Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> THE HOLY MONASTERIES v. GREECE - 13092/87;13984/88 [1994] ECHR 49 (9 December 1994)
URL: http://www.bailii.org/eu/cases/ECHR/1994/49.html
Cite as: [1994] ECHR 49, (1995) 20 EHRR 1, 20 EHRR 1
[New search] [Contents list] [Help]
In the case of The Holy Monasteries v. Greece*,
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**, as a Chamber composed of the
following judges:
Mr R. Ryssdal, President,
Mr B. Walsh,
Mr A. Spielmann,
Mr N. Valticos,
Mrs E. Palm,
Mr I. Foighel,
Mr A.N. Loizou,
Mr A.B. Baka,
Mr L. Wildhaber,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 28 January, 24 March,
24 August and 21 November 1994,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 10/1993/405/483-484. 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.
** Rules A apply to all cases referred to the Court before the entry
into force of Protocol No. 9 (P9) 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.
_______________
PROCEDURE
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 7 April 1993, within the
three-month period laid down by Article 32 para. 1 and Article 47
(art. 32-1, art. 47) of the Convention. It originated in two
applications (nos. 13092/87 and 13984/88) against the Hellenic Republic
lodged with the Commission under Article 25 (art. 25) by eight Greek
Orthodox monasteries, Ano Xenia, Ossios Loukas, Agia Lavra Kalavriton,
Metamorphosis Sotiros, Asomaton Petraki, Chryssoleontissa Eginis,
Phlamourion Volou and Mega Spileo Kalavriton, on 16 July 1987 and
15 May 1988.
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 Articles 6, 9, 11, 13 and 14 (art. 6, art. 9,
art. 11, art. 13, art. 14) of the Convention and Article 1 of
Protocol No. 1 (P1-1).
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of Rules of Court A, the applicant monasteries
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. Ryssdal, the President of the
Court (Rule 21 para. 3 (b)). On 23 April 1993, in the presence of the
Registrar, the President drew by lot the names of the other seven
members, namely Mr B. Walsh, Mr R. Macdonald, Mr A. Spielmann,
Mr I. Foighel, Mr A.N. Loizou, Mr A.B. Baka and Mr L. Wildhaber
(Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).
Subsequently Mr Macdonald, who was unable to attend, was replaced by
Mrs E. Palm, substitute judge (Rules 22 para. 1 and 24 para. 1).
4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal,
acting through the Registrar, consulted the Agent of the Greek
Government ("the Government"), the applicant monasteries' lawyers and
the Delegate of the Commission on the organisation of the proceedings
(Rules 37 para. 1 and 38). Pursuant to the order made in consequence,
the Registrar received the Government's memorial on 11 October 1993 and
the applicant monasteries' memorial on 23 November. On the latter date
the Secretary to the Commission informed the Registrar that the
Delegate would submit his observations at the hearing.
5. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
26 January 1994. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr P. Georgakopoulos, Senior Adviser, Delegate of
Legal Council of State, the Agent,
Mrs K. Grigoriou, Legal Assistant,
Legal Council of State, Counsel;
(b) for the Commission
Mr J.-C. Geus, Delegate;
(c) for the applicant monasteries
Mr P. Bernitsas, dikigoros (lawyer),
Mr D. Mirasyesi, dikigoros (lawyer), Counsel.
The Court heard addresses by them and also their replies to its
questions.
AS TO THE FACTS
I. Circumstances of the case
A. General historical background
1. The acquisition of the monasteries' property
6. The applicant monasteries, which were founded between the ninth
and thirteenth centuries, accumulated a considerable amount of
property, in particular through donations made before the creation of
the Greek State in 1829, but a large part of this property was
expropriated during the early years of the State's existence. The
monasteries themselves also gave away whole tracts of land to the State
or to individuals who had none. During the Byzantine and Ottoman
empires the monasteries and religious institutions in general were
almost the only institutions discharging important social, cultural and
educational functions; even in the nineteenth century after the
creation of the modern Greek State, they still discharged some of these
functions.
The State never challenged their ownership, and the monasteries
always relied on adverse possession as a subsidiary means of
establishing it, particularly in cases where Byzantine or Ottoman title
deeds were lacking or had been destroyed. On several occasions the
State published decrees in the Official Gazette in which their
ownership was acknowledged (decrees of 25 January, 28 and 31 March,
14 June, 4 and 18 August 1933, etc.).
7. Apart from property thus amassed over the centuries, the
monasteries acquired numerous plots of land and buildings more
recently, either as gifts or legacies or through purchase.
8. Under Law no. 4684/1930, their land and buildings were
classified as either "property to be realised" (ekpiitea perioussia)
or "property to be retained" (diatiritea perioussia).
The second category included property considered necessary for
the needs of a given monastery, having regard, inter alia, to the
number of its members and to its historic value as a place of
pilgrimage, and they were listed in a decree adopted on a proposal by
the Minister for Education and Religious Affairs. Responsibility for
managing the property to be retained was vested in the Holy Monasteries
and its exercise was governed by a decree of 5 March 1932. This
provided, among other things, that the revenue arising from this
management was to be applied to making good the monasteries' deficit,
repairing and maintaining buildings and furthering educational and
charitable purposes.
Responsibility for managing the property to be realised was
vested in the Office for the Management of Church Property (Organismos
diikisis ekklisiastikis perioussias).
9. The 1952 Constitution authorised the government to expropriate
land for the benefit of destitute farmers and stockbreeders for a
period of three years from its entry into force. In pursuance of this
transitional provision (Article 104), the Greek Orthodox Church and the
State concluded an agreement which was ratified by the State in a
decree (no. 2185) of 8 October 1952. Article 36 para. 5 of that decree
stated in substance that the State would from then on waive its rights
under Article 104 of the Constitution relating to expropriation or
compulsory leasing of property of the Greek Church.
By the agreement, which covered "the purchase by the State of
Greek Orthodox Church land for the purposes of restoring it to
destitute farmers and stockbreeders", the Church and the monasteries
would transfer to the State four-fifths of their agricultural land and
two-thirds of their pastures and would receive in return a third of the
real value of that property. Annexed were lists giving the type,
location and area of the land thus sold to the State and of that kept
by the monasteries. Under Article 8(a) agricultural land and pastures
that were part of the "property to be retained" of the monasteries of
Agia Lavra and Mega Spileo Kalavriton were not covered by the
agreement.
2. The Office for the Management of Church Property
10. The Office for the Management of Church Property ("the ODEP"),
a public-law entity under the supervision of the Ministry of Education
and Religious Affairs, was set up by Law no. 4684/1930 and replaced the
General Ecclesiastical Fund that had existed since 1909.
In section 7 of the Law it was made responsible for the
management of all the movable and immovable property belonging to the
Holy Monasteries, but responsibility for the property to be retained
was taken away from it after a time.
The ODEP's function, as laid down in section 2, was (1) to
realise the monasteries' property, (2) to manage ecclesiastical
property other than that belonging to the churches and (3) to make use
of the revenues.
11. The ODEP was run by a board of governors, whose members
originally included the Archbishop of Athens, two senior Church
dignitaries, a senior member of the Supreme Administrative Court, a
legal adviser, the head of the Treasury, a representative of the Bank
of Greece and a representative of a commercial bank. Decree
no. 2631/1953 reduced the number of members to seven, three of whom
were laymen appointed by the Ministry of Education and Religious
Affairs. Under regulations issued in 1981, which are still in force,
the number of lay members was increased to four.
By Regulation 12, the ODEP's revenue had to be applied to
Church purposes, in particular the financing of missionary and
educational events and the remuneration of certain members of the
clergy.
3. The legal status of the Greek Orthodox Church and the Holy
Monasteries
12. The ties binding the Hellenic nation - and later the Greek
State - to the Orthodox Church go back several centuries. The
interdependence of State and Church was already apparent in the
administrative reorganisation of the Church which followed the
restructuring of the Byzantine State.
The Church's historical role grew more important after the
collapse of the Byzantine Empire. The Ecumenical Patriarch of
Constantinople was recognised as millet basi - the spiritual leader,
at the same time answerable to the Sublime Porte, of the Orthodox
community, which became integrated into the administrative machinery
of the Ottoman Empire through the Church.
13. The Greek Orthodox Church was proclaimed to be "autocephalous"
in a royal decree of 23 July 1833 and was at the same time given its
first Charter, which was very noticeably imbued with the spirit of
State control; the Church was independent of the State only in matters
of doctrine.
Article 3 of the Constitution of 11 June 1975, in its
references to the Patriarchal Tome of 1850 and the Synodical Act of
1928, on the one hand, and to the Holy Synod of the Hierarchy ("Synod
of serving metropolitans") as the supreme Church authority, on the
other, evidences the intention of breaking with the old tradition of
State control. The proclaimed independence of the Church is not,
however, unlimited, as is shown by the fact that the Greek Orthodox
Church is the church of the "dominant religion" and embodies the
religion of the State itself.
14. The Law of 27/31 May 1977 (Law no. 590/1977) on the "Charter
of the Greek Church" also provides for interdependence of Church and
State.
Section 1(4) attributes to the Church and a number of its
institutions, including the monasteries, legal personality in public
law "as regards their legal relations".
Under section 2, the Church is to co-operate with the State in
fields of common interest, such as the Christian upbringing of young
people, enhancing the status of the institution of marriage and of the
family, caring for those in need of protection and safeguarding sacred
relics and ecclesiastical monuments. The Church's role in public life
is reflected more markedly by the presence of the Minister for
Education and Religious Affairs at the sessions held to elect the
Archbishop of Athens and by the participation of the Church authorities
in all official State events.
The provisions on the Church's finances and staffing testify
even more eloquently to this interdependence. As to financing, the Law
provides that the State is to contribute to the Church's expenses
(section 46(1)), that the Church's resources are to be managed in a
manner determined by decision of the Standing Holy Synod, approved by
the Holy Synod of the Hierarchy (section 46(2)), and that managerial
acts are subject to the State's financial supervision (section 46(4)).
As to staffing, the provisions governing public servants are to apply
by analogy to the staff of Church public-law entities.
