Committee of Ministers

Comité des Ministres

Strasbourg, 28 August 1998

Restricted

CM/Inf(98)30

IMPLEMENTATION BY GREECE

OF THE JUDGMENTS OF THE EUROPEAN COURT OF HUMAN RIGHTS

AND THE DECISIONS OF THE COMMITTEE OF MINISTERS

Reply of the Greek Government to the Memorandum

of 14 May 1998 prepared by the Directorate of Human Rights

Permanent Representation of Greece to the Council of Europe

Strasbourg, 31 July 1998

Ref. 6702/41/AS 951

Sir,

You will find enclosed a memorandum describing the general measures that the Greek administration has found appropriate to adopt, following a certain number of judgments of the European Court of Human Rights concerning Greece.

The preparation of this memorandum was announced to you during your visit to Greece at the beginning of June 1998 and it was conducted under supervision of the State Secretary at the Ministry of Foreign Affairs, Mr Yannos Kranidiotis.

Any comments or remarks by the Directorate of Human Rights on the substance of this memorandum would usefully assist the Hellenic Authorities in their recent effort to take into account the conclusions of the judgments of the European Court of Human Rights in the practice of the Greek courts and Administration.

Yours faithfully,

Georgios Ayfantis

Chargé d’affaires a.i.

Mr P.-H. IMBERT

Director of Human Rights

Council of Europe

THE EXECUTION OF COURT JUDGMENTS AND COMMITTEE OF MINISTERS DECISIONS BY GREECE

In accordance with their obligations under articles 32 and 53 of the European Convention on Human Rights, contracting parties must take steps to rectify, as far as possible, the consequences for applicants of any established violations of the Convention and prevent any other violations of the same type.

Greece complies with both the general and individual nature of these obligations. When it executed the initial judgments which concerned it, it paid compensation to the applicants but also took immediate steps to amend certain provisions of the law to prevent future violations. Reference should be made to the legal changes that followed the following judgments: Philis I [Committee of Ministers' Resolution DH (94) 85], Hadjianastassiou [Committee of Ministers' Resolution DH (95) 213], The Holy Monasteries [Committee of Ministers' Resolution DH (97) 577] and Kampanis [Committee of Ministers' Resolution DH (96) 367].

Similarly, Greece is prepared to execute judgments delivered against it which are currently pending before the Committee of Ministers under the powers assigned to it by article 54 of the Convention. However, each judgment contains specific legal aspects which have to be taken into consideration in its execution. The Greek government's replies to and comments on the memorandum will therefore consider the judgments in chronological order.

Stran Greek Refineries and Stratis Andreadis judgment

(9/12/94)

The Committee of Ministers has adopted Resolution DH (97) 184 which declares that Greece has exercised its functions under Article 54 of the Convention in this case.

The limited number of cases in which the legislature has interfered in the exercise of judicial powers has already been a matter of concern not only to the European Court of Human Rights but also to Greek judicial authorities and numerous politicians and academics (see the comments on the Stran Greek Refineries and Stratis Andreadis judgment by Professor K. Beis, accompanying the publication of the full text of the judgment in the legal journal Diki, no 26, 1995, p 239, attached as appendix 1).

The following judgments are cited merely as examples:

i. Judgment 2/1995 of the Court of Cassation (sitting in plenary session), which declared a legislative action designed to influence the determination of the merits of the case to be unconstitutional:

"The general principle of the separation of powers (articles 1, 26, 73 ff, 81 ff, and 87 ff of the Constitution) gives rise to the specific principle that the legislature may not interfere in the exercise of judicial authority. Irrevocable judicial decisions, whether civil or criminal, cannot be reversed as a result of parliamentary intervention in the administration of justice" (paragraph 2).

