In the case of Manoussakis and Others v

In the case of Manoussakis and Others v. Greece (1),

The European Court of Human Rights, sitting, in accordance with

Article 43 (art. 43) of the Convention for the Protection of

Human Rights and Fundamental Freedoms ("the Convention") and the

relevant provisions of Rules of Court A (2), as a Chamber composed of

the following judges:

Mr R. Bernhardt, President,

Mr R. Macdonald,

Mr N. Valticos,

Mr S.K. Martens,

Mr A.N. Loizou,

Sir John Freeland,

Mr L. Wildhaber,

Mr D. Gotchev,

Mr P. Kuris,

and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy

Registrar,

Having deliberated in private on 23 May and 29 August 1996,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

1. The case is numbered 59/1995/565/651. The first number is the

case's position on the list of cases referred to the Court in the

relevant year (second number). The last two numbers indicate the

case's position on the list of cases referred to the Court since its

creation and on the list of the corresponding originating applications

to the Commission.

2. Rules A apply to all cases referred to the Court before the entry

into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only

to cases concerning States not bound by that Protocol (P9). They

correspond to the Rules that came into force on 1 January 1983, as

amended several times subsequently.

_______________

PROCEDURE

1. The case was referred to the Court by the European Commission

of Human Rights ("the Commission") on 5 July 1995, within the

three-month period laid down by Article 32 para. 1 and Article 47 of

the Convention (art. 32-1, art. 47). It originated in an application

(no. 18748/91) against the Hellenic Republic lodged with the Commission

under Article 25 (art. 25) by four Greek nationals,

Mr Titos Manoussakis, Mr Constantinos Makridakis, Mr Kyriakos Baxevanis

and Mr Vassilios Hadjakis, on 7 August 1991.

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby Greece recognised the

compulsory jurisdiction of the Court (Article 46) (art. 46). The object

of the request was to obtain a decision as to whether the facts of the

case disclosed a breach by the respondent State of its obligations

under Article 9 of the Convention (art. 9).

2. In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of Rules of Court A, the applicants stated that

they wished to take part in the proceedings and designated the lawyers

who would represent them (Rule 30).

3. The Chamber to be constituted included ex officio

Mr N. Valticos, the elected judge of Greek nationality (Article 43 of

the Convention) (art. 43), and Mr R. Bernhardt, the Vice-President of

the Court (Rule 21 para. 4 (b)). On 13 July 1995, in the presence of

the Registrar, Mr R. Ryssdal, the President of the Court, drew by lot

the names of the other seven members, namely Mr B. Walsh,

Mr R. Macdonald, Mr S.K. Martens, Mr A.N. Loizou, Mr F. Bigi,

Mr L. Wildhaber and Mr D. Gotchev (Article 43 in fine of the Convention

and Rule 21 para. 5) (art. 43). Subsequently, Sir John Freeland and

Mr P. Kuris, substitute judges, replaced Mr Bigi, who had died, and

Mr Walsh, who was unable to take part in the further consideration of

the case (Rules 22 para. 1 and 24 para. 1).

4. As President of the Chamber (Rule 21 para. 6), Mr Bernhardt,

acting through the Registrar, consulted the Agent of the

Greek Government ("the Government"), the applicants' lawyers and the

Delegate of the Commission on the organisation of the proceedings

(Rules 37 para. 1 and 38). The Government's and the applicants'

memorials reached the registry on 13 and 14 March 1996 respectively.

On 15 April 1996 the Secretary to the Commission indicated that the

Delegate did not wish to reply in writing.

5. In accordance with the President's decision, the hearing took

place in public in the Human Rights Building, Strasbourg, on

20 May 1996. The Court had held a preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr L. Papidas, President, Legal

Council of State, Agent,

Mr A. Marinos, Vice-President, Supreme

Administrative Court,

Mr P. Kamarineas, Senior Adviser, Legal

Council of State,

Mr V. Kondolaimos, Adviser, Legal

Council of State, Counsel;

(b) for the Commission

Mr C.L. Rozakis, Delegate;

Mr A. Garay, avocat at the Paris Court of Appeal,

Mr P. Vegleris, honorary member of the Bar

and emeritus professor at Athens University,

Mr P. Bitsaxis, of the Athens Bar, Counsel.

The Court heard addresses by Mr Rozakis, Mr Vegleris, Mr Garay,

Mr Bitsaxis, Mr Marinos and Mr Kamarineas, and their answers to its

question and a question put by a judge.

AS TO THE FACTS

I. Particular circumstances of the case

A. Background

6. The applicants are all Jehovah's Witnesses and live in Crete.

7. On 30 March 1983 Mr Manoussakis rented under a private

agreement a room measuring 88 square metres in a building located in

the Ghazi district of Heraklion (Crete). The agreement specified that

the room would be used "for all kinds of meetings, weddings, etc. of

Jehovah's Witnesses".

8. On 2 June 1983 he laid a complaint against persons unknown at

Heraklion police station because the day before the windows of the room

had been broken by unidentified persons. On 26 September 1983 he laid

a further complaint concerning a similar incident that occurred on

23 September.

9. By an application of 28 June 1983 lodged with the

Minister of Education and Religious Affairs the applicants requested

an authorisation to use the room as a place of worship. On the same

day they went to the chairman of Ghazi District Council to ask him to

certify their signatures on the application. He refused, however, on

the grounds that the applicants did not reside in his district and that

they had failed to show him the document bearing their signatures.

Following the intervention of the prefect of Heraklion, the

Deputy Minister of the Interior and the Speaker of the

Greek Parliament, the chairman withdrew his opposition and agreed to

certify the signatures on a new application lodged on 18 October 1983.

10. On 30 July 1983 the Ghazi Orthodox Parish Church notified the

Heraklion police authorities that the room was being used as an

unauthorised place of worship for Jehovah's Witnesses and informed them

of the applications made by the applicants to the Minister. The

church authorities asked the police to carry out an inspection of the

premises, to take punitive measures against those responsible and above

all to prohibit any further meetings until the Minister had granted the

authorisation in question.

