CASE OF MANOUSSAKIS AND OTHERS v. GREECE
Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 9;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
John Freeland;N. Valticos
6. The applicants are all Jehovah’s Witnesses and live in Crete. 7. On 30 March 1983 Mr Manoussakis rented under a private agreement a room measuring 88 square metres in a building located in the Ghazi district of Heraklion (Crete). The agreement specified that the room would be used "for all kinds of meetings, weddings, etc. of Jehovah’s Witnesses". 8. On 2 June 1983 he laid a complaint against persons unknown at Heraklion police station because the day before the windows of the room had been broken by unidentified persons. On 26 September 1983 he laid a further complaint concerning a similar incident that occurred on 23 September. 9. By an application of 28 June 1983 lodged with the Minister of Education and Religious Affairs the applicants requested an authorisation to use the room as a place of worship. On the same day they went to the chairman of Ghazi District Council to ask him to certify their signatures on the application. He refused, however, on the grounds that the applicants did not reside in his district and that they had failed to show him the document bearing their signatures. Following the intervention of the prefect of Heraklion, the Deputy Minister of the Interior and the Speaker of the Greek Parliament, the chairman withdrew his opposition and agreed to certify the signatures on a new application lodged on 18 October 1983. 10. On 30 July 1983 the Ghazi Orthodox Parish Church notified the Heraklion police authorities that the room was being used as an unauthorised place of worship for Jehovah’s Witnesses and informed them of the applications made by the applicants to the Minister. The church authorities asked the police to carry out an inspection of the premises, to take punitive measures against those responsible and above all to prohibit any further meetings until the Minister had granted the authorisation in question. 11. The applicants received five letters from the Ministry of Education and Religious Affairs, dated 25 November 1983 and 17 February, 17 April, 17 June, 16 August and 10 December 1984, informing them that it was not yet in a position to take a decision because it had not received all the necessary information from the other departments concerned. 12. On 3 March 1986 the Heraklion public prosecutor’s office instituted criminal proceedings against the applicants under section 1 of Law no. 1363/1938 (anagastikos nomos), as amended by Law no. 1672/1939 (see paragraph 21 below). In particular they were accused of having "established and operated 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". 13. On 6 October 1987 the Heraklion Criminal Court sitting at first instance and composed of a single judge (Monomeles Plimmeliodikeio) acquitted the applicants on the ground that "in the absence of any acts of proselytism, followers of any faith are free to meet even if they do not have the requisite authorisation". 14. The Heraklion public prosecutor’s office took the view that the Criminal Court had incorrectly assessed the facts and accordingly lodged an appeal against the judgment of 6 October 1987. 15. On 15 February 1990 the Heraklion Criminal Court sitting on appeal and composed of three judges (Trimeles Plimmeliodikeio), sentenced each of the accused to three months’ imprisonment convertible into a pecuniary penalty of 400 drachmas per day of detention, and fined them 20,000 drachmas each. It noted as follows: "... the accused had converted the room that they had rented into a place of worship, in other words a small temple intended to serve as a place of devotion for a limited circle of persons as opposed to a public building in which everyone without distinction is free to worship God. Thus they established this place on 30 July 1983 and made it accessible ... to others, in particular, their fellow Jehovah’s Witnesses from the region (limited circle of persons), without the authorisation of the recognised ecclesiastical authority and of the Ministry of Education and Religious Affairs. At this place they worshipped God by engaging in acts of prayer and devotion (preaching, reading of the scriptures, praising and prayers) and did not confine themselves to the mere holding of meetings for followers and the reading of the gospel ..." 16. On 5 March 1990 the applicants appealed on points of law. They argued, inter alia, that the provisions of section 1 of Law no. 1363/1938, in particular the obligation to seek an authorisation to establish a place of worship, were contrary to Articles 11 and 13 of the Greek Constitution and to Articles 9 and 11 of the European Convention (art. 9, art. 11). 17. In a judgment of 19 March 1991 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 1975 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 said provisions ..., which empower the Minister of Education and Religious Affairs, who has responsibility for all denominations and faiths, to investigate whether the above-mentioned conditions are met, are contrary neither to the 1975 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." 