Lexploria

Application No. 28802/95

by Gabriel TSAVACHIDIS

against Greece

The European Commission of Human Rights (First Chamber) sitting

in private on 4 March 1997, 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

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 20 September 1995

by Gabriel TSAVACHIDIS against Greece and registered on 2 October 1995

under file No. 28802/95;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

26 April 1996 and the observations in reply submitted by the

applicant on 2 September 1996;

- the parties' oral submissions at the hearing on 4 March 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Greek citizen and a painter. He was born

in 1942 in Greece and he is currently residing in Kilkis, Greece. In

the proceedings before the Commission he is represented by

Mr. Panayiotis Bitsaxis and Mr. Charalambos Charalambeas, both lawyers

practising in Athens.

The facts of the case, as they have been submitted by the

parties, may be summarised as follows:

A. Particular circumstances of the case

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.

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.

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.

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.

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.

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.

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.

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.

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.

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

requesting the court, according to Article 38 of the 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 also on the same day, i.e. 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.

On 7 April 1995 the criminal court of Kilkis acquitted the

applicant of the charges.

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

applicant stating, inter alia, that the "information report" was sent

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

was not drawn up by the Secret Service.

B. Relevant domestic law and background information.

1. The Criminal Code provides for the following offences:

Article 134 para. 2

"Any person which, by force or use of force or by abusing his

capacity of a State organ, attempts to abolish, or to alter or

to render inoperative permanently or temporarily the democratic

regime which is based on the sovereignty of the people or a

fundamental principle or institution of this regime ... is

punished with life imprisonment or by imprisonment of no less

than five years and no more than twenty years."

Article 134A

"The term fundamental principle or institution of the regime in

the previous article refers to ... the general enjoyment and

protection of the fundamental rights provided for in the

Constitution."

Article 200 para. 1

"Any person which, maliciously, tries to disturb or disturbs a

religious gathering for worship or a religious ceremony which are

tolerated by the Constitution is punished with imprisonment of

no less than ten days and no more than two years."

Article 239 para. 1

"A punishment of imprisonment of no less than five years and no

more than ten years is inflicted on any civil servant responsible

for the prosecution of or investigation into criminal offences

who ..., knowingly, renders an innocent person liable to

prosecution or punishment or fails to prosecute a guilty person

or ensures that a guilty person is not punished."

Article 241

"Any civil servant who, using his official capacity, illegally

enters the house of another person against the latter's will is

punished with imprisonment of no less than three months and no

more than two years."

Article 259

"Any civil servant who maliciously fails to discharge his duties,

in order illegally to enrich himself or another person or to harm

the State or another person, is punished with imprisonment of no

less than ten days and no more than two years. This provision

applies only if the acts of the civil servant are not punishable

under another criminal provision."

Article 334 para. 1

"Any person which illegally enters the home of another person or

another person's place of work or any enclosed premises held by

another person or remains in such a home, place or premises

against that person's will is punished with imprisonment of no

less than ten days and no more than a year or with a fine."

Article 361A

"Any person which has insulted another by a deed without being

provoked is punished with imprisonment of no less than three

months and no more than five years."

2. Article 24 of Law 1419/1984 provides for the punishment of racial

discrimination.

3. Article 46 of the Code of Criminal Procedure, read in conjunction

with Article 42 thereof, provides for the drawing up of a report when

a criminal complaint is lodged with the public prosecutor by the victim

of the alleged offence.

Article 40 of the Code of Criminal Procedure creates an

obligation for every person to inform the public prosecutor of criminal

offences which have come to its attention.

If the public prosecutor decides not to institute criminal

proceedings, the only person which has the right under Article 48 of

the Code of Criminal Procedure to appeal against the prosecutor's

decision is the victim of the alleged offence, provided that it has

lodged a criminal complaint under Article 46 of the Code.

4. Article 38 of the Code of Criminal Procedure provides the

following:

"When during a civil or criminal trial facts are disclosed which

could qualify as criminal offenses, the judge, if by law he cannot

immediately hold the trial himself, should draw up a report and forward

it to the competent prosecutor's office together with all the relevant

information and documents".

According to the case-law of the Court of Cassation, a decision

by the court to the effect that Article 38 cannot be applied does not

bind the public prosecutor who may nevertheless institute criminal

proceedings (Court of Cassation decision No. 348/1962).

5. 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.

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.

On 4 August 1993, the Eleftherotypia newspaper 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 15 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.

COMPLAINTS

1. The applicant complains that his right to respect for his private

life and home, guaranteed by Article 8 of the Convention, has been

violated by the surveillance he was placed under. He further complains

that he was placed under surveillance due to his religious beliefs and

that this constitutes a violation contrary to Article 9 of the

Convention. The applicant also complains that the surveillance and the

collecting of information concerning the gatherings of Jehovah's

Witnesses violates his right of freedom of peaceful assembly contrary

to Article 11 of the Convention.

