Updated: Oct 1, 2018
DEFINITION OF AEGIALOS: According to the provisions of article 1 par. 1 of Law 2971/2001: "Aegialos" is the zone of dry land, which is wetted by the sea from the largest and usual ascents of its waves. Law 2971/2001 defines the procedure for defining Aegialos (article 3 et seq. of the Law). It is accepted, however, that the status of the beach is not created by an act of the state, but arises only from natural phenomena (that is, the larger than usual waves rise), and the determination of the beach area in each local case, belongs to the judgment of the regular judge and not the administration, who considers as judicial evidence the diagram drawn up by the competent committee together with other legal evidence in the which also includes the examination of witnesses (Ef.Naupl. 601/1995 NoB 1996 p. 465 ff. AP 546/78 NoB 27, 489). Finally, according to par. 1 of no. 3 of the a.n. 2344/40 and article 5 par. 6 of 2971/2001, the committee's report is transferred to the State portion, otherwise if an expropriation takes place without this transfer, it does not transfer the ownership to the new body (K. Papadopoulos, op. p. 582, AP 725/1984 EEN 52.366, Ef. Naval Decree 601/1995 NoB 1996 p. 465 ff.).
ADMINISTRATIVE EXEMPTION PROTOCOL
According to the provisions of article 2 par. 1 of Law 2971/2001: "The seashore, the beach, the shore and the riparian zone are common things and belong by ownership to the State, which protects and manages them".
Further in article 2 par. 3 of the a.n. 263/1968, it is stipulated, among other things, that, against the protocol of administrative expulsion referred to in paragraph 1 of the same article, which is drawn up by the competent financial registrar against the self-acknowledged seizure of any public property and notified to the addressee, it is allowed to file an objection, before the competent Justice of the Peace, within a subversive period of thirty (30) days, from notification, which is heard, in accordance with the provisions of Law GΨZ/1911 "on temporary measures in possession proceedings", which are applied accordingly, that against the decision of the Justice of the Peace, an appeal is allowed before the President of the Court of First Instance, exercised within a period of thirty days and heard according to the special procedure of the Civil Procedure (Article 634 thereof), that against the decision of the President Of primary importance "no legal remedy is possible" and that the decision issued in accordance with the procedure of this article does not hinder the pursuit of satisfaction of the rights of both parties during the regular procedure. The above-mentioned procedural provisions, and in particular the one excluding the challenge by any legal means and therefore also with an appeal issued on appeal by the President of the First Instance Court (and already, in accordance with article 3 par. 2 of the First Instance Court, by the Single-member Court of First Instance during the procedure of articles 686 et seq. of the First Instance Court), as well as the provision, which allows an appeal only, against the decision of Justice of the Peace, were not repealed by article 4 of the EISNKPolD., nor by article 1 item. e', f' of the above Introductory Law, combined with article 552 of the Civil Code, regarding the subjects of appeals against decisions. This is because the provision of article 4 of the EisNKPolD, which was published in the Government Gazette on June 26, 1967, is earlier, from the crucial point of view of the time of acquisition of formal legal force, the provisions of article 2 of the a.n. 263/1968, which was published in the Government Gazette, on January 23, 1968 and therefore does not repeal the newer provisions of article 2 of the a.n. 263/1968, force. And the provisions of article 1 par. e', f' of this Introduction Law, as they have been replaced by article 70 par. 1 of the n.d. 958/1971, presuppose, according to their meaning, for the intended abolition, since the introduction of the K.Pol.D., i.e. from September 16, 1968, of contrary previous procedural provisions, that various special definitions are missing in these provisions. The provision at the end of article 552 of the Civil Code, which acquired formal force with the publication in the Government Gazette of September 15, 1971, as a general provision, does not repeal the relevant special provisions of article 2 paragraph 3 of the a.n. 263/1968, on the inadmissibility of the appeal against the decision issued on the appeal or opposition, since from this provision, there is no legislative will to abolish special provisions, which, in order to achieve the speedy resolution of an administrative dispute, subject to the jurisdiction of the regular civil courts, do not allow the legal remedy of the appeal. Repeal of the above provisions of article 2 of the a.n. 263/1968, nor the articles 20 par. 1 and 111 par. 1 of its Constitution, combined, brought about, since these provisions (of the a.n. 263/1968), it is not possible in view of the cases they concern, to be considered to nullify or limit in such cases, the, according to article 20 par. 1 of the Constitution and article 6 par. 1 of of the European Convention of Rome "for the protection of human rights and fundamental freedoms" which was ratified with n.d. 53/1974, guaranteeing, on behalf of the State, the provision of legal judicial protection, for the imposed substantiality of which the aggrieved party of the issued decision does not require an appeal (cf. 489/1991, AP 119/1988). Therefore, an appeal against a decision of the Single-Member Court of First Instance, issued on appeal against a decision of the Peace Court, rejecting an objection against a protocol of administrative expulsion, issued in accordance with article 2 paragraph 1 of the a.n. 263/1968, or the final, if any, first-instance justice of the peace decision, is inadmissible, since it offends a decision not subject to the legal remedy of the appeal (A.P. 1740/2017 Law Publication, A.P. 1387/2013, 1094/2008, 269/2004, 1829/2001, 119/1988).
