Lexploria

In the case of Pentidis and Others v. Greece (1),

The European Court of Human Rights, sitting, in accordance with

Article 43 (art. 43) of the Convention for the Protection of

Human Rights and Fundamental Freedoms ("the Convention") and the

relevant provisions of Rules of Court A (2), as a Chamber composed of

the following judges:

Mr R. Ryssdal, President,

Mr R. Macdonald,

Mr N. Valticos,

Sir John Freeland,

Mr A.B. Baka,

Mr B. Repik,

Mr U. Lohmus,

Mr J. Casadevall,

Mr E. Levits,

and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy

Registrar,

Having deliberated in private on 21 February and on 2 June 1997,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

1. The case is numbered 59/1996/678/868. The first number is the

case's position on the list of cases referred to the Court in the

relevant year (second number). The last two numbers indicate the

case's position on the list of cases referred to the Court since its

creation and on the list of the corresponding originating applications

to the Commission.

2. Rules A apply to all cases referred to the Court before the entry

into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only

to cases concerning States not bound by that Protocol (P9). They

correspond to the Rules that came into force on 1 January 1983, as

amended several times subsequently.

_______________

PROCEDURE

1. The case was referred to the Court by the European Commission of

Human Rights ("the Commission") on 17 April 1996, within the

three-month period laid down by Article 32 para. 1 and Article 47 of

the Convention (art. 32-1, art. 47). It originated in an application

(no. 23238/94) against the Hellenic Republic lodged with the Commission

under Article 25 (art. 25) by three Greek nationals,

Mr Zissis Pentidis, Mr Dimitrios Katharios and

Mr Anastassios Stagopoulos, on 30 December 1993.

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby Greece recognised the

compulsory jurisdiction of the Court (Article 46) (art. 46). The

object of the request was to obtain a decision as to whether the facts

of the case disclosed a breach by the respondent State of its

obligations under Articles 3, 8, 9, 10, 11 and 14 of the Convention

(art. 3, art. 8, art. 9, art. 10, art. 11, art. 14) and of Article 1

of Protocol No. 1 (P1-1).

2. In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of Rules of Court A, the applicants stated that

they wished to take part in the proceedings and designated the lawyer

who would represent them (Rule 30).

3. The Chamber to be constituted included ex officio Mr N. Valticos,

the elected judge of Greek nationality (Article 43 of the Convention)

(art. 43), and Mr R. Ryssdal, the President of the Court

(Rule 21 para. 4 (b)). On 27 April 1996, in the presence of the

Registrar, the President drew by lot the names of the other

seven members, namely Mr F. Gölcüklü, Mr R. Macdonald,

Sir John Freeland, Mr A.B. Baka, Mr B. Repik, Mr U. Lohmus and

Mr J. Casadevall (Article 43 in fine of the Convention and

Rule 21 para. 5) (art. 43). Subsequently, Mr E. Levits, substitute

judge, replaced Mr Gölcüklü, who was unable to take part in the further

consideration of the case (Rules 22 para. 1 and 24 para. 1).

4. As President of the Chamber (Rule 21 para. 6), Mr Ryssdal, acting

through the Registrar, consulted the Agent of the Greek Government

("the Government"), the applicants' lawyer and the Delegate of the

Commission on the organisation of the proceedings (Rules 37 para. 1 and

38). The Government's memorial reached the registry on

16 December 1996 and the applicants' memorial on 18 December.

5. In accordance with the President's decision, the hearing took

place in public in the Human Rights Building, Strasbourg, on

18 February 1997. The Court had held a preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr V. Kondolaimos, Senior Adviser,

Legal Council of State, Delegate of the Agent,

Mr V. Kyriazopoulos, Adviser,

Legal Council of State, Adviser;

(b) for the Commission

Mr J.-C. Geus, Delegate;

(c) for the applicants

Mr P. Bitsaxis, of the Athens Bar, Counsel.

The Court heard addresses by Mr Geus, Mr Bitsaxis and

Mr Kyriazopoulos, and also their replies to its questions.

6. By a letter of 12 May 1997, which reached the registry on 20 May,

the applicants' lawyer submitted to the Court a request that the case

be struck out of the list. On 22 May 1997 the Registrar received a

letter from the Agent of the Government in which he agreed to the

striking out of the case. On 27 May 1997 the Delegate of the

Commission informed the Court that he raised no objection to the

application of Rule 49 para. 2 of Rules of Court A.

AS TO THE FACTS

I. Particular circumstances of the case

A. Background

7. The applicants are all three Jehovah's Witnesses and live in

Alexandroupolis and Komotini (western Thrace).

8. On 28 June 1990 they rented under a private agreement a room in

a building in Alexandroupolis. The agreement specified that the room

would be used "for all kinds of meetings, weddings, etc., of Jehovah's

Witnesses".