15. Section 39(1) of the Law describes the Holy Monasteries as
ascetic religious institutions whose members live according to monastic
principles, the sacred rules of asceticism and the traditions of the
Christian Orthodox Church. The Holy Monasteries come under the
spiritual supervision of the local archbishop (section 39(2)). The
organisation and furtherance of spiritual life within the monasteries
and the running of them are the responsibility of the monastic councils
and conform to the holy rules and monastic traditions (section 39(4)).
The Holy Monasteries are public-law entities (section 1(4)).
They may be founded, merged or dissolved by means of a presidential
decree, adopted on a proposal by the Minister for Education and
Religious Affairs after consultation of the local archbishop and with
the approval of the Standing Holy Synod (section 39(3)).
The decisions of the monastery councils are preparatory in
nature, taking effect only after they have been ratified by the higher
Church authority. Judicial review lies only against the decisions of
the latter authority.
The Holy Synod of the Hierarchy, the supreme Church authority,
has power to regulate the internal organisation and administration of
the Church and the monasteries; it scrutinises the decisions of the
Standing Holy Synod, of the archbishops and of the other Church legal
entities including the monasteries (section 4(e) and (g)), over which
the State exercises no authority. The ecclesiastical legal persons
which make up the Greek Church, in the broad sense, constitute an
entity distinct from the public service and enjoy complete autonomy.
B. The applicant monasteries' property
1. The Holy Monastery of Ano Xenia
16. The monastery of Ano Xenia was founded on Mount Othris in
Thessaly in the ninth century. Its possessions include 278.70 hectares
of forest surrounding the monastery buildings, olive groves, vineyards
and other agricultural land with appurtenant buildings and a house and
flats in Volos. The monastery estimates the value of its real property
at more than 180 million drachmas (GRD).
2. The Holy Monastery of Ossios Loukas
17. Founded in the province of Boeotia in 947, the monastery of
Ossios Loukas was a major cultural centre during the Byzantine period.
The monastery complex and its mosaics are regarded as important works
of Byzantine art. The monastery's immovable property includes a hotel
in Athens, a farm and several tracts of farming land around the
monastery. A ministerial decree of 25 January 1933 contains a detailed
list of these assets. The monastery estimates the value of the
commercially exploitable real property at more than GRD 130 million,
excluding all the monastery's own buildings and treasures and the
adjoining agricultural land.
3. The Holy Monastery of Agia Lavra Kalavriton
18. The monastery of Agia Lavra Kalavriton, founded in the province
of Achaea in 961, was likewise a major cultural centre in the
Peloponnese. It was destroyed during the revolution of 1826 and
rebuilt in 1830. In addition to the monastery complex, its properties
include a number of churches and appurtenant buildings and adjoining
land, several tracts of farming land, a forest, an oil-processing plant
and numerous flats, offices and shops in Athens and Patras. Their
value is said to exceed GRD 485 million, excluding the monastery
complex and the churches.
4. The Holy Monastery of Metamorphosis Sotiros
19. The monastery of Metamorphosis Sotiros was built in Meteora in
1344 and enjoyed enormous prestige both on account of its location and
as a centre for the arts. Its real property includes large areas of
woodland, a farm, a flat and shops in Trikkala and Kalambaka. A
ministerial decree of 16 October 1933 contains a list of the
monastery's agricultural land. The monastery assesses the value of its
property at more than GRD 465 million.
5. The Holy Monastery of Asomaton Petraki
20. The monastery of Asomaton Petraki was founded in 1000. Its
development was most marked in the seventeenth and eighteenth
centuries. It owns a very substantial amount of property, consisting
of several buildings in Athens, large areas of agricultural land and
forest, tourism facilities and urban land, which it values at
GRD 43,230 million; it also owns marble quarries on Mount Parnassus.
A ministerial decree of 14 February 1933 lists the monastery's
properties.
6. The Holy Monastery of Chryssoleontissa Eginis
21. The monastery of Chryssoleontissa was founded on the island of
Aegina in the thirteenth century and states that much of its landed
property - in particular, uninhabited islands - was expropriated at the
beginning of the twentieth century. Apart from the monastery complex
itself, its immovable property includes agricultural land, olive
groves, houses and flats on Aegina, and various shops, offices and
flats in Athens. It estimates its wealth at more than GRD 880 million.
7. The Holy Monastery of Phlamourion Volou
22. The monastery of Phlamourion Volou stands on the western slopes
of Mount Pelion in the province of Magnesia. Its property includes two
forests of an area of 8,241 hectares and 1,049 hectares, agricultural
land and blocks of flats in Volos.
8. The Holy Monastery of Mega Spileo Kalavriton
23. The monastery of Mega Spileo Kalavriton in Achaea was destroyed
in 840 and rebuilt in 1280. Apart from the monastery complex and the
surrounding woodland, its property includes several tracts of farming
land, forests and offices in Athens; their value is said to exceed
GRD 950 million.
II. Relevant domestic law and practice
A. The Law of 5 May 1987 regulating matters of Church property
("Law no. 1700/1987")
24. Law no. 1700/1987 was published in the Official Gazette of
6 May 1987 and changed the rules on the management and representation
of monastery property within the charge of the ODEP, most of whose
members were now to be appointed by the State. It also provided that
within six months of its publication the State would become the owner
of all monastery property unless the monasteries proved title
(kyriotita) established either by a duly registered deed (metegrammeno)
or by a statutory provision or by a final court decision against the
State.
In this connection, it should be noted that only real-property
transactions concluded since 1856 have had to be registered (section 9
of the Law of 30 October 1856 on the registration of immovable property
and of rights in rem relating thereto); similarly, the Civil Code has
required legacies and inheritances to be registered only since 1946.
Except in the Dodecanese, Greece does not have any official land
survey.
The factors which prompted the State to enact new rules on
Church property are set out in the explanatory memorandum to the bill.
The following passages should be noted:
"This bill deals with the question of the immovable property
in the Church's possession today, a question that since the
beginning of the modern Greek State has caused friction not
only between State and Church but also between the latter and
... the people; under the present system, many national
treasures remain unexploited ...
The Church's current possessions are largely the remnants of
a period in which the Church's existence was dependent solely
on its own property and even on its own labour. Since then,
its operating conditions have radically changed. The State
covers nearly all its needs. Concurrently with the provisions
of this bill, provision is being made for the first time for
subsidies from the State budget to the Holy Monasteries and
the Church in general, so that they may expand their spiritual
mission, which is so necessary for the nation and for the
Orthodox faith in Greece and abroad ...
A large part of this immovable property has been wasted in
unlawful and disadvantageous transactions or usurped by
skilful exploiters, while the rest has largely been abandoned
or is being utilised detrimentally by third parties. This
national heritage is continually shrinking and tending to
disappear as a productive source of wealth for the country's
agriculture, stockbreeding and forestry.
Furthermore, most of the lands now in the Church's possession
belong to the State. They are occupied without legal title
and with the State's toleration. This national property is
constantly being diminished by illegal sales and encroachments
which lead to usurpations of land and uncontrolled
development; this is a situation which undermines the Church's
authority.
It should be remembered that since 1952 the State has
legislated to make the transfer of four-fifths of the
monasteries' property to the State compulsory, for the benefit
of those who do not have any land (Decree no. 2185/1952).
This statutory obligation has not hitherto been enforced."
25. The following provisions are relevant:
"Section 1
1. As soon as this Law enters into force, the Office for the
Management of Church Property (the ODEP) shall automatically
be vested with the exclusive management and representation of
all the immovable property of the Holy Monasteries, in respect
of which it shall henceforth have full power to take or defend
legal proceedings, whether the property belongs, under the
legislation in force, to the category of 'property to be
retained' or to that of 'property to be realised'.
...
3. ... [T]he conditions and procedures governing the sale,
leasing, grants of rights of user, and utilisation by the ODEP
... of movable and immovable monastery property, together with
any other matter connected with the management of that
property, shall be laid down in a presidential decree adopted
on a proposal by the Minister for Education and Religious
Affairs, the Minister for the Economy and the Minister of
Agriculture. The same decree may authorise other
administrative bodies to determine the details of its
implementation in a regulatory decision. In the specific case
of the sale of urban immovable property belonging to the
monasteries or of the granting of any right in rem relating to
it, the consent of the monastery concerned shall be required,
failing which the contract shall be null and void.
Section 2
1. A right of user over any immovable property of the
monasteries which, on the entry into force of this Law, is in
the ownership (kyriotita) or the possession (katokhi) [of the
ODEP] or of the Holy Monasteries or of third parties may be
granted by the ODEP ..., for the purposes of utilisation and
development ..., preferably either to farmers already members
of agricultural co-operatives or becoming members in virtue of
the grant, or to agricultural co-operatives and public bodies.
In exchange for such a grant, the ODEP shall pay the monastery
concerned 5% of the gross revenue from the grant for the
monasteries' needs.
For the purposes of the present provision, the following shall
be regarded as immovable property: agricultural land and land
capable of agricultural use, forests and wooded areas in
general, pastures, meadows ... and quarries, mines and fish
farms.
2. Within six months of the entry into force of this Law, the
ODEP ... may, by contract to be signed by the Greek State as
the representative of the Holy Monasteries and by the Minister
for Education and Religious Affairs, the Minister for the
Economy and the Minister of Agriculture as representatives of
the Greek State, transfer to the State the ownership of the
monasteries' immovable property, together with such of the
Holy Monasteries' land as was included in the urban
development plan after 1952. Such a transfer of ownership to
the Greek State shall have no effect on the validity of any
grant of a right of user made in accordance with the
conditions set out in the preceding subsection, except for the
required payment of a percentage of the revenue, which shall
be paid to the entity provided for in section 9 of this Law
and shall be used for educational purposes. Until this entity
is created, the percentage shall be paid to a special account
at the Bank of Greece in the name of the Minister for
Education and Religious Affairs.
3. Immovable property belonging to the Holy Monasteries which
is intended solely for cultivation by the monks themselves
shall be exempt from the provisions of this section; it shall
be delimited for each monastery according to the number of
resident monks and in the light of the requirements of
environment protection. Land earmarked for children's holiday
camps or to meet the needs of other Church institutions shall
likewise be exempt.
This property shall be designated by a decision of the
Minister for Education and Religious Affairs, the Minister of
Agriculture and the Minister of Public Works and the
Environment, after consultation of the ODEP ... in respect of
each holy monastery, each children's holiday camp and each
Church institution.
