CONCURRING OPINION OF JUDGE MARTENS

1.  I completely share the views expressed in the Court ’ s judgment, but I would have preferred to decide the merits on the basis of the "prescribed by law" requirement, that is to decide the issue which the Court leaves open (see paragraph 38 of its judgment).

2.  The substance of the "necessary in a democratic society" requirement is a balancing exercise of the elements of the individual case.  However, as follows from paragraph 38 of the Court ’ s judgment, the very essence of the applicants ’ complaints is not one of individual, but one of general injustice: what they complain of is not so much the harassment they have been subjected to, but, basically, the obstruction to setting up a Jehovah ’ s Witnesses chapel in general.  The "prescribed by law" requirement is therefore more suitable to do justice to what - also in the Government ’ s opinion - is the essential thesis of the applicants, viz. that the Law of Necessity no. 1363/1938 is incompatible with Article 9 (art. 9), either per se or in any event as consistently applied by the competent authorities.

3.  I suggest that this approach, although perhaps a little innovatory, is in line with the Court ’ s doctrine that part of its task under the "prescribed by law" requirement is to assess the quality of the law invoked as a justification for the interference under examination.

4.  Turning now to the applicants ’ thesis that the Law of Necessity no. 1363/1938 is incompatible with Article 9 (art. 9), I agree with counsel for the Government that the first question to be discussed is whether under Article 9 (art. 9) there is room at all for "prior restraint" in the form of making the construction or operation of a place of worship conditional on a prior governmental authorisation and of making such construction or operation without such authorisation a criminal offence.

5.  As in the province of Article 10 (art. 10), I am opposed to answering this question outright in the negative.  It is conceivable that the operation - and a fortiori the construction - of a place of worship in a particular area may raise serious public-order questions and that possibility, in my mind, justifies not wholly excluding the acceptability of making such operation or construction depend on a prior governmental authorisation.

6.  Nevertheless, I think that here, where freedom of religion is at stake - even more than in the province of Article 10 (art. 10) -, the question is very delicate, for public-order arguments may easily disguise intolerance.  It is all the more sensitive where there is an official State religion.  In such cases it should be absolutely clear both from the wording of, and from the practice under the law in question that the requirement of a prior authorisation in no way whatsoever purports to enable the authorities to "evaluate" the tenets of the applicant community; as a matter of principle the requested authorisation should always be given, unless very exceptional, objective and insuperable grounds of public order make that impossible.

7.  The Government have tried to convince us that the Law of Necessity no. 1363/1938 meets these admittedly strict requirements, but in vain.  Counsel for the Government has alleged that under that Law there is no room for discretion, but he has at the same time made it clear that it required the authorities to scrutinise whether the application arose from genuine religious needs or as a means of proselytising and, moreover, whether the tenets of the applicant community were acceptable.  And indeed, the requirement that there should be at least fifty families from more or less the same neighbourhood illustrates not only that there is ample room for discretion but also that the Law of Necessity no. 1363/1938 goes much further than is permissible in respect of prior restraint of freedom of religion.  On top of this there is the involvement of the clerical authorities of the dominant religion in the authorisation procedure which - even if they were confined to a strictly advisory role (which I doubt) - implies in itself that the Law in question does not meet the above-mentioned strict requirements and is incompatible with Article 9 (art. 9).

8.  In sum, I find that the applicants rightly say that the Law of Necessity no. 1363/1938 is per se incompatible with Article 9 (art. 9).

[1] The case is numbered 59/1995/565/651.  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.

[3] For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1996-IV), but a copy of the Commission's report is obtainable from the registry.