CASE OF CANEA CATHOLIC CHURCH v. GREECE
Violation of Art. 6-1;Violation of Art. 14;Not necessary to examine Art. 9;Not necessary to examine P1-1;Not necessary to examine Art. 14;Pecuniary damage - financial award;Costs and expenses award - Convention proceedings
N. Valticos;R. Pekkanen
6. The Roman Catholic Church of the Virgin Mary (Tis Panagias) in Canea is the cathedral of the Roman Catholic diocese of Crete. Built in the thirteenth century, it adjoins a former Capuchin convent and it has been used as a place of worship continuously since at least 1879. The building was acquired by the church by adverse possession (ektakti khrissiktissia). 7. In June 1987 two people living next to the church, Mr I.N. and Mr A.K., demolished one of its surrounding walls, which was 1.20 metres high, and made a window looking onto the church in the wall of their own building. 8. On 2 February 1988 the church, represented by the abbot, the Right Reverend Giorgios Roussos, applied to the Canea District Court seeking a declaration that it was the owner of the wall in question and orders that the defendants must cease the nuisance and restore the previously existing situation, that the judgment should be provisionally enforceable and that the defendants should be liable to a fine of 100,000 drachmas and six months’ imprisonment if they did not comply with the judgment. The defendants raised an objection to admissibility on the ground that Catholic churches in Greece had no legal personality and were thus prevented from bringing legal proceedings. The plaintiff church answered the objection by stating that it was a cloister church, founded and authorised before 1830 and recognised under the Protocol of London of 3 February 1830. More particularly, it stated that it was a Capuchin cloister that had been authorised before 1830 and belonged to the diocese of Syros and Thera, which did have legal personality (aftotelia). 9. On 18 October 1988 the District Court held that the wall was owned by the church and ordered the defendants to rebuild it to its original height. As to the objection to admissibility, the court held that it was unfounded, accepting the plaintiff church’s submissions, which – it found – were substantiated by the papal seal of 20 June 1974 that was in the file; the court also noted that the abbot was the manager of its wealth and was therefore entitled to represent it in legal proceedings. 10. The defendants appealed against that judgment to the Canea Court of First Instance on 8 December 1988. 11. On 18 May 1989 the Court of First Instance, allowing the appeal, quashed the judgment of the court below for the following reasons: “… The provisions of the Treaty of Sèvres of 10 August 1920, which remains in force by virtue of Protocol No. 16 annexed to the Treaty of Lausanne of 24 July 1923, require Greece to ensure Greeks’ freedom of religion, freedom of worship and equality before the law irrespective of their religious denomination – freedoms which are, moreover, guaranteed in Articles 4, 5 and 13 of the current Constitution – but do not provide that religious or other establishments founded by a religious minority may acquire legal personality without complying with the State’s laws on the acquisition of legal personality. Furthermore, the Third Protocol of London adopted by the protecting powers on 3 February 1830, and ratified in Greece by the Greek Senate’s Memorandum of 10 April 1830, … did not confer on the bishops of the Western Church any jurisdiction other than spiritual and administrative, that is to say relating to that Church’s domestic order, and the provisions of the canon law that governs the Roman Catholic Church which attribute legal personality to convents and other Church establishments founded by decisions of the bishops of that Church were not adopted. In the instant case the Holy Church and Holy Convent of the Capuchins, whose date of foundation is not apparent from the evidence, did not acquire legal personality from the sole fact of being founded by the competent bishop in Greece without the formalities laid down in Greek laws on the acquisition of legal personality having been complied with. Consequently, they have no legal standing and their action must be dismissed for that reason in accordance with Article 62 of the Code of Civil Procedure. The failure to comply with the State’s laws on the acquisition of legal personality is admitted by the plaintiffs themselves. It must be noted that even if this church was founded before 1830, it accordingly did not acquire legal personality, having failed to comply with the laws of the State. …” 12. On 14 December 1990 the church appealed on points of law, alleging a breach of the Protocol of London of 3 February 1830 taken together with the Greek Senate’s Memorandum of 10 April 1830, Article 8 of the Treaty of Sèvres of 1920, Article 13 of the Civil Code, Articles 13 and 20 of the Constitution and Article 9 of the European Convention on Human Rights. In his opinion of 10 December 1992 the reporting judge of the Court of Cassation indicated that he thought the judgment of 18 May 1989 should be quashed; he pointed out that under Article 13 § 2 of the Constitution and Article 8 of the Treaty of Sèvres, Greek nationals belonging to religious minorities enjoyed the same protection in law and in fact and the same safeguards as other Greek nationals and, in particular, had an equal right to establish religious foundations and practise their religion freely; furthermore, under the canon law of the Roman Catholic Church, churches, convents and monasteries established with the approval of the Holy See had legal personality without it being necessary to comply with the formalities laid down in Greek laws. Such a restriction would be contrary to Article 13 of the Constitution and Article 8 of the Treaty of Sèvres. 