned characterization is essential
limitation of the rights of the owner, as it implies a prohibition
disposal of the property for another purpose, therefore a real burden that it removes
the power to dispose of the property. If this commitment is maintained beyond,
at the discretion of the Court reasonable limits without furthering the proceedings
of the forced expropriation, then the said determination is now made
economic and legal weight of the property which is contrary to the
its constitutional protection, and the Administration has an obligation to remove,
following a relevant request from the owner, this commitment with
declassification of the property as a site intended for the construction of a specialist
building (StE 1686/2000, 2667/1999, coq). This obligation is not revoked
from the fact that the amendment is required to remove the expropriation
of the zoning plan, for which the law provides for the observance of certain
formalities, because the amendment for the purpose of removing the expropriation is
mandatory for the Administration (StE 3063/2001, 1686/2000, 3559/1996 etc.).
Because, with these data, and in view of the fact that from the imposition of the disputed
ryotomic burden on the property in question from the year 1987 until
date of submission of the 21.11.1996 application of the applicants to the Administration
in order to remove the burden in question, nine years passed, but also sixteen years until
the filing of the appeal in question without the Administration proceeding with the composition
of the expropriation, while in addition, from the original rhytotomous expropriation
of the subject property as green space in 1956 with the original landscaping
plan of the city of Rhodes forty-seven years passed without the Administration to
proceed with the formation and use of the above property in accordance with
its intended purpose, the Court considers that this period of time
far exceeds the reasonable limits within which it would constitutionally be
burden on applicants' property tolerated. In view of these, the silent
refusal of the defendants to lift the long-standing burden of litigation and
to satisfy this request of the applicant NPDD is illegal and
voidable. Therefore, the present appeal must be allowed, and the case
to be referred to the Administration in order for it to be lifted, with its amendment
of the relevant zoning plan the disputed commitment.
Because, following the above, the present appeal must be made
accepted, to annul the tacit refusal of the defendants to lift their commitment
property of the applicant Organization, and the case to be referred to
Administration in order to remove it, by amending the relevant regulations
plan the disputed commitment, to return the fee paid to
appellant (art. 277 par. 9 sub. a of the Civil Code) and to be imposed proportionately on the defendants
, the court costs of the applicant, in the amount of two hundred and twenty (220) euros
(article 275 par. 1 CCD).
FOR THOSE REASONS
He accepts the appeal.
It overturns the administration's refusal to lift the zoning commitment it had
imposed by the 2736/197-Government Gazette 193 D/11-3-1987 decision of the Ministry of Housing and Urban Development. in
property of the applicant described in the history herein.
It refers the case to the administration to take the legal action which
refers to reasoning.
It orders the return of the fee to the appellant.
Proportionately imposes on the defendants the court costs of the applicant, h
in the amount of two hundred and twenty (220) euros.
Judged and decided in Rhodes on April 24, 2007 and published in
extraordinary public session of the Court on 31 May 2007.
THE PRESIDENT THE SPEAKER
THE SECRETARY
E.F.
Source: Law Legal Information Network (www.lawdb.intrasoftnet.com)