9. On 8 October 1990 forty-three residents of the town requested the

public prosecutor's office to take measures with a view to removing the

Jehovah's Witnesses from the district. Following this request the

public prosecutor's office instituted criminal proceedings under

section 1 of Law no. 1363/1938 (anagastikos nomos). The applicants

were accused of having "established ... a place of worship for

religious meetings and ceremonies of followers of another denomination

and, in particular, of the Jehovah's Witnesses' denomination without

authorisation from the recognised ecclesiastical authorities and the

Minister of Education and Religious Affairs, such authorisation being

required for the construction and operation of a church of any faith".

10. On 19 November 1990 the Alexandroupolis police put seals on the

entrance door of the room rented by the applicants.

B. Proceedings in the Alexandroupolis Criminal Court sitting

at first instance

11. On 2 July 1991 the Alexandroupolis Criminal Court sitting at

first instance (Monomeles Plimmeliodikeio) acquitted the applicants

(judgment no. 2092/1991). It found, inter alia, that the room that

they had rented "was used only for preaching and reading of the gospel,

which are not acts of worshipping God and that consequently it was not

a place of worship or a church within the meaning of section 1 (1) of

Law no. 1363/1938".

The court ordered the seals to be removed and they were not in

fact put back despite the applicants' subsequent conviction

(see paragraph 12 below).

C. Proceedings in the Alexandroupolis Criminal Court sitting

on appeal

12. On 3 July 1991 the Alexandroupolis public prosecutor's office

appealed.

On 21 May 1992 the Alexandroupolis Criminal Court sitting on

appeal and composed of three judges (Trimeles Plimmeliodikeio),

sentenced each of the accused to thirty days' imprisonment convertible

into a pecuniary penalty of 400 drachmas per day of detention, and

fined them 6,000 drachmas each (judgment no. 511/1992). It

nevertheless accepted that there were mitigating circumstances in that

there had been no base motives behind the offence (Article 84 para. 2

of the Criminal Code). The court declined to follow prosecuting

counsel's submissions calling for the defendants' acquittal. It held

as follows:

"... [the applicants] set up a place of worship for the

Jehovah's Witnesses denomination ... without the authorisation

of the Ministry of Education and Religious Affairs; in

particular, they converted the building that they had rented into

a place of worship and ran it as such ..., and on Mondays,

Wednesdays and Sundays (afternoons on the first two days and

mornings and afternoons on the third) fifty to eighty believers

(witnesses) of the Jehovah's Witnesses denomination gathered

there and, under the spiritual guidance of the first accused,

Mr Dimitrios Katharios, appointed minister of the above-mentioned

denomination for the Evros area, read, studied and interpreted

passages from the Bible, prayed to God (prayer groups) and sung

together psalms accompanied by an organ, without having an

authorisation ... from the Ministry of Education and

Religious Affairs."

D. Proceedings in the Court of Cassation

13. On 5 June 1992 the applicants appealed on points of law. They

argued, inter alia, that section 1 of Law no. 1363/1938 and the

obligation to seek an authorisation to establish a place of worship

were contrary to Article 13 of the Greek Constitution and to Article 9

(art. 9) of the European Convention. They also contended that the same

provision was incompatible with the right to peaceful assembly

guaranteed under Article 11 of the Constitution and Article 11 of the

Convention (art. 11).

14. In a judgment (no. 1204/1993) of 7 July 1993 the

Court of Cassation dismissed their appeal on the following grounds:

"The provisions [of section 1 of Law no. 1363/1938 and of the

royal decree of 20 May/2 June 1939 implementing that Law] are

contrary [neither to Article 11 nor to Article 13 of the

Constitution], for the right to freedom of worship is not

unlimited and may be subject to control. The exercise of this

right is subject to certain conditions set down in the

Constitution and at law: it must be a known religion, not a

secret religion; there must be no prejudice to public order or

morals; neither must there be any acts of proselytism, such acts

being expressly prohibited in the second and third sentences of

Article 13 para. 2 of the Constitution. These provisions are,

moreover, not contrary [to the Convention for the Protection of

Human Rights and Fundamental Freedoms], Article 9 (art. 9) of

which guarantees freedom of religion but Article 9 para. 2

(art. 9-2) of which authorises 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 of others.

The provisions of section 1 of Law no. 1363/1938 ... and of the

royal decree of 20 May/2 June 1939, which empower the

Minister of Education and Religious Affairs to investigate

whether the above-mentioned conditions are met, are contrary

neither to the Constitution nor to Article 9 [of the Convention]

(art. 9), which do not in any way prohibit investigations of this

type; the purpose of such investigations is moreover merely to

ensure that the statutory conditions necessary to grant

authorisation are met; if these conditions are met, the Minister

is obliged to grant the requested authorisation.

..."

PROCEEDINGS BEFORE THE COMMISSION

15. The applicants applied to the Commission on 30 December 1993.

They complained of violations of Articles 3, 6 paras. 1, 2 and 3, 7,

8, 9, 10, 11, 13 and 14 of the Convention (art. 3, art. 6-1, art. 6-2,

art. 6-3, art. 7, art. 8, art. 9, art. 10, art. 11, art. 13, art. 14)

and of Article 1 of Protocol No. 1 (P1-1).