The judgment was published in the journals Diki (no 26, 1995, p 453, with comments by Professor K. Beis, appendix 2) and Nomiko Vima (no 44, 1996, p 48, appendix 3).

ii. Judgment 5642/1996 of the Athens Court of Appeal (published in the journal Elliniki Dikaiossini, no 39, 1998, p 192, appendix 4) also found that legislative attempts to influence the determination of the merits of the case were unconstitutional. The judgment took the Stran Greek Refineries and Stratis Andreadis judgment and the Court's interpretation of it into consideration and considered them conclusive.

iii. Judgment 2274/1997 of the Court of Auditors (appendix 5) found that parliamentary interference in the administration of justice was unconstitutional and referred explicitly to article 6.1 of the Convention and article 1 of Protocol no 1.

Manoussakis and Others judgment

(26/9/96)

The following immediate measures were taken to execute the Court's judgment:

i. The judgment was transmitted to the Minister for Education and Religious Affairs on 25 October 1996. The Minister has subsequently modified his practice regarding authorisation to open places of worship, in line with the Court's requirements. The fact that there are no applications to the Minister currently outstanding is indicative of the change that has taken place.

ii. On 23 April 1997, the Minister for Education and Religious Affairs granted approval for the opening of a place of worship for the applicants in the case of Pentidis and others (paragraph 18 of the Court's judgment).

iii. On 16 December 1996 the judgment was transmitted, in a Ministry of Justice circular, to the President and the Public prosecutor of the Court of Cassation, the presidents and prosecutors of the Courts of Appeal and the presidents and public prosecutors of the courts of first instance.

iv. The judgment was published in two journals, Iperaspissi (no 4, 1997, p 910, with comments by a senior academic, K. Kyriazopoulos, appendix 6) and To Syntagma (1997, p 1013, with comments by A. Philiou-Patsantara, appendix 7).

The question of the discretionary power of the Minister for Education and Religious Affairs in assessing the existence of "essential reasons" (Royal Decree of 20 May/2 June 1939) is not raised [sub-paragraph (a) of paragraph 7 of the memorandum]. According to the constant case-law of the Supreme Administrative Court, the Minister's powers to authorise the opening or operation of churches or places of worship are circumscribed: authorisation must be granted if the three conditions laid down in article 13 of the Greek Constitution are met and the authorities then have no discretionary powers. The Supreme Administrative Court has recently confirmed this precedent in the Kirche Jesu Christi der Heiligen der Letzten Tage case.

The issue of the discretionary power of the Minister for Education and Religious Affairs does not arise in practical terms either. The Minister accepts the consequences of the Court's ruling and ministerial practice is now in line with article 9 of the Convention [see the aforementioned measure (i)]: there are currently no outstanding applications to the Minister.

When it considered the "prescribed by the law" condition, the Court did not find that the relevant provisions of Greek law were incompatible with article 9 (paragraph 38 of the judgment). It also recognised that "States are entitled to verify whether a movement or association carries on, ostensibly in pursuit of religious aims, activities which are harmful to the population" (paragraph 40 of the judgment), and that the checks carried out, in this case by the Minister, had a legitimate purpose, namely the protection of public order.

The reply to item (b) of paragraph 7 of the memorandum comprises two new points:

i. The Supreme Administrative Court's decision in the Kirche Jesu Christi der Heiligen der Letzten Tage case offers sufficient evidence that the remedies provided for in sections 45 paragraphs 1 and 4, and 46, paragraph 1, of decree 18/1989 were available and sufficient. Following the authorities' failure to respond to the application to authorise the opening of a place of worship, the applicant had recourse to these remedies. The Supreme Administrative Court decided to refer the case to the Minister for Education and Religious Affairs so that the latter could decide whether to authorise the opening of a place of worship. The Minister gave a positive response and granted the requested authorisation.

ii. The Greek ombudsman's powers enable him to examine any complaints by citizens concerning the authorities' refusal to comply with their statutory obligations (Act no 2477/97, section 3.2 (iii), appendix 9).

Turning to item (c) of the memorandum, the government refers to the aforementioned measures (iii) and (iv).

