Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26695/95

by Hristos SIDIROPULOS and 6 others

against Greece

The European Commission of Human Rights sitting in private on

24 June 1996, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

C.L. ROZAKIS

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

Mr. M. de SALVIA, Deputy Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 14 November 1994

by Hristos SIDIROPULOS and 6 others against Greece and registered on

14 March 1995 under file No. 26695/95;

Having regard to :

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

the Commission;

- the Commission's decision of 26 June 1995 to communicate the

application;

- the observations submitted by the respondent Government on

29 November 1995 and the observations in reply submitted by the

applicants on 6 March 1996;

Having deliberated;

Decides as follows:

THE FACTS

The application has been lodged by seven Greek citizens residing

in Florina, a prefecture in the north of Greece bordering "the Former

Yugoslav Republic of Macedonia": Hristos Sidiropulos, an electrician

born in 1949 in Kastoria, Greece, Petros Dimtsis, a professor born in

1957 in Florina, Stavros Anastasiadis, a farmer born in 1944 in

Florina, Konstantinos Gotsis, a manufacturer born in 1944 in Florina,

Anastasios Bules, a farmer born in 1941 in Florina, Stavros Sovitslis,

a farmer born in 1950 in Florina, and Dimitrios Seltsas, a dentist born

in 1956 in Florina. The applicants claim that they are of "Macedonian"

ethnic origin. They also claim to have a "Macedonian national

conscience". In the proceedings before the Commission they are

represented by Mrs. I. Kurtovik, a lawyer practising in Athens.

A. The particular circumstances of the case

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

parties, can be summarised as follows:

On 18 April 1990 the applicants, together with 49 other persons,

decided to establish a non-profit making association (somatio) entitled

"Home of Macedonian Civilisation" ("Stegi Makedoniku Politismu"). The

seat of the association would be Florina and its aims, according to

Article 2 of its charter, were "(a) the cultural, intellectual and

artistic development of its members and of the people of Florina in

general as well as the development of a spirit of co-operation,

solidarity and love between them (b) the cultural decentralisation and

the protection of the intellectual and artistic manifestations and

traditions, the monuments of civilisation and in general the

preservation and development of folk culture and (c) the protection of

the natural and cultural environment of the region".

On 12 June 1990 the applicants, who constituted the provisional

management committee of the association, applied to the Multi-Member

First Instance Civil Court (Polimeles Protodikio) of Florina for

registration under Article 79 of the Civil Code.

On 9 August 1990 the first instance court, having heard the

applicants, refused their application on the ground that "the real aim

of the association was not the one mentioned in Article 2 of its

charter; it was to cultivate the idea that a Macedonian minority

existed in Greece and this was against the national interest of Greece

and, consequently, against the law".

On 7 September 1990 the applicants appealed. On 8 May 1991 the

Court of Appeal (Efetio) of Thessaloniki, having heard the applicants,

rejected their appeal. The court considered that, when examining an

application for the registration of an association, it was not bound

by ordinary rules concerning the burden of proof. When hearing such

applications, the court should not and could not limit itself to the

evidence proposed by the parties. In the particular case the court

accepted the following as true, on the basis that it was a matter of

public knowledge.

The area which corresponds to the Greek province of Macedonia has

always been Greek. The fact that part of its population speaks a second

language, which is in essence Bulgarian mingled with Slavonic, Greek,

Vlach and Albanian, is not proof of Slav or Bulgarian descent. The

Socialist Republic of Macedonia aimed at the creation of a Slav

Macedonian state so as to gain access to the Aegean Sea. To this effect

it attempted to win over the Greek inhabitants of Greek Macedonia who

speak the above-mentioned second language. Acting in compliance with

a directive issued by Slav organisations abroad the applicants

established the "Home of Macedonian Civilisation" to further this goal.

The court further relied on reports, which had appeared in two

newspapers, according to which two of the applicants took part in a

meeting of the Conference for the Security and Cooperation in Europe

in Copenhagen where they disputed the fact that Greek Macedonia was

Greek, making a distinction between Greeks and Macedonians.

The court considered that the latter fact together with the name

of the association and the contents of its charter rendered its aims

dubious. There existed the danger that the association would be used

to trap young persons in the non-existent Slav-Macedonian minority,

since Article 3 para. 2 of the charter provided that the youth of

Florina would become members of the youth section of the association.

