MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1501/H46-14

13 June 2024

1501st meeting, 11-13 June 2024 (DH) Human rights   H46-14 Bekir-Ousta and Others group v. Greece (Application No. 35151/05) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2024)421, CM/Del/Dec(2023)1483/H46-15

 

Application	Case	Judgment of	Final on	Indicator for the classification
35151/05	BEKIR-OUSTA AND OTHERS	11/10/2007	11/01/2008	Complex problem
34144/05	EMIN AND OTHERS	27/03/2008	01/12/2008
26698/05	TOURKIKI ENOSI XANTHIS AND OTHERS	27/03/2008	29/09/2008

Case description

These cases concern violations of the right to freedom of association (Article 11) due to the domestic courts’ rulings not to register associations (Bekir-Ousta and Others and Emin and Others; final domestic decisions in 2006 and 2005 respectively) and a decision leading to the dissolution of an association (Tourkiki Enosi Xanthis and Others; final domestic decision in 2005) on the ground that their aim was to promote the idea that an ethnic minority existed in Greece (as opposed to the religious minority recognised by the 1923 Treaty of Lausanne). Tourkiki Enosi Xanthis and Others also concerns a violation of Article 6 § 1 due to the excessive length of the civil proceedings related to the dissolution of the association.

Concerning Bekir-Ousta and Others and Emin and Others, the European Court noted that the contested measure relied on a mere suspicion about the true intentions of the founders of the association and the actions that it might have led to once it had started functioning. Moreover, the Court considered that even assuming that the true aim of the association was to promote the idea that an ethnic minority existed in Greece, this could not in itself be considered a threat to a democratic society. The Court noted in this respect that nothing in the association’s statute suggested that its members were advocating the use of violence or anti-democratic or anti-constitutional means. The Court recalled that Greek legislation (Article 12 of the Constitution and Article 81 of the Civil Code) did not set up a system of preventive control for the establishment of non-profit associations. It also noted that the domestic courts could order the dissolution of any association if it subsequently pursued an aim different to that stated in its statute, or if its functioning proved to be contrary to public order. Consequently, it concluded that the impugned measure was disproportionate to the aim pursued.

In Tourkiki Enosi Xanthis and Others, the Court underlined the radical nature of the measure, namely the dissolution of the association, and noted in particular that, prior to its dissolution, the association had continued its activities for about half a century without hindrance and without any indication that its members had ever used violence or rejected democratic principles.

Status of execution

Individual measures: Following the Court’s judgments, the applicants attempted to have their applications for registration of the associations re-examined using the means available under Greek law. The applicants in Tourkiki Enosi Xanthis and Others, and in Emin and Others sought revocation of the refusals: these were rejected, because the Court’s judgment was not a “new fact” or a “change of circumstances” and a revocation could only be sought where registration had previously been granted. The applicants in Bekir Ousta and Others made a new application for registration which was refused on the basis it was res judicata.

At its 1280^th meeting (March 2017) (DH), the Committee called on the Greek authorities to take legislative measures, either by allowing the reopening of proceedings in civil matters or by changing the procedure concerning registration of associations. On 10 October 2017 the authorities adopted a change to the Code of Civil Procedure to allow the reopening of cases in which the Court has found a violation of the right to a fair trial or a substantive right under the Convention originating in a domestic court judgment issued in a non-contentious procedure, without prejudice to the terms and restrictions set out in the provisions of the Convention concerning national security, public order, crime prevention, the protection of health or morals and the protection of the rights and freedoms of others. A transitional provision was also adopted which was intended to allow the reopening of proceedings in cases such as the present where the Court had found violations before the coming into force of the legislative amendment. In such cases a request for reopening of proceedings should be assessed with due regard to the restrictions set out in paragraph 2 of Article 11 of the Convention and to its other provisions, as well as to international treaties.

Under the new provisions, the applicants requested reopening of proceedings before the Thrace Court of Appeal. The applications were rejected on the ground that they infringed the non bis in idem principle, because the applicants had already requested the revocation of the impugned decisions (on 22 June 2018, in the case of Tourkiki Enosi Xanthis and Others^[1] and on 20 May 2020 in the cases of Bekir-Ousta and Others and Emin and Others).^[2] The applicants then complained to the Court of Cassation.