Katikardis and Tsomtsos judgments

(15/11/96)

The following immediate measures were taken to execute the Court's judgment:

i. The judgments were transmitted to the ministries of Justice and of Finance on 20 January 1997.

ii. The judgments were published in two journals: Armenopoulos (1997, no 3 p 428, with comments by P. Koussis, appendix 10) and Synigoros (1998/1, with comments by Y. Ktistakis, appendix 11). They have also been published in the journal of the Athens Bar: Nomiko Vima (1998, p 718, appendix 12).

iii. A joint committee of representatives of the ministries of Finance and the Environment has been set up to examine the detailed modifications to the legislation which the Court judgments found wanting.

Efstratiou and Valsamis judgments

(18/12/96)

The following immediate measures were taken to execute the Court's judgment:

i. The judgments were transmitted to the ministries of Justice and of Education and Religious Affairs on 27 January 1997.

ii. The judgments were published in the journal To Syntagma (1997, p 995, with comments by T. Sigalas, appendix 13).

To ensure that such cases do not occur in the future, the government has taken two steps: i) it has transmitted the judgments to the Supreme Administrative Court and ii) it has authorised the Greek ombudsman to consider any complaints concerning the violation of rights resulting from decisions or omissions of the administrative authorities (Act no 2477/97, section 3.2 (i), appendix 10).

Hornsby judgment

(19/3/97)

The following immediate measures were taken to execute the Court's judgment:

i. The judgment was transmitted to the ministries of Justice and of Education and Religious Affairs.

ii. There was a commentary on the judgment in the journal Diki (1998, p 126, S. Koukouli-Spiliotopoulou, appendix 14).

There are three aspects to the issue of the execution of administrative courts' judgments:

a. Under section 72.3 of presidential decree no 18/1989, which codifies the legislation relating to the Supreme Administrative Court (appendix 15), a committee of judges determines whether the court's decisions have been implemented. Where the administrative authorities fail to execute judgments, the committee is entitled to request all relevant information and send a full report to the Prime Minister and Minister of Justice.

b. Under Act no 2477/97, section 3.2 (ii) (appendix 9), the ombudsman is empowered to examine any refusal by the administrative authorities to implement final court decisions.

c. Draft legislation to amend the Civil Service Code is currently before parliament. The bill's authors aim to deal with the administrative authorities' refusal to implement judgments by laying down a strict system of disciplinary responsibility for public servants. The government undertakes to submit the new legislation to the Directorate of Human Rights as soon as it has been enacted.

The Court of Auditors has also recently found, in an opinion delivered in plenary session, that in accordance with article 6.1 of the Convention and the associated case-law of the European Court of Human Rights, member States are required to execute judgments against them immediately, since otherwise they would be in direct breach of this provision and that only a judgment (which has been executed) can be considered as a true judicial decision.

In accordance with this opinion, section 2.3 (c) of Act no 2097/1952, which prohibits enforced execution against the State, has been repealed by article 14.1 of the International Covenant on Civil and Political Rights (see also, in confirmation, decision 360/1998 of the Court of first instance of Thebes).

The failure of the authorities to respect court decisions was found to be incompatible with the principle of legality laid down in the European Convention on Human Rights and the United Nations Covenant (opinion of the Court of Auditors delivered on 25 May 1998).

Tsirlis and Kouloumpas judgment

(29/5/97)

The following immediate measures were taken to execute the Court's judgment:

i. The judgment was transmitted to the ministries of Defence and Justice.

ii. The judgment was transmitted in a Ministry of Defence circular to the presidents and public prosecutors of the military courts, and military recruitment offices.

iii. The Tsirlis and Kouloumpas judgment has been commented on, in French, in the Revue hellénique de droit international (1997, no 2, E. Kastanas and Y. Ktistakis, awaiting publication).

Georgiadis judgment

(25/5/97)

The following immediate measures were taken to execute the Court's judgment:

i. The judgment was transmitted to the ministries of Defence and Justice.

ii. The judgment was transmitted, in a Ministry of Justice circular, to the President and the Public Prosecutor of the Court of Cassation, the presidents and public prosecutors of the courts of appeal and the presidents and public prosecutors of the courts of first instance.

iii. The judgment was transmitted in a Ministry of Defence circular to the presidents and public prosecutors of the military courts, and recruitment offices.

