Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 28802/95

Gabriel Tsavachidis

against

Greece

REPORT OF THE COMMISSION

(adopted on 28 October 1997)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-16). . . . . . . . . . . . . . . . . . . . . .1

A. The application

(paras. 2-4). . . . . . . . . . . . . . . . . . . .1

B. The proceedings

(paras. 5-11) . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 12-16). . . . . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 17-33) . . . . . . . . . . . . . . . . . . . . .3

A. The particular circumstances of the case

(paras. 17-28). . . . . . . . . . . . . . . . . . .3

B. Relevant domestic law and background information

(paras. 29-33). . . . . . . . . . . . . . . . . . .5

III. OPINION OF THE COMMISSION

(paras. 34-69) . . . . . . . . . . . . . . . . . . . . .7

A. Complaints declared admissible

(para. 34). . . . . . . . . . . . . . . . . . . . .7

B. Points at issue

(para. 35). . . . . . . . . . . . . . . . . . . . .7

C. As regards Article 8 of the Convention

(paras. 36-49). . . . . . . . . . . . . . . . . . .7

CONCLUSION

(para. 50). . . . . . . . . . . . . . . . . . . . 10

D. As regards Article 9 of the Convention

(paras. 51-54). . . . . . . . . . . . . . . . . . 10

(a) Opinion of Mr M.P. Pellonpää, Mr E. Busuttil,

Mr A. Weitzel, Mr B. Marxer, Mr N. Bratza

and Mr M. Vila Amigó

(para. 55) . . . . . . . . . . . . . . . . . 11

(b) Opinion of Mr B. Conforti, Mr C. Bîrsan

and Mr K. Herndl

(para. 56) . . . . . . . . . . . . . . . . . 11

CONCLUSION

(para. 57). . . . . . . . . . . . . . . . . . . . 11

TABLE OF CONTENTS

Page

E. As regards Article 11 of the Convention

(paras. 58-60). . . . . . . . . . . . . . . . . . 11

CONCLUSION

(para. 61). . . . . . . . . . . . . . . . . . . . 12

F. As regards Article 14 of the Convention

taken in conjunction with Articles 8, 9 and 14

(paras. 62-64). . . . . . . . . . . . . . . . . . 12

CONCLUSION

(para. 65). . . . . . . . . . . . . . . . . . . . 12

G. Recapitulation

(paras. 66-69). . . . . . . . . . . . . . . . . . 12

PARTLY CONCURRING, MOSTLY DISSENTING OPINION

OF MM K. HERNDL, B. CONFORTI AND C. BÎRSAN . . . . . . . . 13

PARTLY DISSENTING OPINION OF MR C.L. ROZAKIS. . . . . . . . 15

PARTLY DISSENTING OPINION OF MR L. LOUCAIDES,

JOINED BY MRS J. LIDDY, MM G. RESS AND A. PERENIC,

MRS M. HION AND MR R. NICOLINI. . . . . . . . . . . . . . . 16

PARTLY DISSENTING OPINION OF MR I. BÉKÉS. . . . . . . . . . 17

APPENDIX I : DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . 18

APPENDIX II : ORIGINAL TEXT OF REPORT OF 7 MARCH 1993. . . 30

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant is a Greek citizen, born in 1942 and resident in

Kilkis. He was represented before the Commission by Mr P. Bitsaxis and

Mr Ch. Charalambeas, both lawyers practising in Athens.

3. The application is directed against Greece. The respondent

Government were represented by their Agent, Mr L. Papidas, President

of the Legal Advisory Council of the State (Nomiko Simvulio tu Kratus),

Mr V. Kontolaimos, Senior Adviser (Paredros) of the Legal Advisory

Council of the State, and Mr V. Kyriazopoulos, Legal Assistant

(Dikastikos Antiprosopos) of the Legal Advisory Council of the State.

4. The case concerns allegations of surveillance of a member of the

Church of Jehovah's Witnesses by the National Intelligence Service. The

applicant invokes Articles 8, 9, 11 and 14 of the Convention.

B. The proceedings

5. The application was introduced on 20 September 1995 and was

registered on 2 October 1995.

6. On 18 January 1996 the Commission (First Chamber) decided,

pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give

notice of the application to the respondent Government and to invite

the parties to submit written observations on its admissibility and

merits.

7. The Government's observations were submitted on 26 April 1996,

after an extension of the time-limit fixed for this purpose. The

applicant replied on 2 September 1996, also after an extension of the

time-limit.

