In the case of Manoussakis and Others v. Greece (1),
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of
Human Rights and Fundamental Freedoms ("the Convention") and the
relevant provisions of Rules of Court A (2), as a Chamber composed of
the following judges: Mr R. Bernhardt, President,
Mr R. Macdonald,
Mr N. Valticos,
Mr S.K. Martens,
Mr A.N. Loizou,
Sir John Freeland,
Mr L. Wildhaber,
Mr D. Gotchev,
Mr P. Kuris,and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 23 May and 29 August 1996,
Delivers the following judgment, which was adopted on the
last-mentioned date:
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Notes by the Registrar
1. The case is numbered 59/1995/565/651. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since its
creation and on the list of the corresponding originating applications
to the Commission.
2. Rules A apply to all cases referred to the Court before the entry
into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only
to cases concerning States not bound by that Protocol (P9). They
correspond to the Rules that came into force on 1 January 1983, as
amended several times subsequently.
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PROCEDURE
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 5 July 1995, within the
three-month period laid down by Article 32 para. 1 and Article 47 of
the Convention (art. 32-1, art. 47). It originated in an application
(no. 18748/91) against the Hellenic Republic lodged with the Commission
under Article 25 (art. 25) by four Greek nationals,
Mr Titos Manoussakis, Mr Constantinos Makridakis, Mr Kyriakos Baxevanis
and Mr Vassilios Hadjakis, on 7 August 1991. The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby Greece recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46). The object
of the request was to obtain a decision as to whether the facts of the
case disclosed a breach by the respondent State of its obligations
under Article 9 of the Convention (art. 9).
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of Rules of Court A, the applicants stated that
they wished to take part in the proceedings and designated the lawyers
who would represent them (Rule 30).
3. The Chamber to be constituted included ex officio
Mr N. Valticos, the elected judge of Greek nationality (Article 43 of
the Convention) (art. 43), and Mr R. Bernhardt, the Vice-President of
the Court (Rule 21 para. 4 (b)). On 13 July 1995, in the presence of
the Registrar, Mr R. Ryssdal, the President of the Court, drew by lot
the names of the other seven members, namely Mr B. Walsh,
Mr R. Macdonald, Mr S.K. Martens, Mr A.N. Loizou, Mr F. Bigi,
Mr L. Wildhaber and Mr D. Gotchev (Article 43 in fine of the Convention
and Rule 21 para. 5) (art. 43). Subsequently, Sir John Freeland and
Mr P. Kuris, substitute judges, replaced Mr Bigi, who had died, and
Mr Walsh, who was unable to take part in the further consideration of
the case (Rules 22 para. 1 and 24 para. 1).
4. As President of the Chamber (Rule 21 para. 6), Mr Bernhardt,
acting through the Registrar, consulted the Agent of the
Greek Government ("the Government"), the applicants' lawyers and the
Delegate of the Commission on the organisation of the proceedings
(Rules 37 para. 1 and 38). The Government's and the applicants'
memorials reached the registry on 13 and 14 March 1996 respectively.
On 15 April 1996 the Secretary to the Commission indicated that the
Delegate did not wish to reply in writing.5. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
20 May 1996. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr L. Papidas, President, Legal
Council of State, Agent,
Mr A. Marinos, Vice-President, Supreme
Administrative Court,
Mr P. Kamarineas, Senior Adviser, Legal
Council of State,
Mr V. Kondolaimos, Adviser, Legal
Council of State, Counsel;(b) for the Commission
Mr C.L. Rozakis, Delegate;
(c) for the applicants
Mr A. Garay, avocat at the Paris Court of Appeal,
Mr P. Vegleris, honorary member of the Bar
and emeritus professor at Athens University,
Mr P. Bitsaxis, of the Athens Bar, Counsel. The Court heard addresses by Mr Rozakis, Mr Vegleris, Mr Garay,
Mr Bitsaxis, Mr Marinos and Mr Kamarineas, and their answers to its
question and a question put by a judge.
AS TO THE FACTS
I. Particular circumstances of the case
A. Background
6. The applicants are all Jehovah's Witnesses and live in Crete.
7. On 30 March 1983 Mr Manoussakis rented under a private
agreement a room measuring 88 square metres in a building located in
the Ghazi district of Heraklion (Crete). The agreement specified that
the room would be used "for all kinds of meetings, weddings, etc. of
Jehovah's Witnesses".
8. On 2 June 1983 he laid a complaint against persons unknown at
Heraklion police station because the day before the windows of the room
had been broken by unidentified persons. On 26 September 1983 he laid
a further complaint concerning a similar incident that occurred on
23 September.
9. By an application of 28 June 1983 lodged with the
Minister of Education and Religious Affairs the applicants requested
an authorisation to use the room as a place of worship. On the same
day they went to the chairman of Ghazi District Council to ask him to
certify their signatures on the application. He refused, however, on
the grounds that the applicants did not reside in his district and that
they had failed to show him the document bearing their signatures.
Following the intervention of the prefect of Heraklion, the
Deputy Minister of the Interior and the Speaker of the
Greek Parliament, the chairman withdrew his opposition and agreed to
certify the signatures on a new application lodged on 18 October 1983.
10. On 30 July 1983 the Ghazi Orthodox Parish Church notified the
Heraklion police authorities that the room was being used as an
unauthorised place of worship for Jehovah's Witnesses and informed them
of the applications made by the applicants to the Minister. The
church authorities asked the police tld not be accused of a punishable offence as
section 1 of the Law was contrary to Article 13 of the
1975 Constitution.
19. On 20 September 1993 the Hster had granted the
authorisation in question.
11. The applicants received five letters from the
Ministry of Education and Religious Affairs, dated 25 November 1983 and
17 February, 17 April, 17 June, 16 August and 10 December 1984,
informing them that it was not yet in a position to take a decision
because it had not received all the necessary information from the
other departments concerned.