Section 3
1. If nothing has taken place at the end of the six-month
period provided for in subsection (2) of section 2, ownership
of the monasteries' property shall be regulated in accordance
with the following provisions:
A. Immovable property in use (nomi) by or the possession
(katokhi) of the Holy Monasteries when this Law comes into
force shall be deemed to be the property of the Greek State
irrespective of the manner in which it is managed or utilised
unless a monastery's ownership (a) derives from a title deed
that antedates the day on which the Bill was tabled and has
already been registered or will be registered within a strict
time-limit of six months from the entry into force of this Law
or (b) has been recognised in a statutory provision or in a
final court decision against the State. The same shall apply
to buildings which belong to the monasteries or are in their
possession but are occupied by third parties.
B. The Holy Monasteries' and third parties' use and
possession of immovable property deemed to belong to the State
in accordance with the preceding subsection and ownership of
which has not passed to the State under section 2 shall be
terminated and be transferred automatically to the Greek
State. All forms of management or utilisation of these
buildings shall cease, irrespective of the category to which
the property belongs under the current legislation. From that
date the State shall exercise the rights associated with the
ownership, use and possession of the property vis-à-vis third
parties, the Holy Monasteries and bodies responsible for
managing those monasteries' property. The Minister of
Agriculture shall henceforth manage this property in
accordance with the provisions of the legislation already in
force and of this Law. This change shall not affect the
validity of any grant of a right of user made under subsection
(1) of section 2, except for the requirement relating to the
percentage of revenue to be paid to the entity provided for in
section 9, which will now be assigned to the national
education service ...
2. For the purposes of this section, the following shall be
deemed to be immovable property: agricultural land and land
capable of agricultural use, forests and wooded areas in
general, pastures, meadows ... and quarries, mines and fish
farms. Building land shall also be deemed to be immovable
property even if it is entered in the urban development plan,
on condition that the entry was made after 1952.
3. The Holy Monasteries which do not own sufficient immovable
property may be granted, without consideration, land already
in their possession in virtue of subsection (1) of this
section, but solely for the purposes of cultivation by the
monks themselves. Such land shall be delimited according to
the number of resident monks and in the light of the
requirements of environment protection. Such grants shall be
made within a strict time-limit of one year from the deadline
provided for in subsection (1) of this section, by means of a
contract between the State ... on the one hand and the legal
person responsible ... for managing the monasteries' property
on the other."
26. Section 4 provides that within two months of the expiry of the
six-month period referred to in section 3(1)(A) any legal or natural
person in possession of one of the buildings "deemed to belong to the
State" must transfer it to the head of the appropriate agriculture or
forestry department, failing which the latter will make an
administrative eviction order, enforceable within fifteen days of its
being served. The evicted person may apply for judicial review of such
an order, but this will not have any suspensive effect
(subsection (4)); furthermore, it is open to such a person, if he
asserts rights in rem over the building, to apply to the civil courts
under Articles 1094-1112 of the Civil Code (subsection (7)).
27. The arrangements for implementing sections 3 and 4 are to be
specified in a presidential decree, to be adopted on a proposal by the
Minister for Education and Religious Affairs, the Minister for the
Economy and the Minister of Agriculture. To the Court's knowledge,
this has still not been issued.
28. Section 8 provides that the ODEP's governing body shall be
composed of a chairman and a vice-chairman, appointed by the Cabinet
on a proposal by the Minister for Education and Religious Affairs, and
six other members and their substitutes, half of whom are to be
appointed by the Standing Holy Synod and half by the Minister for
Education and Religious Affairs.
Section 9 provides for the creation, on a proposal by the
Minister for Education and Religious Affairs and the Minister for the
Economy, of a private-law entity to be responsible for implementing
educational programmes to be established by the Ministry of Education
and Religious Affairs.
Section 10 provides for the inclusion in the State budget of
an appropriation to support and maintain the monasteries and strengthen
the Church's cultural work. The Minister for Education and Religious
Affairs is to allocate the available funds with a view to implementing
a special programme that he will draw up each year on a recommendation
by the Standing Holy Synod.
29. Law no. 1700/1987 provides that it is not to apply to property
of the Holy Monasteries which come under the Ecumenical Patriarchate
of Constantinople or the patriarchates of Alexandria, Antioch and
Jerusalem, or under the Holy Sepulchre or the Holy Monastery of Sinai.
B. The Supreme Administrative Court's judgment of 7 December 1987
30. The chairman and the other members of the ODEP's governing body
were appointed by the Minister for Education and Religious Affairs on
10 and 16 July 1987 (pursuant to section 8 of Law no. 1700/1987).
On 20 July the Greek Church challenged the lawfulness of their
appointment in the Supreme Administrative Court (Symvoulio tis
Epikratias) by means of an application for judicial review coupled with
an application for a stay of execution. On 19 August 1987 the Supreme
Administrative Court's committee for hearing applications for stays of
execution held that any attempt by the ODEP's new governing body to
exercise the powers conferred on it by Law no. 1700/1987 would be
likely to compromise relations between Church and State; it
consequently allowed the application and stayed the decisions until the
Supreme Administrative Court had ruled on the merits.
On 11 September 1987 some of the monasteries, including three
of the applicant monasteries and their archimandrites, also appealed
against the decisions, alleging, among other things, that
Law no. 1700/1987 infringed the Greek Constitution (Articles 3
para. 1, 13 para. 1 and 17) and the European Convention.
31. The Supreme Administrative Court gave its ruling on
7 December 1987 (judgment no. 5057/1987), stating:
"...
The provisions of Article 3 para. 1 of the Constitution
safeguard the holy canons and traditions of the Orthodox
Church. However, this constitutional protection ... cannot be
regarded as extending to the canons and traditions relating to
purely administrative matters. Such matters, which are
affected by the passing of time and the advent of new ideas,
necessarily lend themselves to changes designed to promote the
common interests of Church and State. The ordinary
legislature regulates them according to society's needs, in
accordance with Article 72 para. 1 of the Greek Constitution.
It cannot, however, ... by means of the Church's Charter or
other statutory provisions, undertake a radical reform of the
basic administrative institutions, which have long been
solidly established in the Orthodox Church ... Furthermore,
the same provisions also guarantee the Church's autonomy,
which includes the power to determine its own affairs through
its own organs composed as provided for by law and to be
governed by the Holy Synod of the Hierarchy and the Standing
Holy Synod constituted in accordance with the law and the
provisions of the Patriarchal Tome of 29 June 1850 and the
Synodical Act of 4 September 1929 concerning the composition
of these bodies.
In the view of the majority of this Court, the provisions of
Law no. 1700/1987, which vests the management and
representation of the Holy Monasteries' property in the ODEP,
a public-law entity integrated into the administrative
framework of the Church and a majority of whose board of
governors' members are appointed by the State, are not
incompatible with the Church's autonomy - guaranteed by the
Constitution - or with freedom of religion or with Articles 9
and 11 of the Rome Convention ... or with the Charter of the
United Nations ... or with the Final Act of Helsinki ..., as
these matters, unconnected with doctrine or worship, are
purely administrative and unrelated to the Church's basic
administrative institutions; consequently, they must be freely
regulated by the ordinary legislature ... Furthermore, the
provisions of Law no. 1700/1987 do not materially affect those
institutions as the management of monastery and Church
property had always been vested in the ODEP, whose board of
governors - as constituted under Law no. 4684/1930 - was
composed, for the greater part, of lay members appointed by
the State ... The grounds of nullity are accordingly
ill-founded and must be rejected.
However, one of the senior members of the Court has expressed
the following opinion, in which he is joined by one of the
junior members (paredri). Article 3 of the Constitution,
which provides that the Greek Church is to be governed by 'the
Synod of serving metropolitans' safeguards not only the
Church's autonomy in the sense that it is governed by
metropolitans elected by it but also the right to manage and
dispose of, at its discretion ..., the movable and immovable
property of every kind belonging to it in order to achieve its
non-profit-making aims, namely the establishment and promotion
of the Orthodox faith of its members. Monastic life in
monastic communities, which are vital parts of that Church ...
and which, despite their status as public-law entities,
derive, like the Church itself, from an area lying outside the
jurisdiction of the State, has always constituted a
fundamental mode of the worship of God. To deprive all the
monasteries of the management and representation of all their
existing and future ... property and to assign those powers to
the ODEP without their consent ... is consequently an
unacceptable restriction of their autonomy and of that of the
Church ... These provisions entail, in the first place, a
breach of the aforementioned Article of the Constitution,
which does not allow the Church's administrative institutions
to be altered to the point of removing its autonomy, and,
secondly, seriously hamper the practice of worship through
monastic life, since they prevent the 'unrestricted' practice
of monastic worship, as secured in Article 13 para. 2 of the
Constitution. Lastly, it must be pointed out that from 1953
the ODEP was run by a board of governors a majority of whose
members were appointed by the Church and which was chaired by
the Archbishop of Athens ...; the precedents to the contrary
cited by the majority relate to isolated special cases and not
to the monasteries' property as a whole. The minority
consequently consider the grounds of nullity to be
well-founded.
The applicants also maintained that the provisions of
Law no. 1700/1987, which vested the management and
representation of the monasteries' property in the ODEP - an
entity separate from the Church and not controlled by it - and
authorised the transfer of that property to the State without
any compensation, were contrary to Articles 17 and 7 para. 3
(a) of the Constitution as they made mandatory provision for
an unacceptable transfer of that property, deprived the Holy
Monasteries of their ownership and introduced unconstitutional
restrictions on property rights.
Article 7 para. 3 (a) of the Constitution prohibits any
general confiscation. Article 17 ... provides that ownership
is under the protection of the State but that rights deriving
from it cannot be exercised to the detriment of the public
interest ... No one may be deprived of his property unless in
the public interest, duly made out, in the eventualities and
according to the procedure laid down by law and in every case
subject to full prior compensation ... This latter provision
of the Constitution prohibits any deprivation of property that
does not satisfy the foregoing conditions; nothing, however,
prevents the legislature from restricting the right of
ownership on the basis of objective criteria and in the public
interest, on condition that such restrictions do not nullify
the right and make it ineffective ...