11. The applicants received five letters from the

Ministry of Education and Religious Affairs, dated 25 November 1983 and

17 February, 17 April, 17 June, 16 August and 10 December 1984,

informing them that it was not yet in a position to take a decision

because it had not received all the necessary information from the

other departments concerned.

12. On 3 March 1986 the Heraklion public prosecutor's office

instituted criminal proceedings against the applicants under

section 1 of Law no. 1363/1938 (anagastikos nomos), as amended by

Law no. 1672/1939 (see paragraph 21 below). In particular they were

accused of having "established and operated a place of worship for

religious meetings and ceremonies of followers of another denomination

and, in particular, of the Jehovah's Witnesses' denomination without

authorisation from the recognised ecclesiastical authorities and the

Minister of Education and Religious Affairs, such authorisation being

required for the construction and operation of a church of any faith".

B. Proceedings in the Heraklion Criminal Court sitting

at first instance

13. On 6 October 1987 the Heraklion Criminal Court sitting at first

instance and composed of a single judge (Monomeles Plimmeliodikeio)

acquitted the applicants on the ground that "in the absence of any acts

of proselytism, followers of any faith are free to meet even if they

do not have the requisite authorisation".

C. Proceedings in the Heraklion Criminal Court sitting on appeal

14. The Heraklion public prosecutor's office took the view that the

Criminal Court had incorrectly assessed the facts and accordingly

lodged an appeal against the judgment of 6 October 1987.

15. On 15 February 1990 the Heraklion Criminal Court sitting on

appeal and composed of three judges (Trimeles Plimmeliodikeio),

sentenced each of the accused to three months' imprisonment convertible

into a pecuniary penalty of 400 drachmas per day of detention, and

fined them 20,000 drachmas each. It noted as follows:

"... the accused had converted the room that they had rented

into a place of worship, in other words a small temple

intended to serve as a place of devotion for a limited circle

of persons as opposed to a public building in which everyone

without distinction is free to worship God. Thus they

established this place on 30 July 1983 and made it accessible

... to others, in particular, their fellow Jehovah's Witnesses

from the region (limited circle of persons), without the

authorisation of the recognised ecclesiastical authority and

of the Ministry of Education and Religious Affairs. At this

place they worshipped God by engaging in acts of prayer and

devotion (preaching, reading of the scriptures, praising and

prayers) and did not confine themselves to the mere holding of

meetings for followers and the reading of the gospel ..."

D. Proceedings in the Court of Cassation

16. On 5 March 1990 the applicants appealed on points of law. They

argued, inter alia, that the provisions of section 1 of

Law no. 1363/1938, in particular the obligation to seek an

authorisation to establish a place of worship, were contrary to

Articles 11 and 13 of the Greek Constitution and to Articles 9 and 11

of the European Convention (art. 9, art. 11).

17. In a judgment of 19 March 1991 the Court of Cassation dismissed

their appeal on the following grounds:

"The provisions of section 1 of Law no. 1363/1938 and of the

royal decree of 20 May/2 June 1939 implementing that Law are

contrary neither to Article 11 nor to Article 13 of the

1975 Constitution, for the right to freedom of worship is not

unlimited and may be subject to control. The exercise of this

right is subject to certain conditions set down in the

Constitution and at law: it must be a known religion, not a

secret religion; there must be no prejudice to public order or

morals; neither must there be any acts of proselytism, such

acts being expressly prohibited in the second and

third sentences of Article 13 para. 2 of the Constitution.

These provisions are, moreover, not contrary to the Convention

for the Protection of Human Rights and Fundamental

Freedoms ..., Article 9 (art. 9) of which guarantees freedom

of religion but Article 9 para. 2 (art. 9-2) of which

authorises such limitations as are prescribed by law and are

necessary in a democratic society in the interests of public

safety, for the protection of public order, health or morals,

or for the protection of the rights of others.

The said provisions ..., which empower the

Minister of Education and Religious Affairs, who has

responsibility for all denominations and faiths, to

investigate whether the above-mentioned conditions are met,

are contrary neither to the 1975 Constitution nor to Article 9

of the Convention (art. 9), which do not in any way prohibit

investigations of this type; the purpose of such

investigations is moreover merely to ensure that the statutory

conditions necessary to grant authorisation are met; if these

conditions are met, the Minister is obliged to grant the

requested authorisation."

18. According to the dissenting opinion of one of its members, the

Court of Cassation ought to have quashed the impugned judgment since

the applicants could not be accused of a punishable offence as

section 1 of the Law was contrary to Article 13 of the

1975 Constitution.

19. On 20 September 1993 the Heraklion police placed seals on the

front door of the room rented by the applicants.

II. Relevant domestic law

A. The Constitution

20. The relevant Articles of the 1975 Constitution read as follows:

Article 3

"1. The dominant religion in Greece is that of the

Christian Eastern Orthodox Church. The Greek Orthodox Church,

which recognises as its head Our Lord Jesus Christ, is

indissolubly united, doctrinally, with the Great Church of

Constantinople and with any other Christian Church in

communion with it (omodoxi), immutably observing, like the

other Churches, the holy apostolic and synodical canons and

the holy traditions. It is autocephalous and is administered

by the Holy Synod, composed of all the bishops in office, and

by the standing Holy Synod, which is an emanation of it

constituted as laid down in the Charter of the Church and in

accordance with the provisions of the Patriarchal Tome of

29 June 1850 and the Synodical Act of 4 September 1928.

2. The ecclesiastical regime in certain regions of the State

shall not be deemed contrary to the provisions of the

foregoing paragraph.

3. The text of the Holy Scriptures is unalterable. No

official translation into any other form of language may be

made without the prior consent of the autocephalous

Greek Church and the Great Christian Church at

Constantinople."