2. Moreover, the applicant complains that he is a victim of

religious discrimination contrary to Article 14 of the Convention in

conjunction with Articles 8 and 9 since persons of Greek Orthodox faith

are not placed under surveillance.

3. Finally, the applicant complains that the policy of the National

Intelligence Service of placing him under surveillance violates his

right to security contrary to Article 5 para. 1 (a) of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 20 September 1995 and

registered on 2 October 1995.

On 18 January 1996 the Commission (First Chamber) decided to

communicate the application.

The Government's written observations were submitted on

26 April 1996, after an extension of the time-limit fixed for that

purpose. The applicant replied on 2 September 1996, also after an

extension of the time-limit.

On 17 January 1997 the Commission (First Chamber) decided to

invite the parties to submit oral observations on the admissibility and

merits of the application at a hearing.

The hearing took place on 4 March 1997.

At the hearing the parties were represented as follows:

For the Government:

Mr. Vassilios Kontolaimos, Agent, Senior Adviser (Paredros), Legal

Advisory Council of the State

Mr. Vassilios Kyriazopoulos, Counsel, Legal Assistant (Dikastikos

Antiprosopos), Legal Advisory Council of the State

For the Applicant:

Mr. Panayiotis Bitsaxis, Representative, Lawyer

Mr. Charalambos Charalambeas, Representative, Lawyer

Mr. Vassilios Dedotsis, Adviser

Mr. Evangelos Kaparos, Adviser

THE LAW

1. The applicant complains under Articles 5 para. 1, 8, 9 and 11

(Art. 5-1, 8, 9, 11) of the Convention that he was placed under secret

surveillance by a public authority. He also complains of discrimination

in the enjoyment of his rights under the Convention on grounds of

religion contrary to Article 14 (Art. 14) thereof.

The Commission recalls that the provisions invoked by the

applicant read as follows:

Article 5 para. 1 (Art. 5-1) of the Convention

"Everyone has the right to liberty and security of person.

No one shall be deprived of his liberty save in the following

cases and in accordance with a procedure prescribed by law:

a. the lawful detention of a person after conviction by

a competent court;

b. the lawful arrest or detention of a person for

non-compliance with the lawful order of a court or in order to

secure the fulfilment of any obligation prescribed by law;

c. the lawful arrest or detention of a person effected

for the purpose of bringing him before the competent legal

authority on reasonable suspicion of having committed an offence

or when it is reasonably considered necessary to prevent his

committing an offence or fleeing after having done so;

d. the detention of a minor by lawful order for the

purpose of educational supervision or his lawful detention for

the purpose of bringing him before the competent legal authority;

e. the lawful detention of persons for the prevention of

the spreading of infectious diseases, of persons of unsound mind,

alcoholics or drug addicts or vagrants;

f. the lawful arrest or detention of a person to prevent

his effecting an unauthorised entry into the country or of a

person against whom action is being taken with a view to

deportation or extradition."

Article 8 (Art. 8) of the Convention

"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."

Article 9 (Art. 9) of the Convention

"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."

Article 11 (Art. 11) of the Convention

"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."

Article 14 (Art. 14) of the Convention

"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."

The Government submit that the applicant has not exhausted

domestic remedies because he did not lodge a criminal complaint with

the public prosecutor against the perpetrators of the alleged

violations, nor did he institute civil proceedings claiming damages

under Article 57 of the Civil Code or Article 105 of the law

introducing the Civil Code. Moreover, the Government point out that the

applicant has not alleged that there existed any special circumstances

which would have dispensed him from the obligation to exhaust domestic

remedies under Article 26 (Art. 26) of the Convention. Finally, the

Government submit that, if the Commission were to accept the

applicant's contention that there were no effective remedies to

exhaust, the application should be declared inadmissible as having been

lodged out of time. Although the applicant became aware of the

existence of the alleged surveillance before 9 December 1994, the

application was introduced on 20 September 1995.

The applicant argues that, in the absence of an official inquiry

ordered ex officio into his allegations, he could not have any

effective remedies in Greece, given the nature of the violations

involved. Before attempting to institute any proceedings the applicant

needed to know who the perpetrators of the violations were and he could

not have known that without the cooperation of the competent

authorities. However, the criminal court refused to bring the

perpetrators to justice by exercising its powers under Article 38 of

the Code of Criminal Procedure and there was no appeal against this

decision.

The applicant further argues that his letter of 7 April 1995 to

the public prosecutor was in essence a criminal complaint. In any

event, if he had formally lodged a complaint against persons unknown,

the case would have been left pending. In other words, the prosecutor

would have taken no decision refusing to institute proceedings and, as

a result, there would be no act against which to appeal to the

prosecutor of the court of appeal under Article 48 of the Code of

Criminal Procedure.