In the view of the majority of the Court, the provisions of
Law no. 1700/1987, ... which provide for the transfer to the
Greek State of the ownership of the monasteries' agricultural
land and of other immovable property owned by the Holy
Monasteries without any title deed, are not contrary to
Article 17 of the Constitution as they do not deprive the Holy
Monasteries of their ownership (idioktissia); the Law in fact
means that this immovable property does not belong to them.
Moreover, the provisions of the Law concerning the sale of the
Holy Monasteries' urban immovable property or the granting of
rights in rem relating to it by decision of the ODEP ... do
not infringe the Holy Monasteries' right of ownership inasmuch
as their implementation is subject to the agreement of the
Holy Monastery which owns the immovable property, failing
which the contract is void. Lastly, the provisions relating
to the ... utilisation by the ODEP of urban immovable property
and mines, quarries and fish farms belonging to the Holy
Monasteries or any other Church institution and those relating
to the management and representation of ... agricultural
property ... and the present or future utilisation of urban
immovable property do not entail any deprivation of ownership
since the ownership as such remains in the hands of the Holy
Monasteries, and in any case the revenue from the ODEP's
management of this property is used for ecclesiastical
purposes ...; the provisions lay down constitutional
restrictions on ownership which are designed to serve at one
and the same time the monasteries' interest and the public
interest. In consequence, this ground of nullity, together
with the complaints relating to Article 12 paras. 5 and 6 and
Article 20 para. 1 of the Constitution and Article 1 of the
Paris Protocol of 20 March 1952 (P1-1)..., are ill-founded and
must be rejected ...
Two senior members of the Court, joined by one of the junior
members, have expressed the following opinion. Transferring
the management and representation of the whole of the
monasteries' property to the ODEP on the aforementioned terms,
even 'as an amendment to the legal provisions in force'
(section 1(3) of Law no. 1700/1987), does not amount to a
restriction of ownership, which is allowed by the
Constitution, but interferes unacceptably and without full
compensation with the very essence of the right of ownership.
This is all the more evident as the only possibility left open
to the monasteries is either to consent or to object to the
sale of their urban property or the granting of a right in rem
relating to it by the ODEP, without being able to decide the
matter for themselves: such a decision belongs exclusively to
the ODEP, which has unfettered discretion to determine,
without even consulting the monasteries, the sale of
agricultural land and 'the present and future utilisation' of
their immovable property such as is provided for in section 7
of Law no. 1700/1987. As to the monasteries' movable
property, some of which is extremely valuable (icons in
monastery museums, precious relics, shares, etc.), they are
managed by the ODEP without any restrictions whatever.
Furthermore, it should be noted that Law no. 1700/1987 does
not specify how the income from monastic property is to be
applied; on the other hand, it appears from sections 2(2),
3(1)(B) and 9 of Law no. 1700/1987 that the State's revenue
from the 'utilisation or granting of the use of monastic and
Church property' is to be transferred to a private-law entity
set up under section 9 which does not have any ecclesiastical
objectives. The provisions of Law no. 1700/1987 are thus
wholly contrary not only to Article 17 of the Constitution but
also ... to the provisions of the Rome Convention (Article 1
of the Protocol) and the treaty establishing the European
Economic Community, and they engage the Greek State's
international responsibility. Consequently, the minority
consider this ground of nullity to be well-founded.
...
As to the submission that the provisions of Law no. 1700/1987
infringe Article 4 para. 1 of the Constitution because they
establish discrimination between the Greek Orthodox Church and
the monasteries coming under the Ecumenical Patriarchate, the
Ecumenical Patriarchate itself, the patriarchates of
Alexandria, Jerusalem, the Holy Sepulchre and the Holy
Monastery of Sinai and the monasteries of other denominations
or religions, the complaint is ill-founded since the Greek
Orthodox Church, as an instrument and expression of the
dominant religion according to the terms of Article 3 para. 1
of the Constitution, does not occupy the same position as the
other Orthodox churches and other denominations or religions,
such that the statutory provisions in issue do not offend the
constitutional principle of equal treatment of comparable
legal situations.
...
Moreover, it is alleged that the provisions of Law
no. 1700/1987 infringe Article 5 para. 1 of the Constitution
in that Orthodox citizens who wish to support the monasteries
financially are impeded in their self-fulfilment since,
contrary to their wishes, the management of donations would
vest not in the monasteries but in the ODEP.
Furthermore, it is submitted that these provisions infringe
the individual freedom of religion of the members of monastic
communities and of those who would like to found a monastery
by dedicating their assets to that end. The first limb of the
ground is ill-founded since the individual right of free
self-fulfilment, secured in Article 5 para. 1 of the
Constitution, is not an absolute right; it is subject to the
restrictions laid down in the Constitution and in law. In the
instant case the restrictions deriving from the aforementioned
provisions of Law no. 1700/1987 ... do not infringe Article 5
para. 1 of the Constitution. The ground is also ill-founded
in its second limb, since it refers vaguely to possible damage
sustained by the applicants in the future.
..."
The Supreme Administrative Court nevertheless quashed the
Minister for Education and Religious Affairs' decision of 16 July 1987
(see paragraph 30 above), on the ground that the composition of the
ODEP's governing body did not satisfy the requirements of section 8 of
Law no. 1700/1987.
C. The Law of 6 October 1988 "ratifying the agreement to transfer
to the State the agricultural and forest property of the Holy
Monasteries of the Greek Church which are parties to it"
("Law no. 1811/1988")
32. The passing of Law no. 1700/1987 had produced a sharp reaction
from the Greek Church. With a view to calming the situation, the
Government and the Holy Synod of the Hierarchy held a series of
meetings and concluded a preliminary accord under which the monasteries
would, by means of a further agreement, transfer part of their property
to the State. An essential condition of the preliminary accord was
that the Greek Church would have to seek from each monastery council
full powers to sign the further agreement.
33. On 11 May 1988 the Standing Holy Synod duly concluded a further
agreement with the State, whereby 149 monasteries, including the
applicant monasteries of Asomaton Petraki, Ossios Loukas and
Phlamourion Volou, transferred their agricultural and forest property
to the State; 47 monasteries declared that they were not affected by
the agreement since they did not have any substantial property of that
kind. Parliament ratified the agreement in section 1 of Law no.
1811/1988, section 2(3) of which provided: "On publication of this Law,
the management of the urban property of the Holy Monasteries that are
not parties to the agreement shall revert to the Standing Holy Synod
of the Greek Church. The provisions of Law no. 1700/1987 shall apply
to the remainder of these monasteries' property."
Section 2(1) provided that monasteries which were not parties
to the agreement could join it within a renewable period of one year
from the commencement of the Law; the operation of Law no. 1700/1987
was not, however, suspended during that period.
34. Under clause 2 of the agreement, the monasteries parties to it
are to cede to the State all their agricultural and forest property
except for the land surrounding them within a radius of 200 metres; a
monastery's opinion must be sought before any leisure facilities,
restaurants or business are established in its vicinity and operated.
Furthermore, the monasteries are authorised to retain a proportion of
their original real property - provided that the total area of land
retained does not exceed 500,000 sq. m of forest or 200,000 sq. m of
agricultural land - and 20% of land "usable for tourism purposes"; the
Greek Church is allotted 40% of land included in the town development
plan after 1952. Lastly, land in the monasteries' possession by virtue
of a title deed or which has passed to them under a will or a deed of
gift is exempt from transfer.
A special committee set up in each prefecture by a decision of
the Prefect is to determine which land is to be transferred to the
State and which is to be kept by each monastery.
In exchange for the transfer of ownership, the State undertakes
to pay a stipend to eighty-five preachers and to spend 1% of the
budgetary appropriations earmarked for the Church on financially
supporting the monasteries that are parties to the agreement
(clause 4).
35. Under clause 3 of the agreement, the ODEP was destined to be
wound up once the operations had been concluded; in fact the ODEP was
dissolved after Parliament's ratification of the agreement and the
members of its staff were assigned to other State bodies in accordance
with section 3 of Law no. 1811/1988. The management of the urban
property and part of the agricultural and forest property remaining in
the ownership of the monasteries parties to the agreement is to be
their responsibility, while the Greek Church, having taken over the
rights and obligations of the ODEP and having exclusive authority to
act, is to be responsible for the property to be realised. The
Standing Holy Synod is to lay down in canonical decisions published in
the Official Gazette the manner in which ODEP property transferred to
the Greek Church on the abolition of the ODEP is to be managed and
utilised. Lastly, the monasteries parties to the agreement have
capacity to take legal proceedings in any dispute relating to the
property they retain under it (clause 5).
36. Some of the monasteries - including Phlamourion Volou - which
had authorised the Greek Church to negotiate and sign the agreement
with the State applied to the courts, alleging that the agreement was
null and void.
They argued, inter alia, that (1) the agreement had been
concluded by the Standing Holy Synod, a purely administrative body of
the Greek Church with no legal personality of its own or any legal
capacity; (2) the archbishops and metropolitans who had taken part in
the drawing up of the agreement were not the Standing Holy Synod's
statutory representatives; (3) the tracts of land which the monasteries
had undertaken to transfer were not precisely delimited and the
agreement made no mention of their location, area or boundaries;
(4) the Greek State had not acted through its statutory representative;
(5) at the time that the agreement was concluded, the ODEP was
responsible for the management and representation of the monasteries'
property and ownership of that property had already been transferred
to the State under section 3 of Law no. 1700; (6) the authorisations
issued by the monasteries to the Standing Holy Synod had not been in
the form of notarial documents as required by law; and (7) the
conditions that were stipulated by the monasteries for concluding the
agreement and which appeared in the authorisations to act were not
reproduced in the actual text of the agreement.
37. On 26 January 1990 the Athens Court of First Instance gave
judgment against the monastery of Phlamourion Volou.
38. On 4 December 1990 the Athens Court of Appeal dismissed an
appeal by the monastery against that judgment. It noted, in
particular, like the court below but in more detail, that by
Law no. 1811/1988 the legislature had expressed the intention of
ratifying the agreement in its entirety even if it contained formal or
substantive defects which might have rendered it null and void under
enactments in force at the time it was concluded.
Complaint no. 5 was rejected by the Court of Appeal on the
ground that the monastery of Phlamourion Volou had no locus standi,
since at the time the agreement was concluded it had ceased to be the
owner of the land in question. As for complaints nos. 3 and 7, the
court held that because of the large number of monasteries involved,
the agreement could only distinguish in a general way between the land
to be transferred and the land to be retained and it assigned the task
of laying down the precise boundaries to a committee to be set up in
each prefecture.