8. On 17 January 1997 the Commission decided to hold a hearing of

the parties. The hearing was held on 4 March 1997. The Government were

represented by Mr V. Kontolaimos and Mr V. Kyriazopoulos. The applicant

was represented by Mr P. Bitsaxis and Mr Ch. Charalambeas, as well as

Mr V. Dedotsis and Mr E. Kaparos, as advisers.

9. On 4 March 1997 the Commission declared inadmissible the

applicant's complaint under Article 5 of the Convention. It declared

admissible the remainder of the application.

10. The text of the Commission's decision on admissibility was sent

to the parties on 6 March 1997 and they were invited to submit such

further information or observations on the merits as they wished. Such

observations were submitted by the Government on 20 May 1997 and by the

applicant on 29 May 1997.

11. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement. In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C. The present Report

12. The present Report has been drawn up by the Commission (First

Chamber) in pursuance of Article 31 of the Convention and after

deliberations and votes, the following members being present:

Mrs J. LIDDY, President

MM M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

13. The text of this Report was adopted on 28 October 1997 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

14. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

15. The Commission's decision on the admissibility of the application

is annexed hereto.

16. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

17. The applicant is a Jehovah's Witness. In 1981, in order to

conduct meetings of the Jehovah's Witnesses community, the applicant

rented premises in Kilkis.

18. On 7 May 1993 the public prosecutor of Kilkis ordered a

preliminary inquiry into complaints that a Jehovah's Witnesses church

had been established in Kilkis without the necessary permit from the

local ecclesiastical authority and the Ministry of National Education

and Cults, as specified in Article 1 of the Royal Decree

of 20 May/2 June 1939. The applicant was summoned to appear before a

judge in the context of this inquiry. He failed to do so and on

10 August 1993 the judge ordered the police to bring the applicant

before him by force on 25 August 1993. The applicant appeared before

the judge on that date and was examined.

19. On 23 December 1993 the public prosecutor of Kilkis pressed

charges against the applicant and another person for illegally

operating a church and summoned them to appear before the first

instance single-member criminal court (monomeles plimmeliodikio) of

Kilkis on 9 December 1994.

20. One week before the trial, the defence became aware that a "top

secret" information report dated 7 March 1993 had been included in the

case-file. This report stated:

"In execution of the preceding order, we wish to report the

following:

As a result of an investigation that was made in the Record

Office of our Department it was not established that the

.... Millenialists have ever submitted any petitions

requesting permits to operate churches within the area

under our jurisdiction.

The number of Jehovah's Witnesses (Millenialists) amounts

to approximately 25 to 30 individuals in the city of

Kilkis.

In this city, at 16 Aristotelous Street, on the ground

floor of the building there is a hall, owned by

Athena Tsavachidou, which is used as a meeting place by the

Millenialists usually on Wednesday, Friday and Sunday every

week, as a rule in the evening hours. In this hall there

are chairs and a desk, laid out as in a classroom. In this

hall teaching is carried out, hymns are sung and the Gospel

is explained. It has not been established that there are

religious icons and utensils related to religious worship.

But according to information we have on hand, which has not

been verified however, weddings and baptism ceremonies are

held in the hall. Various individuals from Thessaloniki and

from local villages of the Kilkis Prefecture participate in

these meetings. The number of such individuals amounts to

approximately 50.

Similar Millenialists meetings have been taking place in

Kilkis for 30 years.

The 'leader' of the local Millenialists is

Gabriel Tsavachidis, son of Solon and Evdoxia, who was born

in 1942 in Kilkis, resides at 14 Solonos Street, and is a

painter by profession (and brother of the owner of the

hall).

The Millenialists, apart from the aforementioned hall, also

use the homes of their fellow-members as meeting places."

The report was not signed.

21. The charges against the applicant were not heard on

9 December 1994 because the prosecution requested an adjournment and

the trial was postponed until 7 April 1995.

22. On 13 December 1994 the applicant's lawyer denounced on the radio

the existence of an illegal network of surveillance of members of

religious minorities in Kilkis and requested the competent ministers

to investigate the matter. On 14 December 1994 the Minister of Justice

stated that an investigation would be carried out. It is not known

whether such an investigation has been carried out and, if so, what

were its results.

23. On 7 April 1995, before the trial commenced, the applicant wrote

to the Prosecutor's Office of Kilkis, and requested to be informed of

the following: who delivered the "information report" to the

Prosecutor's Office; who wrote it and under what capacity; in

compliance with whose order it was written; who put his private life

under surveillance, in which capacity that was done and on whose

orders; which bureau was responsible for and issued the document.