12. On 3 March 1986 the Heraklion public prosecutor's office
instituted criminal proceedings against the applicants under
section 1 of Law no. 1363/1938 (anagastikos nomos), as amended by
Law no. 1672/1939 (see paragraph 21 below). In particular they were
accused of having "established and operated a place of worship for
religious meetings and ceremonies of followers of another denomination
and, in particular, of the Jehovah's Witnesses' denomination without
authorisation from the recognised ecclesiastical authorities and the
Minister of Education and Religious Affairs, such authorisation being
required for the construction and operation of a church of any faith".
B. Proceedings in the Heraklion Criminal Court sitting
at first instance13. On 6 October 1987 the Heraklion Criminal Court sitting at first
instance and composed of a single judge (Monomeles Plimmeliodikeio)
acquitted the applicants on the ground that "in the absence of any acts
of proselytism, followers of any faith are free to meet even if they
do not have the requisite authorisation".
C. Proceedings in the Heraklion Criminal Court sitting on appeal
14. The Heraklion public prosecutor's office took the view that the
Criminal Court had incorrectly assessed the facts and accordingly
lodged an appeal against the judgment of 6 October 1987.
15. On 15 February 1990 the Heraklion Criminal Court sitting on
appeal and composed of three judges (Trimeles Plimmeliodikeio),
sentenced each of the accused to three months' imprisonment convertible
into a pecuniary penalty of 400 drachmas per day of detention, and
fined them 20,000 drachmas each. It noted as follows:
"... the accused had converted the room that they had rented
into a place of worship, in other words a small temple
intended to serve as a place of devotion for a limited circle
of persons as opposed to a public building in which everyone
without distinction is free to worship God. Thus they
established this place on 30 July 1983 and made it accessible
... to others, in particular, their fellow Jehovah's Witnesses
from the region (limited circle of persons), without the
authorisation of the recognised ecclesiastical authority and
of the Ministry of Education and Religious Affairs. At this
place they worshipped God by engaging in acts of prayer and
devotion (preaching, reading of the scriptures, praising and
prayers) and did not confine themselves to the mere holding of
meetings for followers and the reading of the gospel ..." D. Proceedings in the Court of Cassation
16. On 5 March 1990 the applicants appealed on points of law. They
argued, inter alia, that the provisions of section 1 of
Law no. 1363/1938, in particular the obligation to seek an
authorisation to establish a place of worship, were contrary to
Articles 11 and 13 of the Greek Constitution and to Articles 9 and 11
of the European Convention (art. 9, art. 11).
17. In a judgment of 19 March 1991 the Court of Cassation dismissed
their appeal on the following grounds:
"The provisions of section 1 of Law no. 1363/1938 and of the
royal decree of 20 May/2 June 1939 implementing that Law are
contrary neither to Article 11 nor to Article 13 of the
1975 Constitution, for the right to freedom of worship is not
unlimited and may be subject to control. The exercise of this
right is subject to certain conditions set down in the
Constitution and at law: it must be a known religion, not a
secret religion; there must be no prejudice to public order or
morals; neither must there be any acts of proselytism, such
acts being expressly prohibited in the second and
third sentences of Article 13 para. 2 of the Constitution.
These provisions are, moreover, not contrary to the Convention
for the Protection of Human Rights and Fundamental
Freedoms ..., Article 9 (art. 9) of which guarantees freedom
of religion but Article 9 para. 2 (art. 9-2) of which
authorises such limitations as are prescribed by law and are
necessary in a democratic society in the interests of public
safety, for the protection of public order, health or morals,
or for the protection of the rights of others. The said provisions ..., which empower the
Minister of Education and Religious Affairs, who has
responsibility for all denominations and faiths, to
investigate whether the above-mentioned conditions are met,
are contrary neither to the 1975 Constitution nor to Article 9
of the Convention (art. 9), which do not in any way prohibit
investigations of this type; the purpose of such
investigations is moreover merely to ensure that the statutory
conditions necessary to grant authorisation are met; if these
conditions are met, the Minister is obliged to grant the
requested authorisation."18. According to the dissenting opinion of one of its members, the
Court of Cassation ought to have quashed the impugned judgment since
the applicants could not be accused of a punishable offence as
section 1 of the Law was contrary to Article 13 of the
1975 Constitution.
19. On 20 September 1993 the Heraklion police placed seals on the
front door of the room rented by the applicants.
II. Relevant domestic law
A. The Constitution
20. The relevant Articles of the 1975 Constitution read as follows:
Article 3
"1. The dominant religion in Greece is that of the
Christian Eastern Orthodox Church. The Greek Orthodox Church,
which recognises as its head Our Lord Jesus Christ, is
indissolubly united, doctrinally, with the Great Church of
Constantinople and with any other Christian Church in
communion with it (omodoxi), immutably observing, like the
other Churches, the holy apostolic and synodical canons and
the holy traditions. It is autocephalous and is administered
by the Holy Synod, composed of all the bishops in office, and
by the standing Holy Synod, which is an emanation of it
constituted as laid down in the Charter of the Church and in
accordance with the provisions of the Patriarchal Tome of
29 June 1850 and the Synodical Act of 4 September 1928. 2. The ecclesiastical regime in certain regions of the State
shall not be deemed contrary to the provisions of the
foregoing paragraph. 3. The text of the Holy Scriptures is unalterable. No
official translation into any other form of language may be
made without the prior consent of the autocephalous
Greek Church and the Great Christian Church at
Constantinople." Article 13
"1. Freedom of conscience in religious matters is inviolable.