Philis II judgment

(27/6/97)

The following immediate measures were taken to execute the Court's judgment:

i. The judgment was transmitted to the Ministry of Justice.

ii. It has also been commented on in the Revue hellénique de droit international (1997, no 2, E. Kastanas and Y.  Ktistakis, awaiting publication).

Turning to the length of the judicial proceedings and the structural problems in the organisation of the justice system referred to in paragraph 50 of the memorandum, the Greek government notes that the purpose of Act 2479/97 on "the Special Supreme Court and the expediting of judicial proceedings" (appendix 16) is to improve significantly the procedures in question, to ensure that the proceedings are always "reasonable" in length (article 3). The government is also considering the possibility of introducing legislation to grant appropriate compensation to victims of unreasonably long proceedings.

Papageorgiou judgment

(22/10/97)

The following immediate measures were taken to execute the Court's judgment:

i. The judgment was transmitted to the Ministry of Justice.

ii. It has also been commented on in the Revue hellénique de droit international (1997, no 2, E. Kastanas and Y. Ktistakis, awaiting publication).

With regard to the legislature's interfering in the administration of justice by trying to influence the judicial determination of the merits of a case, the Greek government wishes to apprise the Directorate of Human Rights of the following (see also the government's observations relating to the Stran Greek Refineries judgment):

i. Judgment 2/1995 of the Court of Cassation (sitting in plenary session) declared a legislative action designed to influence the determination of the merits of a case to be unconstitutional:

"The general principle of the separation of powers (articles 1, 26, 73 ff, 81 ff, and 87 ff of the Constitution) gives rise to the specific principle that the legislature may not interfere in the exercise of judicial authority. Irrevocable judicial decisions, whether civil or criminal, cannot be reversed as a result of parliamentary intervention in the administration of justice" (paragraph 2).

The judgment is published in the journals Diki (no 26, 1995, p 453, with comments by Professor K. Beis, appendix 2) and Nomiko Vima (no 44, 1996, p 48, appendix 3).

ii. Judgment 5642/1996 of the Athens Court of Appeal (published in the journal Elliniki Dikaiossini, no 39, 1998, p 192, appendix 4) also found that legislative attempts to influence the determination of the merits of the case were unconstitutional. The judgment took the Stran Greek Refineries and Stratis Andreadis judgment and the Court's interpretation of it into consideration and considered them conclusive.

iii. Judgment 2274/1997 of the Court of Auditors (appendix 5) found parliamentary interference in the administration of justice unconstitutional and referred explicitly to article 6.1 of the Convention and article 1 of Protocol No. 1.

Canea Catholic Church judgment

(16/12/97)

The following immediate measures were taken to execute the Court's judgment:

i. The judgment was transmitted to the ministries of Justice and of Education and Religious Affairs on 27 January 1997.

ii. The judgment and the Commission's report were published in the journal Diki, no 29, 1998, with comments by Y Ktistakis (appendix 17).

There are certain difficulties attached to the adoption of further general measures to deal with the problem of the legal personality of religious bodies, for which there are two main reasons:

i. A major obstacle is posed by the diversity of viewpoints expressed by the bodies concerned and their current legal status. Certain religious communities have legal personality under public law. Others, such as the Jehovah's Witnesses, have the status of associations. Finally, a third group, such as the Muslim community of Thrace, have their status laid down in conventions, changes to which come within the scope of international law.

ii. Granting the bodies concerned legal personality under public law would not resolve all the problems. One of the features of such legal entities is the constraints placed on them by legislation defining their purposes, powers, administration and functioning. In practice, it would be difficult to reconcile the administrative unity of the Catholic Church with the obligations that Greek public law imposes on legal entities, particularly concerning the powers of government, its officials and the courts to become involved in the temporal organisation and functioning of the Church.

These problems also affect other religious bodies.