24. The applicant announced that he intended to use that information

to bring a criminal and civil action before the domestic courts and to

appeal to the European Court of Human Rights in order to protect his

rights and bring the perpetrators of his secret surveillance to

justice.

25. When the hearing started the applicant objected to the validity

of the indictment claiming that the "information report" could not be

used as part of the indictment as it was not signed. The court

rejected his objection considering that the applicant had had ample

opportunity to prepare his defence. However, it decided not to take

into account the report as evidence because it was anonymous.

26. Then, i.e. on the same day, the applicant filed a petition

requesting the court, according to Article 38 of the Code of Criminal

Procedure, to compile and send a report to the competent Prosecutor so

that those responsible for the "information report" be prosecuted for

the offences provided for under Articles 134, 259, 239, 241, 334, 200

and 361A of the Criminal Code and Article 24 of Law 1489/1984. The

court rejected the petition on the same day, i.e. also on 7 April 1995,

on the ground that no facts had been disclosed which could come under

the definition of the offences in Articles 134, 259, 231 (sic), 241,

334, 200 and A of the Criminal Code and Article 24 of Law 1489/1984.

27. On 7 April 1995 the criminal court of Kilkis acquitted the

applicant of the charges.

28. On 9 May 1995, the assistant prosecutor of Kilkis replied to the

applicant stating, inter alia, that the "information report" had been

sent anonymously by mail to the Prosecutor's Office and that the

document had not been drawn up by the Secret Service.

B. Relevant domestic law and background information

29. Article 1 of the Royal Decree of 20 May/2 June 1939 provides as

follows:

"1. In order to obtain an authorisation for the

construction or operation of temples not subject to the

legislation on temples and priests of parishes belonging to

the Greek Orthodox Church, within the meaning of section 1

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

completed:

(a) An application shall be submitted by at least

fifty families, from more or less the same neighbourhood

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

the same denomination, it being assumed that the distance

makes it difficult for them to observe their religious

duties. The requirement of fifty families shall not apply

to suburbs or villages.

(b) The application shall be addressed to the local

ecclesiastical authorities and must be signed by the heads

of the families, who shall indicate their addresses. The

authenticity of their signatures shall be certified by the

local police authority, which following an inquiry on the

ground shall attest that the conditions referred to in the

preceding sub-paragraph are satisfied ...

(c) The local police authority shall issue a reasoned

opinion on the application. It shall then transmit the

application, with its opinion, to the Ministry of Education

and Religious Affairs, which may accept or reject the

application according to whether it considers that the

construction or use of a new temple is justified or whether

the provisions of the present decree have been complied

with.

2. ...

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

apply to the issue of an authorisation for the construction

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

Minister of Education and Religious Affairs to determine

whether there are essential reasons warranting such

authorisation. In this connection the persons concerned

shall address to the Ministry of Education and Religious

Affairs through their priest a signed application, the

authenticity of the signatures being certified by the mayor

or the chairman of the district council. The application

shall also indicate the addresses of the persons concerned

...".

30. Law 1654/1986 on the National Intelligence Service provides that

the competence of this Service is, first, to collect, process and

distribute information concerning national security, secondly, to deal

with the spying activities of foreign intelligence services against

Greece, thirdly, to co-ordinate the activities of other services

collecting relevant information and, fourthly, to discharge any other

relevant functions assigned to it by the Council of National Security

or the Prime Minister. This law does not contain any specific separate

provisions concerning safeguards against abuses.

31. On 4 August 1993, Eleftherotypia, a national newspaper, revealed

the existence of a strictly confidential report compiled by the

National Intelligence Service dated 19 January 1993, containing

derogatory allegations concerning Greek citizens not members of the

Greek Orthodox Church. The report described them as "non-genuine",

"impure" and "corruptible" Greeks with "diminished national

conscience", "due to their obedience to foreign international centres

of leadership". It further considered that these para-religious

organizations endeavour to undermine and subvert the Greek conscience

and tradition. The report recommended taking a series of suppressive

and preventive measures namely measures so that radio and television

channels which are under the control of religious heretics should not

be permitted to operate, the religious purification of the theological

schools, making it more difficult to obtain a permission to operate

meeting halls for worship and, finally, deporting all aliens who are

actively engaged in all such organizations.

32. The Prime Minister issued a statement on 11 August 1993, claiming

that the report was produced by a low ranking civil servant and that

it had been rescinded immediately. The civil servant in question was

moved and "the service was disbanded". The report did not in any way

express the position of the Government.