Moreover, the court considered it suspicious that, although Article 4

of the charter provided that all members should accept the principles

of the association, no mention of these principles was ever made in the

charter. The title of the association itself could create confusion,

because it initially created the impression that it referred to the

Greek civilisation of Macedonia, while in reality it referred to a Slav

civilisation, which, however, did not exist in the area. In the light

of all the above, the court concluded that the applicants used the word

"Macedonian" to contest the Greek identity of Macedonia and its

inhabitants. The court was satisfied that the objective of the

applicants was to undermine the territorial integrity of Greece and

upheld the decision of the lower court, notwithstanding the fact that

the latter was based on "a shorter and partially different reasoning".

On 20 June 1991 the applicants appealed to the Court of Cassation

(Arios Pagos) relying, inter alia, on Articles 2, 4, 5 and 12 of the

Greek Constitution and the corresponding provisions of the Convention.

They submitted that, contrary to the law, the court of appeal (a) did

not limit itself to reviewing the lawfulness of the establishment of

the association but exercised a much wider review as to the expediency

of its establishment based on the presumed intentions of its founders,

(b) took into consideration matters that had not been submitted by the

parties, (c) took into consideration things of material importance

without ordering the taking of evidence, (d) distorted the content of

the association's charter, and (e) did not provide sufficient reasons

for its decision.

In a memorial submitted to the Court of Cassation on the occasion

of the hearing the applicants specified that it was the decision of the

court of appeal which violated their rights under Articles 2, 4, 5 and

12 of the Greek Constitution and the corresponding provisions of the

Convention. They further submitted that, by taking into consideration

things of material importance without ordering the taking of evidence,

the court of appeal violated the applicants' right to a fair trial.

In a judgment delivered on 16 May 1994 the Court of Cassation

considered that the first, second, third and fourth grounds of appeal

were unsubstantiated. In any event, it considered that the lower court

could take into consideration matters which had not been submitted by

the parties and that the "matters of material importance" referred to

were either matters of public knowledge or proved on the basis of

documents, namely the press reports mentioned in the decision. The

Court of Cassation further considered that the decision of the court

of appeal was adequately reasoned. It also noted that the applicants

had not alleged that the decision of the court of appeal violated

Articles 2, 4, 5 and 12 of the Constitution. In the applicants'

submission, it was the decision of the first instance court which had

failed to respect the above-mentioned provisions. However, even if the

aim of the applicants had been to attack the constitutionality of the

decision of the court of appeal, this ground of appeal would have had

to be rejected as unsubstantiated. On the basis of all the above, the

Court of Cassation dismissed the applicants' appeal in cassation.

B. Relevant domestic law

Article 4 para. 1 of the Constitution provides the following:

"All Greeks are equal before the law."

Article 12 of the Constitution provides the following:

"Greeks have the right to form non-profit associations and

unions, in compliance with the law, which, however, may

never subject the exercise of this right to prior

permission."

The Civil Code provides in respect of non-profit making

associations the following:

Article 78

"An association of at least twenty persons with a non-

profit making aim acquires legal personality upon

registration in a special book kept by the competent first

instance civil court."

Article 79

"The founders of the association or its administration

apply to the competent first instance civil court to have

the association registered in the special book. The

application must be accompanied by the act establishing the

association, a list of the names of its administration and

its charter which must be dated and signed by its members."

Article 80

"The charter of the association must specify the following:

(a) the aim, name and seat of the association, (b) the

conditions of admission, withdrawal and expulsion of the

members and their rights and obligations ... Otherwise it

is not valid."

Article 81

"The first instance civil court accepts the application if

it is satisfied that all the conditions set by the law are

met ..."

Article 105

"The first instance civil court orders the dissolution of

the association ... (c) if the association pursues other

aims than those specified in its charter, or if the aim or

the functioning of the association has become illegal,

immoral or against the public order."

The Code of Civil Procedure provides the following in respect of

the special procedure (ekusia dikeodosia) according to which courts

examine, inter alia, applications for the registration of associations:

Article 744

"The court may proprio motu order any measures which could

lead to the establishment of relevant facts, even if the

latter have not been the subject matter of the parties'

submissions ..."

Article 759 para. 3

"Notwithstanding the legal rules concerning proof, the

court may order proprio motu whatever it considers

necessary for the establishment of the facts."

Moreover, Article 336 para. 1 of the Code of Civil Procedure

provides the following in respect of all proceedings before the civil

courts:

"The court may take into consideration, proprio motu and

without taking evidence, facts which are so generally known

that there can be no reasonable doubt as to their truth."

COMPLAINTS

1. The applicants complain of a violation of Article 6 of the

Convention in that their case was not heard by impartial tribunals.