18. According to the dissenting opinion of one of its members, the Court of Cassation ought to have quashed the impugned judgment since the applicants could not be accused of a punishable offence as section 1 of the Law was contrary to Article 13 of the 1975 Constitution. 19. On 20 September 1993 the Heraklion police placed seals on the front door of the room rented by the applicants. 20. The relevant Articles of the 1975 Constitution read as follows: "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." "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." 21. Section 1 of Law no. 1363/1938 (as amended by Law no. 1672/1939) provides: "The construction and operation of temples of any denomination whatsoever shall be subject to authorisation by the recognized ecclesiastical authority and the Ministry of Education and Religious Affairs. This authorisation shall be granted on the terms and conditions specified by royal decree to be adopted on a proposal by the Minister of Education and Religious Affairs. As of publication of the royal decree referred to in the preceding paragraph, temples or other places of worship which are set up or operated without complying with the decree ... shall be closed and placed under seal by the police and use thereof shall be prohibited; persons who have set up or operated such places of worship shall be fined 50,000 drachmas and sentenced to a non-convertible term of between two and six months’ imprisonment. ... The term "temple" as referred to in this Law ... shall mean any type of building open to the public for the purpose of divine worship (parish or otherwise, chapels and altars)." 22. The Court of Cassation has held that the expression "place of worship" within the meaning of these provisions refers to a "temple of a relatively small size, established in a private building and intended to be used for divine worship by a limited circle of persons as opposed to a building open to the public for the worship of God by everyone without distinction. By operation of a temple or a place of worship under the same provisions is meant the actions by which the temple or place of worship are made accessible to others for the purpose of worshipping God" (judgment no. 1107/1985, Pinika Khronika, vol. 56, 1986). 23. Section 1 (3) of the royal decree of 20 May/2 June 1939 provides that it is for the Minister of Education and Religious Affairs to verify whether there are "essential reasons" warranting the authorisation to build or operate a place of worship. To this end the persons concerned must submit through their priest an application giving their addresses and bearing their signatures certified by the mayor or the chairman of the district council of their place of residence. More specifically, section 1 of the decree provides as follows: "1. In order to obtain an authorisation for the construction or operation of temples not subject to the legislation on temples and priests of parishes belonging to the Greek Orthodox Church, within the meaning of section 1 of the Law (1672/1939), the following steps must be completed: (a) An application shall be submitted by at least fifty families, from more or less the same neighbourhood and living in an area at a great distance from a temple of the same denomination, it being assumed that the distance makes it difficult for them to observe their religious duties. The requirement of fifty families shall not apply to suburbs or villages. (b) The application shall be addressed to the local ecclesiastical authorities and must be signed by the heads of the families, who shall indicate their addresses. The authenticity of their signatures shall be certified by the local police authority, which following an inquiry on the ground shall attest that the conditions referred to in the preceding sub-paragraph are satisfied ... (c) The local police authority shall issue a reasoned opinion on the application. It shall then transmit the application, with its opinion, to the Ministry of Education and Religious Affairs, which may accept or reject the application according to whether it considers that the construction or use of a new temple is justified or whether the provisions of the present decree have been complied with. 2. ... 3. The provisions of paragraph 1 (a)-(b) above shall not apply to the issue of an authorisation for the construction or operation of a place of worship. It shall be for the Minister of Education and Religious Affairs to determine whether there are essential reasons warranting such authorisation. In this connection the persons concerned shall address to the Ministry of Education and Religious Affairs through their priest a signed application, the authenticity of the signatures being certified by the mayor or the chairman of the district council. The application shall also indicate the addresses of the persons concerned ..." 