Article 13

"1. Freedom of conscience in religious matters is inviolable.

The enjoyment of personal and political rights shall not

depend on an individual's religious beliefs.

2. There shall be freedom to practise any known religion;

individuals shall be free to perform their rites of worship

without hindrance and under the protection of the law. The

performance of rites of worship must not prejudice public

order or public morals. Proselytism is prohibited.

3. The ministers of all known religions shall be subject to

the same supervision by the State and to the same obligations

to it as those of the dominant religion.

4. No one may be exempted from discharging his obligations to

the State or refuse to comply with the law by reason of his

religious convictions.

5. No oath may be required other than under a law which also

determines the form of it."

B. Law no. 1363/1938

21. Section 1 of Law no. 1363/1938 (as amended by

Law no. 1672/1939) provides:

"The construction and operation of temples of any denomination

whatsoever shall be subject to authorisation by the recognized

ecclesiastical authority and the Ministry of Education and

Religious Affairs. This authorisation shall be granted on the

terms and conditions specified by royal decree to be adopted

on a proposal by the Minister of Education and

Religious Affairs.

As of publication of the royal decree referred to in the

preceding paragraph, temples or other places of worship which

are set up or operated without complying with the decree ...

shall be closed and placed under seal by the police and use

thereof shall be prohibited; persons who have set up or

operated such places of worship shall be fined 50,000 drachmas

and sentenced to a non-convertible term of between two and

six months' imprisonment.

...

The term "temple" as referred to in this Law ... shall mean

any type of building open to the public for the purpose of

divine worship (parish or otherwise, chapels and altars)."

22. The Court of Cassation has held that the expression "place of

worship" within the meaning of these provisions refers to a "temple of

a relatively small size, established in a private building and intended

to be used for divine worship by a limited circle of persons as opposed

to a building open to the public for the worship of God by everyone

without distinction. By operation of a temple or a place of worship

under the same provisions is meant the actions by which the temple or

place of worship are made accessible to others for the purpose of

worshipping God" (judgment no. 1107/1985, Pinika Khronika, vol. 56,

1986).

C. The royal decree of 20 May/2 June 1939

23. Section 1 (3) of the royal decree of 20 May/2 June 1939

provides that it is for the Minister of Education and Religious Affairs

to verify whether there are "essential reasons" warranting the

authorisation to build or operate a place of worship. To this end the

persons concerned must submit through their priest an application

giving their addresses and bearing their signatures certified by the

mayor or the chairman of the district council of their place of

residence. More specifically, section 1 of the decree provides as

follows:

"1. In order to obtain an authorisation for the

construction or operation of temples not subject to the

legislation on temples and priests of parishes belonging to

the Greek Orthodox Church, within the meaning of section 1 of

the Law (1672/1939), the following steps must be completed:

(a) An application shall be submitted by at least

fifty families, from more or less the same neighbourhood and

living in an area at a great distance from a temple of the

same denomination, it being assumed that the distance makes it

difficult for them to observe their religious duties. The

requirement of fifty families shall not apply to suburbs or

villages.

(b) The application shall be addressed to the local

ecclesiastical authorities and must be signed by the heads of

the families, who shall indicate their addresses. The

authenticity of their signatures shall be certified by the

local police authority, which following an inquiry on the

ground shall attest that the conditions referred to in the

preceding sub-paragraph are satisfied ...

on the application. It shall then transmit the application,

with its opinion, to the Ministry of Education and

Religious Affairs, which may accept or reject the application

according to whether it considers that the construction or use

of a new temple is justified or whether the provisions of the

present decree have been complied with.

2. ...

3. The provisions of paragraph 1 (a)-(b) above shall not

apply to the issue of an authorisation for the construction or

operation of a place of worship. It shall be for the

Minister of Education and Religious Affairs to determine

whether there are essential reasons warranting such

authorisation. In this connection the persons concerned shall

address to the Ministry of Education and Religious Affairs

through their priest a signed application, the authenticity of

the signatures being certified by the mayor or the chairman of

the district council. The application shall also indicate the

addresses of the persons concerned ..."

D. Case-law

24. The Government communicated to the Court a series of judgments

by the Supreme Administrative Court concerning the authorisation to

construct or operate temples or places of worship.

It appears from these judgments that the

Supreme Administrative Court has on several occasions quashed decisions

of the Minister of Education and Religious Affairs refusing such

authorisation on the ground that Jehovah's Witnesses in general engaged

in proselytism (judgment no. 2484/1980); or that some of those seeking

the authorisation had been prosecuted for proselytism

(judgment no. 4260/1985); or again because there was an Orthodox church

close to the proposed place of worship (4km in the same town)

(judgment no. 4636/1977) and the limited number of Jehovah's Witnesses

(8) compared to the total population (938) (judgment no. 381/1980).

25. The Supreme Administrative Court has also held that the

requirement that the signatures be certified by the relevant municipal

authority (royal decree of 20 May/2 June 1939 - see paragraph 23 above)

does not constitute a restriction on the right to freedom of religion

guaranteed under the Greek Constitution and the European Convention

(judgment no. 4305/1986). On the other hand, failure to comply with

that requirement justifies a refusal to grant the authorisation

(judgment no. 1211/1986). Finally the silence of the

Minister of Education and Religious Affairs for more than three months

following the lodging of an application constitutes failure on the part

of the authorities to give a decision as required by law and amounts

to an implied rejection, which may be challenged by an application for

judicial review (judgment no. 3456/1985).

Authorisation by the local Metropolitan is required only for

the construction or operation of temples and not for other places of

worship.