Moreover, the applicant argues that he did not have a realistic

possibility of instituting civil proceedings. The courts would have

dismissed as unsubstantiated a civil action against the State if the

perpetrators of the act had not been named and if it could not be shown

that they were acting in an official capacity. Finally, the applicant

argues that the six-months period should be calculated from 9 May 1995,

when the assistant prosecutor of Kilkis replied to his request for

information.

The Commission recalls that, according to its case-law, the

obligation to exhaust domestic remedies requires only that an applicant

make normal use of remedies which are effective, sufficient and

accessible. To be effective, a remedy must be capable of remedying

directly the impugned state of affairs (No. 12742/87, Dec. 3.5.89,

D.R. 61 p. 206).

In the particular circumstances of the case, the Commission, in

examining whether the applicant has complied with the obligation to

exhaust domestic remedies, cannot lose sight of the nature of his

complaints and of the fact that the report which led him to believe

that he had been subjected to surveillance was unsigned.

In this connection, the Commission notes that the applicant, when

he became aware of the existence of the report, took two steps. First,

he requested information from the Prosecutor's Office of Kilkis, which

has used the report to institute criminal proceedings against him, as

to the origins of the report, specifying that he needed this

information in order, inter alia, to institute criminal or civil

proceedings before the domestic courts. Secondly, he filed a petition

to the criminal court, before which the report had been produced by the

prosecution, under Article 38 of the Code of Criminal Procedure with

a view to having criminal proceedings instituted against the authors

of the report.

However, he did not obtain redress. Thus, on 7 April 1995 the

criminal court rejected his petition on the ground that no facts had

been disclosed which could give rise to a criminal prosecution.

Moreover, on 9 May 1995, the assistant prosecutor of Kilkis rejected

the applicant's request for information. In these circumstances, the

Commission considers that the applicant took sufficient steps in order

to raise his grievances with the national authorities. Article 26

(Art. 26) of the Convention does not require that he should have, in

addition, lodged a criminal complaint against persons unknown or a

civil action against the State without specifying which of its organs

were responsible for the alleged surveillance.

Moreover, the Commission notes that the application was lodged

on 20 September 1995, i.e. less than six months after 9 May 1995, when

the assistant prosecutor of Kilkis rejected his request for

information, or even 7 April 1995, when the criminal court rejected the

petition he had lodged under Article 38 of the Code of Criminal

Procedure.

It follows that the applicant has complied with the requirements

of Article 26 (Art. 26) of the Convention concerning exhaustion of

domestic remedies and the time-limit for the introduction of complaints

before the Commission.

2. As regards the substance of the applicant's complaints, 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. The information contained in the report

was accessible to everybody. So was the information contained in the

two reports published in the Greek press on 4 August 1993. 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.

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.

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 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.

The applicant also submits that the report discloses an

interference with the rights guaranteed by the provisions invoked,

because the information contained therein could have been obtained only

through secret surveillance. This surveillance was illegal. Moreover,

the law on the National Intelligence Service contains no safeguards

against abuses.

The Commission will first examine the applicant's complaint that

Article 5 para. 1 (Art. 5-1) of the Convention has been violated. The

Commission does not consider it necessary to examine whether the facts

complained of engage the responsibility of the respondent Government

in this connection. Even assuming that this is so, the particular

complaint of the applicant is manifestly ill-founded.

In this connection, the Commission recalls that, in accordance

with its case-law, the term "liberty and security of person" in

Article 5 para. 1 (Art. 5-1) of the Convention must be read as a whole

and, in view of its context, as referring only to physical liberty and

security. "Liberty of person" thus means freedom from arrest and

detention and "security of a person" the protection against arbitrary

interference with this liberty (Nos. 5573/72 and 5670/72, Dec. 16.7.76,

Yearbook 20, p. 102). The applicant has not been deprived of his

liberty. As a result, no appearance of a violation of Article 5 para. 1

(Art. 5-1) is disclosed.

It follows that this part of the application is manifestly ill-

founded under Article 27 para. 2 (Art. 27-2) of the Convention.

3. As regards the remainder of the applicant's complaints under

Article 8, 9, 11 and 14 (Art. 8, 9, 11, 14) of the Convention, the

Commission, in the light of the parties' observations, considers that

they raise serious questions of fact and law which are of such

complexity that their determination should depend on an examination of

the merits. This part of the application cannot, therefore, be regarded

as being manifestly ill-founded within the meaning of Article 27 para.

2 (Art. 27-2) of the Convention, and no other ground for declaring it

inadmissible has been established.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE as regards the complaint

concerning the alleged violation of the applicant's right to

liberty and security of person,

and, by a majority,

DECLARES THE REMAINDER OF THE APPLICATION ADMISSIBLE, without

prejudging the merits of the case.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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TSAVACHIDIS v. GREECE

TSAVACHIDIS v. GREECE

LEXI