Resolution ResDH(2005) 87

concerning the conviction of Jehovah ' s Witnesses for establishing a place of worship without prior administrative authorisation

(Manoussakis and others against Greece, judgment of 26 September 1996)

(Adopted by the Committee of Ministers on 26 October 2005 at the 940th meeting of the Ministers ' Deputies)

The Committee of Ministers, under the terms of former Article 54 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Having regard to the judgment of the European Court of Human Rights in the Manoussakis and others case delivered on 26 September 1996 and transmitted the same day to the Committee of Ministers under former Article 54;

Recalling that the case originated in an application (No. 18748/91) against Greece, lodged with the European Commission of Human Rights on 7 August 1991 under former Article 25 of the Convention by Mr Titos Manoussakis, Mr Constantinos Makridakis, Mr Kyriakos Baxevanis and Mr Vassilios Hadjakis , Greek nationals, and that the Commission declared admissible the complaint that the criminal conviction of the applicants who are Jehovah ' s Witnesses, secured in 1991 in final instance under the provisions of Greek law ( Law no. 1363/1938 and Royal Decree of 20 May/2 June 1939) requiring that a recognised ecclesiastical authority and the Minister of Education and Religious Affairs must first give their authorisation for the use of a private place for meetings, prayers and other religious ceremonies, had infringed their right to freedom of religion;

Recalling that the case was brought before the Court by the Commission on 5 July 1995 ;

Whereas in its judgment of 26 September 1996 the Court unanimously:

- held that there had been a violation of Article 9 of the Convention;

- held that the present judgment in itself constituted just satisfaction for the non-pecuniary damage alleged;

- held that the government of the respondent state was to pay the applicants, within three months, 4 030 100 Greek drachmas in respect of costs and expenses and that simple interest at an annual rate of 6% would be payable on this sum from the expiry of the above-mentioned three months until settlement;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention as amended by Protocol No. 11, these Rules are applicable by decision of the Committee of Ministers to cases under former Article 54;

Having invited the government of the respondent state to inform it of the measures which had been taken in consequence of the judgment of 26 September 1996, having regard to Greece ' s obligation under former Article 53 of the Convention to abide by it;

Whereas during the examination of the case by the Committee of Ministers, the government of the respondent state gave the Committee information about the measures taken to grant the applicants full redress for the violation found ( restitutio in integrum ) and to prevent new violations of the same kind as that found in the present judgment; this information appears in the appendix to this resolution;

Noting with satisfaction the direct effect immediately given by the Greek government to the European Court ' s judgment and the subsequent improvement in available domestic remedies, as well as the government ' s commitment to have the new legal situation and practice better reflected in relevant legislation (see appendix);

Having satisfied itself that on 23 December 1996, within the time-limit set, the government of the respondent state paid the applicants the sum provided for in the judgment of 26 September 1996,

Declares, after having taken note of the information supplied by the Government of Greece, that it has exercised its functions under former Article 54 (current Article 46, paragraph 2) of the Convention in this case.

Appendix to Resolution ResDH(2005)87

Information provided by the Government of Greece during the examination of the Manoussakis and others case

by the Committee of Ministers

Individual measures aimed at restitutio in integrum for the applicants

The applicants were granted a permit to establish a place of worship on 13/01/1997 . In addition, Law 2865/2000 (new Article 525, paragraph 1(5) of Code of Criminal P rocedure) allowed the applicants to request reopening the criminal proceeding following the judgment of the European Court . The case was thus reopened and the 1990 conviction was quashed by decision 297/2002 of the Crete Court of Appeal Chamber. By the same decision, the applicants ' prosecution was definitively terminated.

General measures

The Council of State had already held in 1991 that the “authorisation” of the ecclesiastical authority required by Law no. 1363/1938, as implemented through Royal Decree of 20 May/2 June 1939 regarding the construction and operation of places of worship, was a mere opinion, not binding on the Minister (see paragraph 26 of the judgment of the European Court).

Following the judgment of the European Court , the government ' s practice in the exercise of its discretion under the above-mentioned laws was immediately brought into conformity with the case-law of the European Court , attesting to the direct effect accorded to the European Convention on Human Rights and the European Court ' s case-law in Greek law. Following the Court ' s judgment, the control by the Ministry of Education and Religious Affairs has thus regarded only the formal conditions laid down by the aforementioned Decree (cf paragraph 47 of the European Court ' s judgment). As a consequence, following this judgment, the administration has, in all similar cases, granted permission, except in one concerning scientologists where the application was rejected on purely procedural grounds and never challenged before the Council of State.

The Ministers ' Deputies have expressed their satisfaction at the stable administrative practice followed after the European Court ' s judgment, which has effectively prevented new violations.

The above state of affairs has also been confirmed by the Greek courts. Thus, the Court of Cassation, relying in particular on the European Court ' s judgment in the case of Manoussakis and others, held unanimously on 6 December 2001 (judgment no 20/2001), in the context of a criminal case regarding the unlawful opening of a place of worship in 1994, that the “absolute discretion” granted to the administration by Article 1, paragraph 1(c) and paragraph 3 of Royal Decree of 20 May/2 June 1939 constituted “an unacceptable limitation of the freedom of religious worship contravening both Article 13, paragraphs 1and 2 of the Constitution and Article 9, paragraphs 1and 2 of the European Convention on Human Rights”.

The effectiveness of the Council of State ' s supervision of the respect of this new state of affairs, including the correct application of the purely formal requirements still to be respected when applying for the construction or operation of a place of worship has today been greatly improved. Whereas it is true that the European Court held at the time of the events that this supervision was insufficient for the purposes of the European Convention, the government stresses that the relevant proceedings have today been considerably speeded up (see Final Resolution ResDH(2005)65 on Pafitis and others against Greece and other cases) and the administration ' s full compliance with the Council of State ' s decisions ensured (see Final Resolution ResDH(2004)81 on Hornsby against Greece and other cases), thus also eliminating the possibility of postponement of administrative decisions, including judicial review thereof, for excessively long periods of time.

The attention of the public and the legal community was rapidly drawn to the requirements of the European Convention on Human Rights, as defined in the judgment of the European Court of Human Rights, as regards the functioning of places of worship, as the judgment of the European Court was published with extensive commentaries in widely-read Greek law journals: To Syntagma 4/1997, 1013-1027 and Yperaspisi 4/1997, 910-952.

Conclusion

In view of the foregoing, the Greek Government is of the opinion that all consequences of the violation for the applicants in the present case have been erased and stresses that no similar violation has ever reoccurred nor will reoccur in the future. The government accordingly believes that Greece has complied with the Court ' s judgment in the present case.

In a broader context, Greece is currently considering, notably in the light of Committee of Ministers ' Recommendation (2004)5, how the new legal situation and practice should be reflected in relevant legal texts, and in particular in Law 1363/1938 and in Royal Decree of 20 May/2 June 1939. In this process, close attention is paid to the case-law of the European Court, the recommendations of the Council of Europe Commissioner for Human Rights and, more generally, to the Council of Europe ' s standards in this field.