26. In its judgment (no. 721/1969) of 4 February 1969 the

Supreme Administrative Court sitting in plenary session stated that

Article 13 of the Constitution did not preclude prior verification by

the administrative authorities that the conditions laid down by that

Article for the practice of a faith were satisfied. However, that

verification is of a purely declaratory nature. The grant of the

authorisation may not be withheld where those conditions are satisfied

and the authorities have no discretionary power in this respect. The

prior authorisation of the local Metropolitan for the construction of

a temple (see paragraph 25 above) is not an "enforceable administrative

decision", but a "preliminary finding" by a representative of the

dominant religion who is familiar with the true position regarding

religious practice in the locality. The decision rests with the

Minister of Education and Religious Affairs who may decide to disregard

the Metropolitan's assessment if he considers that it is not supported

by reasons in conformity with the law.

The Supreme Administrative Court subsequently confirmed this

case-law holding, inter alia, that the "authorisation" of the local

Metropolitan was a mere opinion which did not bind the

Minister of Education and Religious Affairs (judgment no. 1444/1991 of

28 January 1991).

E. Application for judicial review in the

Supreme Administrative Court

27. Sections 45, 46 and 50 of Presidential Decree no. 18/1989

codifying the legislative provisions on the

Supreme Administrative Court of 30 December/9 January 1989 govern

applications for judicial review of acts or omissions by the

administrative authorities:

Section 45

Acts which may be challenged

"1. An application for judicial review alleging

ultra vires or unlawful action is available only in respect of

enforceable decisions of the administrative authorities and

public-law legal persons and against which no appeal lies to

another court.

...

4. Where the law requires an authority to settle a

specific question by issuing an enforceable decision subject

to the provisions of paragraph 1, an application for judicial

review is admissible even in respect of the said authority's

failure to issue such decision.

The authority shall be presumed to refuse the measure either

when any specific time-limit prescribed by the law expires or

after three months have elapsed from the lodging of the

application with the authority, which is required to issue an

acknowledgment of receipt ... indicating the date of receipt.

Applications for judicial review lodged before the above

time-limits shall be inadmissible.

An application for judicial review validly lodged against an

implied refusal [on the part of the authorities] is deemed

also to contest any negative decision that may subsequently be

taken by the authorities. Such decision may however be

challenged separately.

..."

Section 46

Time-limit

"1. Except as otherwise provided, an application for

judicial review must be made within sixty days of the day

following the date of notification of the impugned decision or

the date of publication ..., or, otherwise, of the day

following the day on which the applicant acquired knowledge of

the decision. In the cases provided for in paragraphs 2, 3

and 4 of section 45, time begins to run when the time-limits

prescribed in those provisions have expired.

..."

Section 50

Consequences of the decision

"1. The decision allowing an application for judicial

review shall declare the impugned measure void, which entails

its general nullity, whether it is a general or individual

measure.

2. The rejection of an application does not preclude the

lodging of a new application against the same measure by

another person with locus standi.

3. In the case of failure to take action, where the

Supreme Administrative Court allows the application, it shall

refer the case back to the relevant authority so that it can

take the action incumbent on it."

PROCEEDINGS BEFORE THE COMMISSION

28. The applicants applied to the Commission on 7 August 1991.

They complained of violations of Articles 3 and 5, Article 6 taken

together with Article 14 (art. 3, art. 5, art. 14+6), and Articles 8,

9, 10 and 11 of the Convention and of Article 1 of Protocol No. 1

(art. 8, art. 9, art. 10, art. 11, P1-1).

29. On 10 October 1994 the Commission declared the application

(no. 18748/91) admissible as regards the complaint based on Article 9

(art. 9), but inadmissible for the rest. In its report of 25 May 1995

(Article 31) (art. 31), it expressed the unanimous opinion that there

had been a breach of that Article (art. 9). The full text of the

Commission's opinion is reproduced as an annex to this judgment (1).

_______________

Note by the Registrar

1. For practical reasons this annex will appear only with the printed

version of the judgment (in Reports of Judgments and

Decisions 1996-IV), but a copy of the Commission's report is obtainable

from the registry.

_______________

FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT

30. In their memorial the Government requested the Court

"to dismiss the application, mainly as being inadmissible due

to non-exhaustion on the part of the applicants of the

domestic remedies provided for by domestic law, which are

entirely effective, as it has always been proven in practice,

- and as legally invalid and unfounded in so far as its merits

are concerned, since, as it was proven, the rulings of

section 1 of the Law of Necessity no. 1363/1938 and its

respective executive decree agree to and are compatible with

the protected right referred to in Article 9 (art. 9) of the

European Convention on Human Rights within the framework of

paragraph 2 of this Article (art. 9-2) - in abstracto in the

case under consideration - and further the penalisation

provided for by law and applied in this instance of the

violations of these provisions through mild sanctions is

commensurate with the purposes pursued within the framework of

such paragraph (art. 9-2)".

AS TO THE LAW

I. THE GOVERNMENT'S PRELIMINARY OBJECTION

31. The Government contended primarily, as they had done before the

Commission, that the applicants had failed to exhaust the domestic

remedies inasmuch as they had twice neglected to challenge in the

Supreme Administrative Court - under sections 45 paras. 1 and 4 and 46

para. 1 of Decree no. 18/1989 (see paragraph 27 above) - the implied

refusal by the Minister of Education and Religious Affairs to grant

them the authorisation sought. After three months the Minister's

silence constituted an implied rejection in respect of which an appeal

lay to the Supreme Administrative Court for abuse of power. The

time-limit and starting-point for lodging such an appeal were clearly

defined in the relevant provisions and were therefore perfectly well

known to the applicants. If they had applied to the

Supreme Administrative Court, they would undoubtedly have obtained the

authorisation and no court would then have convicted them. Yet they

had deliberately neglected to do so because their real aim had been to

challenge the relevant national legislation before the

Convention institutions.

32. The applicants maintained that even if they had lodged an

appeal on the ground of abuse of power, the procedure concerning the

establishment of a place of worship would not have reached a

conclusion.