The enjoyment of personal and political rights shall not
depend on an individual's religious beliefs. 2. There shall be freedom to practise any known religion;
individuals shall be free to perform their rites of worship
without hindrance and under the protection of the law. The
performance of rites of worship must not prejudice public
order or public morals. Proselytism is prohibited. 3. The ministers of all known religions shall be subject to
the same supervision by the State and to the same obligations
to it as those of the dominant religion. 4. No one may be exempted from discharging his obligations to
the State or refuse to comply with the law by reason of his
religious convictions. 5. No oath may be required other than under a law which also
determines the form of it." B. Law no. 1363/1938
21. Section 1 of Law no. 1363/1938 (as amended by
Law no. 1672/1939) provides:
"The construction and operation of temples of any denomination
whatsoever shall be subject to authorisation by the recognized
ecclesiastical authority and the Ministry of Education and
Religious Affairs. This authorisation shall be granted on the
terms and conditions specified by royal decree to be adopted
on a proposal by the Minister of Education and
Religious Affairs. As of publication of the royal decree referred to in the
preceding paragraph, temples or other places of worship which
are set up or operated without complying with the decree ...
shall be closed and placed under seal by the police and use
thereof shall be prohibited; persons who have set up or
operated such places of worship shall be fined 50,000 drachmas
and sentenced to a non-convertible term of between two and
six months' imprisonment. ...
The term "temple" as referred to in this Law ... shall mean
any type of building open to the public for the purpose of
divine worship (parish or otherwise, chapels and altars)."22. The Court of Cassation has held that the expression "place of
worship" within the meaning of these provisions refers to a "temple of
a relatively small size, established in a private building and intended
to be used for divine worship by a limited circle of persons as opposed
to a building open to the public for the worship of God by everyone
without distinction. By operation of a temple or a place of worship
under the same provisions is meant the actions by which the temple or
place of worship are made accessible to others for the purpose of
worshipping God" (judgment no. 1107/1985, Pinika Khronika, vol. 56,
1986).
C. The royal decree of 20 May/2 June 1939
23. Section 1 (3) of the royal decree of 20 May/2 June 1939
provides that it is for the Minister of Education and Religious Affairs
to verify whether there are "essential reasons" warranting the
authorisation to build or operate a place of worship. To this end the
persons concerned must submit through their priest an application
giving their addresses and bearing their signatures certified by the
mayor or the chairman of the district council of their place of
residence. More specifically, section 1 of the decree provides as
follows:
"1. In order to obtain an authorisation for the
construction or operation of temples not subject to the
legislation on temples and priests of parishes belonging to
the Greek Orthodox Church, within the meaning of section 1 of
the Law (1672/1939), the following steps must be completed: (a) An application shall be submitted by at least
fifty families, from more or less the same neighbourhood and
living in an area at a great distance from a temple of the
same denomination, it being assumed that the distance makes it
difficult for them to observe their religious duties. The
requirement of fifty families shall not apply to suburbs or
villages. (b) The application shall be addressed to the local
ecclesiastical authorities and must be signed by the heads of
the families, who shall indicate their addresses. The
authenticity of their signatures shall be certified by the
local police authority, which following an inquiry on the
ground shall attest that the conditions referred to in the
preceding sub-paragraph are satisfied ... (c) The local police authority shall issue a reasoned opinion
on the application. It shall then transmit the application,
with its opinion, to the Ministry of Education and
Religious Affairs, which may accept or reject the application
according to whether it considers that the construction or use
of a new temple is justified or whether the provisions of the
present decree have been complied with. 2. ...
3. The provisions of paragraph 1 (a)-(b) above shall not
apply to the issue of an authorisation for the construction or
operation of a place of worship. It shall be for the
Minister of Education and Religious Affairs to determine
whether there are essential reasons warranting such
authorisation. In this connection the persons concerned shall
address to the Ministry of Education and Religious Affairs
through their priest a signed application, the authenticity of
the signatures being certified by the mayor or the chairman of
the district council. The application shall also indicate the
addresses of the persons concerned ..." D. Case-law
24. The Government communicated to the Court a series of judgments
by the Supreme Administrative Court concerning the authorisation to
construct or operate temples or places of worship.
It appears from these judgments that the
Supreme Administrative Court has on several occasions quashed decisions
of the Minister of Education and Religious Affairs refusing such
authorisation on the ground that Jehovah's Witnesses in general engaged
in proselytism (judgment no. 2484/1980); or that some of those seeking
the authorisation had been prosecuted for proselytism
(judgment no. 4260/1985); or again because there was an Orthodox church
close to the proposed place of worship (4km in the same town)
(judgment no. 4636/1977) and the limited number of Jehovah's Witnesses
(8) compared to the total population (938) (judgment no. 381/1980).
25. The Supreme Administrative Court has also held that the
requirement that the signatures be certified by the relevant municipal
authority (royal decree of 20 May/2 June 1939 - see paragraph 23 above)
does not constitute a restriction on the right to freedom of religion
guaranteed under the Greek Constitution and the European Convention
(judgment no. 4305/1986). On the other hand, failure to comply with
that requirement justifies a refusal to grant the authorisation
(judgment no. 1211/1986). Finally the silence of the
Minister of Education and Religious Affairs for more than three months
following the lodging of an application constitutes failure on the part
of the authorities to give a decision as required by law and amounts
to an implied rejection, which may be challenged by an application for
judicial review (judgment no. 3456/1985).
Authorisation by the local Metropolitan is required only for
the construction or operation of temples and not for other places of
worship.
26. In its judgment (no. 721/1969) of 4 February 1969 the
Supreme Administrative Court sitting in plenary session stated that
Article 13 of the Constitution did not preclude prior verification by
the administrative authorities that the conditions laid down by that
Article for the practice of a faith were satisfied. However, that
verification is of a purely declaratory nature. The grant of the
authorisation may not be withheld where those conditions are satisfied
and the authorities have no discretionary power in this respect. The
prior authorisation of the local Metropolitan for the construction of
a temple (see paragraph 25 above) is not an "enforceable administrative
decision", but a "preliminary finding" by a representative of the
dominant religion who is familiar with the true position regarding
religious practice in the locality. The decision rests with the
Minister of Education and Religious Affairs who may decide to disregard
the Metropolitan's assessment if he considers that it is not supported
by reasons in conformity with the law.