Furthermore, the wording of clause 2 of the agreement did not
suffice on its own to show that the full powers granted to the Standing
Holy Synod had been exceeded or that there had been any misuse of
powers on the part of the archbishops who had signed the agreement; if
that had been the case and if land not covered by the authority to act
had been transferred to the State, it would have amounted to a
deprivation of property incompatible with Article 17 of the
Constitution, a defect that could not have been cured by the
ratification. It was, however, impossible to determine whether the
full powers had been exceeded as the appellant had not stated whether
the relevant committee had already carried out its task.
Lastly, the disputed agreement was an agreement for value, as
the State undertook to support the monasteries that were parties to it
by transferring to them 1% of the budgetary appropriations earmarked
for the Church and to meet the cost of remunerating eighty-five
preachers.
D. Implementation of Laws nos. 1700/1987 and 1811/1988
39. In a circular of 5 January 1989 the Ministry of Agriculture
requested prefectures to set up the committees provided for in clause 2
of the agreement of 11 May 1988 (see paragraph 34 above). No action
has yet been taken to this end.
Another circular, of 20 February 1989, drew the authorities'
attention to the fact that ownership of the immovable property
belonging to the monasteries not parties to the agreement had been
transferred to the State under Law no. 1700/1987. The circular also
reminded the authorities of the possibility of transferring some of
this property to agricultural co-operatives and of using the eviction
procedure provided for in section 4 of Law no. 1700/1987 (see
paragraph 26 above).
40. In practice, the transfer operations - and in particular the
determination of which property is to pass to the State under Law
no. 1700/1987 and Law no. 1811/1988 - have not been completed.
41. In the proceedings before the Commission and the Court the
applicant monasteries relied on several judgments whereby proceedings
brought against the State by non-applicant monasteries had been stayed
(judgments no. 455/1987 of the Ioannina Court of First Instance and
no. 175/1988 of the Chalcis Court of First Instance) and an appeal by
another monastery had been declared inadmissible (judgment no. 335/1987
of the Lasithi Court of First Instance) on the ground that the
monasteries concerned had ceased to have locus standi once Law
no. 1700/1987 had come into force. In particular, proceedings were
declared inadmissible in an action brought by a non-applicant monastery
for a declaration of ownership arising, according to the monastery,
from short adverse possession; the Patras Court of First Instance (in
judgment no. 35/1991) also held that the ownership, possession and use
of the disputed land had automatically passed to the State under
section 3(1)(A) and (B) of Law no. 1700/1987 and pointed out that the
monastery in question was not one of those that had signed the
agreement of 11 May 1988.
42. In a letter of 7 February 1992 the Ministry of Agriculture
replied as follows to a request from the Agent of the Government for
information about the implementation of Laws nos. 1700/1987 and
1811/1988:
"... Laws nos. 1700/1987 and 1811/1988, which regulate
questions of Church property, have not been implemented as the
procedures laid down in them for transferring to the State the
land falling to it and for distinguishing that land from the
land to be retained by the monasteries have not yet been
carried out ... A problem has arisen with the management of
the monasteries' forest land ..., because the proceedings
whereby the State is to take possession of the land have not
been set in motion ... and also because of disagreements
between the State and the Holy Monasteries concerning the
interpretation of the Laws in question ... [I]t appears from
document no. 147224/21.12.1991 of the Regional Development
Department of our Ministry ... and from the fact that the
Ministry of Education has set up a team to study the problem
of Church property that the State intends to re-examine the
issue in order to resolve it."
43. Counsel for the applicant monasteries stated at the hearing
before the Court that, to date, none of the land in dispute had been
transferred to agricultural co-operatives or the State. He maintained,
however, that since the entry into force of Law no. 1700/1987 the
administrative authorities had refused to grant the authorisations
necessary for carrying out certain day-to-day operations.
In this connection he relied on and produced correspondence
between the Kalambaka forestry authority, on the one hand, and the
co-operative at Vlakhava and the monastery of Metamorphosis Sotiros,
on the other; the forestry authority had prevented the co-operative
from cutting down trees in forests belonging to the monastery by virtue
of Decree no. 2185 of 1952 (see paragraph 9 above), although the
co-operative had already, in 1985, paid the monastery for the felling.
Similarly, the forestry authority of Almiros in Magnesia had
declined to approve the four-year plan for exploiting a forest
belonging to the monastery of Ano Xenia, on the ground that there was
uncertainty about the ownership of the forest.
PROCEEDINGS BEFORE THE COMMISSION
44. The applicant monasteries applied to the Commission in the
following order: Ano Xenia, Ossios Loukas, Agia Lavra Kalavriton,
Metamorphosis Sotiros and Asomaton Petraki, together with six monks
from these monasteries, on 16 July 1987 (application no. 13092/87); and
Chryssoleontissa Eginis, Phlamourion Volou and Mega Spileo Kalavriton,
together with four monks and clergymen, on 15 May 1988 (application
no. 13984/88). They relied on Articles 6, 9, 11, 13 and 14 (art. 6,
art. 9, art. 11, art. 13, art. 14) of the Convention and on Article 1
of Protocol No. 1 (P1-1).
45. On 4 December 1989 the Commission ordered the joinder of the
two applications. It declared them admissible on 5 June 1990 but only
in so far as they were made by the Holy Monasteries; it declared them
inadmissible as to the remainder. In its report of 14 January 1993
(Article 31) (art. 31), it expressed the opinion:
(a) as to all the applicant monasteries,
(i) that the transfer of ownership provided for in Law
no. 1700/1987 did not violate Article 1 of Protocol No. 1 (P1-1)
(unanimously);
(ii) that the provisions of Law no. 1700/1987, as amended by
Law no. 1811/1988, did not violate that Article (P1-1) (unanimously);
(iii) that there had been no violation of Articles 9, 11 and
13 (art. 9, art. 11, art. 13) of the Convention (unanimously) or of the
applicant monasteries' right to a fair trial within the meaning of
Article 6 para. 1 (art. 6-1) (unanimously) or of Article 14 taken
together with Articles 6, 9 and 11 of the Convention (art. 14+6,
art. 14+9, art. 14+11) and Article 1 of Protocol No. 1 (art. 14+P1-1)
(unanimously);
(b) as to the monasteries of Ano Xenia, Agia Lavra Kalavriton,
Metamorphosis Sotiros, Chryssoleontissa Eginis and Mega Spileo
Kalavriton, that there had been no violation of the right of access to
a court, secured in Article 6 para. 1 (art. 6-1) (by eleven votes to
two);
(c) as to the monasteries of Asomaton Petraki, Phlamourion
Volou and Ossios Loukas, that there had been no violation of the right
of access to a court, secured in Article 6 para. 1 (art. 6-1)
(unanimously).
The full text of the Commission's opinion and of the two
separate opinions contained in the report is reproduced as an annex to
this judgment*.
_______________
* Note by the Registrar. For practical reasons this annex will appear
only with the printed version of the judgment (volume 301-A of Series
A of the Publications of the Court), but a copy of the Commission's
report is obtainable from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT
46. In their memorial the Government asked the Court to "reject the
two applications by the Holy Monasteries in their entirety".
47. The applicant monasteries requested the Court to
"... declare that the provisions of Laws nos. 1700/1987 and
1811/1988 and the subsequent acts of the Hellenic Republic
violate Article 1 of Protocol No. 1 (P1-1), Article 6 (art. 6)
and, subsidiarily, Articles 13, 14, 9 and 11 (art. 13,
art. 14, art. 9, art. 11) of the Convention;
... declare the above violations as having been perpetrated
against all the applicants; and
... award compensation ...".
AS TO THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS
A. The Court's jurisdiction ratione personae
48. In the first place, the Government argued that the applicant
monasteries were not non-governmental organisations within the meaning
of Article 25 (art. 25) of the Convention. They pointed to the
Orthodox Church's and its institutions' historical, legal and financial
links with the Hellenic nation and State, which were reflected in the
1975 Constitution itself and in legislation, and to the considerable
influence which the Greek Church currently had on the State's
activities. The attribution of legal personality in public law to the
Church and its constituent parts - including the monasteries - showed
the particular importance attached to ecclesiastical matters.
Furthermore, the Greek Orthodox Church and its institutions played a
direct, active part in public administration; they took enforceable
administrative decisions whose lawfulness was subject to review by the
Supreme Administrative Court like any other public authority's
decisions. The monasteries were hierarchically integrated into the
organic structure of the Greek Church; they were founded, merged or
dissolved by a decree adopted after consultation of the archimandrite
and approval by the Standing Holy Synod, on a proposal by the Minister
for Education and Religious Affairs. The decisions of monastery
councils had to be ratified by the supervising Church authority before
they could take effect. Lastly, it was not decisive that the
monasteries had legal personality distinct from that of the Church,
witness the fact that it was possible for a State's international
responsibility to be engaged on account of acts by legal entities
distinct from that State.
49. Like the Commission in its admissibility decision, the Court
notes at the outset that the applicant monasteries do not exercise
governmental powers. Section 39(1) of the Charter of the Greek Church
describes the monasteries as ascetic religious institutions (see
paragraph 15 above). Their objectives - essentially ecclesiastical and
spiritual ones, but also cultural and social ones in some cases - are
not such as to enable them to be classed with governmental
organisations established for public-administration purposes. From the
classification as public-law entities it may be inferred only that the
legislature - on account of the special links between the monasteries
and the State - wished to afford them the same legal protection
vis-à-vis third parties as was accorded to other public-law entities.
Furthermore, the monastery councils' only power consists in making
rules concerning the organisation and furtherance of spiritual life and
the internal administration of each monastery (section 39(4) - see
paragraph 15 above).
The monasteries come under the spiritual supervision of the
local archbishop (section 39(2)), not under the supervision of the
State, and they are accordingly entities distinct from the State, of
which they are completely independent.
The applicant monasteries are therefore to be regarded as
non-governmental organisations within the meaning of Article 25
(art. 25) of the Convention.
B. Exhaustion of domestic remedies
50. In the second place, the Government maintained that the
applicant monasteries had not exhausted domestic remedies in several
respects; no court had given a ruling in a case concerning the alleged
violation of their rights.
