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The Holy Monasteries v. Greece

Publisher Council of Europe: European Court of Human Rights
Publication Date 21 November 1994
Citation / Document Symbol 10/1993/405/483-484
Other Languages / Attachments The Holy Monasteries v. Greece (Greek)
Cite as The Holy Monasteries v. Greece, 10/1993/405/483-484, Council of Europe: European Court of Human Rights, 21 November 1994, available at: http://www.refworld.org/cases,ECHR,402a045b4.html [accessed 25 March 2017]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

 

        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

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