33. On 4 August 1993, Eleftherotypia also published another

confidential report made by the National Intelligence Service. This

report, the date of which was not clear, stated, inter alia, that the

para-religious organization of "Jehovah's Witnesses" (Millenialists)

was active in (a) the Messolongi area with approximately 24 adherents

whose activities were limited, their leader being the glassware dealer

Mr R. and in (b) the Agrinio area where they had a lot of money; for

fifteen years their members received remittances coming from the U.S.A.

and from Germany through the local branch of the Bank of Greece; one

of their leaders Mr M. had acquired a large personal fortune. The

report went on to describe the existence and activities of other

religious minorities in other areas of Greece.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

34. The Commission has declared admissible the applicant's complaints

that he was subjected to surveillance by the National Intelligence

Service, because of his religious beliefs.

B. Points at issue

35. The issues to be determined in the present case are:

- whether there has been a violation of Article 8 (Art. 8) of the

Convention

- whether there has been a violation of Article 9 (Art. 9) of the

Convention

- whether there has been a violation of Article 11 (Art. 11) of the

Convention and

- whether there has been a violation of Article 14 of the

Convention taken in conjunction with the above-mentioned

provisions (Art. 14+8, 14+9, 14+11) .

C. As regards Article 8 (Art. 8) of the Convention

36. Article 8 (Art. 8) of the Convention provides as follows:

"1. Everyone has the right to respect for his private and

family life, his home and his correspondence.

2. There shall be no interference by a public authority with

the exercise of this right except such as is in accordance with

the law and is necessary in a democratic society in the interests

of national security, public safety or the economic well-being

of the country, for the prevention of disorder or crime, for the

protection of health or morals, or for the protection of the

rights and freedoms of others."

37. The applicant submits that there are various indications that the

report of 7 March 1993 has been compiled by the National Intelligence

Service. The language used and the style is that of the Service. There

is expert evidence to the effect that the report of 7 March 1993 and

another document drafted by the Kilkis police have been typed using the

same type of typewriter. It has not been possible to establish whether

they have been written with the same typewriter because the public

prosecutor's office of Kilkis has refused to provide the applicant with

the original report of 7 March 1993. The very content of the report,

especially when seen against the background of the reports published

in the press on 4 August 1993, indicates that its author is the

National Intelligence Service. On 11 August 1993 the Government

accepted that the National Intelligence Service subjected non-Orthodox

Greeks to surveillance.

38. The applicant also submits that the report discloses an

interference with his right to respect for his private life, because

the information contained therein could have been obtained only through

secret surveillance. In any event, the applicant argues that there

would be an interference even if the information contained in the

report related to elements of the applicant's personal life which were

not meant to be kept secret. The recording of even every-day activities

conducted in public amounts to such an interference if it is not done

for a lawful purpose and in accordance with rules which provide

protection against abuses. The surveillance to which the applicant was

subjected was illegal. Moreover, the law on the National Intelligence

Service contains no safeguards against abuses. As a result, Article 8

(Art. 8) was violated.

39. The Government submit that there is no indication that the

applicant was subjected to surveillance by the National Intelligence

Service. There is no indication that the report of 7 March 1993 which

was included in the applicant's case-file had been compiled by a public

authority. It is not unusual for the public prosecutor's office of

Kilkis to receive anonymous letters informing it that Jehovah's

Witnesses churches function illegally in Kilkis. It is not within the

competence of the National Intelligence Service to subject persons to

surveillance because of their religious beliefs. Moreover, the National

Intelligence Service denies that it has ever subjected the applicant

to surveillance. It also denies that it is the author of the report of

7 March 1993.

40. The Government also submit that the author of the report dated

19 January 1993, which appeared in the Greek press on 4 August 1993,

had acted on his own initiative and had not followed any orders. The

administrative unit in which he used to serve at the time was disbanded

because his superiors had not noticed that he was drafting a report on

religious organisations which caused a lot of embarrassment to the

National Intelligence Service. In any event, the information contained

in the report of 19 January 1993 was of a general academic nature and

not the product of secret surveillance. The origins of the second

undated report, published in the Greek press on 4 August 1993, are not

known. In any event, no mention is made therein of the activities of

Jehovah's Witnesses in Kilkis.

41. The Government accept that there would have been a violation of

the Convention if the National Intelligence Service had subjected the

applicant to unjustified close surveillance because of his religious

beliefs. However, the Government submit that the information contained

in the report of 7 March 1993, in which the applicant was mentioned,

was accessible to everybody. In any event, the Government argue that

the activities of the National Intelligence Service are regulated in

a sufficiently circumscribed manner by a law which is adequately

accessible to everybody. The law also specifies the circumstances in

which an investigation, including surveillance, can be ordered in

connection with a criminal offence. Moreover, there exist adequate

guarantees against abuse or misuse of power by the executive branch of

the Government.