The Supreme Administrative Court subsequently confirmed this
case-law holding, inter alia, that the "authorisation" of the local
Metropolitan was a mere opinion which did not bind the
Minister of Education and Religious Affairs (judgment no. 1444/1991 of
28 January 1991).
E. Application for judicial review in the
Supreme Administrative Court27. Sections 45, 46 and 50 of Presidential Decree no. 18/1989
codifying the legislative provisions on the
Supreme Administrative Court of 30 December/9 January 1989 govern
applications for judicial review of acts or omissions by the
administrative authorities:
Section 45
Acts which may be challenged
"1. An application for judicial review alleging
ultra vires or unlawful action is available only in respect of
enforceable decisions of the administrative authorities and
public-law legal persons and against which no appeal lies to
another court. ...
4. Where the law requires an authority to settle a
specific question by issuing an enforceable decision subject
to the provisions of paragraph 1, an application for judicial
review is admissible even in respect of the said authority's
failure to issue such decision. The authority shall be presumed to refuse the measure either
when any specific time-limit prescribed by the law expires or
after three months have elapsed from the lodging of the
application with the authority, which is required to issue an
acknowledgment of receipt ... indicating the date of receipt.
Applications for judicial review lodged before the above
time-limits shall be inadmissible. An application for judicial review validly lodged against an
implied refusal [on the part of the authorities] is deemed
also to contest any negative decision that may subsequently be
taken by the authorities. Such decision may however be
challenged separately. ..."
Section 46
Time-limit
"1. Except as otherwise provided, an application for
judicial review must be made within sixty days of the day
following the date of notification of the impugned decision or
the date of publication ..., or, otherwise, of the day
following the day on which the applicant acquired knowledge of
the decision. In the cases provided for in paragraphs 2, 3
and 4 of section 45, time begins to run when the time-limits
prescribed in those provisions have expired. ..."
Section 50
Consequences of the decision
"1. The decision allowing an application for judicial
review shall declare the impugned measure void, which entails
its general nullity, whether it is a general or individual
measure. 2. The rejection of an application does not preclude the
lodging of a new application against the same measure by
another person with locus standi. 3. In the case of failure to take action, where the
Supreme Administrative Court allows the application, it shall
refer the case back to the relevant authority so that it can
take the action incumbent on it."PROCEEDINGS BEFORE THE COMMISSION
28. The applicants applied to the Commission on 7 August 1991.
They complained of violations of Articles 3 and 5, Article 6 taken
together with Article 14 (art. 3, art. 5, art. 14+6), and Articles 8,
9, 10 and 11 of the Convention and of Article 1 of Protocol No. 1
(art. 8, art. 9, art. 10, art. 11, P1-1).
29. On 10 October 1994 the Commission declared the application
(no. 18748/91) admissible as regards the complaint based on Article 9
(art. 9), but inadmissible for the rest. In its report of 25 May 1995
(Article 31) (art. 31), it expressed the unanimous opinion that there
had been a breach of that Article (art. 9). The full text of the
Commission's opinion is reproduced as an annex to this judgment (1).
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Note by the Registrar
1. For practical reasons this annex will appear only with the printed
version of the judgment (in Reports of Judgments and
Decisions 1996-IV), but a copy of the Commission's report is obtainable
from the registry.
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FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT
30. In their memorial the Government requested the Court
"to dismiss the application, mainly as being inadmissible due
to non-exhaustion on the part of the applicants of the
domestic remedies provided for by domestic law, which are
entirely effective, as it has always been proven in practice,
- and as legally invalid and unfounded in so far as its merits
are concerned, since, as it was proven, the rulings of
section 1 of the Law of Necessity no. 1363/1938 and its
respective executive decree agree to and are compatible with
the protected right referred to in Article 9 (art. 9) of the
European Convention on Human Rights within the framework of
paragraph 2 of this Article (art. 9-2) - in abstracto in the
case under consideration - and further the penalisation
provided for by law and applied in this instance of the
violations of these provisions through mild sanctions is
commensurate with the purposes pursued within the framework of
such paragraph (art. 9-2)".AS TO THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTION
31. The Government contended primarily, as they had done before the
Commission, that the applicants had failed to exhaust the domestic
remedies inasmuch as they had twice neglected to challenge in the
Supreme Administrative Court - under sections 45 paras. 1 and 4 and 46
para. 1 of Decree no. 18/1989 (see paragraph 27 above) - the implied
refusal by the Minister of Education and Religious Affairs to grant
them the authorisation sought. After three months the Minister's
silence constituted an implied rejection in respect of which an appeal
lay to the Supreme Administrative Court for abuse of power. The
time-limit and starting-point for lodging such an appeal were clearly
defined in the relevant provisions and were therefore perfectly well
known to the applicants. If they had applied to the
Supreme Administrative Court, they would undoubtedly have obtained the
authorisation and no court would then have convicted them. Yet they
had deliberately neglected to do so because their real aim had been to
challenge the relevant national legislation before the
Convention institutions.
32. The applicants maintained that even if they had lodged an
appeal on the ground of abuse of power, the procedure concerning the
establishment of a place of worship would not have reached a
conclusion.
33. The Court notes in the first place that in their appeal on
points of law the applicants relied exclusively on the incompatibility
of section 1 of Law no. 1363/1938, which had served as the basis for
their conviction, with Article 9 of the Convention (art. 9) and
Article 13 of the Greek Constitution. The Court of Cassation dismissed
that complaint, finding that the Heraklion Criminal Court sitting on
appeal had correctly construed and applied the above-mentioned
provision (art. 9) (see paragraph 17 above). There can therefore be
no doubt that the applicants exhausted the domestic remedies in respect
of their conviction in the criminal proceedings.