In addition, from the combination of the provisions of articles 1 par. 2, 2 of AN 263/1968 and 15 of law 719/1977, it follows that, for the issuance of a protocol of administrative expulsion, the following conditions must be met: a) it must be public property, i.e. property belonging to the public or private property of the state, b) it must be unquestionably located under the possession of the State and not simply the Greek State claiming ownership or jurisdiction over it and c) that an arbitrary occupation took place without the will of the state for the purpose of acquiring rights, regardless of the time in which this (occupation) took place. Therefore, if even one of these conditions is missing, a protocol cannot be drawn up, and if it is issued, it is annulled upon objection by the defendant, as well as anyone else who has a legal interest (K. Pol. Dik. 583 ff. 201), and the State or OTA in order to receive protection must raise the action provided to it by other provisions. In other words, the object of the trial opened by the opposition before the Magistrate's Court is not the recognition of ownership or even the temporary regulation of the law on the above land, but the judgment regarding the existence of the legal prerequisites for the validity of the contested protocol (see P. Tzifra, Insurance Measures, ed. A, p. 512 ff., where there are also references to the jurisprudence).
USE COMPENSATION PROTOCOL
With the provisions of art. 115 of the decree from 11/12.11.1929, issued under the authority of art. 2 of Law 4266/1929, such as Art. 115 was replaced by art. 5 of Law 5895/33 and subsequently amended and supplemented with the articles 20 of the a.n. 1540/38, 10 of the a.n. 1919/39, 6§1 of the a.n. 1331/1949, 2 of the a.n. 1925/51, 1 of the b.d. 619/1965 and 5§4 of the a.n. 263/1968, it is stipulated, among other things, that against those who, without a contractual relationship, reap or make use of public estates or estates of which the State has jurisdiction or possession by any contract, compensation is confirmed, at the discretion of a good man and for the period of time they used, compensation by protocol, which is notified to the person who reaps or uses the property and who is entitled to exercise within one month objection to the justice of the peace or to the president of the first instance court, depending on the amount of the compensation, and they, judging from the contents, cancel or validate the protocol or limit the compensation, their decision, however, if this right of the State is disputed by the objection, it does not have any influence on the trial for the right, which may be initiated in the competent court, that is, the outcome of the main trial is independent of the fate of the protocol, which if not opposed within the deadline or if it is ratified or reformed in the trial on the opposition, is executed according to the KEDE. Already, after the introduction of the Civil Code, it has jurisdiction to adjudicate the above objection, according to the aforementioned provisions of art. 1s(e)&(f), 3§§1&2, 4, 24§1 and 39§1 of EsNKPolD, the single-member court of first instance in first instance (OlAP 5/1985, 67/2012, 1408/2012) and the appeal court in second instance. The competence of the single-member court of first instance was also confirmed by art. 326§3 of Law 4072/2012, by which it was also defined that if the issued decision annuls the protocol for reasons related to the ownership or jurisdiction of the estate, the objector must bring an ordinary action within ninety days from the service of the decision, otherwise the protocol remains in force and is executed. The compensation for the arbitrary harvesting or use of public property or property located in the prefecture or possession of the State with any contract has the character of consideration for the benefit that the arbitrary harvesting or use of the property brings to the person who does it, i.e. a consideration that must be comparable to what the leasing of the property would bring, meaning the use of the property not its simple possession, even if this offers the possibility of capitalizing the estate, but receiving benefits from the actual capitalization and use of the estate AP 287/2016 Publication LAW, AP 478/2004, 541/2006, 929/2014).