They submit that the courts were hostile to them because of their

ethnic origin and national conscience. In substantiation of their claim

they rely on passages of the decisions where the courts assert that the

Slav-Macedonian minority is non-existent and conclude that the

applicants acted against the interests of Greece to further the aims

of a foreign power. The applicants also complain that they did not have

a fair hearing because, contrary to the law, the courts (a) did not

limit themselves to reviewing the lawfulness of the establishment of

the association but exercised a much wider review as to the expediency

of its establishment based on the presumed intentions of its founders,

(b) took into consideration matters that had not been submitted by the

parties, and (c) took into consideration things of material importance

without ordering the taking of evidence.

2. The applicants further complain of a violation of Articles 9, 10

and 11 of the Convention in that they were not allowed to establish a

cultural association. As the refusal of the courts to register the

association was not related to the aims of the association, the

applicants submit that this was a sanction imposed on them because of

their publicly expressed beliefs.

3. The applicants finally complain of a violation of Articles 1 and

14 of the Convention in that they were denied the enjoyment of the

above-mentioned Convention rights because of their ethnic origin, their

association with a national minority and their beliefs and national

conscience.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 14 November 1994 and registered

on 14 March 1995.

On 26 June 1995 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

The Government's written observations were submitted on

29 November 1995, after an extension of the time-limit fixed for that

purpose. The applicants replied on 6 March 1996, also after an

extension of the time-limit.

THE LAW

1. The Commission notes that the fourth applicant, Mr. Konstantinos

Gotsis, died on 29 September 1995. There is no indication that there

are any heirs who wish to pursue his application.

It follows that, insofar as the application has been introduced

by the fourth applicant, it must be struck off the lists of cases

pursuant to Article 30 para. 1 (c) (Art. 30-1-c) of the Convention.

2. The remaining applicants complain of a violation of their rights

under Article 6 (Art. 6) of the Convention in that the courts were

hostile to them, did not apply correctly national law and took into

consideration matters that had not been submitted by the parties and

things of material importance without ordering the taking of evidence.

They also complain of a violation of Articles 9, 10 and 11

(Art. 9, 10, 11) of the Convention in that they were not allowed to

establish a cultural association. Finally, they complain of a violation

of Articles 1 and 14 (Art. 1, 14) of the Convention in that they were

denied the enjoyment of the above-mentioned Convention rights because

of their ethnic origin, their association with a national minority and

their beliefs and national conscience.

The provisions invoked by the applicants, insofar as relevant,

provide as follows:

Article 1 (Art. 1) of the Convention

"The High Contracting Parties shall secure to everyone

within their jurisdiction the rights and freedoms defined

in Section 1 of this Convention."

Article 6 para. 1 (Art. 6-1) of the Convention

"In the determination of his civil rights and obligations

..., everyone is entitled to a fair ... hearing ... by an

... impartial tribunal ...".

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 10 (Art. 10) of the Convention

"1. Everyone has the right to freedom of expression. This

right shall include freedom to hold opinions and to receive

and impart information and ideas without interference by

public authority and regardless of frontiers. ...

2. The exercise of these freedoms, since it carries with

it duties and responsibilities, may be subject to such

formalities, conditions, restrictions or penalties as are

prescribed by law and are necessary in a democratic

society, in the interests of national security, territorial

integrity or public safety, for the prevention of disorder

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

protection of the reputation or rights of others, for

preventing the disclosure of information received in

confidence, or for maintaining the authority and

impartiality of the judiciary."

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.

..."

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."

3. As a preliminary point, the Government submit that the

application constitutes an abuse of the right of individual petition.

Its real aim is to obtain a ruling by the Convention organs that the

name Macedonia belongs to the recently established Slav nation of

Skopje. The applicants attempt to remove the dispute between Greece and

"the Former Yugoslav Republic of Macedonia" concerning the name of the

latter from the competence of the various international fora charged

with maintaining international peace and prosperity and to oblige the

European Convention organs to resolve it. At a time when Greece is

engaged in negotiations concerning the name of "the Former Yugoslav

Republic of Macedonia", it cannot permit the use of the name Macedonia

by organisations of the Slavs of Skopje on its territory.

The applicants submit that the application has nothing to do with

the dispute between Greece and "the Former Yugoslav Republic of

Macedonia".

The Commission notes that the application originates in the

applicants' attempt to establish in Greece an association entitled

"Home of Macedonian Civilisation" and that the applicants are Greek

citizens who claim to be of "Macedonian" ethnic origin and have a

"Macedonian national conscience". The Government's argument concerning

the abusive character of the application is based, in essence, on the

thesis that no "Macedonian" minority exists in Greece, which the

applicants appear to contest.

