Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16595/90

by Kole MANGOV

against Greece

The European Commission of Human Rights sitting in private on 18

February 1993, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

Mr. H.C. KRÜGER, 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 10 February 1989

by Kole MANGOV against Greece and registered on 16 May 1990 under file

No. 16595/90;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case as submitted by the parties may be

summarised as follows:

At the time of the introduction of the application the applicant

was a citizen of Yugoslavia. He was born in 1940 in Vevi (Greece). He

left Greece in 1945. He is a judge and resides in Skopje.

The applicant's grandfather, a Greek citizen, died in Vevi in

1962. In 1982 the Ministers of the Interior and Public Order issued a

joint decree concerning the return to Greece and the acquisition of

Greek nationality by political refugees who had fled Greece during the

civil war. This decree provides inter alia that "persons of Greek

origin who took refuge abroad as political refugees during and because

of the civil war of 1946-1949 are free to take up residence in Greece

even if they have been deprived of their Greek nationality".

In April 1985 a law enacted by the Greek Parliament (Nomos

1540/1985) provided for the restitution of real property to political

refugees who wished to resettle in Greece. Article 1 para. 1 of this

law reads as follows:

"Political refugees within the meaning of the present law

are persons of Greek origin who have taken refuge abroad

after 1 January 1945 and those who have been imprisoned or

deported because of the civil war."

In April 1985 the Greek Government allowed persons coming from

the former Yugoslavia to enter Greece without border formalities. The

applicant went to Greece and met his brother, a Greek citizen residing

in Vevi. He consulted the land registry of his native place in order

to examine whether he could institute inheritance proceedings. By

notary act of 18 April 1985 he gave a general authority to his brother.

Upon his return to Skopje he was asked by a Greek frontier officer to

fill in a form. The applicant indicated on the form that his

nationality was "Macedonian". He submits that the frontier officer tore

the form and told his brother: "This is the reason we do not let them

in."

On 26 May 1988 the applicant requested his brother to institute

proceedings on his behalf. However, he was later informed by his

brother that no lawyer accepted his case.

A newspaper article was published in Greece on 9 September 1989

which criticised the applicant's militant activities abroad and the

Government's decision to allow him to enter Greece in April 1985.

In December 1989 the applicant requested the Greek Consulate

General in Skopje to provide him with an entry visa for Greece. The

applicant was asked to fill in an application form which was written

in Greek.

The following information should be given in the form:

- Name, first name

- Date and place of birth

- Name, date and place of birth of the parents

- Address in Yugoslavia

- Profession

- National origin

- Nationality

- Language(s)

- Object of the travel

- History of the departure from Greece

- Information concerning members of the family

- Information concerning relatives in Greece

In the applicant's view a number of questions included in the

form were specifically addressed to Yugoslav citizens born in Greece

with the purpose of singling out those claiming to belong to the

"Macedonian community". He did not apply for the visa considering that

the questions put to him were discriminatory and humiliating.

COMPLAINTS

1. The applicant complains of a discriminatory policy of the Greek

State towards persons expressing their belief of "Macedonian national

belonging". He claims that by a series of procedural barriers these

persons are singled out and excluded from any normal contact with Greek

authorities or citizens. In this respect the applicant refers to the

Ministerial Decree of 1982 and Law 1540/1985 and submits that the

wording of the decree excludes people born in Greece, but who are not

of Greek origin, from freely entering Greece. The applicant invokes

Articles 3, 9 and 14 of the Convention.

2. The applicant further complains of not being allowed to enter

Greece in order to meet his brother, visit his native place and his

father's tomb, institute proceedings for the recovery of his land and

express there his beliefs of belonging to the "Macedonian community".

He invokes Articles 6 para.1, 8, 10 and 14 of the Convention and

Article 1 of Protocol No 1.

The applicant also complains of the fact that he is obliged to

disclose information on his private and family life in the application

for a visa unlike other citizens of the former Yugoslavia. He considers

this to be humiliating and discriminatory. He invokes in this respect

Articles 3, 8, and 14 of the Convention.

3. Finally the applicant complains of the Greek lawyers' refusal to

represent him in proceedings in Greece.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 10 February 1989 and registered

on 16 May 1990.

On 19 April 1991, the Commission decided to communicate the

application to the Greek Government and to invite them to submit

written observations on the admissibility and merits of the

application.