24. The Government communicated to the Court a series of judgments by the Supreme Administrative Court concerning the authorisation to construct or operate temples or places of worship. It appears from these judgments that the Supreme Administrative Court has on several occasions quashed decisions of the Minister of Education and Religious Affairs refusing such authorisation on the ground that Jehovah’s Witnesses in general engaged in proselytism (judgment no. 2484/1980); or that some of those seeking the authorisation had been prosecuted for proselytism (judgment no. 4260/1985); or again because there was an Orthodox church close to the proposed place of worship (4km in the same town) (judgment no. 4636/1977) and the limited number of Jehovah’s Witnesses (8) compared to the total population (938) (judgment no.381/1980). 25. The Supreme Administrative Court has also held that the requirement that the signatures be certified by the relevant municipal authority (royal decree of 20 May/2 June 1939 - see paragraph 23 above) does not constitute a restriction on the right to freedom of religion guaranteed under the Greek Constitution and the European Convention (judgment no. 4305/1986). On the other hand, failure to comply with that requirement justifies a refusal to grant the authorisation (judgment no. 1211/1986). Finally the silence of the Minister of Education and Religious Affairs for more than three months following the lodging of an application constitutes failure on the part of the authorities to give a decision as required by law and amounts to an implied rejection, which may be challenged by an application for judicial review (judgment no. 3456/1985). Authorisation by the local Metropolitan is required only for the construction or operation of temples and not for other places of worship. 26. In its judgment (no. 721/1969) of 4 February 1969 the Supreme Administrative Court sitting in plenary session stated that Article 13 of the Constitution did not preclude prior verification by the administrative authorities that the conditions laid down by that Article for the practice of a faith were satisfied. However, that verification is of a purely declaratory nature. The grant of the authorisation may not be withheld where those conditions are satisfied and the authorities have no discretionary power in this respect. The prior authorisation of the local Metropolitan for the construction of a temple (see paragraph 25 above) is not an "enforceable administrative decision", but a "preliminary finding" by a representative of the dominant religion who is familiar with the true position regarding religious practice in the locality. The decision rests with the Minister of Education and Religious Affairs who may decide to disregard the Metropolitan’s assessment if he considers that it is not supported by reasons in conformity with the law. The Supreme Administrative Court subsequently confirmed this case-law holding, inter alia, that the "authorisation" of the local Metropolitan was a mere opinion which did not bind the Minister of Education and Religious Affairs (judgment no. 1444/1991 of 28 January 1991). 27. Sections 45, 46 and 50 of Presidential Decree no. 18/1989 codifying the legislative provisions on the Supreme Administrative Court of 30 December/9 January 1989 govern applications for judicial review of acts or omissions by the administrative authorities: Acts which may be challenged "1. An application for judicial review alleging ultra vires or unlawful action is available only in respect of enforceable decisions of the administrative authorities and public-law legal persons and against which no appeal lies to another court. ... 4. Where the law requires an authority to settle a specific question by issuing an enforceable decision subject to the provisions of paragraph 1, an application for judicial review is admissible even in respect of the said authority’s failure to issue such decision. The authority shall be presumed to refuse the measure either when any specific time-limit prescribed by the law expires or after three months have elapsed from the lodging of the application with the authority, which is required to issue an acknowledgment of receipt ... indicating the date of receipt. Applications for judicial review lodged before the above time-limits shall be inadmissible. An application for judicial review validly lodged against an implied refusal [on the part of the authorities] is deemed also to contest any negative decision that may subsequently be taken by the authorities. Such decision may however be challenged separately. ..." Time-limit "1. Except as otherwise provided, an application forjudicial review must be made within sixty days of the dayfollowing the date of notification of the impugned decision orthe date of publication ..., or, otherwise, of the dayfollowing the day on which the applicant acquired knowledge ofthe decision. In the cases provided for in paragraphs 2, 3and 4 of section 45, time begins to run when the time-limitsprescribed in those provisions have expired. ..." Consequences of the decision "1. The decision allowing an application for judicial review shall declare the impugned measure void, which entails its general nullity, whether it is a general or individual measure. 2. The rejection of an application does not preclude the lodging of a new application against the same measure by another person with locus standi. 3. In the case of failure to take action, where the Supreme Administrative Court allows the application, it shall refer the case back to the relevant authority so that it can take the action incumbent on it."