In addition, at no time, either in the national courts or
before the Commission, did the applicants complain about the
authorities' failure to take a decision granting or rejecting their
applications of 28 June and 18 October 1983 (see paragraph 9 above).
The Minister of Education and Religious Affairs had replied to them in
writing on five separate occasions, informing them that he was in the
process of examining their file (see paragraph 11 above). The Court
observes that there was neither an express decision, nor silence, from
the authorities such as would have caused the period prescribed in
section 46 para. 1 of Decree no. 18/1989 to commence and the applicants
were left in a state of uncertainty from 18 October 1983 onwards.
The Court recalls that the only remedies that Article 26 of the
Convention (art. 26) requires to be exhausted are those that are
available and sufficient and relate to the breaches alleged (see the
judgments of Ciulla v. Italy of 22 February 1989, Series A no. 148,
p. 15, para. 31, and Pine Valley Developments Ltd and Others v. Ireland
of 29 November 1991, Series A no. 222, p. 22, para. 48). Moreover, an
applicant who has availed himself of a remedy capable of redressing the
situation giving rise to the alleged violation, directly and not merely
indirectly, is not bound to have recourse to other remedies which would
have been available to him but the effectiveness of which is
questionable.
The Court observes that the applicants could have been in some
doubt as to the starting-point of the periods prescribed in sections
45 para. 4 and 46 para. 1 of Decree no. 18/1989 (see paragraph 27
above). After their second application of 18 October 1983 the
Minister of Education and Religious Affairs replied to them on
25 November 1983, and therefore before the expiry of the
three-month period from the lodging of the application (section 45
para. 4 of the above-mentioned decree). The authorities did not
therefore remain silent in a way that amounted to an implied refusal
to grant the authorisation requested.
The Court considers further that, even supposing that the
Supreme Administrative Court had allowed their application, there is
nothing to indicate that they would have obtained the authorisation
sought, as the authorities did not in practice always comply with the
decisions of the Supreme Administrative Court. The example cited by
the applicants in their memorial, concerning the judgment of
29 October 1985 (no. 4260/1985) of the Supreme Administrative Court,
is telling in this respect. The Supreme Administrative Court had
quashed a decision of the Minister of Education and Religious Affairs
refusing to grant Jehovah's Witnesses an authorisation to operate a
place of worship and had referred the case back to the authorities for
them to consider whether the statutory conditions for granting such an
authorisation were satisfied. On 7 January 1986 the persons concerned
submitted a new request to the Minister together with a copy of the
Supreme Administrative Court's judgment. On 3 July 1986 the
Minister informed them that he was not "in a position to grant them the
authorisation requested". A second request, dated 20 January 1987 was
likewise rejected by the Minister in the following terms: "... we refer
you to the reply given in our earlier letter ... of 3 July 1986."
34. In these circumstances an application for judicial review of
the alleged implied refusal of the authorities cannot be regarded as
an effective remedy. As the applicants exhausted the domestic
remedies, the objection falls to be dismissed.
II. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION (art. 9)
35. The applicants maintained that their conviction by the
Heraklion Criminal Court sitting on appeal infringed Article 9 of the
Convention (art. 9), according to which:
"1. Everyone has the right to freedom of thought,
conscience and religion; this right includes freedom to change
his religion or belief and freedom, either alone or in
community with others and in public or private, to manifest
his religion or belief, in worship, teaching, practice and
observance. 2. Freedom to manifest one's religion or beliefs shall be
subject only to such limitations as are prescribed by law and
are necessary in a democratic society in the interests of
public safety, for the protection of public order, health or
morals, or for the protection of the rights and freedoms of
others." A. Whether there was an interference
36. The validity of the private agreement concluded by the
applicants on 30 March 1983 (see paragraph 7 above) is not in dispute.
The applicants' conviction by the Heraklion Criminal Court
sitting on appeal for having used the premises in question without the
prior authorisation required under Law no. 1363/1938 was therefore an
interference with the exercise of their "freedom ..., to manifest
[their] religion ..., in worship ... and observance". Such
interference breaches Article 9 (art. 9) unless it was "prescribed by
law", pursued one or more of the legitimate aims referred to in
paragraph 2 (art. 9-2) and was "necessary in a democratic society" to
attain such aim or aims.
B. Justification of the interference
1. "Prescribed by law"
37. In the applicants' submission, Law no. 1363/1938 and its
implementing decree of 20 May/2 June 1939 lay down a general and
permanent prohibition on the establishment of a church or a place of
worship of any religion - the law uses the term "faith" - other than
the Orthodox religion. They maintained that this prohibition could
only be lifted by a formal decision or a specific discretionary
measure.
This discretionary power was, in their view, clearly derived
from section 1 of Law no. 1363/1938, which empowers the Government to
grant or to refuse the authorisation, or to remain silent in response
to an application duly submitted, without setting any limit as to time
or establishing any substantive condition.
They argued that a law which made the practice of a religion
subject to the prior grant of an authorisation, whose absence incurred
liability to a criminal sanction, constituted an "impediment" to that
religion and could not be regarded as a law designed to protect freedom
of religion within the meaning of Article 13 of the Constitution. As
regards freedom of religion and worship, the Constitution purported to
be more, or at least not less, protective than the Convention because
the only grounds on which it permitted restrictions to be placed on the
practice of any "known religion" were "public order" and "public
morals" (see paragraph 20 above).