The decision of the Single-member Court of First Instance definitively settles the dispute regarding the debt and the amount of compensation for the occupation of public property, despite the procedure followed, the reference to which was made for reasons of speed only and does not concern the taking of an insurance or regulatory measure of the situation. For this reason, the prohibition of article 699 of the Civil Code did not apply to this decision, but it was subject to the remedies of appeal and appeal provided by the Civil Code (art. 511 and 552 of the Civil Code), since the above provision of par. 2 of article 115 of the PD of 11/12-11-1929, which prohibited the exercise of grievance means against it were considered to have been abolished, in accordance with article 24 par. 1 of the Income Tax Act (OLAP 38, 21, 22/2002, AP 1379/2013, AP 40/2013, AP 374/2012, AP 67/2012, AP 1945/2009, AP 481/2008).However, with article 326 par. 3 of law 4072/2012, which came into force from 11-4-2012, the tenth and eleventh paragraphs of the above article 115 of the law were replaced from 11/12-11-1929 and the prohibition of exercising remedies against the decisions issued on of objections against a compensation protocol for arbitrary use of public estates. Given that the admissibility of the remedies, according to article 24 par. 1 of the EISNKPolD, is judged in accordance with the law in force at the time of publication of the contested decision and in view of the fact that in this case there is no more specific regulation, since the above law (4072/2012) does not include a transitional provision or any other provision for pending trials on objections against a compensation protocol for arbitrary use of public property, the ban on exercising remedies against these decisions also covers the pending trials on them (AP 1765/2017 Law Publication, AP 929/2014, AP 18/21).
EXTERNAL DISPUTE RESOLUTION
Even the defendant to whom the protocol determining the compensation was issued, questioning its correctness, may propose the out-of-court solution of the dispute between him and the Financial Commissioner (now State Real Estate Service). The proposal is submitted to the head of the State Real Estate Service with a special request and within the deadline provided for the objection. Within this period, the applicant for the out-of-court solution is obliged to provide the evidence to support his application and to develop his claims. The head of the State Real Estate Service, if he considers the request fully or partially valid, may accept the cancellation of the protocol or the limitation of the determined compensation (article 115 a' as it was added to the Decree of 11/12 November 1929 "on the administration of public estates", in article 7 par. 1 of Law 719/1977).
CRIMINAL LIABILITY OF SELF-ACCEPTED ANY PUBLIC PROPERTY
According to article 23 par. 1 of n. 1539/1938 (for the protection of public estates), as replaced by article 1 par. 2 of n. 263/1968 (amending and supplementing the provisions on public estates), "the self-confessed taker of any public estate, unquestionably in the possession of the State, shall be prosecuted ex officio by imprisonment of at least six (6) months and a fine of at least one hundred thousand (100,000) drachmas". According to article 1 par. 1 of n.d. 31/1968 "On the protection of the property of local self-government organizations, etc.", as replaced by par. 11 of article 1 of Law 2307/1995 "1. As regards the estates of municipalities and communities, the legislation in force from time to time for the protection of the immovable property of the State shall apply, except for articles 8 to 20 of Law No. 1539/1938. 2. Where these provisions refer to: a) Public, b)… it means, respectively: a) local government organization, b) …". From these provisions, it follows that, in order to establish the relevant crime, it is required: a) arbitrary occupation of public, municipal or community property, b) that the occupation was made with the knowledge of the perpetrator that it is public, municipal or community property, and the potential fraud is also sufficient, and c) the property must be in the undisputed possession of the State, the municipality or the community (AP) 199/2015, 717/2014, 292, 846/2010).