13. In a judgment of 2 March 1994 the Court of Cassation dismissed the appeal in the following terms: “… [The Treaty of Sèvres], having been ratified in a statute, was kept in force as domestic law, but inasmuch as its content is covered by the Convention for the Protection of Human Rights and Fundamental Freedoms, which is much wider in scope, the treaty must be regarded as having been abrogated by this subsequent Convention, which pursues the same objective. However, the special provisions of the treaty which are not reproduced in the Rome Convention and do not conflict with it must be regarded as still being in force. By means of the Convention Greece protects, inter alia, the religious freedom not only of minorities but of any person within its jurisdiction, irrespective of religion, national origin, membership of an ethnic minority, etc. Article 13 § 2 of the Constitution, which provides for freedom to practise any ‘known’ religion and for freedom to perform religious obligations without hindrance, likewise corresponds to the content [of the Convention]. Regard being had to the foregoing, it is clear that the above-mentioned provisions guarantee to religious minorities freedom of religion, freedom of worship and religious equality and, by extension, the right to found religious associations and establishments, which acquire legal personality as of right but only after complying with the State’s laws on such acquisition … It is even provided (in Article 13 § 4 of the Constitution) that the religious convictions of minorities cannot constitute a legal ground exempting them from complying with the above-mentioned laws on the acquisition of legal personality, which, by the first sentence of Article 62 of the Code of Civil Procedure, is a condition of being able to bring or defend legal proceedings … Consequently, if Article 20 of the Constitution, whereby everyone is entitled to seek legal protection from the courts, is to apply, the above-mentioned statutory conditions must be satisfied. Furthermore, since section 13 of the Introductory Law to the Civil Code … provides that only legal persons ‘lawfully constituted’ at the date of adoption of the Civil Code continue to exist, the court below rightly held that Article 20 of the Constitution did not apply in the instant case as the formalities required by Greece’s laws for the acquisition of legal personality had not been complied with by the appellants.” 14. The relevant Articles of the Constitution provide: Article 3 “1. The dominant religion in Greece is that of the Christian Eastern Orthodox Church. The Greek Orthodox Church, which recognises as its head Our Lord Jesus Christ, is indissolubly united, doctrinally, with the Great Church of Constantinople and with any other Christian Church in communion with it (omodoxi), immutably observing, like the other Churches, the holy apostolic and synodical canons and the holy traditions. It is autocephalous and is administered by the Holy Synod, composed of all the bishops in office, and by the standing Holy Synod, which is an emanation of it constituted as laid down in the Charter of the Church and in accordance with the provisions of the Patriarchal Tome of 29 June 1850 and the Synodical Act of 4 September 1928. 2. The ecclesiastical regime in certain regions of the State shall not be deemed contrary to the provisions of the foregoing paragraph. 3. The text of the Holy Scriptures is unalterable. No official translation into any other form of language may be made without the prior consent of the autocephalous Greek Church and the Great Christian Church at Constantinople.” Article 13 “1. Freedom of conscience in religious matters is inviolable. The enjoyment of personal and political rights shall not depend on an individual’s religious beliefs. 2. There shall be freedom to practise any known religion; individuals shall be free to perform their rites of worship without hindrance and under the protection of the law. The performance of rites of worship must not prejudice public order or public morals. Proselytism is prohibited. 3. The ministers of all known religions shall be subject to the same supervision by the State and to the same obligations to it as those of the dominant religion. 4. No one may be exempted from discharging his obligations to the State or refuse to comply with the law by reason of his religious convictions. 