On 29 June 2021 and 31 August 2022, respectively, the Court of Cassation rendered three judgments on the merits concerning these cases.[3] The Court of Cassation rejected the associations’ appeals and found their dissolution or the decisions not to register them to be lawful. These judgments were based on several grounds, including the use of the term “Turkish” in the title and in Article 8 of the associations, which the Court of Cassation considered to promote the idea that an ethnic minority exists in Greece (contrary to the Lausanne treaty recognising only a religious minority). Full details of the reasoning in those judgments can be found in the Notes prepared for the 1468^th meeting (June 2023) (DH).

During its examinations at the 1411^th meeting (September 2021) (DH), 1436^th meeting (June 2022) (DH) and 1451^st meeting (December 2022) (DH), the Committee of Ministers expressed its grave concern about the Court of Cassation judgments and considered that they were based on certain grounds already expressly impugned by the European Court in its final judgments in these cases (related to the promotion of the idea of the existence of an ethnic minority). The Committee also expressed its most profound regret that the Court of Cassation did not take into consideration an essential element spelled out by the European Court, i.e. that the members of these associations have never advocated the use of violence or undemocratic or unconstitutional means and that no evidence was presented showing the opposite.

On 19 December 2022, the Minister of Foreign Affairs of Iceland and then Chair of the Committee of Ministers, wrote to the Minister for Foreign Affairs of Greece and conveyed the Committee’s utmost  concern concerning the fact that restitutio in integrum for the applicant associations had not yet been achieved (DH-DD(2023)224). The Chair of the Committee expressed her trust that the Greek authorities would swiftly take the necessary action to secure the full and effective execution of the present judgments. By a letter dated 20 January 2023 the Minister for Foreign Affairs of Greece replied, noting that Greece is fully committed to the rule of law and uses the European Court’s case-law as a benchmark for State practice. He assured the Chair of the Committee that the Greek authorities would continue to work together with the Secretariat on this matter.

On 8 November 2023, the Director of Human Rights and the Department for the Execution of Judgments met with the Deputy Minister for Foreign Affairs in Athens, to continue the dialogue with the national authorities about the execution of the present judgments and on how to progress the required individual and general measures.

During its last examination of this group at the 1483^rd meeting (December 2023) (DH), the Committee welcomed those consultations but reiterated its deep concern that, despite the legislative amendment adopted by Greece in 2017 which allowed the reopening of the impugned proceedings, the applicants had still not been provided with restitutio in integrum, despite having exhausted the possibilities available to them within the domestic legal system. Progress with regard to the individual measures was therefore now dependent on the taking by the Greek authorities of effective general measures (see more details below).

General measures

1) Violation of Article 6 § 1 in Tourkiki Enosi Xanthis and Others: The issue of excessive length of civil proceedings was examined in the context of the pilot judgment in the Glykantzi / Konti Arvaniti group of cases (53401/99) and closed by Final Resolution CM/ResDH(2015)231.

2) Violations of Article 11: The authorities have previously provided extensive information concerning the wide dissemination of the judgments in this group of cases and awareness raising about them among legal professionals. Full details are set out in the Notes prepared for the 1468^th meeting (June 2023) (DH).

In view of the judgments rendered by the Court of Cassation in 2021 and 2022, which cannot be appealed, at its 1468^th meeting (June 2023) (DH), the Committee urged the authorities to consider without further delay all possible avenues in order to implement fully and effectively the European Court’s judgments and prevent recurrence of similar violations. The Committee in particular reiterated its call on the authorities to consider amending the system concerning the registration of associations, in line with the European Court’s case-law and the 2014 Venice Commission and OSCE Joint Guidelines on Freedom of Association, which favour the registration of associations without any prior control of their legality when domestic law provides for clauses allowing the monitoring of their activity a posteriori.

During the last examination of this group in December 2023, the Committee welcomed the intention expressed by the Greek authorities to establish a Committee of Experts to study the matter and advise them on the next steps to take. It called on the authorities to establish that committee at the earliest opportunity with a view to providing the applicants with the possibility to obtain restitutio in integrum. Underlining once again the unconditional obligation under Article 46 § 1 of the Convention on respondent States to fully and effectively execute all judgments against them, the authorities were called upon to sustain an intensified and high-level dialogue with the Secretariat and to provide information before the next examination of this group of cases on the progress made with regard to measures necessary to provide the applicants with the possibility to obtain restitutio in integrum.