The Government submitted their observations on 24 July 1991. The

applicant submitted observations in reply on 26 September 1991.

THE LAW

1. The applicant first complains of an alleged discriminatory policy

of the Greek State towards persons who claim to be "Macedonians". This

discriminatory policy would appear from the provisions of the

Ministerial Decree of 1982 and the Law 1540/1985 excluding persons born

in Greece but of non-Greek origin from entering into Greece. In the

applicant's view this policy prevents him from freely manifesting the

belief of his national belonging. He invokes Articles 3, 9 and 14

(Art. 3, 9, 14) of the Convention.

The respondent Government submit that the Greek legislation

concerning repatriation of Greek political refugees does not intend to

restrict any individuals' right of entry into Greece but gives

preferential treatment to persons of Greek origin who wish to resettle

in Greece. The Government further refute the applicant's allegation

that it conducts a discriminatory policy as regards the right of entry

into Greece.

The Commission notes that the applicant claims to be victim of

a discrimination resulting from the provisions of the Ministerial

Decree of 1982 and the Law 1540/1985, which regulate resettlement in

Greece of categories of persons who had fled Greece during the civil

war. It recalls that the Convention does not provide for any actio

popularis (cf. No 8727/79, Dec. 8.7.80, D.R. 20, p. 230; No 9297/81,

Dec. 1.3.82, D.R. 28, p. 204). Therefore, the Commission is not

competent to examine in abstracto the compatibility of the law with the

Convention. The person who is unable to demonstrate that he is

personnally affected by the application of the law he criticises,

cannot claim to be a victim of a violation of the Convention, within

the meaning of Article 25 (Art. 25) (No. 7045/75, Dec. 10.12.76, D.R.

7, p. 87).

In the present case the applicant has submitted that he is

discriminated against with regard to the conditions of entry into

Greece, a matter which is not regulated by the legislation complained

of. He has neither shown nor alleged that he wished to take up

residence in Greece and that this was refused to him on the basis of

the challenged legislative provisions.

It follows that the applicant cannot claim to be a victim, within

the meaning of Article 25 para. 1 (Art. 25-1) of the Convention, of a

violation of his Convention rights because of the above-mentioned

legislation and that this part of the application must be rejected in

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

2. The applicant further complains of not being allowed to enter

Greece as a result of a discriminatory policy of the Greek authorities.

Invoking Articles 3, 6, 8, 9, 10 and 14 (Art. 3, 6, 8, 9, 10, 14) of

the Convention he submits that he is not entitled to institute

proceedings in Greece and is therefore prevented from having access to

courts with regard to his inheritance; that he is prevented from

visiting the tomb of his parents, meeting his brother and visiting his

native place; that he is prevented from manifesting his beliefs of

belonging to the Macedonian nation and from expressing his ideas in

Greece.

The Commission first recalls that Article 14 (Art. 14) of the

Convention guarantees the principle of non-discrimination in the

enjoyment of the rights and freedoms recognised by the Convention (cf.

No 8493/79, Dec. 8.10.81, D.R. 25 p. 210) and cannot be applied

independently. The applicant's complaint relates to an alleged

discrimination as regards the right for a foreigner to enter the

territory of a Contracting State, a right which is not as such

guaranteed by the Convention (cf. e.g. No. 7816/77, Dec. 19.5.77, D.R.

9, p. 129).

However, the Commission recalls that the exercise of several

rights under the Convention by an alien can require that he be granted

permission to enter a Contracting State. The Commission has found,

inter alia, that an issue concerning an alien's right to respect for

his family life can arise under Article 8 (Art. 8) of the Convention

if the alien is prevented from entering the country where his family

lives (cf. e.g. No. 8378/78, Dec. 14.5.80, D.R. 20, p. 168; No.

9214/80, Dec. 11.5.82, D.R. 29, p. 176; No. 13078/87, Fadele v. United

Kingdom, Dec. 12.2.90). Furthermore, the Commission has not excluded

that a prohibition to visit a family grave may also raise an issue

under Article 8 (Art. 8) of the Convention (No. 15344/89,

Habsburg-Lothringen v. Austria, Dec. 14.12.89, not yet published).

