THE HOLY MONASTERIES v. GREECE - 13092/87;13984/88 [1994] ECHR 49 (9 December 1994)

judgment previously cited, p. 70, para. 192). 81. The first complaint can only be made by monasteries not parties to the agreement of 11 May 1988 as, by virtue of clause 5 of the agreement (see paragraph 35 above), the monasteries that signed it have capacity to take legal proceedings relating to the property they retain. On the other hand, section 1(1) of Law no. 1700/1987, by which the monasteries not parties to the agreement remain governed, makes them entirely dependent on the Greek Church for the defence of such of their property as is exempt from the transfer of ownership effected by section 3. 82. The Commission considered that the system adopted was justified; the Greek Church, which had taken over from the abolished ODEP the management of this property, had an obvious interest in ensuring that the property was adequately defended in any legal proceedings. The Government agreed with the Commission on this point and added that the remedies provided in subsections (4) and (7) of section 4 - special provisions which prevailed over the general clause of section 1(1) - gave these monasteries legal standing to protect their rights of property. 83. The Court has already found that the Greek legislation has vested the applicant monasteries with legal personality in public law in their legal relations in order to afford them greater protection (see paragraph 49 above). It notes, moreover, that at the time when the ODEP - a majority of whose governing body's members were appointed by the Church authorities - managed the monasteries' property to be realised, the monasteries had capacity to take legal proceedings. By depriving them of any further possibility of bringing before the appropriate courts any complaint they might make against the Greek State, third parties or the Greek Church itself in relation to their rights of property, or even of intervening in such proceedings, section 1(1) impairs the very essence of their "right to a court" (see the Philis v. Greece judgment of 27 August 1991, Series A no. 209, p. 23, para. 65; and the Fayed v. the United Kingdom judgment of 21 September 1994, Series A no. 294-B, pp. 49-50, para. 65). 84. There is therefore a breach of Article 6 para. 1 (art. 6-1) in relation to the first complaint of the applicant monasteries not parties to the agreement of 11 May 1988. 85. As regards the second complaint, the Court, having regard to its conclusion under paragraph 78, notes again that this complaint can only be made by monasteries not parties to the agreement of 11 May 1988. It is well-established in the Court's case-law that as a matter of principle Article 6 para. 1 (art. 6-1) guarantees a right of access to the courts for the determination of claims (contestations) under domestic law concerning compensation payable for expropriation of property (see, inter alia, the Lithgow and Others judgment previously cited, p. 70, para. 192). The applicants could not derive any entitlement to compensation from Law no. 1700/1987, which assumed that ownership of the land was not vested in the monasteries (see paragraph 31 above). In view of the previous finding under Article of Protocol No. 1 (P1-1) in respect of the absence of compensation under Law no. 1700/1987 (see paragraph 74 above) and the finding made at paragraph 84 above, the Court does not consider it necessary to examine further this complaint under Article 6 para. 1 (art. 6-1). IV. ALLEGED VIOLATIONS OF ARTICLES 9 AND 11 (art. 9, art. 11) OF THE CONVENTION 86. The applicant monasteries complained of violations of their right to freedom of religion (Article 9 of the Convention) (art. 9) and of their right to freedom of association (Article 11 of the Convention) (art. 11) on the ground that Law no. 1700/1987 deprived them of the means necessary for pursuing their religious objectives and preserving the treasures of Christendom. Under Article 9 (art. 9) they maintained that the impugned provisions of the Law would impede the carrying out of their ascetic mission. Under Article 11 (art. 11) they pointed out that section 3(3) of the Law would prevent an increase in the number of monks and would deter the faithful from making gifts to them. 87. Like the Government and the Commission, the Court does not accept these assertions. As regards the first complaint, it considers that the provisions held to be contrary to Article 1 of Protocol No. (P1-1) in no way concern the objects intended for the celebration of divine worship and consequently do not interfere with the exercise of the right to freedom of religion. The second complaint would seem to be hypothetical. 88. There is consequently no breach of Articles 9 and 11 (art. 9, art. 11) of the Convention. V. ALLEGED VIOLATION OF ARTICLE 13 (art. 13) OF THE CONVENTION 89. The applicant monasteries asserted that, contrary to Article (art. 13) of the Convention, they had not had an effective remedy before a national authority enabling them to complain of the infringement of the rights secured to them by the Convention. 90. Like the Commission, the Court reiterates that Article (art. 13) does not go so far as to require a remedy whereby the laws of a Contracting State may be impugned before a national authority as being in themselves contrary to the Convention (see the James and Others judgment previously cited, p. 47, para. 85). The applicant monasteries' complaint must therefore fail. VI. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN TOGETHER WITH ARTICLES 6, 9 AND 11 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 (art. 14+6, art. 14+9, art. 14+11, art. 14+P1-1) 91. The applicant monasteries relied lastly on Article 14 (art. 14) of the Convention, which provides: "The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status." Before the Commission they claimed to be the victims of discrimination in that only the monasteries belonging to the Greek Church were affected by the provisions of Law no. 1700/1987. 