42. The Commission recalls that, according to the Court's case-law,

the storing of information concerning a person's private life in a

secret register kept by a State authority amounts to an interference

with the right to respect for private life as guaranteed by Article 8

para. 1 (Art. 8-1) of the Convention (Eur. Court HR, Leander v. Sweden

judgment of 26 March 1987, Series A no. 116, p. 22, para. 48).

43. The Commission must, therefore, determine, first, whether a State

authority was responsible for the "top secret" information report dated

7 March 1993 which was included in the file of the criminal proceedings

against the applicant and, secondly, whether the above-mentioned report

contained data concerning the applicant's private life.

44. As regards the first issue, the Commission recalls that,

according to the Court, in cases, as the present one, where applicants

complain about specific measures of surveillance falling outside the

law, it must be established that there is a reasonable likelihood that

such measures were applied to them (Eur. Court HR, Halford

v. the United Kingdom judgment of 25 June 1997, to be published in

Reports of Judgments and Decisions 1997, para. 57).

45. The Commission has in this connection had regard to the two

reports published in the Greek press on 4 August 1993 and to the

statement issued by the Prime Minister on 11 August 1993, from which

it transpires that a branch of the National Intelligence Service was

compiling information about a number of minority religious groups, such

as that of the Jehovah's Witnesses. It has also taken into

consideration the form - e.g. type of typewriter used and style - and

the content - e.g. reference to the "execution of an order" and to the

"record office of a department" - of the report of 7 March 1993, in

which the applicant is specifically mentioned. Moreover, it notes that,

although the Government claim not to know its author, this report was

initially relied on by the public prosecutor to institute criminal

proceedings against the applicant. In these circumstances, the

Commission is satisfied that the report of 7 March 1993 was compiled

by a State authority and, in any event, there is at least a "reasonable

likelihood" that this was so.

46. As regards the second of the two issues identified above, namely,

whether the report of 7 March 1993 contained information about the

applicant's private life, the Commission recalls that, according to the

Court, it would be too restrictive to limit the notion of private life

in Article 8 para. 1 (Art. 8-1) of the Convention to an "inner circle"

in which the individual may live his own personal life as he chooses

and to exclude therefrom entirely the outside world not encompassed

within that circle (Eur. Court HR, Niemietz v. Germany judgment of

16 December 1992, Series A no. 251, p. 33, para. 29).

47. In the view of the Commission, it follows that the fact that an

activity of an individual occurs in a public place or is not intended

to be kept secret does not necessarily make such an activity a matter

outside the notion of private life in Article 8 para. 1 (Art. 8-1) of

the Convention (see, mutatis mutandis, Friedl v. Austria, Comm. Report

19.5.94, paras. 50 and 51, Eur. Court HR, Series A no. 305, p. 21).

Whether such an activity falls within the concept of private life or

not must be judged on the basis of the nature of the activity itself.

Thus, while Article 8 para. 1 (Art. 8-1) of the Convention might not

protect public appearances of well-known figures which are intended to

attract attention, the right to respect for private life would be

interfered with if State agents were to follow the personal activities

which an individual conducts in the open, record them and/or keep all

relevant information.

48. The Commission notes that the report of 7 March 1993 contained

a collection of information about the applicant's personal life, such

as his religious beliefs, his position within a religious movement,

premises over which he exercised control and the activities therein.

The Commission considers that there can be no doubt that the collection

of this information was the result of an organised operation of

surveillance - "watching" - of the applicant's life mounted by a State

authority. It follows that there was an interference with the

applicant's right to respect for his private life.

49. According to the Convention, such an interference is contrary to

Article 8 (Art. 8-2) unless it is "in accordance with the law",

directed at one or more of the legitimate aims set out in paragraph 2

and is "necessary in a democratic society" for achieving them. However,

the Government accept that it is not within the competence of the

National Intelligence Service to subject persons to surveillance

because of their religious beliefs. Moreover, although the report

contained information about the meeting place of a religious community

and although operating a place of worship without a permit from the

competent Minister is a criminal offence under domestic law, it has not

been alleged that this report was compiled by the police force in the

exercise of their crime investigation powers. It follows that the

interference was not "in accordance with the law" and, as a result, it

cannot be justified under the second paragraph of Article 8 (Art. 8)

of the Convention.

