Updated: Dec 2, 2018
The demolition protocol is an individually enforceable administrative act and is issued by the competent administrative authority, when the conditions of the law are met. Article 27 of Law 2971/2001 (A' 285) defines the following: "1. The provisions for the protection of public estates, as they apply at any time, also apply to the areas of the maritime port zone. 2. All kinds of buildings and constructions in general, which have been erected or will be erected without a permit on the seashore or the beach … are demolished, regardless of the time of their construction or whether they are inhabited or otherwise used … . To this end, the head of the competent Real Estate Service issues a demolition protocol, which he notifies, in accordance with the provisions of Law 2717/1999 "Code of Administrative Procedure" to the person who has erected arbitrarily, who must, within thirty (30) days of notification, demolish the buildings and remove all kinds of structures from the seaside or the beach …". According to these provisions, in the case of an illegally erected building or construction in general on the seashore or on the beach, the head of the competent Land Service issues a protocol for their demolition, regardless of the time of their construction or whether they are inhabited or used in any other way. With the demolition protocol, the person who erected the arbitrary structure within the foreshore or beach is ordered to proceed with its removal. The protocol is notified to the one who has erected arbitrarily in accordance with the provisions of the Code of Administrative Procedure, who must within 30 days of its notification demolish the buildings and remove all kinds of constructions from the seafront and the beach. The provisions of article 27 of Law 2971/2001 regulate the case where the arbitrarily petitioner is unknown (par. 3-5). Even the demolition is carried out with the assistance of the technical services of the competent Prefectural Self-Government, following the request of the General Secretary of the Region. This is done in accordance with the town-planning provisions, following the proposal of the head of the Real Estate Service, while the cost of demolition is borne by the person who has erected it arbitrarily and is collected as public revenue according to the provisions on the collection of public revenue. As an exception, the execution of technical works on the foreshore or the beach is permitted only as long as the procedure of article 12 or article 14 of Law 2971/2001 is followed, depending on the nature of the project, and on the condition that the conditions for the protection of the coast, which is an essential element of the natural environment, will be respected. If this procedure is not followed, the buildings erected on the beach or in the sea are arbitrary and can be demolished (see SE 747/2014, 4468/2010, 3587/2007, 4951/2005 etc.)
Furthermore, the prohibition of filing an application for temporary regulation of the prefecture or possession or application for suspension of execution of the demolition, removal or removal before any Administrative or Civil Court or other Authority, which is established by paragraph 8 of the same article above, has been deemed unconstitutional by the decisions of the Supreme Administrative Court 797/2007, 479/2006, 772/2006, 967/2007, 1059/2007, 292/2004, 590/2010 as well as with decision no.
Against the demolition protocol, as an individual executor of an administrative act, the defendant may file an application for annulment seeking the disappearance of the protocol and exemption from the demolition. The adjudication of the annulment request belongs to the locally competent three-member administrative appeals court, which adjudicates the annulment dispute in the first instance (SEE: ΣΤΕ 911/2017 Ε΄ Section, LAW publication). The cancellation request is carried out in accordance with the provisions of p.d. 18/1989 (articles 45 et seq.). If the application for annulment is submitted to the SC, it has the possibility to either keep the case and judge it or to refer it to the competent administrative three-member court of appeal (article 34 par. 1 last paragraph of Law 1968/1991 (A' 150), "In annulment cases, for which Article 1 of Law 702/1977 specifically provides for the Council of the State, if it considers that the case is within the jurisdiction of the administrative appeals court, it can refer to it or keep the case and try it on its merits").
An appeal is allowed against the decision of the three-member administrative appeals court, which is brought before the Council of State. Regarding the admissibility of the appeal, it is recalled that according to paragraph 2 of article 12 of Law 3900/2010 (Α΄ 213) – which, according to article 70 of the same law is valid from 1.1.2011 – was added to paragraph 1 of article 58 of the p.d. 18/1989 (A' 8) the following paragraph: "The appeal is allowed only when the party submits, with specific allegations contained in the relevant document, that there is no jurisprudence of the Council of State or that there is opposition of the contested decision to the jurisprudence of the Council of State or another supreme court or to an irrevocable decision of an administrative court".
In the sense of the above provision, the appellant is procedurally burdened with the obligation, on penalty of total or partial rejection of his appeal, to document with special and specific allegations, which are contained in the introductory document, for each of the stated reasons either that there is no jurisprudence of the Council of State on a specific legal issue, i.e. on the issue of interpretation of a provision of law or a general principle of the substantive or of procedural law, which is crucial for the resolution of the dispute brought before the Court, or that the assumptions of the appealed decision on a specific legal issue, the resolution of which was necessary for the diagnosis of the relevant case, contradict established or in any case not overturned jurisprudence, on this legal issue and under these conditions of necessity for the diagnosis of the relevant cases, of at least one of the three supreme courts (S.t.E., A.P., El.S) or the Supreme Special Court or to an irrevocable decision of an administrative court. In the latter case, the decisions, to which the appellant opposes, must be specifically mentioned and the legal issue decided by them should have been essential for the resolution of those disputes before the courts (cf. S.t.E. 3578/2014, 4987/2012, 3933/2012). On the other hand, the above regulation in view of its content and the purpose to which it aims, does not conflict with articles 20 par. 1 of the Constitution and 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ratified with the n.d. 53/1974 (A' 256), (S.t.E. 1105/2016, 4160, 4961/2014, 379/2013, 1547/2012 7m. etc.).
Case study: ΣΤΕ 3077/2017 LAW PUBLICATION: On the other hand, in the sense of the same provisions above, in the event that the construction of the building within the seafront has taken place without a permit issued on the basis of the seafront legislation, but on the basis of a building permit issued at a time when the seafront had not been demarcated by an administrative act, the issuance of a protocol demolition of the building erected pursuant to this building permit within the seafront, subsequently demarcated in such a way as to include this building, is not permissible. And this is because, in this case, the construction of the building has not taken place without a permit, but on the basis of a building permit that allows it and appears, in any case, as the product of an incidental judgment of the relevant administrative authority regarding the boundaries of the beach as a natural phenomenon, and the correctness and legality of this judgment, which would not, after all, be possible to question even by the bona fide administrator who submitted the request for the issuance of the building permit license at a time when the relevant verification act of the Administration had not been issued, it is not allowed to be checked incidentally even by the administrative body responsible for issuing the demolition protocol according to the coastal legislation. On the contrary, the issuance of the demolition protocol can legally be carried out after the revocation of the building permit (cf. SC 3942/2013, 4568/2011, 3998/2008 etc.), which had illegally allowed the construction of the building (see SC, 3622/2014 7m., 3354/2014 7m., cf. StE 585/2016 7m.).
After the devastating fires in Mati Attica, the state brought back the issue of the implementation of the protocols for the demolition of illegal buildings that had been erected in Aigialos, which had been pending for many years, by issuing a relevant legislative act.