In addition, the applicants pointed to the unusual character,
as regards Greek public and administrative law, of the procedure
established by Law no. 1363/1938 for the construction or the operation
of a place of worship. It was the only procedure in respect of which
provision was made for the intervention of two authorities,
administrative and religious. They criticised the manner in which the
Supreme Administrative Court interpreted this Law, namely in the
context of the restrictions, suggestions and directives of the
Constitution, and the importance attached by that court to compliance
with the conditions laid down by the royal decree of 20 May/2 June 1939
for submitting in due form applications for authorisation together with
all that those conditions entailed in terms of inquisitorial process
and the difficulty in obtaining such authorisation. The wording of
this decree conferred a number of different discretionary powers, each
of which was sufficient basis for a negative response to the
application.
38. The Court notes that the applicants' complaint is directed less
against the treatment of which they themselves had been the victims
than the general policy of obstruction pursued in relation to
Jehovah's Witnesses when they wished to set up a church or a place of
worship. They are therefore in substance challenging the provisions
of the relevant domestic law.
However, the Court does not consider it necessary to rule on
the question whether the interference in issue was "prescribed by law"
in this instance because, in any event, it was incompatible with
Article 9 of the Convention (art. 9) on other grounds
(see, mutatis mutandis, the Funke v. France judgment of
25 February 1993, Series A no. 256-A, p. 23, para. 51, and
paragraph 53 below).
2. Legitimate aim
39. According to the Government, the penalty imposed on the
applicants served to protect public order and the rights and freedoms
of others. In the first place, although the notion of public order had
features that were common to the democratic societies in Europe, its
substance varied on account of national characteristics. In Greece
virtually the entire population was of the Christian Orthodox faith,
which was closely associated with important moments in the history of
the Greek nation. The Orthodox Church had kept alive the national
conscience and Greek patriotism during the periods of foreign
occupation. Secondly, various sects sought to manifest their ideas and
doctrines using all sorts of "unlawful and dishonest" means. The
intervention of the State to regulate this area with a view to
protecting those whose rights and freedoms were affected by the
activities of socially dangerous sects was indispensable to maintain
public order on Greek territory.
40. Like the applicants, the Court recognises that the States are
entitled to verify whether a movement or association carries on,
ostensibly in pursuit of religious aims, activities which are harmful
to the population. Nevertheless, it recalls that Jehovah's Witnesses
come within the definition of "known religion" as provided for under
Greek law (see the Kokkinakis v. Greece judgment of 25 May 1993,
Series A no. 260-A, p. 15, para. 23). This was moreover conceded by
the Government.
However, having regard to the circumstances of the case and
taking the same view as the Commission, the Court considers that the
impugned measure pursued a legitimate aim for the purposes of
Article 9 para. 2 of the Convention (art. 9-2), namely the protection
of public order.
3. "Necessary in a democratic society"
41. The main thrust of the applicants' complaint is that the
restrictions imposed on Jehovah's Witnesses by the Greek Government
effectively prevent them from exercising their right to freedom of
religion. In terms of the legislation and administrative practice,
their religion did not, so they claimed, enjoy in Greece the safeguards
guaranteed to it in all the other member States of the
Council of Europe. The "pluralism, tolerance and broadmindedness
without which there is no democratic society" were therefore seriously
jeopardised in Greece.
They contended that the Jehovah's Witnesses' movement should
be presumed - even if the presumption was a rebuttable one - to respect
certain moral rules and not in itself to prejudice public order. Its
doctrines and its rites abided by and extolled social order and
individual morality. Accordingly, the political authorities should
intervene only in the event of abuse or perversion of such doctrines
and rites, and should do so punitively rather than preventively.
More particularly, their conviction had been persecutory,
unjustified and not necessary in a democratic society as it had been
"manufactured" by the State. The State had compelled the applicants
to commit an offence and to bear the consequences solely because of
their religious beliefs. The apparently innocent requirement of an
authorisation to operate a place of worship had been transformed from
a mere formality into a lethal weapon against the right to freedom of
religion. The term "dilatory" used by the Commission to describe the
conduct of the Minister of Education and Religious Affairs in relation
to their application for an authorisation was euphemistic.
The struggle for survival by certain religious communities
outside the Eastern Orthodox Church, and specifically by
Jehovah's Witnesses, was carried on in a climate of interference and
oppression by the State and the dominant church as a result of which
Article 9 of the Convention (art. 9) had become a dead letter. That
Article (art. 9) was the object of frequent and blatant violations
aimed at eliminating freedom of religion. The applicants cited current
practice in Greece in support of their contentions, giving numerous
examples. They requested the Court to examine their complaints in the
context of these other cases.
42. According to the Government, in order to resolve the question
of the necessity of the applicants' conviction, the Court should first
examine the necessity of the requirement of prior authorisation, which
owed its existence to historical considerations. In their view, the
former presupposed the latter. The applicants' true aim was not to
complain about their conviction but to fight for the abolition of that
requirement.
There were essential public-order grounds to left making the
setting up of a place of worship subject to approval by the State. In
Greece this control applied to all faiths; otherwise it would be both
unconstitutional and contrary to the Convention. Jehovah's Witnesses
were not exempt from the requirements of legislation which concerned
the whole population. The setting up of a church or a place of worship
in Greece was, so the Government affirmed, often used as a means of
proselytism, in particular by Jehovah's Witnesses who engaged in
intensive proselytism, thereby infringing the law that the Court had
itself found to be in conformity with the Convention (see the
above-mentioned Kokkinakis judgment).
The sanction imposed on the applicants had been light and had
been motivated not by the manifestation by them of their religion but
by their disobedience to the law and their failure to comply with an
administrative procedure. It was the result of the applicants'
culpable neglect to have recourse to the remedy available under the
Greek legal system.
Finally, the Government referred to the fact that various
States parties to the Convention had legislation containing
restrictions similar to those enacted in Greece in this field.