In response, in their communication of 12 April 2024 (DH-DD(2024)421), the authorities indicated that they have taken steps to set up the Committee of Experts to study the progress in the execution of this group and advise them. In particular, they have appointed as President of the Committee an Assistant Professor of Constitutional Law, who will soon finalise the composition of the Committee of three members.

In their subsequent communications of 27 May 2024 (DH-DD(2024)595) and 10 June 2024
(DH-DD(2024)660), the authorities indicated that the President of the Committee has appointed the Deputy Ombudsperson for Equal Treatment of the Committee of Experts and the Legal Advisor to the Greek National Commission for Human Rights as the second and third member of the Committee of Experts respectively.

Rule 9 communications: In a communication of 19 April 2024 (DH-DD(2024)475), the Federation of Western Thrace Turks in Europe raised concerns about the limited progress made since the Committee’s last examination. They underlined the absence of information on the timetable for the appointment of the remaining members of the Committee of Experts, a framework or schedule for its work or how its recommendations will be considered by the competent authorities. They invited the Committee to send a strong message to the Greek authorities asking for concrete information about the Committee of Experts as well as a precise timetable, and to consider that, in the absence of tangible progress, all tools, including the infringement procedure, should be used. In their communication of 30 April 2024 (DH-DD(2024)493), the applicants expressed their belief that the initiative of setting up the Committee of Experts as well as the slow pace in starting its functioning demonstrates the intention of the Greek authorities to further delay the implementation of these judgments.

Analysis of the Secretariat

Individual measures: It is a fundamental principle of the European Convention system that the primary aim of individual measures is to achieve restitutio in integrum, that is, to put an end to the breach of the Convention and make reparation for its consequences in such a way as to restore, as far as possible, the situation existing before the breach. As the Court has put it, what is required is the adoption of such measures that are feasible, timely, adequate and sufficient to ensure the maximum possible reparation for the violations found.^[4]

In the present cases, given the finding by the European Court of violations of Article 11 of the Convention and the Court’s reasoning in support of its findings, it would appear that restitutio in integrum for the applicant associations entails offering the applicants the possibility to have the registration of their organisations examined in proceedings respecting the Convention. Those proceedings should take full account of the findings of the European Court, which in light of the reasons invoked by the domestic authorities to justify their actions, failed to see any pressing need in a democratic society to refuse to register, or to dissolve the applicant associations.

It is recalled that, 16 years since the leading judgment in this group and despite the legislative amendment adopted by Greece in 2017 which allowed the reopening of the impugned proceedings, the applicants have still not been provided with restitutio in integrum, despite having exhausted the possibilities available to them within the domestic legal system. Progress with regard to the individual measures is therefore now dependent on the taking by the Greek authorities of effective general measures.

General measures: It is recalled that the Greek authorities have to date opted for a registration procedure before the domestic courts, whose decisions are subject to a final appeal before the Court of Cassation. However, as set out in the Committee’s previous decisions in this group, the Court of Cassation has not fully aligned its case-law with that of the European Court on this issue. In light of this, and considering the applicants’ situation with regard to the individual measures, the Committee has urged the Greek authorities to consider all possible avenues in order to implement fully and effectively the European Court’s judgments and prevent recurrence of similar violations.

Against this background, the authorities decided to establish a Committee of Experts to study the matter and review the options available, and it is positive that the President of this Committee and two members have been appointed. Nonetheless, the Committee is not yet fully functional, and no further details about its work nor a timetable have been provided which is a matter of profound concern.

It is of vital importance that there is a clear plan for the measure selected by the authorities to progress the execution process so that the applicants are provided with an adequate possibility to obtain restitutio in integrum and similar violations are effectively prevented. The authorities should therefore be urged to redouble their efforts and provide detailed information about the functioning of the Committee of Experts, the scope of its work as well as a clear timetable for the completion of its work. As also underlined during discussions in Athens, the Secretariat and the relevant technical expertise of the Council of Europe remain at the full disposal of the authorities to support this work.

Given the crucial importance of rapidly advancing the execution process, the Committee might wish to examine the case at its 1514^th meeting (DH) in December 2024, and instruct the Secretariat to prepare a draft interim resolution for consideration at that meeting in the event that the Committee of Experts is not yet fully functional with a clear mandate and timetable for completion of its work.

Financing assured: YES