Moreover, the Commission recalls that Article 6 para. 1

(Art. 6-1) of the Convention, which guarantees the right of access to

court in civil matters, may be infringed where an alien, whose civil

rights in a Convention State are in dispute, is prevented from entering

that State and from being effectively represented before the courts.

In this respect the Commission recalls that a factual obstacle may

infringe the Convention just like a legal impediment (cf. Eur. Court

H.R., Golder judgment of 21 February 1975, Series A no. 18, p. 13,

para. 20).

The Commission further recalls that measures whereby an

individual is refused admission into or is expelled from a particular

territory of a Contracting State can, if they are proved to be taken

with the purpose of preventing this individual from expressing his

ideas or opinions, raise issues under Article 10 (Art. 10) of the

Convention (Nos 15773 and 15774/89, Piermont v. France, Dec. 3.12.92,

not yet published).

The Commission concludes, therefore, that the applicant's

complaints fall within the general area covered by the above-mentioned

provisions of the Convention.

The respondent Government underline the fact that the applicant

has not applied for a visa and cannot therefore establish that there

is an actual interference with the exercise of his Convention rights

by the authorities.

The applicant admits that he did not apply for a visa but alleges

that several questions in the application form he received from the

Greek Consular authorities in Skopje are discriminatory and humiliating

and thus contrary to Articles 3 and 14 (Art. 3, 14) of the Convention.

The applicant notes that he was asked to disclose information

concerning his private and family life. He also observes that the form

was in the Greek language.

The Commission has examined the applicant's allegations

concerning the application form. It finds that neither the obligation

to disclose information when applying for a visa for entry into a

foreign country nor the fact that the application form was in Greek can

be regarded as humiliating or discriminatory.

The Commission finds therefore that the above formalities did not

prevent the applicant from duly applying for a visa and that he has not

been confronted with any formal refusal of leave to enter Greece.

It follows that the applicant cannot in this respect claim to be

a victim of a violation of the Convention, within the meaning of

Article 25 para. 1 (Art. 25-1) of the Convention, and that this part

of the application must also be rejected in accordance with Article 27

para. 2 (Art. 27-2).

3. The applicant finally complains of the alleged refusal of Greek

lawyers to represent him in proceedings in Greece. He submits that this

refusal is due to his activities in favour of the Human Rights of

Macedonians in Greece.

The Commission has examined this complaint under Article 6 para.

1 (Art. 6-1) of the Convention which secures to everyone the right of

access to court in civil matters (cf. Eur.Court of H.R. Philis judgment

of 27 August 1991, Series A No 209, p. 20, para. 59).

The Government submit that the right of access to court is

guaranteed in cases where there exists on arguable grounds a civil

right in issue. The Government state that this condition is not

fulfilled in the applicant's case. They further note that it was open

to the applicant, pursuant to Article 47 of Law 3026/1954, to request

the President of the competent civil court to appoint a lawyer for him.

The applicant submits in reply that he is prevented from having

contacts with the judiciary and that he does not want to subject the

protection of his rights to the discriminatory conditions imposed by

Greece.

The Commision finds, assuming that the alleged attitude of the

Greek lawyers towards the applicant may be imputable to Greece and

further assuming that Article 6 para. 1 (Art. 6-1) applies in the

present case, that this part of the application should be rejected for

the following reasons.

Under Article 26 (Art. 26) of the Convention the Commission may

only deal with an application after the exhaustion of domestic remedies

according to the generally recognised rules of international law. In

the present case it appears clearly from the information submitted by

the parties that the applicant has not requested the President of the

competent court to appoint a lawyer for the defence of his interests,

although such a remedy was accessible to him and to his brother to whom

he has given a general authority. Moreover this remedy was capable of

providing adequate redress of the situation he complains of, i.e. the

alleged refusal of Greek lawyers to represent him before courts.

Moreover, the examination of the case has not disclosed any particular

circumstance which could, in accordance with the generally recognised

principles of international law, absolve the applicant from the

obligation to exhaust the domestic remedies at his disposal.

It follows that the applicant has not complied with the

requirement as to the exhaustion of domestic remedies and that this

part of the application must be rejected in accordance with Article 27

para. 3 (Art. 27-3) of the Convention.

For these reasons the Commission, by majority

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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MANGOV v. GREECE

MANGOV v. GREECE

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