In general, the Government argued that the impossibility in
Greek law of having a supposedly unconstitutional provision directly
set aside did not in any way impair the effectiveness of the judicial
protection afforded to the applicants by the Greek legal system; the
preliminary scrutiny that was carried out as a matter of course by the
Greek courts had the result that any law held to be unconstitutional
was not applied. The reasons relating to the constitutionality of Law
no. 1700/1987 of 7 December 1987 that were given in the Supreme
Administrative Court's judgment (see paragraph 31 above) were obiter,
did not have the force of res judicata and did not bind other courts
that might have to deal with the same issue in a particular case; only
the Special High Court could give a final ruling on such matters in the
event of the country's two supreme courts' delivering conflicting
judgments (Article 100 para. 1(e) of the 1975 Constitution).
More particularly, the Government stated that Law no. 1700/1987
would not come into force until the ODEP had taken a concrete decision
relating to the management of these monasteries' property or had
represented the monasteries in respect of their property. The
applicant monasteries would then have a series of effective remedies
available to them: an application for judicial review of the
administrative decisions that would have to be taken in order for Law
no. 1700/1987 to be implemented (sections 1(3), 2(3), 4(9), 7(2) and
8(1) and (2)) - which the monasteries had in fact made in respect of
the decree appointing the ODEP's governing body (see paragraphs 25, 27
and 30 above) - or of the ODEP's management decisions; an action for
a declaration in the civil courts (Article 72 of the Code of Civil
Procedure) in order to have their exclusive rights of management and
representation of their property legally recognised; and applications
under section 4(4) and (7) of Law no. 1700/1987 (see paragraph 26
above).
51. The Court notes that although the issue raised in the Supreme
Administrative Court had been the lawfulness of the membership of the
ODEP's governing body, that court also considered that the relevant
provisions of Law no. 1700/1987 were compatible with Article 17 of the
Constitution and with the European Convention (see paragraph 31 above).
These were statements by judges of one of the highest courts in the
land; moreover, a large part of the reasoning of the judgment of
7 December 1987 was taken up with them. Such statements, even though
they were obiter, substantially limited the prospects of success of any
other appeal the applicant monasteries might bring.
As to the possibilities mentioned by the Government, the Court
observes that some of them relate to provisions which ceased to be
material after the abolition of the ODEP or to special arrangements for
the implementation of Law no. 1700/1987. In this regard the Court
points out that the only remedies which Article 26 (art. 26) of the
Convention requires to be exhausted are those relating to the impugned
violation and capable of redressing the applicants' complaints (see,
among other authorities, the Airey v. Ireland judgment of 9 October
1979, Series A no. 32, p. 11, para. 19). Lastly, the actions provided
in section 4(4) and (7) presuppose that the applicant monasteries have
handed over their property or that an eviction order has been made; as
that is not the case at the date of adoption of this judgment, they are
not relevant.
The objection must therefore be dismissed.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 (P1-1)
52. The applicant monasteries complained of the transfer of part
of their real property to the State, and of the management of it by the
ODEP and thereafter by the Greek Church under Laws nos. 1700/1987 and
1811/1988. They relied on Article 1 of Protocol No. 1 (P1-1), which
provides:
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the
conditions provided for by law and by the general principles
of international law.
The preceding provisions shall not, however, in any way impair
the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with
the general interest or to secure the payment of taxes or
other contributions or penalties."
53. The Government and the Commission did not accept this argument.
A. Preliminary remarks
54. The applicant monasteries essentially complained that Laws
nos. 1700/1987 and 1811/1988 were incompatible with the Convention.
The Government pointed out that to date no practical measures
had been taken to apply the Laws to the monasteries.
55. In cases arising from individual petitions made under
Article 25 (art. 25) the Court's task is not to review the relevant
legislation in the abstract; it must as far as possible examine the
issues raised by the case before it (see, among many other authorities,
the Padovani v. Italy judgment of 26 February 1993, Series A no. 257-B,
p. 20, para. 24). To that end in the instant case, it must examine the
above-mentioned Laws in so far as the applicant monasteries objected
to their consequences for their property.
Such consequences have already begun to be felt on account of
the special nature of some of the provisions of Law no. 1700/1987, in
particular section 3 (see paragraph 25 above), and because the Law has
begun to be applied inasmuch as ministerial circulars have been issued
and administrative decisions taken (see paragraphs 39 and 43 above).
The Court notes that the applicant monasteries' agricultural
and forest property is now governed by two parallel sets of legal
rules: the rules in Law no. 1700/1987, governing the properties of the
monasteries of Ano Xenia, Agia Lavra Kalavriton, Metamorphosis Sotiros,
Chryssoleontissa Eginis and Mega Spileo Kalavriton, and those in
Law no. 1811/1988, governing the properties of the monasteries of
Asomaton Petraki, Ossios Loukas and Phlamourion Volou. It therefore
considers it necessary to distinguish between three monasteries, which
signed the agreement of 11 May 1988, and those which did not.
With regard to the latter, it proposes moreover to look at
their position solely under those provisions of Law no. 1700/1987 which
continue to apply to the property in question, as many of that Law's
other provisions applied only for a limited time or lapsed after the
abolition of the ODEP (sections 1(1) and 2(1) and (2) of
Law no. 1700/1987 - see paragraph 25 above).
The Court observes lastly that the eight monasteries' urban
property is no longer in issue as the management of this has been the
responsibility of the Standing Holy Synod since Law no. 1811/1988 came
into force (section 2(3) of Law no. 1811/1988 - see paragraph 33
above).
B. Position of the monasteries not parties to the agreement of
11 May 1988
1. Whether there has been an interference with the right of
property and determination of the relevant rule under
Article 1 (P1-1)
56. As explained in the Court's case-law, Article 1 (P1-1), which
guarantees in substance the right of property, comprises three distinct
rules (see the James and Others v. the United Kingdom judgment of
21 February 1986, Series A no. 98-B, p. 29, para. 37). The first,
which is expressed in the first sentence of the first paragraph and is
of a general nature, lays down the principle of peaceful enjoyment of
property. The second rule, in the second sentence of the same
paragraph, covers deprivation of possessions and subjects it to certain
conditions. The third, contained in the second paragraph, recognises
that the Contracting States are entitled, amongst other things, to
control the use of property in accordance with the general interest.
The second and third rules, which are concerned with particular
instances of interference with the right to peaceful enjoyment of
property, are to be construed in the light of the general principle
laid down in the first rule.
57. The Government argued that the complaints of the applicant
monasteries not parties to the agreement of 11 May 1988 - Ano Xenia,
Agia Lavra Kalavriton, Metamorphosis Sotiros, Chryssoleontissa Eginis
and Mega Spileo Kalavriton - related to illusory violations of the
right secured to them by Article 1 of Protocol No. 1 (P1-1), as the
provisions of Law no. 1700/1987, especially section 3, were not
sufficient to deprive those monasteries by force of law of their rights
over the property in issue or to transfer to the State by the operation
of law the possession or use of it.
They relied on the wording of section 3(1)(A), and in
particular on the terms "shall be deemed to be the property of the ...
State", which, they contended, gave the section a special meaning. In
reality, the Government argued, the provision created a mere
presumption of ownership, a legal fiction, which could easily be
rebutted by proof to the contrary. The expression "deemed to be the
property of the ... State" did not mean that the State actually
acquired ownership of the relevant property; that issue remained in
abeyance until the rights asserted by the monasteries were
satisfactorily established in law. The conclusion derived from a
literal approach of this kind was confirmed by the context of the
provision, in particular the legal protection afforded to the
monasteries by section 4(4) and (7) of Law no. 1700/1987, which allowed
them to prove their assertions before an objective and impartial
authority, namely the courts. Moreover, it was for the State to choose
the appropriate means of determining doubtful legal situations in the
matter of ownership and to establish the procedure for that purpose.
58. The Court considers that by creating a presumption of State
ownership, section 3(1)(A) shifts the burden of proof so that it now
falls on the applicant monasteries, which can only assert their
ownership of the land in issue if it derives from a duly registered
title deed, from a statutory provision or from a final court decision
against the State. Section 3(1)(A) taken together with section 1(1)
thus deprives them of the possibility of relying, in order to adduce
proof to the contrary, on all the means of acquiring property provided
for in Greek law and by which the applicant monasteries possibly
accumulated their property, including adverse possession and even a
final court decision against a private individual. This conclusion is
corroborated by the Patras Court of First Instance's judgment
no. 35/1991 (see paragraph 41 above), which was concerned with
a non-applicant monastery but well shows the consequences of the entry
into force of section 3.
59. In the Government's submission, several tracts of the relevant
land in reality belonged to the State, and the applicant monasteries
were occupying them as mere possessors. The Supreme Administrative
Court had, moreover, in its judgment of 7 December 1987 (see
paragraph 31 above), held that the provisions of Law no. 1700/1987 did
not deprive them of their property because it followed from them that
the property did not belong to the monasteries in the first place.
60. It is not feasible for the Court to undertake to determine for
itself which of the disputed tracts of land can be said under Greek law
to belong in reality to the State. It notes, however, that the
applicant monasteries, which are primordial constituent parts of the
Greek Church and were established long before the creation of the Greek
State, accumulated substantial immovable property over the centuries.
Undoubtedly, title deeds acquired during the Byzantine and Ottoman
empires have been lost or destroyed. In respect of such land occupied
for so long, even if without any legal title, the period of possession
required in order that adverse possession might be relied upon both
against the State and against third parties had certainly been
completed by the time Law no. 1700/1987 came into force. On this point
the Court attaches particular importance to the acquisition of property
by adverse possession because there is no land survey in Greece and it
was impossible to have title deeds registered before 1856 and legacies
and inheritances registered before 1946 (see paragraph 24 above).
61. The State, deemed to be the owner of such agricultural and
forest property under subsection (1)(A) of section 3, is automatically
given the use and the possession of it, pursuant to subsection (1)(B)
of the same section (see paragraph 25 above). In the Court's opinion,
that is not merely a procedural rule relating to the burden of proof
but a substantive provision whose effect is to transfer full ownership
of the land in question to the State.