The Commission considers that the difference of opinion between

the parties on these matters raises issues which are relevant for the

examination of the justification of the alleged interference with the

applicants' rights under Articles 9, 10 and 11 (Art. 9, 10, 11) of the

Convention. It also considers that it would be failing in its duty

under Article 19 (Art. 19) of the Convention to ensure the observance

of the engagements undertaken by the High Contracting Parties in the

Convention if it were to refuse to examine the application on the basis

of the possible impact, if any, that it might have on the dialogue

between Greece and "the Former Yugoslav Republic of Macedonia".

The Commission considers, therefore, that the application does

not constitute an abuse of the right of petition within the meaning of

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

4. The Government also contend that the applicants have failed to

observe the six-month rule of Article 26 (Art. 26) of the Convention.

They submit that more than six months elapsed between the delivery of

the judgment of the Court of Cassation on 16 May 1994 and the

introduction of the application on 14 November 1994.

The applicants agree that the six months' time-limit should be

calculated from the date of the delivery of the judgment of the Court

of Cassation and submit that their application has been submitted

within the period provided for in Article 26 (Art. 26) of the

Convention.

The Commission takes note of the Government's submission, which

must be, however, the result of a calculation error. The Commission

considers that, as the Government in reality accept, the application

has been introduced within six months from the final domestic decision

in the applicants' case.

5. The Government further submit that the applicants have not

exhausted domestic remedies. According to the decision of the Court of

Cassation, the applicants did not complain that the decision of the

Court of Appeal violated their rights under the Convention. The

applicants complained, without however substantiating their

allegations, that their Convention rights had been violated by the

decision of the first instance court. However, this decision could not

be challenged before the Court of Cassation. It follows that the

applicants did not raise their complaints in accordance with the rules

of national law and, as a result, did not give the Court of Cassation

the opportunity to redress the alleged violations.

The applicants submit that they raised before the Court of

Cassation all their complaints referring to the relevant articles of

the Greek Constitution and the corresponding provisions of the

Convention.

The Commission recalls that, in accordance with its constant

case-law, a person is deemed to have exhausted domestic remedies if he

has raised before the national authorities, at least in substance, the

complaint he puts to the Commission (No. 10563/83, Dec. 5.7.85, D.R. 44

p. 113).

The Commission has examined the five grounds on the basis of

which the applicants challenged the decision of the Court of Appeal

before the Court of Cassation on 20 June 1991. It considers that by

relying on these five grounds the applicants raised in substance all

the complaints they have now put before the Commission. It also notes

that the Court of Cassation, before rejecting the appeal, examined all

the grounds raised by the applicants at length.

It follows that the application cannot be rejected under

Article 27 para. 3 (Art. 27-3) for failure to exhaust domestic

remedies.

6. As regards the substance of the applicants' complaints, the

Government submit that the national courts had the power under Greek

law to examine whether the aims of the association were unlawful or

against public order. The Court of Cassation interpreted the relevant

provisions of the Code of Civil Procedure correctly when it rejected

the applicants' appeal in cassation. The domestic courts had the power

to take into consideration certain incontrovertible facts and in

particular the threat which certain recent acts of "the Former Yugoslav

Republic of Macedonia" posed for the national integrity and the

cultural heritage of Greece. They also had the power to take into

consideration certain publications in the Greek and Yugoslav press

concerning the applicants.

The Government argue that it is clear from the applicants'

submissions before the Commission that their real aim was to establish

an association on behalf of the minority of the Slavs of Skopje in

order to protect the cultural traditions of Skopje, which are in

reality of Bulgarian and Yugoslav origin. The Government affirm that

such a minority and such cultural traditions do not exist in Greece.

It transpires, however, from the applicants' submissions before the

Commission that the real aims of the association were different from

those mentioned in its charter. In any event, the domestic courts have

exclusive competence to establish that the real aim of the association

is different from the aim mentioned in its charter, provided that the

courts do not act in a discriminatory manner.

The Government argue, in the alternative, that the domestic

courts were correct in concluding that the intention of the applicants

was to assist various Slav associations operating outside Greece in

their attempt to undermine the territorial integrity of Greece. The

domestic courts have found that the case concerned the national

security of Greece. It follows that they have exclusive competence in

the matter.

On the basis of all the above, the Government submit that there

could be no violation of Article 6 (Art. 6) of the Convention, because

the courts were impartial and heard the applicants. It was lawful under

domestic law not to order the taking of evidence. The judges did not

review the expediency of the establishment of the association, but did

their duty to protect the existence of their country.