With a view to resolving these difficulties, the Greek government is currently undertaking a detailed examination of all the issues raised and possible solutions to them, the most appropriate of which now appears to be the adoption of a type of special legal personality for religious bodies.

Draft legislation currently being drawn up will introduce a register of legal entities with religious purposes. To secure this status, the bodies concerned will simply be required to submit an application to the court of first instance, accompanied in each case by their constituent instrument. The court will then order their inclusion on the register, unless the application is incompatible with public order, safety, health or morals or the fundamental rights of others. Such legal entities will be free to determine their own internal organisation and functioning.

Inclusion on the register can also be sought by bodies that enjoyed legal personality before the Civil Code came into force. In such cases, inclusion will have a declaratory rather than a constituent effect. The legal entities included in the register will be assumed to have obtained legal personality at the time of their establishment, as specified in the court's decision.

Religious bodies falling into this category will be able to apply for the reopening of proceedings where a court of final instance has rejected their claims on the grounds that they lacked legal personality, if the application is lodged within six months of their inclusion on the register.

Religious bodies can still opt to obtain legal personality under the ordinary provisions of the law.

This approach is fully compatible with religious bodies' freedom and autonomy. It is sufficiently flexible to cope with the range of organisational forms that religious communities can take. At the same time, it ensures that the relevant information is made public, which is an essential element of religious bodies' temporal activities and legal certainty. It should also be noted that an independent and impartial court is responsible for ensuring compliance with the law.

Pafitis judgment

(26/2/98)

This complex judgment of the European Court of Human Rights deals with a number of very important issues, including that of whether the period when the case was before the Court of Justice of the European Communities, under article 177 of the EEC treaty, came within the scope of article 6.1 of the Convention (paragraph 95 of the judgment). However, the judgment does not raise any issues concerning legislative interference in the administration of justice. The Greek government draws attention to the fact that the Commission only declared admissible the complaints relating to the length of the various judicial proceedings (Commission report of 4 December 1996, paragraph 10).

With regard to the length of the proceedings, the government notes that the purpose of Act 2479/97 on "the Special Supreme Court and the expediting of judicial proceedings" (appendix 16) is to improve significantly the procedures in question to ensure that the proceedings are always "reasonable" in length (article 3).

An assessment of Greece's execution of Court judgments and Committee of Ministers’ decisions shows clearly that recent court decisions reflect a thorough understanding of the Convention, recognition of the existence of a "European public policy", which is enshrined in the Convention, and greater awareness of human rights issues. There has been a real turnaround in Greek legal thinking.

In several cases there has also been a clear political commitment by parliament and the executive to bring Greek legislation and administrative practice into line with the specific wording of the Court's judgments (appendix 17). To achieve this, the government plans to set up an inter-ministerial body responsible for proposing and adopting measures for executing Court judgments.

Greek legal authorities also carefully monitor the Court's case-law and ensure that it is disseminated widely among the legal profession and the general public. The Court's judgments concerning Greece are discussed in the main legal journals, which regularly publish case-law updates. Consideration is also given to the implications for Greek law of judgments affecting other countries (see, for example, Y. Tzevelekakis, "The institutional safeguard and the impartiality of the courts", Nomiko Vima, June 1998, p 745, on the implications of the Procola judgment for the organisation and functioning of the Greek Supreme Administrative Court).

The Greek legal system is being steadily brought into line with the requirements laid down in the decisions of Convention bodies. Examples of legally correct applications of the Convention and of the political will to comply fully with the Court's judgments will become increasingly common, as the Convention continues to penetrate the Greek legal system, to everyone's benefit, thus contributing to the establishment of a new European public order.

RECENT TRENDS IN THE GREEK LEGAL SYSTEM

IN THE HUMAN RIGHTS FIELD

Ratification of United Nations instruments

Ratification of Council of Europe instruments

United Nations instruments signed

Council of Europe instruments signed

Laws enacted

GREEK CASES BEFORE THE EUROPEAN COURT OF HUMAN RIGHTS

LIST OF PUBLICATIONS AND NOTES PUBLISHED IN GREEK JOURNALS

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