5. No oath may be required other than under a law which also determines the form of it.” 15. Section 13 of the Introductory Law to the Civil Code provides: “Legal persons that were lawfully constituted at the date of adoption of the Civil Code [23 February 1946] shall continue to exist. As regards their legal capacity, administration or functioning, the relevant provisions of the Code shall apply.” 16. Article 61 of the Civil Code gives the following definition of a legal person in general: “A union of persons for the purpose of pursuing a given aim or a group of assets assigned to the service of a given aim may acquire legal personality if the requirements laid down by law are satisfied.” 17. The legal persons provided for in the Civil Code are associations (Articles 78 et seq.), foundations (Articles 108 et seq.) and charitable fundraising committees (Articles 122 et seq.). Non-commercial partnerships only acquire legal personality after taking the publicity measures laid down by law for commercial partnerships (Articles 741 et seq. and Article 784). It must also be noted that the Civil Code makes the provisions on partnerships applicable to unions of persons that have been created to pursue a given aim but are not associations (Article 107). 18. By Article 62 of the Code of Civil Procedure, “A person who has the capacity to possess rights and be bound by obligations shall also be entitled to bring or defend legal proceedings. Unions of persons which pursue a specified aim without being associations and also partnerships that do not have legal personality may bring or defend legal proceedings.” This concept of a union of persons seems to approximate to the concept of a common-interest group in Greek law, since the courts have applied the concept to co-ownership of a seagoing vessel, to a political party and to an association of co-owners of a building. 19. Section 1 (4) of Law no. 590/1977 on the Charter of the Church of Greece confers personality in public law on the Orthodox Church and on a number of its institutions, at least as regards “their legal relations”. 20. Article 8 of the Treaty of Sèvres of 10 August 1920 provides: “Greek nationals who belong to racial, religious or linguistic minorities shall enjoy the same treatment and security in law and in fact as the other Greek nationals. In particular they shall have an equal right to establish, manage and control, at their own expense, charitable, religious and social institutions, schools and other educational establishments, with the right to use their own language and to exercise their religion freely therein.” 21. The applicant church annexed to the memorial it filed with the Court a series of judgments given by the highest courts in the land which, it submitted, substantiated its assertion that neither the legal personality of the Catholic Church in Greece nor its capacity to bring or defend legal proceedings had ever been called in question. The decisions were the following: (a) judgment no. 142/1889 of the Court of Cassation, in which the court held that the appropriate Catholic bishop represented the legal person of the Catholic Church and its parish churches in legal proceedings for the protection of their property, and did so by virtue of the Catholic canon law, which was wholly applicable in Greece in so far as it did not conflict with any provisions of national law; (b) judgment no. 1437/1896 of the Athens Court of Appeal, in which the court ruled similarly, holding that the canon law of the Catholic Church had been recognised in the Protocol of 3 February 1830 “as having the force of law” in Greece; (c) judgment no. 256/1902 of the Athens Court of Appeal, in which the court held that it was for the Pope to appoint local administrators of the Catholic Church’s property and, moreover, that there was no need for Catholic parish churches “once established and lawfully in existence, to obtain permission from the State authorities to acquire [their] legal personality”; (d) judgment no. 45/1931 of the Court of Appeal of the Aegean Islands, in which it was held that Catholic parish churches were represented by persons appointed by the Pope, according to canon law; (e) judgment no. 1885/1946 of the Athens Court of Appeal (the first to be given on the subject after the Civil Code of the same year had come into force), in which the court held that legal persons constituted before 1946 were accorded full recognition under section 13 of the Introductory Law to the Civil Code; as regards, more specifically, Catholic Church foundations in Greece, it was held in the same judgment that Catholic bishops had “special” power to constitute them by means of a unilateral decision, without any need for that decision to take any particular form or to be subject to any prior authorisation; (f) judgment no. 2716/1973 of the Second Division of the Supreme Administrative Court, whereby that court recognised the legal personality of the Catholic convent of the Ursuline Sisters on the island of Tinos, established by law in 1865 and to which was attached the Catholic school operating in Athens under the same name; (g) judgment no. 1292/1977 of a full court of the Supreme Administrative Court, whereby the court recognised the legal personality of the parish church of St John the Baptist on the island of Thera in a case of expropriation in the public interest; (h) judgment no. 101/1979 of the Court of Appeal of the Aegean Islands, delivered in a case of unlawful interference with the rights of possession and ownership of the same parish church of the island of Thera, whose capacity to bring and defend legal proceedings was formally confirmed. On the other hand, following judgment no. 360/1994 delivered by the Court of Cassation in the present case, the Crete Court of Appeal dismissed an action brought jointly by the Episcopal Catholic Church of Crete and the applicant church for recovery of possession of a rented property, holding that the plaintiffs had no standing as they did not have legal personality (judgment no. 408/1995). 