62. The Government emphasised that the wording of section 3(1)(B)
went no further than to indicate in the abstract that there were legal
bases for such possession. Possession, however, was not a fictitious
state of affairs; so long as the State did not assume physical
authority over the land in dispute (and it had not done), it could not
exercise rights derived from possession and use. They cited as
evidence section 4 of the Law, which required any holder of the land
to hand it over to the State.
However that might be, the Government argued, there could not
be any loss of use and possession until such time as an administrative
eviction order was served. Even in that case, section 4 afforded the
applicant monasteries effective protection, either through proceedings
for judicial review of such an order, during which the courts would
also verify the monasteries' rights derived from adverse possession,
or through a court action to establish ownership under
Articles 1094-1112 of the Civil Code (see paragraph 26 above).
63. The Court cannot accept the Government's submissions on this
point. It notes that section 4 of Law no. 1700/1987 amounts to a
technical provision designed to implement section 3 of the Law. In its
first subsection, section 4 allows the applicant monasteries a period
of two months in which to hand over the land in issue to the head of
the appropriate agricultural or forestry department, failing which the
latter is empowered to make an administrative eviction order. As to
the remedies provided in subsections (4) and (7), the first of them has
no suspensive effect, while it is a prerequisite of the second that the
plaintiffs should have voluntarily ceded their property or that they
should not have availed themselves of the first remedy within the time
allowed.
64. The Government relied on the fact that none of the applicant
monasteries had to date transferred the property in issue to the State
and no administrative eviction order had been served on any of the
monasteries, as the decree which was to lay down the detailed
arrangements for implementing sections 3 and 4 (section 4(9) of the
Law) had still not been issued. Having regard to the friendly
settlement concluded between the Greek Church and the State on
11 May 1988 and to the State's expressed intention of reconsidering the
whole matter of Church property (see paragraph 42 above), the
provisions of Law no. 1700/1987 had remained a dead letter.
65. The Court observes, however, that none of the five monasteries
became a party to the agreement of 11 May 1988 in the year following
its ratification by Parliament, as allowed by section 2(1) of Law
no. 1811/1988 (see paragraph 33 above). Consequently, the provisions
of Law no. 1700/1987 remained applicable to them. The fact that no
administrative eviction order has yet been issued is no guarantee that
none will be issued in the future, particularly in view of the
circulars of 5 January and 20 February 1989 (see paragraph 39 above),
which are still in force, and of the administrative authorities'
attitude (see paragraph 43 above) after the agreement was concluded.
66. That being so, there has been an interference with the
applicant monasteries' right to the peaceful enjoyment of their
possessions which amounts to a "deprivation" of possessions within the
meaning of the second sentence of the first paragraph of Article 1
(P1-1).
2. "In the public interest"
67. The Court must therefore determine whether this deprivation of
possessions pursued a legitimate aim "in the public interest", within
the meaning of the second rule under Article 1 (P1-1).
68. The applicant monasteries disputed the legitimacy of the aim
of Law no. 1700/1987, contending that it was not designed to convey the
expropriated land to farmers who had none, but to allow profitable
development of it. Section 2(1) of Law no. 1700/1987 made provision
- in the form merely of an optional power - for the transfer of the use
of the land in issue to farmers who were - or would in the future be -
members of agricultural co-operatives, not to destitute farmers. If
the legislature had really been pursuing a social policy, it could have
achieved the same result without interfering with the applicant
monasteries' right of property.
69. The Court notes that the explanatory memorandum to the bill,
submitted to Parliament, sets out the reasons for the impugned measure:
to end illegal sales of the relevant land, encroachments on it and the
abandonment or uncontrolled development of it (see paragraph 24 above).
The optional nature of the transfer of the use of the land to farmers
or agricultural co-operatives (section 2(1) of the Law - see
paragraphs 25 and 68 above) and the inclusion of public bodies among
the beneficiaries of such transfers (section 2(1) of the Law) might
inspire some doubt as to the reasons for the measures, but they cannot
suffice to deprive the overall objective of Law no. 1700/1987 of its
legitimacy as being "in the public interest".
3. Proportionality of the interference
70. An interference with peaceful enjoyment of possessions must
strike a "fair balance" between the demands of the general interests
of the community and the requirements of the protection of the
individual's fundamental rights (see, among other authorities, the
Sporrong and Lönnroth v. Sweden judgment of 23 September 1982, Series A
no. 52, p. 26, para. 69). The concern to achieve this balance is
reflected in the structure of Article 1 (P1-1) as a whole (ibid.),
including therefore the second sentence, which is to be read in the
light of the general principle enunciated in the first sentence (see
paragraph 56 above). In particular, there must be a reasonable
relationship of proportionality between the means employed and the aim
sought to be realised by any measure depriving a person of his
possessions (see the James and Others judgment previously cited, p. 34,
para. 50).
71. Compensation terms under the relevant legislation are material
to the assessment whether the contested measure respects the requisite
fair balance and, notably, whether it does not impose a
disproportionate burden on the applicants. In this connection, the
taking of property without payment of an amount reasonably related to
its value will normally constitute a disproportionate interference and
a total lack of compensation can be considered justifiable under
Article 1 (P1-1) only in exceptional circumstances. Article 1 (P1-1)
does not, however, guarantee a right to full compensation in all
circumstances, since legitimate objectives of "public interest" may
call for less than reimbursement of the full market value (see the
Lithgow and Others v. the United Kingdom judgment of 8 July 1986,
Series A no. 102, pp. 50-51, para. 121).
72. The applicant monasteries alleged that the provisions of
Law no. 1700/1987 did not satisfy the condition of proportionality.
73. The Commission considered that exceptional circumstances - such
as the ways in which the property was acquired and used, the
monasteries' dependence on the Greek Church and the Church's dependence
on the State - justified the absence of compensation.
74. The Court does not agree with this assessment.
In 1952 the Greek legislature took measures to expropriate a
large portion of monastery agricultural property. In 1952 as in 1987
the monasteries no longer discharged the same social, educational and
cultural functions they had assumed before the Greek State was
established (see paragraph 6 above). The legislature nevertheless
provided for compensation of one-third of the real value of the
expropriated land (see paragraph 9 above).
However, there is no similar provision in Law no. 1700/1987.
The five per cent provided for in return for the grant to
farmers of a right to use the land in issue would be paid, after the
transfer of ownership to the State, to the private-law entity to be
established under section 9 of the Law for the needs of the national
education service (subsection (1)(B) of section 3 - see paragraphs 25
and 28 above). The power to grant land to monasteries which do not
have sufficient immovable property "solely for the purposes of
cultivation by the monks themselves" (section 3(3) of the Law) and the
budgetary appropriation provided for in section 10 (see paragraph 28
above) cannot be regarded as payment of compensation.
75. By thus imposing a considerable burden on the applicant
monasteries deprived of their property, Law no. 1700/1987 does not
preserve a fair balance between the various interests in question as
required by Article 1 of Protocol No. 1 (P1-1).
There is therefore a breach of that Article (P1-1) in the case
of the five applicant monasteries which did not sign the agreement of
11 May 1988.
C. Position of the three monasteries parties to the agreement of
11 May 1988
76. These monasteries - Asomaton Petraki, Ossios Loukas and
Phlamourion Volou - contended that Law no. 1811/1988 was likewise
contrary to Article 1 of Protocol No. 1 (P1-1). They alleged that they
had signed the agreement of 11 May 1988 under duress. They stated that
they had been led into error by the Greek Church, as by not complying
with the conditions subsequent to the preliminary accord (see
paragraphs 32 and 36 above), the Church had exceeded its powers. They
had received no compensation for ceding part of their agricultural and
forest property to the State, since the quid pro quo provided for in
clause 4 of the agreement benefited the Greek Church and not the
monasteries parties to the agreement (see paragraph 34 above).
77. In its report the Commission considered it pointless to examine
this issue in view of its conclusion regarding the applicant
monasteries as a whole.
78. The Court, which has taken a different view of the general
issue (see paragraph 55 above), cannot, however, ignore the fact that
the three applicant monasteries in question signed the agreement of
11 May 1988. Subsequently one of them applied to the national courts,
alleging numerous substantive and formal defects. The Athens Court of
Appeal held that Parliament's ratification of the agreement had had the
effect of validating it in its entirety (see paragraphs 36-38 above).
On the evidence before the Court, it is not possible to
conclude that the three monasteries in question acted under duress.
Consequently, the Court must hold that there has been no interference
with their right of property.
III. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE
CONVENTION
79. The applicant monasteries alleged a violation of Article 6
para. 1 (art. 6-1) of the Convention, which provides:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a fair ... hearing ... by [a] ...
tribunal ..."
In their submission, section 1(1) of Law no. 1700/1987 deprived
them of the right to ask a court to determine, firstly, any dispute
(contestation) concerning the management of the property remaining in
their ownership and, secondly, any dispute over the fixing of
compensation for the expropriation of part of their property.
80. As the Court stated in its Golder v. the United Kingdom
judgment of 21 February 1975, Article 6 para. 1 (art. 6-1) "embodies
the 'right to a court', of which the right of access, that is the right
to institute proceedings before courts in civil matters, constitutes
one aspect" (Series A no. 18, p. 18, para. 36). Article 6 para. 1
(art. 6-1) "may [thus] be relied on by anyone who considers that an
interference with the exercise of one of his (civil) rights is unlawful
and complains that he has not had the possibility of submitting that
claim to a tribunal meeting the requirements of Article 6 para. 1
(art. 6-1)" (see the Le Compte, Van Leuven and De Meyere v. Belgium
judgment of 23 June 1981, Series A no. 43, p. 20, para. 44). In this
connection the right of property is without doubt a "civil right" (see,
inter alia, the Sporrong and Lönnroth judgment previously cited, p. 29,
para. 79). However, the "right to a court" secured by Article 6
para. 1 (art. 6-1) "extends only to 'contestations' (disputes) over
(civil) 'rights and obligations' which can be said, at least on
arguable grounds, to be recognised under domestic law; [Article 6
para. 1] (art. 6-1) does not in itself guarantee any particular content
for (civil) 'rights and obligations' in the substantive law of the
Contracting States" (see, inter alia, the Lithgow and Others judgment
previously cited, p. 70, para. 192).
81. The first complaint can only be made by monasteries not parties
to the agreement of 11 May 1988 as, by virtue of clause 5 of the
agreement (see paragraph 35 above), the monasteries that signed it have
capacity to take legal proceedings relating to the property they
retain.