33. The Court notes in the first place that in their appeal on

points of law the applicants relied exclusively on the incompatibility

of section 1 of Law no. 1363/1938, which had served as the basis for

their conviction, with Article 9 of the Convention (art. 9) and

Article 13 of the Greek Constitution. The Court of Cassation dismissed

that complaint, finding that the Heraklion Criminal Court sitting on

appeal had correctly construed and applied the above-mentioned

provision (art. 9) (see paragraph 17 above). There can therefore be

no doubt that the applicants exhausted the domestic remedies in respect

of their conviction in the criminal proceedings.

In addition, at no time, either in the national courts or

before the Commission, did the applicants complain about the

authorities' failure to take a decision granting or rejecting their

applications of 28 June and 18 October 1983 (see paragraph 9 above).

The Minister of Education and Religious Affairs had replied to them in

writing on five separate occasions, informing them that he was in the

process of examining their file (see paragraph 11 above). The Court

observes that there was neither an express decision, nor silence, from

the authorities such as would have caused the period prescribed in

section 46 para. 1 of Decree no. 18/1989 to commence and the applicants

were left in a state of uncertainty from 18 October 1983 onwards.

The Court recalls that the only remedies that Article 26 of the

Convention (art. 26) requires to be exhausted are those that are

available and sufficient and relate to the breaches alleged (see the

judgments of Ciulla v. Italy of 22 February 1989, Series A no. 148,

p. 15, para. 31, and Pine Valley Developments Ltd and Others v. Ireland

of 29 November 1991, Series A no. 222, p. 22, para. 48). Moreover, an

applicant who has availed himself of a remedy capable of redressing the

situation giving rise to the alleged violation, directly and not merely

indirectly, is not bound to have recourse to other remedies which would

have been available to him but the effectiveness of which is

questionable.

The Court observes that the applicants could have been in some

doubt as to the starting-point of the periods prescribed in sections

45 para. 4 and 46 para. 1 of Decree no. 18/1989 (see paragraph 27

above). After their second application of 18 October 1983 the

Minister of Education and Religious Affairs replied to them on

25 November 1983, and therefore before the expiry of the

three-month period from the lodging of the application (section 45

para. 4 of the above-mentioned decree). The authorities did not

therefore remain silent in a way that amounted to an implied refusal

to grant the authorisation requested.

The Court considers further that, even supposing that the

Supreme Administrative Court had allowed their application, there is

nothing to indicate that they would have obtained the authorisation

sought, as the authorities did not in practice always comply with the

decisions of the Supreme Administrative Court. The example cited by

the applicants in their memorial, concerning the judgment of

29 October 1985 (no. 4260/1985) of the Supreme Administrative Court,

is telling in this respect. The Supreme Administrative Court had

quashed a decision of the Minister of Education and Religious Affairs

refusing to grant Jehovah's Witnesses an authorisation to operate a

place of worship and had referred the case back to the authorities for

them to consider whether the statutory conditions for granting such an

authorisation were satisfied. On 7 January 1986 the persons concerned

submitted a new request to the Minister together with a copy of the

Supreme Administrative Court's judgment. On 3 July 1986 the

Minister informed them that he was not "in a position to grant them the

authorisation requested". A second request, dated 20 January 1987 was

likewise rejected by the Minister in the following terms: "... we refer

you to the reply given in our earlier letter ... of 3 July 1986."

34. In these circumstances an application for judicial review of

the alleged implied refusal of the authorities cannot be regarded as

an effective remedy. As the applicants exhausted the domestic

remedies, the objection falls to be dismissed.

II. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION (art. 9)

35. The applicants maintained that their conviction by the

Heraklion Criminal Court sitting on appeal infringed Article 9 of the

Convention (art. 9), according to which:

"1. Everyone has the right to freedom of thought,

conscience and religion; this right includes freedom to change

his religion or belief and freedom, either alone or in

community with others and in public or private, to manifest

his religion or belief, in worship, teaching, practice and

observance.

2. Freedom to manifest one's religion or beliefs shall be

subject only to such limitations as are prescribed by law and

are necessary in a democratic society in the interests of

public safety, for the protection of public order, health or

morals, or for the protection of the rights and freedoms of

others."

A. Whether there was an interference

36. The validity of the private agreement concluded by the

applicants on 30 March 1983 (see paragraph 7 above) is not in dispute.

The applicants' conviction by the Heraklion Criminal Court

sitting on appeal for having used the premises in question without the

prior authorisation required under Law no. 1363/1938 was therefore an

interference with the exercise of their "freedom ..., to manifest

[their] religion ..., in worship ... and observance". Such

interference breaches Article 9 (art. 9) unless it was "prescribed by

law", pursued one or more of the legitimate aims referred to in

paragraph 2 (art. 9-2) and was "necessary in a democratic society" to

attain such aim or aims.

B. Justification of the interference

1. "Prescribed by law"

37. In the applicants' submission, Law no. 1363/1938 and its

implementing decree of 20 May/2 June 1939 lay down a general and

permanent prohibition on the establishment of a church or a place of

worship of any religion - the law uses the term "faith" - other than

the Orthodox religion. They maintained that this prohibition could

only be lifted by a formal decision or a specific discretionary

measure.

This discretionary power was, in their view, clearly derived

from section 1 of Law no. 1363/1938, which empowers the Government to

grant or to refuse the authorisation, or to remain silent in response

to an application duly submitted, without setting any limit as to time

or establishing any substantive condition.

They argued that a law which made the practice of a religion

subject to the prior grant of an authorisation, whose absence incurred

liability to a criminal sanction, constituted an "impediment" to that

religion and could not be regarded as a law designed to protect freedom

of religion within the meaning of Article 13 of the Constitution. As

regards freedom of religion and worship, the Constitution purported to

be more, or at least not less, protective than the Convention because

the only grounds on which it permitted restrictions to be placed on the

practice of any "known religion" were "public order" and "public

morals" (see paragraph 20 above).