22. The Government cited a judgment of the Supreme Administrative Court (no. 239/1966) in which it was held that a monastery founded in 1963 by a decision of the Catholic bishop of Greece had not by virtue of that fact alone acquired legal personality. The Supreme Administrative Court said: “The Third Protocol of London adopted by the protecting powers on 3 February 1830, and ratified in Greece by the Greek Senate’s Memorandum of 10 April 1830, … was intended to ensure that the Catholics living in Greece enjoyed freedom of religion and freedom of worship and it did not confer on the bishops of the Western Church any jurisdiction other than spiritual and administrative, that is to say relating to that Church’s domestic order, and the provisions of the canon law that governs the Roman Catholic Church which attribute legal personality to convents and other Church establishments founded by decisions of the bishops of that Church were not adopted. The legal personality of Church establishments is a question which does not relate to worship or the Church’s domestic order but primarily concerns the legal order of the State and consequently cannot exist unless it is recognised by law.” 23. Lastly, in a judgment (no. 1099/1985) of 1985 the Court of Cassation held that the abbot of a monastic establishment of the Roman Catholic Church is empowered to represent it in legal proceedings concerning its property without the written authorisation of the local bishop as provided in canon 1526. 24. According to the applicant church, numerous notarial acts to which the Catholic Church of Greece and/or Catholic parish churches, duly represented by authorised agents in accordance with Catholic canon law, were parties unequivocally attest that as regards their property, the churches’ legal personality has never been challenged. By way of example, it has produced the following documents: (a) contract of sale no. 17955/1915, whereby the Catholic Cathedral of Athens, duly represented by the Archbishop of the Greek Catholics, purchased 12,500 square metres of land in the Athens suburb of Iraklion. Attached to this contract is an Athens Mortgage Registry certificate dated 13 June 1997 confirming that the contract was registered according to the rules in force; (b) contract of sale no. 5027/1936, whereby the applicant church, duly represented, purchased a shop in the centre of Canea; (c) contract of sale no. 271/1955, whereby the Catholic Cathedral of Athens, duly represented, purchased a four-storey building in the centre of Athens. Attached to this contract is an Athens Mortgage Registry certificate dated 13 June 1997 confirming that the contract was registered according to the rules in force; (d) contract of sale no. 2084/1981, whereby the applicant church sold to the city council of Canea 4,231.75 square metres of land in the city centre; in this document the church of Canea was represented by its bishop, appointed by papal decree; (e) contract of sale no. 53844/1981, whereby the applicant church, expressly described as a private-law entity and a religious foundation of the Catholic Church, purchased a flat in the Athens suburb of Maroussi; (f) contract of sale no. 1817/1992, whereby the Catholic Cathedral of Athens sold a flat in Athens which it had acquired by gift in 1980. This notarial act mentions (i) the foundation of the vendor cathedral in 1865 by unilateral act of the Bishop of Syros and (ii) the papal bull of 1973 whereby its representative was appointed according to the rules of Catholic canon law. Attached to this contract is an Athens Mortgage Registry certificate dated 13 June 1997 confirming that it was registered according to the rules in force. In all these contracts it is expressly stated that the appropriate transfer tax was duly paid; and the contracts were all registered with the appropriate mortgage registries. Furthermore, as may be seen from the tax returns duly completed and submitted by the applicant church for the years 1994, 1995 and 1996, its rent income from its properties, including some of the abovementioned properties, was exempt from income tax because of the landlord’s status as a religious legal entity. In addition, two inheritance certificates issued by the clerk of the Athens Court of First Instance on an application by the Catholic Cathedral of Athens (the first certificate) and the Catholic parish church of Phira on the island of Thera (the second certificate) attest that these churches were recognised as the sole heirs of persons who died in 1988 and 1990.