CONCLUSION

50. The Commission concludes, by 13 votes to 4, that in the present

case there has been a violation of Article 8 (Art. 8) of the

Convention.

D. As regards Article 9 (Art. 9) of the Convention

51. Article 9 (Art. 9) of the Convention provides as follows:

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

and religion; this right includes freedom to change his religion

or belief and freedom, either alone or in community with others

and in public or in private, to manifest his religion or belief,

in worship, teaching, practice and observance.

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

subject only to such limitations as are prescribed by law and are

necessary in a democratic society in the interests of public

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

for the protection of the rights and freedoms of others."

52. The applicant submits that he was subjected to surveillance

because of his religious beliefs. This amounts to harassment and an

interference with the right to hold and manifest these beliefs.

Moreover, the report of 7 March 1993 was used to institute criminal

proceedings against him and domestic law on surveillance does not

provide any safeguards against abuses.

53. The Government reiterate the submissions they have made under

Article 8 (Art. 8) of the Convention.

54. The Commission has reached the conclusion that there has been no

violation of Article 9 (Art. 9) of the Convention. It expresses this

opinion by nine votes to eight. However, the majority of nine members

is divided as to the reasoning.

(a) Opinion of Mr M.P. Pellonpää, Mr E. Busuttil,

Mr A. Weitzel, Mr B. Marxer, Mr N. Bratza and

Mr M. Vila Amigó

55. These members note that the Commission has found that the

collection and retention of the information contained in the report of

7 March 1993 amounts to a violation of Article 8 (Art. 8) of the

Convention. They also note that underlying the Commission's position

concerning the applicant's complaints under Article 8 (Art. 8) is the

view that the right to respect for private life includes the right to

hold and practise religious beliefs (see para. 48). As a result, these

members consider that no separate issue arises under Article 9 (Art. 9)

of the Convention.

(b) Opinion of Mr B. Conforti, Mr C. Bîrsan and Mr K. Herndl

56. These members consider that, as Article 8 (Art. 8) of the

Convention in their view has not been violated, a fortiori there has

been no violation of Article 9 (Art. 9) of the Convention either.

CONCLUSION

57. The Commission concludes, by 9 votes to 8, that in the present

case there has been no violation of Article 9 (Art. 9) of the

Convention.

E. As regards Article 11 (Art. 11) of the Convention

58. Article 11 (Art. 11) of the Convention provides as follows:

"1. Everyone has the right to freedom of peaceful assembly and

to freedom of association with others, including the right to

form and to join trade unions for the protection of his

interests.

2. No restrictions shall be placed on the exercise of these

rights other than such as are prescribed by law and are necessary

in a democratic society in the interests of national security or

public safety, for the prevention of disorder or crime, for the

protection of health or morals or for the protection of the

rights and freedoms of others. This Article shall not prevent

the imposition of lawful restrictions on the exercise of these

rights by members of the armed forces, of the police or of the

administration of the State."

59. The applicant submits that the authorities, by subjecting to

surveillance the gatherings of the members of the church of Jehovah's

Witnesses and the premises which he had rented for these purposes,

violated his right to freedom of association. Moreover, the use of the

information contained in the report of 7 March 1993 to institute

criminal proceedings against him also amounts to a violation of

Article 11 (Art. 11) of the Convention. The Government reiterate the

submissions they have made under Article 8 (Art. 8) of the Convention.

60. The Commission has found that the collection and retention of

the information contained in the report of 7 March 1993 amounts to a

violation of Article 8 (Art. 8) of the Convention. As a result, it

considers that no separate issue arises under Article 11 (Art. 11) of

the Convention.

CONCLUSION

61. The Commission concludes, by 14 votes to 3, that in the present

case no separate issue arises under Article 11 (Art. 11) of the

Convention.

F. As regards Article 14 of the Convention taken in conjunction with

Articles 8, 9 and 11 (Art. 14+8, 14+9, 14+11)

62. Article 14 (Art. 14) of the Convention provides as follows:

"The enjoyment of the rights and freedoms set forth in this

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."

63. The applicant submits that he was singled out for surveillance

because of his religious beliefs. The Government reiterate the

submissions they have made under Article 8 (Art. 8) of the Convention.

64. The Commission has found that the collection and retention of

the information contained in the report of 7 March 1993 amounts to a

violation of Article 8 (Art. 8) of the Convention. As a result, it

considers that it is not necessary also to examine wether there has

been a violation of Article 14 of the Convention taken in conjunction

with this provision or Article 9 or Article 11 (Art. 14+8, 14+9,

14+11).

CONCLUSION

65. The Commission concludes, unanimously, that in the present case

it is not necessary also to examine whether there has been a violation

of Article 14 of the Convention taken in conjunction with Articles 8, 9

and 11 (Art. 14+8, 14+9, 14+11).

G. Recapitulation

66. The Commission concludes, by 13 votes to 4, that in the present

case there has been a violation of Article 8 (Art. 8) of the Convention

(para. 50).

67. The Commission concludes, by 9 votes to 8, that in the present

case there has been no violation of Article 9 (Art. 9) of the

Convention (para. 57).

68. The Commission concludes, by 14 votes to 3, that in the present

case no separate issue arises under Article 11 (Art. 11) of the

Convention (para. 61).

69. The Commission concludes, unanimously, that in the present case

it is not necessary to examine whether there has been a violation of

Article 14 of the Convention taken in conjunction with Articles 8, 9

and 11 (Art. 14+8, 14+9, 14+11) (para. 65).

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

(Or. English)

PARTLY CONCURRING, MOSTLY DISSENTING OPINION

OF MM K. HERNDL, B. CONFORTI AND C. BÎRSAN

We regret that we cannot concur with the opinion of the majority

to the effect that in the present case there has been a violation of

Article 8 and that no separate issue arises under Article 11 of the

Convention. Our legal assessment of the situation, following our

reading of the facts, leads to the conclusion that neither of these

provisions has been violated.

The following is a comprehensive presentation of how we look at

the case as a whole.

1. No violation of Article 8

The point of departure must be - and this is common ground - that

whenever it is alleged that measures of surveillance are actually

applied (by State authorities), in particular when such measures fall

outside the law, the Convention organs must be satisfied that there is

a reasonable likelihood that such measures were indeed applied

(Eur. Court HR, Halford v. the United Kingdom judgment of 25 June 1997,

para. 57).

The majority consider themselves "satisfied that the report of

7 March 1993" (hereinafter called the "report", ie. the sheet which was

found in the court file concerning the applicant) "was compiled by a

State authority". The majority however soften their position

subsequently by adding "and in any event there is at least 'a

reasonable likelihood' that this was so" (para. 43).

The majority further consider "that there can be no doubt that

the collection of this information was the result of an organised

operation of surveillance - 'watching' - of the applicant's life

mounted by a State authority" (para. 46).

These statements have to be contrasted with the repeated

insistence of the defendant government in their observations that the

applicant was never subjected to surveillance by the National

Intelligence Service. The Head of that service formally declared that

such had never been the case and so informed the Court of Kilkis.

The origin of the "report", unsigned and unmarked as it was,

remaining entirely unclear, we are not convinced that there are

sufficient, or even appropriate, elements to conclude that there was

indeed any State involvement in the "report's" compilation and

drafting. There is even less reason to speak of an "organised operation

of surveillance". In this connection one ought not to lose sight of

the fact that most, if not all, of the details mentioned in the

"report" were more or less public knowledge. Would any "organised

operation of surveillance of the applicant's life" lead to nothing else

but a meagre compilation of publicly known facts?

But even assuming that the "report" had been drafted by some

public authority, we believe that there could have been no violation

of the applicant's right to respect for his private life. While the

report mentions the applicant's name, gives some particulars about a

religious movement and contains some details on the premises in the

city of Kilkis, over which the movement and the applicant exercised

control, and the activities which took place there, this information

was by its very nature potentially accessible to everybody. It was,

as we have already said, more or less in the public domain. In our

view it follows that this information did not belong to the "private"

sphere and, as a result, the collection and putting on paper of this

type of information could not amount to an interference with the

applicant's rights under Article 8 of the Convention.

2. No violation of Article 9

The majority have concluded that there was no violation of

Article 9, albeit on the basis of a different argument. We do agree

with the statement of non violation for the simple reason that

according to us there has been no violation of Article 8 due to the

quasi-public nature of the information contained in the "report". A

fortiori there was no violation of the applicant's rights under

Article 9.

Here again we cannot see how the mere existence of the "report"

and the fact that it found its way into the court file might have

violated the applicant's right to freedom of thought, conscience and

religion. Moreover, the applicant was charged with illegally operating

a place of worship and was acquitted. Consequently, he cannot be

considered a victim of a violation of Article 9 resulting from the

possible use, in the course of the criminal proceedings, of the

information contained in the "report"

3. No violation of Article 11

The majority felt that in view of their finding of violation of

Article 8 no separate issue arose under Article 11. We are of the view

that in the present case no violation of Article 11 can be discerned

and that this should have been stated by the Commission. Our reasons

are the same as those advanced above in the framework of our

consideration of Article 9.