On the other hand, section 1(1) of Law no. 1700/1987, by which
the monasteries not parties to the agreement remain governed, makes
them entirely dependent on the Greek Church for the defence of such of
their property as is exempt from the transfer of ownership effected by
section 3.
82. The Commission considered that the system adopted was
justified; the Greek Church, which had taken over from the abolished
ODEP the management of this property, had an obvious interest in
ensuring that the property was adequately defended in any legal
proceedings.
The Government agreed with the Commission on this point and
added that the remedies provided in subsections (4) and (7) of
section 4 - special provisions which prevailed over the general clause
of section 1(1) - gave these monasteries legal standing to protect
their rights of property.
83. The Court has already found that the Greek legislation has
vested the applicant monasteries with legal personality in public law
in their legal relations in order to afford them greater protection
(see paragraph 49 above). It notes, moreover, that at the time when
the ODEP - a majority of whose governing body's members were appointed
by the Church authorities - managed the monasteries' property to be
realised, the monasteries had capacity to take legal proceedings.
By depriving them of any further possibility of bringing before
the appropriate courts any complaint they might make against the Greek
State, third parties or the Greek Church itself in relation to their
rights of property, or even of intervening in such proceedings,
section 1(1) impairs the very essence of their "right to a court"
(see the Philis v. Greece judgment of 27 August 1991, Series A no. 209,
p. 23, para. 65; and the Fayed v. the United Kingdom judgment of
21 September 1994, Series A no. 294-B, pp. 49-50, para. 65).
84. There is therefore a breach of Article 6 para. 1 (art. 6-1) in
relation to the first complaint of the applicant monasteries not
parties to the agreement of 11 May 1988.
85. As regards the second complaint, the Court, having regard to
its conclusion under paragraph 78, notes again that this complaint can
only be made by monasteries not parties to the agreement of
11 May 1988.
It is well-established in the Court's case-law that as a matter
of principle Article 6 para. 1 (art. 6-1) guarantees a right of access
to the courts for the determination of claims (contestations) under
domestic law concerning compensation payable for expropriation of
property (see, inter alia, the Lithgow and Others judgment previously
cited, p. 70, para. 192). The applicants could not derive any
entitlement to compensation from Law no. 1700/1987, which assumed that
ownership of the land was not vested in the monasteries (see
paragraph 31 above). In view of the previous finding under Article 1
of Protocol No. 1 (P1-1) in respect of the absence of compensation
under Law no. 1700/1987 (see paragraph 74 above) and the finding made
at paragraph 84 above, the Court does not consider it necessary to
examine further this complaint under Article 6 para. 1 (art. 6-1).
IV. ALLEGED VIOLATIONS OF ARTICLES 9 AND 11 (art. 9, art. 11) OF
THE CONVENTION
86. The applicant monasteries complained of violations of their
right to freedom of religion (Article 9 of the Convention) (art. 9) and
of their right to freedom of association (Article 11 of the Convention)
(art. 11) on the ground that Law no. 1700/1987 deprived them of the
means necessary for pursuing their religious objectives and preserving
the treasures of Christendom.
Under Article 9 (art. 9) they maintained that the impugned
provisions of the Law would impede the carrying out of their ascetic
mission. Under Article 11 (art. 11) they pointed out that section 3(3)
of the Law would prevent an increase in the number of monks and would
deter the faithful from making gifts to them.
87. Like the Government and the Commission, the Court does not
accept these assertions. As regards the first complaint, it considers
that the provisions held to be contrary to Article 1 of Protocol No. 1
(P1-1) in no way concern the objects intended for the celebration of
divine worship and consequently do not interfere with the exercise of
the right to freedom of religion. The second complaint would seem to
be hypothetical.
88. There is consequently no breach of Articles 9 and 11 (art. 9,
art. 11) of the Convention.
V. ALLEGED VIOLATION OF ARTICLE 13 (art. 13) OF THE CONVENTION
89. The applicant monasteries asserted that, contrary to Article 13
(art. 13) of the Convention, they had not had an effective remedy
before a national authority enabling them to complain of the
infringement of the rights secured to them by the Convention.
90. Like the Commission, the Court reiterates that Article 13
(art. 13) does not go so far as to require a remedy whereby the laws
of a Contracting State may be impugned before a national authority as
being in themselves contrary to the Convention (see the James and
Others judgment previously cited, p. 47, para. 85). The applicant
monasteries' complaint must therefore fail.
VI. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN
TOGETHER WITH ARTICLES 6, 9 AND 11 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL No. 1 (art. 14+6, art. 14+9, art. 14+11,
art. 14+P1-1)
91. The applicant monasteries relied lastly on Article 14 (art. 14)
of the Convention, which provides:
"The enjoyment of the rights and freedoms set forth in [the]
Convention shall be secured without discrimination on any
ground such as sex, race, colour, language, religion,
political or other opinion, national or social origin,
association with a national minority, property, birth or other
status."
Before the Commission they claimed to be the victims of
discrimination in that only the monasteries belonging to the Greek
Church were affected by the provisions of Law no. 1700/1987.
92. According to the Court's case-law, Article 14 (art. 14) does
not prohibit all differences in treatment in the exercise of the rights
and freedoms (see, as the most recent authority, the Hoffmann
v. Austria judgment of 23 June 1993, Series A no. 255-C, p. 58,
para. 31).
Given the close links between the Greek Church and the
applicant monasteries, the distinction made between the latter and the
monasteries coming under the Ecumenical Patriarchate of Constantinople
or the patriarchates of Alexandria, Antioch and Jerusalem or under the
Holy Sepulchre and the Holy Monastery of Sinai or under the churches
of other denominations and religions does not lack an objective and
reasonable justification. Consequently, there is no breach of
Article 14 taken together with the aforementioned Articles of the
Convention and of Protocol No. 1 (art. 14+6, art. 14+9, art. 14+11,
art. 14+P1-1).
93. In their memorial to the Court the applicant monasteries also
complained of the distinction created by Law no. 1811/1988 between the
monasteries which signed the agreement of 11 May 1988 and those which
did not.
94. In view of the findings in paragraphs 75, 84 and 88 above, the
Court does not consider it necessary to rule on the complaint based on
Article 14 taken together with Articles 6 para. 1, 9 and 11 of the
Convention and Article 1 of Protocol No. 1 (art. 14+6-1, art. 14+9,
art. 14+11, art. 14+P1-1).
VII. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION
95. Under Article 50 (art. 50) of the Convention,
"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."
96. Under this provision, the applicant monasteries sought
compensation for pecuniary damage and reimbursement of costs and
expenses.
A. Pecuniary damage
97. Under the head of pecuniary damage, the eight applicant
monasteries sought 7,640,255,213,120 (seven trillion six hundred and
forty billion two hundred and fifty-five million two hundred and
thirteen thousand one hundred and twenty) drachmas (GRD).
98. The Government submitted that the monasteries had not
identified the property affected by the impugned provisions. Their
claims for compensation, which covered the whole of their property:
monasteries, churches, urban buildings and property for which there
were no legal titles, were too vague to be quantified. To make an
accurate assessment, it would be necessary to identify all the
applicant monasteries' property, which was scattered all over Greece.
99. The Delegate of the Commission expressed no opinion.
100. In the circumstances of the case, the Court considers that the
question of the application of Article 50 (art. 50) in respect of
pecuniary damage is not ready for decision and that it must be
reserved, having regard to the possibility of an agreement between the
respondent State and the applicant monasteries (Rule 54 paras. 1
and 4 of Rules of Court A).
B. Costs and expenses
101. The applicant monasteries also sought payment of GRD 8,400,000
(eight million four hundred thousand drachmas) in respect of lawyers'
fees and sundry expenses relating to the proceedings before the
Convention institutions.
102. The Government found this claim vague and inflated; they
maintained that only a quarter of the amount sought would be consistent
with the criteria laid down in the Court's case-law.
103. The Delegate of the Commission did not express any view.
104. Having regard to the finding of a breach with regard to the
main aspects of the case, the Court allows the claim in full.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Dismisses the Government's preliminary objections;
2. Holds that there is a breach of Article 1 of Protocol No. 1
(P1-1) in respect of the applicant monasteries not parties to
the agreement of 11 May 1988;
3. Holds that there is no breach of Article 1 of Protocol No. 1
(art. P1-1) in respect of the applicant monasteries parties to
the agreement of 11 May 1988;
4. Holds that there is a breach of Article 6 para. 1 (art. 6-1)
of the Convention in relation to the first complaint of the
applicant monasteries not parties to the agreement of
11 May 1988;
5. Holds that it is not necessary to examine the second
Article 6 para. 1 (art. 6-1) complaint of the applicant
monasteries not parties to the agreement of 11 May 1988;
6. Holds that there is no breach of Articles 9, 11 and 13
(art. 9, art. 11, art. 13) of the Convention;
7. Holds that there is no breach of Article 14 taken together
with Articles 6, 9 and 11 of the Convention and Article 1 of
Protocol No. 1 (art. 14+6, art. 14+9, art. 14+11,
art. 14+P1-1) in respect of the distinction between the
applicant monasteries that come under the Greek Church and the
monasteries that come under the patriarchates mentioned in
paragraph 92;
8. Holds that it is unnecessary to rule on the complaint based on
Article 14 of the Convention taken together with the same
Articles (art. 14+6, art. 14+9, art. 14+11, art. 14+P1-1) in
respect of the distinction between the applicant monasteries
that are parties to the agreement of 11 May 1988 and those
that are not;
9. Holds that the respondent State is to pay the applicant
monasteries not parties to the agreement 8,400,000 (eight
million four hundred thousand) drachmas, within three months,
in respect of costs and expenses;
10. Holds that the question of the application of Article 50
(art. 50) of the Convention is not ready for decision in
respect of pecuniary damage;
accordingly,
(a) reserves it in that respect;
(b) invites the Government and the applicant monasteries not
parties to the agreement of 11 May 1988 to submit, within the
forthcoming six months, their observations on the matter and,
in particular, to notify the Court of any agreement they may
reach;
(c) reserves the further procedure and delegates to the
President of the Chamber power to fix the same if need be.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 9 December 1994.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Acting Registrar