92. According to the Court's case-law, Article 14 (art. 14) does not prohibit all differences in treatment in the exercise of the rights and freedoms (see, as the most recent authority, the Hoffmann v. Austria judgment of 23 June 1993, Series A no. 255-C, p. 58, para. 31). Given the close links between the Greek Church and the applicant monasteries, the distinction made between the latter and the monasteries coming under the Ecumenical Patriarchate of Constantinople or the patriarchates of Alexandria, Antioch and Jerusalem or under the Holy Sepulchre and the Holy Monastery of Sinai or under the churches of other denominations and religions does not lack an objective and reasonable justification. Consequently, there is no breach of Article 14 taken together with the aforementioned Articles of the Convention and of Protocol No. 1 (art. 14+6, art. 14+9, art. 14+11, art. 14+P1-1). 93. In their memorial to the Court the applicant monasteries also complained of the distinction created by Law no. 1811/1988 between the monasteries which signed the agreement of 11 May 1988 and those which did not. 94. In view of the findings in paragraphs 75, 84 and 88 above, the Court does not consider it necessary to rule on the complaint based on Article 14 taken together with Articles 6 para. 1, 9 and 11 of the Convention and Article 1 of Protocol No. 1 (art. 14+6-1, art. 14+9, art. 14+11, art. 14+P1-1). VII. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION 95. Under Article 50 (art. 50) of the Convention, "If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party." 96. Under this provision, the applicant monasteries sought compensation for pecuniary damage and reimbursement of costs and expenses. A. Pecuniary damage 97. Under the head of pecuniary damage, the eight applicant monasteries sought 7,640,255,213,120 (seven trillion six hundred and forty billion two hundred and fifty-five million two hundred and thirteen thousand one hundred and twenty) drachmas (GRD). 98. The Government submitted that the monasteries had not identified the property affected by the impugned provisions. Their claims for compensation, which covered the whole of their property: monasteries, churches, urban buildings and property for which there were no legal titles, were too vague to be quantified. To make an accurate assessment, it would be necessary to identify all the applicant monasteries' property, which was scattered all over Greece. 99. The Delegate of the Commission expressed no opinion. 100. In the circumstances of the case, the Court considers that the question of the application of Article 50 (art. 50) in respect of pecuniary damage is not ready for decision and that it must be reserved, having regard to the possibility of an agreement between the respondent State and the applicant monasteries (Rule 54 paras. 1 and 4 of Rules of Court A). B. Costs and expenses 101. The applicant monasteries also sought payment of GRD 8,400,000 (eight million four hundred thousand drachmas) in respect of lawyers' fees and sundry expenses relating to the proceedings before the Convention institutions. 102. The Government found this claim vague and inflated; they maintained that only a quarter of the amount sought would be consistent with the criteria laid down in the Court's case-law. 103. The Delegate of the Commission did not express any view. 104. Having regard to the finding of a breach with regard to the main aspects of the case, the Court allows the claim in full. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Dismisses the Government's preliminary objections; 2. Holds that there is a breach of Article 1 of Protocol No. (P1-1) in respect of the applicant monasteries not parties to the agreement of 11 May 1988; 3. Holds that there is no breach of Article 1 of Protocol No. (art. P1-1) in respect of the applicant monasteries parties to the agreement of 11 May 1988; 4. Holds that there is a breach of Article 6 para. 1 (art. 6-1) of the Convention in relation to the first complaint of the applicant monasteries not parties to the agreement of 11 May 1988; 5. Holds that it is not necessary to examine the second Article 6 para. 1 (art. 6-1) complaint of the applicant monasteries not parties to the agreement of 11 May 1988; 6. Holds that there is no breach of Articles 9, 11 and 13 (art. 9, art. 11, art. 13) of the Convention; 7. Holds that there is no breach of Article 14 taken together with Articles 6, 9 and 11 of the Convention and Article 1 of Protocol No. 1 (art. 14+6, art. 14+9, art. 14+11, art. 14+P1-1) in respect of the distinction between the applicant monasteries that come under the Greek Church and the monasteries that come under the patriarchates mentioned in paragraph 92; 8. Holds that it is unnecessary to rule on the complaint based on Article 14 of the Convention taken together with the same Articles (art. 14+6, art. 14+9, art. 14+11, art. 14+P1-1) in respect of the distinction between the applicant monasteries that are parties to the agreement of 11 May 1988 and those that are not; 9. Holds that the respondent State is to pay the applicant monasteries not parties to the agreement 8,400,000 (eight million four hundred thousand) drachmas, within three months, in respect of costs and expenses; 10. Holds that the question of the application of Article 50 (art. 50) of the Convention is not ready for decision in respect of pecuniary damage; accordingly, (a) reserves it in that respect; (b) invites the Government and the applicant monasteries not parties to the agreement of 11 May 1988 to submit, within the forthcoming six months, their observations on the matter and, in particular, to notify the Court of any agreement they may reach; (c) reserves the further procedure and delegates to the President of the Chamber power to fix the same if need be. Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 9 December 1994. Signed: Rolv RYSSDAL President Signed: Herbert PETZOLD Acting Registrar BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII