European Court of Human Rights

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URL: http://www.bailii.org/eu/cases/ECHR/2011/1638.html
Cite as: [2011] ECHR 1638

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Resolution CM/ResDH(2011)118¹

Execution of the judgments of the European Court of Human Rights

Agga No. 3 and Agga No. 4 against Greece

(Applications No. 32186/02 and No 33331/02, judgments of 13 July 2006,

final on 13 October 2006)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violations of the Convention found by the Court in these cases concern unjustified interference with the applicant’s right to manifest his religion in worship and teaching (violations of Article 9) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided in the judgments (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of

- individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

- general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination of these cases.

Appendix to Resolution CM/ResDH(2011)118

Information on the measures taken to comply with the judgments in the cases of

Agga No. 3 and Agga No. 4 against Greece

Introductory case summary

These cases concern the prosecution, convictions and imprisonment (subsequently commuted to fines) of the applicant, between 1997 and 2002, under Article 175 of the Criminal Code, for having usurped the functions of a minister of a "known religion", on the ground that in 1996 and in 1997 he had issued and signed messages in the capacity of the Mufti of Xanthi, following his election by Muslims in that area.

In both cases the European Court found that the applicant’s convictions, not based on any specific acts committed by him with a view to producing legal effects, but merely on the grounds that he had issued messages of a religious content and that he had signed them as the Mufti of Xanthi, constituted an interference with his right, in community with others and in public, to manifest his religion in worship and teaching, which was not necessary in a democratic society (violations of Article 9).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number	Pecuniary and non-pecuniary damage	Costs and expenses	Total
Agga No. 3 (32186/02)	-	1 620 EUR	1.620 EUR
Agga No. 4 (33331/02)		1 380 EUR	1 380 EUR
Paid on 18/12/2006

b) Individual measures

The applicant died in 2006. Under national law (Article 525§1 in combination with Article 527 of the Code of Criminal Procedure) his heirs are entitled to request the reopening of the criminal proceedings following the European Court’s judgments.

It is noted that the Court did not award any pecuniary damages, given that the applicant failed to show that he had paid any amount as a fine (§§35 in both judgments). The European Court also considered that the finding of a violation constituted in itself sufficient just satisfaction for non-pecuniary damage sustained.

Consequently, no other individual measure was considered necessary by the Committee of Ministers.

II. General measures

These cases present similarities to that of Serif (judgment of 14/12/99, final on 14/03/00) in which the supervision by the Committee was concluded by Final Resolution ResDH(2005)88 adopted on 26/10/2005. The Committee took particularly into consideration the change of domestic case-law (especially by decisions and judgments of first-instance and appeal courts delivered in 2001 and 2002) interpreting Article 175 of the Criminal Code in the light of the European Court’s case-law. The Greek government had considered that the measures taken would prevent similar violations.

The Court of Cassation did not give direct effect to the judgment of the European Court in the Serif case in the beginning of 2002, however, by the end of that year, fully endorsed the European Court’s findings in its case-law.

In its judgment No 1045/2002 the Court of Cassation held that "the simple issuing of messages of a religious content to people of the same Muslim religion, even if this is done under the invocation of the identity of muftis by a person that has not acquired it by law, does not constitute the crime of having usurped the functions of a minister of a ‘known religion’. This action primarily makes it possible to exercise the right to manifest one’s religion in public or in private, through worship and education, as has been pointed our by the European Court in the Serif judgment. This right is guaranteed by Article 13 of the Constitution and by Article 9 of the Convention, which prevails over any other provision of national law (Article 28 of the Constitution)’’.

In addition, the judgments of the European Court were translated and sent out to all the judges in the country between December 2006 and March 2007 together with a letter from the President of the Court of Cassation drawing attention to the reasoning and conclusions of the European Court. They were also sent to the Prosecutor General, who in turn sent them out to all Greek prosecutors.

Finally, in a letter dated 18/03/2010, the authorities indicated that according to the Ministry of Justice and the competent Prosecutors’ offices (of Rodopi, Xanthi, Alexandroupoli and Oresteiada), no pending case regarding a violation of Article 175 of the Criminal Code (usurping of the functions of a minister of a "known religion") exists, either in a prosecution or in a hearing procedure.

III. Conclusions of the respondent state

The government considers that no individual measure is required in these cases apart from the payment of the just satisfaction, that the general measures adopted will prevent similar violations and that Greece has thus complied with its obligations under Article 46, paragraph 1, of the Convention.