43. The Commission considered that the authorisation requirement
introduced by Law no. 1363/1938 might appear open to criticism. In the
first place, the intervention of the Greek Orthodox Church in the
procedure raised a complex question under paragraph 2 of Article 9
(art. 9-2). Secondly, classifying as a criminal offence the operation
of a place of worship without the authorities' prior authorisation was
disproportionate to the legitimate aim pursued, especially when, as in
this case, the underlying cause of the applicants' conviction lay in
the dilatory attitude of the relevant authorities.
44. As a matter of case-law, the Court has consistently left the
Contracting States a certain margin of appreciation in assessing the
existence and extent of the necessity of an interference, but this
margin is subject to European supervision, embracing both the
legislation and the decisions applying it. The Court's task is to
determine whether the measures taken at national level were justified
in principle and proportionate.
In delimiting the extent of the margin of appreciation in the
present case the Court must have regard to what is at stake, namely the
need to secure true religious pluralism, an inherent feature of the
notion of a democratic society (see the above-mentioned
Kokkinakis judgment, p. 17, para. 31). Further, considerable weight
has to be attached to that need when it comes to determining, pursuant
to paragraph 2 of Article 9 (art. 9-2), whether the restriction was
proportionate to the legitimate aim pursued. The restrictions imposed
on the freedom to manifest religion by the provisions of
Law no. 1363/1938 and of the decree of 20 May/2 June 1939 call for very
strict scrutiny by the Court.
45. The Court notes in the first place that Law no. 1363/1938 and
the decree of 20 May/2 June 1939 - which concerns churches and places
of worship that are not part of the Greek Orthodox Church - allow
far-reaching interference by the political, administrative and
ecclesiastical authorities with the exercise of religious freedom. In
addition to the numerous formal conditions prescribed in section 1 (1)
and (3) of the decree, some of which confer a very wide discretion on
the police, mayor or chairman of the district council, there exists in
practice the possibility for the Minister of Education and
Religious Affairs to defer his reply indefinitely - the decree does not
lay down any time-limit - or to refuse his authorisation without
explanation or without giving a valid reason. In this respect, the
Court observes that the decree empowers the Minister - in particular
when determining whether the number of those requesting an
authorisation corresponds to that mentioned in the decree
(section 1 (1) (a)) - to assess whether there is a "real need" for the
religious community in question to set up a churcd
should cover only the expenses incurred in connection with the
criminal proceedings and those stemming from the proceedings before the
Convention institutions. However, those expenses were the consequence
of the applicants' culpable and unlawful conduct and the deliberate
violation of national legislation.
60. The Delegate of the Commission did not give an opinion on this
matter.
61. Having regard to its decision concerning Article 9 (art. 9)
(see paragraph 53 above), the Court finds the claim reasonable and
accordingly allows it in its entirety.
C. Default interest
62. According to the information available to the Court, the
statutory rate of interest applicable in Greece at the date of the
adoption of the present judgment is 6% per annum.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Dismisses the Government'scording the local ecclesiastical authority a purely consultative role
(see paragraph 26 above).
The right to freedom of religion as guaranteed under the
Convention excludes any discretion on the part of the State to
determine whether religious beliefs or the means used to express such
beliefs are legitimate. Accordingly, the Court takes the view that the
authorisation requirement under Law no. 1363/1938 and the decree of
20 May/2 June 1939 is consistent with Article 9 of the Convention
(art. 9) only in so far as it is intended to allow the Minister to
verify whether the formal conditions laid down in those enactments are
satisfied.
48. It appears from the evidence and from the numerous other cases
cited by the applicants and not contested by the Government that the
State has tended to use the possibilities afforded by the
above-mentioned provisions to impose rigid, or indeed prohibitive,
conditions on practice of religious beliefs by certain
non-Orthodox movements, in particular Jehovah's Witnesses. Admittedly
the Supreme Administrative Court quashes for lack of reasons any
unjustified refusal to grant an authorisation, but the extensive
case-law in this field seems to show a clear tendency on the part of
the administrative and ecclesiastical authorities to use these
provisions to restrict the activities of faiths outside the
Orthodox Church.
49. In the instant case the applicants were prosecuted and
convicted for having operated a place of worship without first
obtaining the authorisations required by law.
50. In their memorial the Government maintained that under
section 1 (1) of the decree of 20 May/2 June 1939 an authorisation from
the local bishop was necessary only for the construction and operation
of a church and not for a place of worship as in the present case. An
application to the Minister of Education and Religious Affairs, indeed
one such as that submitted by the applicants, was sufficient.
51. The Court notes, nevertheless, that both the
Heraklion public prosecutor's office, when it was bringing proceedings
against the applicants (see paragraph 12 above), and the
Heraklion Criminal Court sitting on appeal, in its judgment of
15 February 1990 (see paragraph 15 above), relied expressly on the lack
of the bishop's authorisation as well as the lack of an authorisation
from the Minister of Education and Religious Affairs. The latter, in
response to five requests made by the applicants between
25 October 1983 and 10 December 1984, replied that he was examining
their file. To date, as far as the Court is aware, the applicants have
not received an express decision. Moreover, at the hearing a
representative of the Government himself described the Minister's
conduct as unfair and attributed it to the difficulty that the latter
might have had in giving legally valid reasons for an express decision
refusing the authorisation or to his fear that he might provide the
applicants with grounds for appealing to the
Supreme Administrative Court to challenge an express administrative
decision.
52. In these circumstances the Court considers that the Government
cannot rely on the applicants' failure to comply with a legal formality
to left their conviction. The degree of severity of the sanction
is immaterial.
53. Like the Commission, the Court is of the opinion that the
impugned conviction had such a direct effect on the applicants' freedom
of religion that it cannot be regarded as proportionate to the
legitimate aim pursued, nor, accordingly, as necessary in a democratic
society.
In conclusion, there has been a violation of Article 9
(art. 9).
III. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)
54. Under Article 50 of the Convention (art. 50),
"If the Court finds that a decision or a measure taken by a
legal authority or any other authority of a High Contracting
Party is completely or partially in conflict with the
obligations arising from the ... Convention, and if the
internal law of the said Party allows only partial reparation
to be made for the consequences of this decision or measure,
the decision of the Court shall, if necessary, afford just
satisfaction to the injured party." A. Non-pecuniary damage
55. The applicants claimed firstly a sum of 6,000,000 drachmas for
non-pecuniary damage.
56. Neither the Government nor the Commission expressed a view on
this claim.
57. The Court considers that the applicants sustained non-pecuniary
damage, but that the finding of a violation of Article 9 (art. 9)
constitutes sufficient reparation.
B. Costs and expenses
58. The applicants sought 4,030,100 drachmas in respect of their
costs and expenses incurred in the proceedings in Greece and Strasbourg
and provided details of this expenditure.
59. The Government argued that the sum awarded under this head
should cover only the expenses incurred in connection with the
criminal proceedings and those stemming from the proceedings before the
Convention institutions. However, those expenses were the consequence
of the applicants' culpable and unlawful conduct and the deliberate
violation of national legislation.
60. The Delegate of the Commission did not give an opinion on this
matter.
61. Having regard to its decision concerning Article 9 (art. 9)
(see paragraph 53 above), the Court finds the claim reasonable and
accordingly allows it in its entirety.
C. Default interest
62. According to the information available to the Court, the
statutory rate of interest applicable in Greece at the date of the
adoption of the present judgment is 6% per annum.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Dismisses the Government's preliminary objection;
2. Holds that there has been a breach of Article 9 of the
Convention (art. 9);3. Holds that the present judgment in itself constitutes just
satisfaction for the non-pecuniary damage alleged;4. Holds that the respondent State is to pay the applicants,
within three months, in respect of costs and expenses,
4,030,100 (four million, thirty thousand and one hundred)
drachmas on which sum simple interest at an annual rate of 6%
shall be payable from the expiry of the above-mentioned
three months until settlement. Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 26 September 1996.
Signed: Rudolf BERNHARDT
PresidentSigned: Herbert PETZOLD
Registrar In accordance with Article 51 para. 2 of the Convention
(art. 51-2) and Rule 53 para. 2 of Rules of Court A, the concurring
opinion of Mr Martens is annexed to this judgment.
Initialled: R. B.
Initialled: H. P.
CONCURRING OPINION OF JUDGE MARTENS
1. I completely share the views expressed in the Court's judgment,
but I would have preferred to decide the merits on the basis of the
"prescribed by law" requirement, that is to decide the issue which the
Court leaves open (see paragraph 38 of its judgment).
2. The substance of the "necessary in a democratic society"
requirement is a balancing exercise of the elements of the individual
case. However, as follows from paragraph 38 of the Court's judgment,
the very essence of the applicants' complaints is not one of
individual, but one of general injustice: what they complain of is not
so much the harassment they have been subjected to, but, basically, the
obstruction to setting up a Jehovah's Witnesses chapel in general. The
"prescribed by law" requirement is therefore more suitable to do
justice to what - also in the Government's opinion - is the essential
thesis of the applicants, viz. that the Law of Necessity no. 1363/1938
is incompatible with Article 9 (art. 9), either per se or in any event
as consistently applied by the competent authorities.
3. I suggest that this approach, although perhaps a little
innovatory, is in line with the Court's doctrine that part of its task
under the "prescribed by law" requirement is to assess the quality of
the law invoked as a justification for the interference under
examination.
4. Turning now to the applicants' thesis that the Law of
Necessity no. 1363/1938 is incompatible with Article 9 (art. 9), I
agree with counsel for the Government that the first question to be
discussed is whether under Article 9 (art. 9) there is room at all for
"prior restraint" in the form of making the construction or operation
of a place of worship conditional on a prior governmental authorisation
and of making such construction or operation without such authorisation
a criminal offence.
5. As in the province of Article 10 (art. 10), I am opposed to
answering this question outright in the negative. It is conceivable
that the operation - and a fortiori the construction - of a place of
worship in a particular area may raise serious public-order questions
and that possibility, in my mind, justifies not wholly excluding the
acceptability of making such operation or construction depend on a
prior governmental authorisation.
6. Nevertheless, I think that here, where freedom of religion is
at stake - even more than in the province of Article 10 (art. 10) -,
the question is very delicate, for public-order arguments may easily
disguise intolerance. It is all the more sensitive where there is an
official State religion. In such cases it should be absolutely clear
both from the wording of, and from the practice under the law in
question that the requirement of a prior authorisation in no way
whatsoever purports to enable the authorities to "evaluate" the tenets
of the applicant community; as a matter of principle the requested
authorisation should always be given, unless very exceptional,
objective and insuperable grounds of public order make that impossible.
7. The Government have tried to convince us that the Law of
Necessity no. 1363/1938 meets these admittedly strict requirements, but
in vain. Counsel for the Government has alleged that under that Law
there is no room for discretion, but he has at the same time made it
clear that it required the authorities to scrutinise whether the
application arose from genuine religious needs or as a means of
proselytising and, moreover, whether the tenets of the applicant
community were acceptable. And indeed, the requirement that there
should be at least fifty families from more or less the same
neighbourhood illustrates not only that there is ample room for
discretion but also that the Law of Necessity no. 1363/1938 goes much
further than is permissible in respect of prior restraint of freedom
of religion. On top of this there is the involvement of the clerical
authorities of the dominant religion in the authorisation procedure
which - even if they were confined to a strictly advisory role (which
I doubt) - implies in itself that the Law in question does not meet the
above-mentioned strict requirements and is incompatible with Article 9
(art. 9).
8. In sum, I find that the applicants rightly say that the Law of
Necessity no. 1363/1938 is per se incompatible with Article 9 (art. 9).