In addition, the applicants pointed to the unusual character,

as regards Greek public and administrative law, of the procedure

established by Law no. 1363/1938 for the construction or the operation

of a place of worship. It was the only procedure in respect of which

provision was made for the intervention of two authorities,

administrative and religious. They criticised the manner in which the

Supreme Administrative Court interpreted this Law, namely in the

context of the restrictions, suggestions and directives of the

Constitution, and the importance attached by that court to compliance

with the conditions laid down by the royal decree of 20 May/2 June 1939

for submitting in due form applications for authorisation together with

all that those conditions entailed in terms of inquisitorial process

and the difficulty in obtaining such authorisation. The wording of

this decree conferred a number of different discretionary powers, each

of which was sufficient basis for a negative response to the

application.

38. The Court notes that the applicants' complaint is directed less

against the treatment of which they themselves had been the victims

than the general policy of obstruction pursued in relation to

Jehovah's Witnesses when they wished to set up a church or a place of

worship. They are therefore in substance challenging the provisions

of the relevant domestic law.

However, the Court does not consider it necessary to rule on

the question whether the interference in issue was "prescribed by law"

in this instance because, in any event, it was incompatible with

Article 9 of the Convention (art. 9) on other grounds

(see, mutatis mutandis, the Funke v. France judgment of

25 February 1993, Series A no. 256-A, p. 23, para. 51, and

paragraph 53 below).

2. Legitimate aim

39. According to the Government, the penalty imposed on the

applicants served to protect public order and the rights and freedoms

of others. In the first place, although the notion of public order had

features that were common to the democratic societies in Europe, its

substance varied on account of national characteristics. In Greece

virtually the entire population was of the Christian Orthodox faith,

which was closely associated with important moments in the history of

the Greek nation. The Orthodox Church had kept alive the national

conscience and Greek patriotism during the periods of foreign

occupation. Secondly, various sects sought to manifest their ideas and

doctrines using all sorts of "unlawful and dishonest" means. The

intervention of the State to regulate this area with a view to

protecting those whose rights and freedoms were affected by the

activities of socially dangerous sects was indispensable to maintain

public order on Greek territory.

40. Like the applicants, the Court recognises that the States are

entitled to verify whether a movement or association carries on,

ostensibly in pursuit of religious aims, activities which are harmful

to the population. Nevertheless, it recalls that Jehovah's Witnesses

come within the definition of "known religion" as provided for under

Greek law (see the Kokkinakis v. Greece judgment of 25 May 1993,

Series A no. 260-A, p. 15, para. 23). This was moreover conceded by

the Government.

However, having regard to the circumstances of the case and

taking the same view as the Commission, the Court considers that the

impugned measure pursued a legitimate aim for the purposes of

Article 9 para. 2 of the Convention (art. 9-2), namely the protection

of public order.

3. "Necessary in a democratic society"

41. The main thrust of the applicants' complaint is that the

restrictions imposed on Jehovah's Witnesses by the Greek Government

effectively prevent them from exercising their right to freedom of

religion. In terms of the legislation and administrative practice,

their religion did not, so they claimed, enjoy in Greece the safeguards

guaranteed to it in all the other member States of the

Council of Europe. The "pluralism, tolerance and broadmindedness

without which there is no democratic society" were therefore seriously

jeopardised in Greece.

They contended that the Jehovah's Witnesses' movement should

be presumed - even if the presumption was a rebuttable one - to respect

certain moral rules and not in itself to prejudice public order. Its

doctrines and its rites abided by and extolled social order and

individual morality. Accordingly, the political authorities should

intervene only in the event of abuse or perversion of such doctrines

and rites, and should do so punitively rather than preventively.

More particularly, their conviction had been persecutory,

unjustified and not necessary in a democratic society as it had been

"manufactured" by the State. The State had compelled the applicants

to commit an offence and to bear the consequences solely because of

their religious beliefs. The apparently innocent requirement of an

authorisation to operate a place of worship had been transformed from

a mere formality into a lethal weapon against the right to freedom of

religion. The term "dilatory" used by the Commission to describe the

conduct of the Minister of Education and Religious Affairs in relation

to their application for an authorisation was euphemistic.

The struggle for survival by certain religious communities

outside the Eastern Orthodox Church, and specifically by

Jehovah's Witnesses, was carried on in a climate of interference and

oppression by the State and the dominant church as a result of which

Article 9 of the Convention (art. 9) had become a dead letter. That

Article (art. 9) was the object of frequent and blatant violations

aimed at eliminating freedom of religion. The applicants cited current

practice in Greece in support of their contentions, giving numerous

examples. They requested the Court to examine their complaints in the

context of these other cases.

42. According to the Government, in order to resolve the question

of the necessity of the applicants' conviction, the Court should first

examine the necessity of the requirement of prior authorisation, which

owed its existence to historical considerations. In their view, the

former presupposed the latter. The applicants' true aim was not to

complain about their conviction but to fight for the abolition of that

requirement.

There were essential public-order grounds to justify making the

setting up of a place of worship subject to approval by the State. In

Greece this control applied to all faiths; otherwise it would be both

unconstitutional and contrary to the Convention. Jehovah's Witnesses

were not exempt from the requirements of legislation which concerned

the whole population. The setting up of a church or a place of worship

in Greece was, so the Government affirmed, often used as a means of

proselytism, in particular by Jehovah's Witnesses who engaged in

intensive proselytism, thereby infringing the law that the Court had

itself found to be in conformity with the Convention (see the

above-mentioned Kokkinakis judgment).

The sanction imposed on the applicants had been light and had

been motivated not by the manifestation by them of their religion but

by their disobedience to the law and their failure to comply with an

administrative procedure. It was the result of the applicants'

culpable neglect to have recourse to the remedy available under the

Greek legal system.

Finally, the Government referred to the fact that various

States parties to the Convention had legislation containing

restrictions similar to those enacted in Greece in this field.