As regards the applicants' complaints under Articles 9 and 10

(Art. 9, 10) of the Convention, the Government submit that the

decisions in question do not prohibit the applicants from assuming that

they are not of Greek ethnic origin. The interference with their

Convention rights was necessary in a democratic society to protect

national security, public order and the rights and freedoms of the

Greek people in its entirety. The Greek people has the right to protect

Macedonia which belongs to it historically and culturally and lies

within its territory and which the Slavs of Skopje want to appropriate

for themselves. As regards the applicants' complaints under Article 11

(Art. 11) of the Convention, the Government contend that the

interference with the applicants' right to freedom of association was

justified under para. 2 of that provision for the reasons stated above.

Finally, insofar as the applicants' complaints under Articles 1

and 14 (Art. 1, 14) of the Convention are concerned, the Government

submit that the refusal of the courts to register the association was

not an act of discrimination against the applicants because of their

ethnic origin and beliefs. The association was found to pursue

different aims from those stated and its real aims were against public

order.

The applicants submit that the Government's arguments amount to

acknowledging that their rights under the Convention have been

violated. They contend that, under Greek law and in particular

Article 12 (Art. 12) of the Constitution, the domestic courts should

have limited their review to ascertaining that the conditions set forth

in Articles 78-80 of the Civil Code were fulfilled and that the stated

aims of the association were not illegal, or against morality or public

order. They could not engage in speculation as to real aims of the

association. Nor could they decide on the expediency of its

establishment on the basis of the presumed intentions of its founders.

According to the case-law, a judge, when applying the special

procedure for examining applications for the registration of

associations, may order proprio motu whatever measures he considers

necessary for the establishment of the truth. He cannot, however, rely

on documents or evidence which have not been officially submitted to

the court or on his private knowledge. Moreover, he cannot consider

that certain material facts have been established without ordering,

even proprio motu, the taking of evidence. It cannot be considered that

the propositions on which the national courts based their decisions in

the case were "common knowledge". Part of the information invoked was

derived from certain racist newspapers. The reasoning in the courts'

decisions is limited to a historical analysis and certain unfounded

disparaging remarks for the applicants. No attempt was made by the

courts to link the above in a reasoned manner with the charter of the

association and the rejection of the request for its registration. The

Court of Cassation, in upholding these decisions, violated national law

and the rights of the accused under Article 6 para. 1 (Art. 6-1) of the

Convention.

The applicants also affirm that their association had no links

with "the Former Yugoslav Republic of Macedonia" and stress that it was

set up long before the declaration of independence of that country. In

any event, a court cannot base its decision on a particular

interpretation of certain historical events which it considers to be

established facts without ordering the taking of evidence.

The applicants further contend that the aims of their association

were lawful. They involved the study of the local culture of the area

of Florina, in which, as it is well-known, a distinct linguistic,

cultural and historic group of people, to which the applicants belong,

lives. The study of the local culture is protected by the Constitution,

the Convention, other international human rights instruments and the

agreements of the Organisation for the Security and Cooperation in

Europe in which Greece participates. In accordance with these

agreements, every person has the right to consider that he belongs to

a particular group.

As regards the necessity of the interference with their

Convention rights, the applicants submit that, if the aims of the

association turned out to be unlawful or against morality or public

order, the State could protect itself using the means provided by

national law. The courts could order the dissolution of the association

under Article 105 of the Civil Code.

Finally, the applicants argue that it is clear that the courts

discriminated against them, since they refused the registration of the

association in blatant disregard of domestic law.

The Commission considers that the applicants' various complaints,

including those concerning procedural fairness, are so closely linked

to each other that they cannot be separated at this stage and must be

examined as a whole.

In the light of the parties' observations, the Commission

considers that the application raises serious questions of fact and

law, including the question of the applicability of Article 6

(Art. 6) of the Convention to the proceedings in question, which are

of such complexity that their determination should depend on an

examination of the merits. 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,

STRIKES THE APPLICATION OUT OF ITS LIST OF CASES, in so far as

it has been introduced by the fourth applicant,

DECLARES THE REMAINDER OF THE APPLICATION ADMISSIBLE,

without prejudging the merits of the case.

Deputy Secretary President of the Commission

to the Commission

(M. de SALVIA) (S. TRECHSEL)

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SIDIROPULOS AND OTHERS v. GREECE

SIDIROPULOS AND OTHERS v. GREECE

LEXI