16. On 13 January 1995 and on 16 October 1995 the Commission declared

the application (no. 23238/94) admissible as regards the complaints

based on Articles 3, 8, 9, 10 and 11 of the Convention (art. 3,

art. 8, art. 9, art. 10, art. 11), Article 14 read in conjunction with

Articles 10 and 11 of the Convention (art. 14+10, art. 14+11) and

Article 1 of Protocol No. 1 (P1-1). It declared the application

inadmissible for the rest. In its report of 27 February 1996

(Article 31) (art. 31), it expressed the opinion that:

(a) there had been a violation of Article 9 of the Convention

(art. 9) (twenty-seven votes to one);

(b) no separate issue arose under Article 9 of the Convention

taken in conjunction with Article 14 (art. 14+9), or under Articles 10

and 11, taken together with Article 14 (art. 14+10, art. 14+11), or

individually (art. 10, art. 11) (unanimously);

(c) there had been no violation of Articles 3 and 8 of the

Convention (art. 3, art. 8) (unanimously) or of Article 1 of

Protocol No. 1 (P1-1) (twenty-seven votes to one).

The full text of the Commission's opinion and the

two partly dissenting opinions contained in the report is reproduced

as an annex to this judgment (1).

_______________

Note by the Registrar

1. For practical reasons this annex will appear only with the printed

version of the judgment (in Reports of Judgments and

Decisions 1997-III), but a copy of the Commission's report is

obtainable from the registry.

_______________

AS TO THE LAW

17. At the hearing before the Court the applicants' lawyer stated

that the applicants had lodged with the Minister of Education and

Religious Affairs on 7 February 1997 a request for authorisation to

open a place of worship.

18. By a letter of 12 May 1997, which reached the registry on

20 May 1997, the applicants' lawyer submitted to the Court a request

for the case to be struck out of the list. It was worded as follows:

"On behalf of the applicants, Mr Pentidis, Mr Katharios and

Mr Stagopoulos, I would inform you that they agree to [their]

case being struck out of the list, subject to the Court's

considering such a course of action appropriate.

This is now possible because on 23 April 1997 the

Minister of Education and Religious Affairs granted the

authorisation to open a place of worship (prayer room) for

Jehovah's Witnesses in Alexandroupolis.

This solution satisfies the applicants and justifies their

request. They consider that it constitutes a friendly settlement

of the case and state that the difficulties of a general nature

described in detail in their application will now be removed.

..."

The authorisation granted by the Minister of Education and

Religious Affairs, which was appended to that letter, was formulated

in the following terms:

"Having regard to:

1. The provisions of Laws nos. 1363/1938 and 1672/1939 and of the

royal decree of 20 May/2 June 1939;

2. The request of Zissis Pentidis, also signed by four (4) other

applicants, 'Jehovah's Witnesses', seeking the authorisation to

open a place of worship in Alexandroupolis, at the corner of

Chalkidonas Street and Kessanis Street,

I, the undersigned,

authorise the opening of a place of worship for 'Jehovah's

Witnesses' in Alexandroupolis at the corner of Chalkidonas Street

and Kessanis Street, subject to the following conditions:

1. Preaching and worshipping on these premises shall be conducted

under the supervision of Zissis Pentidis;

2. The plaque which must be put up at the entrance to the room

where the place of worship is to be established shall indicate

'Jehovah's Witnesses', as requested by the applicants.

Any alteration of these conditions will require the approval of

my department."

In a letter of 21 May 1997, which reached the registry on 22 May,

the Government agreed to the striking out of the case.

The Delegate of the Commission was consulted and raised no

objection.

19. The Court notes that the authorisation granted to the applicants

by the national authorities constitutes a "fact of a kind to provide

a solution of the matter" within the meaning of Rule 49 para. 2 of

Rules of Court A. It would however be open to it, having regard to its

responsibilities under Article 19 of the Convention (art. 19), to

decide to proceed with consideration of the case if a reason of

public policy appeared to necessitate such a course (Rule 49 para. 4

of Rules of Court A). However, it finds no such reason.

In this connection, it recalls that in the case of

Manoussakis and Others v. Greece - whose facts are nevertheless

somewhat different from those of the present case - it ruled on the

application of Law no. 1363/1938 and the royal decree of

20 May/2 June 1939 to Jehovah's Witnesses who wished to open a place

of worship (judgment of 26 September 1996, Reports of Judgments and

Decisions 1996-IV). In the same judgment, the Court also indicated the

nature and scope of the obligations incumbent on Greece in that

respect.

Accordingly the case should be struck out of the list.

FOR THESE REASONS, THE COURT UNANIMOUSLY

Decides to strike the case out of the list.

Done in English and in French, and notified in writing under

Rule 55 para. 2, second sub-paragraph, of Rules of Court A on

9 June 1997.

Signed: Rolv RYSSDAL

President

Signed: Herbert PETZOLD

Registrar

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CASE OF PENTIDIS AND OTHERS v. GREECE

CASE OF PENTIDIS AND OTHERS v. GREECE

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