43. The Commission considered that the authorisation requirement

introduced by Law no. 1363/1938 might appear open to criticism. In the

first place, the intervention of the Greek Orthodox Church in the

procedure raised a complex question under paragraph 2 of Article 9

(art. 9-2). Secondly, classifying as a criminal offence the operation

of a place of worship without the authorities' prior authorisation was

disproportionate to the legitimate aim pursued, especially when, as in

this case, the underlying cause of the applicants' conviction lay in

the dilatory attitude of the relevant authorities.

44. As a matter of case-law, the Court has consistently left the

Contracting States a certain margin of appreciation in assessing the

existence and extent of the necessity of an interference, but this

margin is subject to European supervision, embracing both the

legislation and the decisions applying it. The Court's task is to

determine whether the measures taken at national level were justified

in principle and proportionate.

In delimiting the extent of the margin of appreciation in the

present case the Court must have regard to what is at stake, namely the

need to secure true religious pluralism, an inherent feature of the

notion of a democratic society (see the above-mentioned

Kokkinakis judgment, p. 17, para. 31). Further, considerable weight

has to be attached to that need when it comes to determining, pursuant

to paragraph 2 of Article 9 (art. 9-2), whether the restriction was

proportionate to the legitimate aim pursued. The restrictions imposed

on the freedom to manifest religion by the provisions of

Law no. 1363/1938 and of the decree of 20 May/2 June 1939 call for very

strict scrutiny by the Court.

45. The Court notes in the first place that Law no. 1363/1938 and

the decree of 20 May/2 June 1939 - which concerns churches and places

of worship that are not part of the Greek Orthodox Church - allow

far-reaching interference by the political, administrative and

ecclesiastical authorities with the exercise of religious freedom. In

addition to the numerous formal conditions prescribed in section 1 (1)

and (3) of the decree, some of which confer a very wide discretion on

the police, mayor or chairman of the district council, there exists in

practice the possibility for the Minister of Education and

Religious Affairs to defer his reply indefinitely - the decree does not

lay down any time-limit - or to refuse his authorisation without

explanation or without giving a valid reason. In this respect, the

Court observes that the decree empowers the Minister - in particular

when determining whether the number of those requesting an

authorisation corresponds to that mentioned in the decree

(section 1 (1) (a)) - to assess whether there is a "real need" for the

religious community in question to set up a church. This criterion may

in itself constitute grounds for refusal, without reference to the

conditions laid down in Article 13 para. 2 of the Constitution.

46. The Government maintained that the power of the

Minister of Education and Religious Affairs to grant or refuse the

authorisation requested was not discretionary. He was under a duty to

grant the authorisation if he found that the three conditions set down

in Article 13 para. 2 of the Constitution were satisfied, namely that

it must be in respect of a known religion, that there must be no risk

of prejudicing public order or public morals and that there is no

danger of proselytism.

47. The Court observes that, in reviewing the lawfulness of

refusals to grant the authorisation, the Supreme Administrative Court

has developed case-law limiting the Minister's power in this matter and

according the local ecclesiastical authority a purely consultative role

(see paragraph 26 above).

The right to freedom of religion as guaranteed under the

Convention excludes any discretion on the part of the State to

determine whether religious beliefs or the means used to express such

beliefs are legitimate. Accordingly, the Court takes the view that the

authorisation requirement under Law no. 1363/1938 and the decree of

20 May/2 June 1939 is consistent with Article 9 of the Convention

(art. 9) only in so far as it is intended to allow the Minister to

verify whether the formal conditions laid down in those enactments are

satisfied.

48. It appears from the evidence and from the numerous other cases

cited by the applicants and not contested by the Government that the

State has tended to use the possibilities afforded by the

above-mentioned provisions to impose rigid, or indeed prohibitive,

conditions on practice of religious beliefs by certain

non-Orthodox movements, in particular Jehovah's Witnesses. Admittedly

the Supreme Administrative Court quashes for lack of reasons any

unjustified refusal to grant an authorisation, but the extensive

case-law in this field seems to show a clear tendency on the part of

the administrative and ecclesiastical authorities to use these

provisions to restrict the activities of faiths outside the

Orthodox Church.

49. In the instant case the applicants were prosecuted and

convicted for having operated a place of worship without first

obtaining the authorisations required by law.

50. In their memorial the Government maintained that under

section 1 (1) of the decree of 20 May/2 June 1939 an authorisation from

the local bishop was necessary only for the construction and operation

of a church and not for a place of worship as in the present case. An

application to the Minister of Education and Religious Affairs, indeed

one such as that submitted by the applicants, was sufficient.

51. The Court notes, nevertheless, that both the

Heraklion public prosecutor's office, when it was bringing proceedings

against the applicants (see paragraph 12 above), and the

Heraklion Criminal Court sitting on appeal, in its judgment of

15 February 1990 (see paragraph 15 above), relied expressly on the lack

of the bishop's authorisation as well as the lack of an authorisation

from the Minister of Education and Religious Affairs. The latter, in

response to five requests made by the applicants between

25 October 1983 and 10 December 1984, replied that he was examining

their file. To date, as far as the Court is aware, the applicants have

not received an express decision. Moreover, at the hearing a

representative of the Government himself described the Minister's

conduct as unfair and attributed it to the difficulty that the latter

might have had in giving legally valid reasons for an express decision

refusing the authorisation or to his fear that he might provide the

applicants with grounds for appealing to the

Supreme Administrative Court to challenge an express administrative

decision.

52. In these circumstances the Court considers that the Government

cannot rely on the applicants' failure to comply with a legal formality

to justify their conviction. The degree of severity of the sanction

is immaterial.

53. Like the Commission, the Court is of the opinion that the

impugned conviction had such a direct effect on the applicants' freedom

of religion that it cannot be regarded as proportionate to the

legitimate aim pursued, nor, accordingly, as necessary in a democratic

society.

In conclusion, there has been a violation of Article 9

(art. 9).

III. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)

54. Under Article 50 of the Convention (art. 50),

"If the Court finds that a decision or a measure taken by a

legal authority or any other authority of a High Contracting

Party is completely or partially in conflict with the

obligations arising from the ... Convention, and if the

internal law of the said Party allows only partial reparation

to be made for the consequences of this decision or measure,

the decision of the Court shall, if necessary, afford just

satisfaction to the injured party."

A. Non-pecuniary damage

55. The applicants claimed firstly a sum of 6,000,000 drachmas for

non-pecuniary damage.

56. Neither the Government nor the Commission expressed a view on

this claim.

57. The Court considers that the applicants sustained non-pecuniary

damage, but that the finding of a violation of Article 9 (art. 9)

constitutes sufficient reparation.

B. Costs and expenses

58. The applicants sought 4,030,100 drachmas in respect of their

costs and expenses incurred in the proceedings in Greece and Strasbourg

and provided details of this expenditure.

59. The Government argued that the sum awarded under this head

should cover only the expenses incurred in connection with the

criminal proceedings and those stemming from the proceedings before the

Convention institutions. However, those expenses were the consequence

of the applicants' culpable and unlawful conduct and the deliberate

violation of national legislation.

60. The Delegate of the Commission did not give an opinion on this

matter.

61. Having regard to its decision concerning Article 9 (art. 9)

(see paragraph 53 above), the Court finds the claim reasonable and

accordingly allows it in its entirety.

C. Default interest

62. According to the information available to the Court, the

statutory rate of interest applicable in Greece at the date of the

adoption of the present judgment is 6% per annum.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Dismisses the Government's preliminary objection;

2. Holds that there has been a breach of Article 9 of the

Convention (art. 9);

3. Holds that the present judgment in itself constitutes just

satisfaction for the non-pecuniary damage alleged;

4. Holds that the respondent State is to pay the applicants,

within three months, in respect of costs and expenses,

4,030,100 (four million, thirty thousand and one hundred)

drachmas on which sum simple interest at an annual rate of 6%

shall be payable from the expiry of the above-mentioned

three months until settlement.

Done in English and in French, and delivered at a public

hearing in the Human Rights Building, Strasbourg, on 26 September 1996.

Signed: Rudolf BERNHARDT

President

Signed: Herbert PETZOLD

Registrar

In accordance with Article 51 para. 2 of the Convention

(art. 51-2) and Rule 53 para. 2 of Rules of Court A, the concurring

opinion of Mr Martens is annexed to this judgment.

Initialled: R. B.

Initialled: H. P.

CONCURRING OPINION OF JUDGE MARTENS

1. I completely share the views expressed in the Court's judgment,

but I would have preferred to decide the merits on the basis of the

"prescribed by law" requirement, that is to decide the issue which the

Court leaves open (see paragraph 38 of its judgment).

2. The substance of the "necessary in a democratic society"

requirement is a balancing exercise of the elements of the individual

case. However, as follows from paragraph 38 of the Court's judgment,

the very essence of the applicants' complaints is not one of

individual, but one of general injustice: what they complain of is not

so much the harassment they have been subjected to, but, basically, the

obstruction to setting up a Jehovah's Witnesses chapel in general. The

"prescribed by law" requirement is therefore more suitable to do

justice to what - also in the Government's opinion - is the essential

thesis of the applicants, viz. that the Law of Necessity no. 1363/1938

is incompatible with Article 9 (art. 9), either per se or in any event

as consistently applied by the competent authorities.

3. I suggest that this approach, although perhaps a little

innovatory, is in line with the Court's doctrine that part of its task

under the "prescribed by law" requirement is to assess the quality of

the law invoked as a justification for the interference under

examination.

4. Turning now to the applicants' thesis that the Law of

Necessity no. 1363/1938 is incompatible with Article 9 (art. 9), I

agree with counsel for the Government that the first question to be

discussed is whether under Article 9 (art. 9) there is room at all for

"prior restraint" in the form of making the construction or operation

of a place of worship conditional on a prior governmental authorisation

and of making such construction or operation without such authorisation

a criminal offence.

5. As in the province of Article 10 (art. 10), I am opposed to

answering this question outright in the negative. It is conceivable

that the operation - and a fortiori the construction - of a place of

worship in a particular area may raise serious public-order questions

and that possibility, in my mind, justifies not wholly excluding the

acceptability of making such operation or construction depend on a

prior governmental authorisation.

6. Nevertheless, I think that here, where freedom of religion is

at stake - even more than in the province of Article 10 (art. 10) -,

the question is very delicate, for public-order arguments may easily

disguise intolerance. It is all the more sensitive where there is an

official State religion. In such cases it should be absolutely clear

both from the wording of, and from the practice under the law in

question that the requirement of a prior authorisation in no way

whatsoever purports to enable the authorities to "evaluate" the tenets

of the applicant community; as a matter of principle the requested

authorisation should always be given, unless very exceptional,

objective and insuperable grounds of public order make that impossible.

7. The Government have tried to convince us that the Law of

Necessity no. 1363/1938 meets these admittedly strict requirements, but

in vain. Counsel for the Government has alleged that under that Law

there is no room for discretion, but he has at the same time made it

clear that it required the authorities to scrutinise whether the

application arose from genuine religious needs or as a means of

proselytising and, moreover, whether the tenets of the applicant

community were acceptable. And indeed, the requirement that there

should be at least fifty families from more or less the same

neighbourhood illustrates not only that there is ample room for

discretion but also that the Law of Necessity no. 1363/1938 goes much

further than is permissible in respect of prior restraint of freedom

of religion. On top of this there is the involvement of the clerical

authorities of the dominant religion in the authorisation procedure

which - even if they were confined to a strictly advisory role (which

I doubt) - implies in itself that the Law in question does not meet the

above-mentioned strict requirements and is incompatible with Article 9

(art. 9).

8. In sum, I find that the applicants rightly say that the Law of

Necessity no. 1363/1938 is per se incompatible with Article 9 (art. 9).