The information contained in the "report" being basically

available to everybody, it is indeed difficult to see how the summary

of facts, called the "report", which for unknown reasons appeared in

the court file, could have infringed the applicant's freedom of

peaceful assembly and of association with others. Again, considering

that the charge brought against the applicant concerned the illegal

operation of a place of worship where he and others were assembling,

and that the applicant was acquitted of that charge, he cannot be

considered to be a victim of a violation of Article 11 resulting from

the possible use, in the course of the criminal proceedings, of the

information contained in the "report".

4. No violation of Article 14

It is only legitimate to state in connection with Article 14 that

as in the present case we do not see any breach of Convention law as

far as the substantive articles at stake are concerned (Articles 8, 9

and 11), there can, by definition, not exist a violation of Article 14.

It was, therefore, logical for us to concur with the majority that it

was not necessary to examine whether there has been a violation of

Article 14 of the Convention taken in conjunction with Articles 8, 9

and 11.

(Or. English)

PARTLY DISSENTING OPINION OF MR C.L. ROZAKIS

I have voted for a violation of Article 8 of the Convention.

However, I consider that there has also been an independent violation

of Article 9 of the Convention, because the reason why the applicant

was subjected to surveillance was his religious beliefs.

Although surveillance always interferes with the private life of

an individual, I consider that a separate issue arises when the aim of

such surveillance is to undermine a value independently protected by

another provision of the Convention. For example, when somebody is

subjected to surveillance because of his political beliefs an issue

would arise under Article 10 of the Convention, which protects the

right to hold opinions, in addition to Article 8, which protects the

right to respect for one' private life; while when somebody is

subjected to surveillance because he engages in professional espionage,

only Article 8 of the Convention would be at stake.

In the circumstances of the case, it was clear that the applicant

was subjected to surveillance because he was a Jehovah's Witness, i.e.

because of his religion. Freedom of religion is a valued independently

protected by the Convention. I, therefore, consider that there was an

interference with Article 9 of the Convention, in addition to its

Article 8.

The reasons why I have concluded that Article 9 has been violated

are those set out in the partly dissenting opinion of Mr L. Loucaides.

(Or. English)

PARTLY DISSENTING OPINION OF MR L. LOUCAIDES

JOINED BY

MRS J LIDDY, MM G. RESS AND A. PERENIC, MRS M. HION AND MR R. NICOLINI

In our view, there has been a violation of Article 9 of the

Convention for the following reasons.

According to the Commission's case-law, Article 9 para. 1 of the

Convention can be divided in two parts. The first limb of paragraph 1

guarantees a general right to freedom of religion. Under the second

limb of paragraph 1, a more specific right to change and manifest one's

religion is protected. Paragraph 2 of Article 9 only permits

limitations of the freedom to manifest one's religion. Consequently

under Article 9 para. 1, a Contracting State is obliged to respect

everyone's general freedom of religion and that right may not be

restricted (Darby v. Sweden, Comm. Report 9.5.89, para. 44, Eur. Court

HR, Series A no. 187, p. 17).

When considering the applicant's complaints under Article 8 of

the Convention, the Commission found that it was established that the

authorities had mounted an organised operation of surveillance -

"watching" - of the applicant's life. It was also established that

domestic law provided no legal basis for the mounting of such an

operation.

In our view, it is also established on the basis of the report

of 7 March 1993 that the reason why this operation had been mounted was

the applicant's religious beliefs. The Government have failed to

identify a legitimate public purpose which such an operation could have

served.

We consider that an organised operation of surveillance of a

person's religious activities, because such activities are simply

considered undesirable by the State, amounts to an interference with

that persons's right to hold certain religious beliefs.

It follows that in the circumstances of the case there has been

an interference with the applicant's general right to freedom of

religion as guaranteed in the first limb of paragraph 1 of Article 9

of the Convention. This is a right which includes the right to hold

certain religious beliefs and which may not be restricted in any way.

We have, therefore, concluded that in the present case there has

been a violation of Article 9 of the Convention.

(Or. English)

PARTLY DISSENTING OPINION OF MR I. BÉKÉS

I consider that Article 9 of the Convention has been violated for

the reasons stated in the partly dissenting opinion of Mr L. Loucaides.

Having reached this conclusion, I consider that no separate issue

arises under Article 8 of the Convention. This is why I have voted for

no violation of this provision.

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TSAVACHIDIS v. GREECE

TSAVACHIDIS v. GREECE

LEXI