MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1514/H46-17

5 December 2024

1514th meeting, 3-5 December 2024 (DH) Human rights   H46-17 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)1094, DH-DD(2024)1218, CM/Del/Dec(2024)1501/H46-14

 

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 domestic courts refused these requests for different reasons (for more details see the previous Notes)[1].

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 an amendment  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, 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.

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^[2] and on 20 May 2020 in the cases of Bekir-Ousta and Others and Emin and Others).^[3] 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.[4] 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)[5].

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).

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 measures.

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 is 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, 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 called 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.

Further to the above-mentioned consultations with the Secretariat, in their communication dated 10 November 2023 (DH-DD(2023)1377), the authorities indicated that they would establish a Committee of Experts, comprised of Greek legal experts, that would study the matter and advise the authorities on the next steps. Between April and June 2024, the President of the Committee of Experts and its two other members were appointed (for more details see the Notes prepared for the 1501^st meeting (June 2024) (DH))[6].

During its last examination of this group, at the 1501^st meeting, the Committee of Ministers, while reiterating its deep concern that 16 years since the leading judgment in this group, the applicants’ situation had still not been remedied, noted with interest the recent finalisation of the composition of the Committee of Experts, which was already operational. Noting however that any progress with respect to both individual and general measures appeared now to be dependent on the work of the Committee of Experts and given the length of time these judgments had been pending, it expressed concern that no further details about its work had been provided. Underlining once again the unconditional obligation for respondent States to fully and effectively execute all judgments against them, the Committee urged the authorities to redouble their efforts to ensure that the Committee of Experts can provide the necessary advice to the competent authorities as to the possible measures to be taken. The authorities were also urged to provide detailed information about how the Committee of Experts would function, the scope of its work as well as an indicative timetable for the completion of its work.

On 27 September 2024, the Committee of Ministers received a letter from the President of the Committee of Experts (DH-DD(2024)1094), in which he expressed the Committee of Experts’ commitment to the execution of the Court’s judgments and  eagerness to further collaborate with the Council of Europe. The letter included Terms of Reference and a Roadmap outlining the work of the Committee of Experts. It appears from these documents that the Committee of Experts is tasked with reviewing the progress of the execution of the present group, building on the above-mentioned constructive discussions between the Deputy Minister for Foreign Affairs and the Secretariat. Drawing from the expertise of its members, the Committee is tasked with drafting an initial document setting out proposals to guide its future sessions. At a later stage, this will be consolidated into a comprehensive document based on the session outcomes and the members’ research.

The roadmap outlines planned activities from the first session of the Committee of Experts on 12 June 2024 until the session to be held in June 2025. Prior to its second session, the Committee of Experts is expected to consult the relevant stakeholders, including judges, lawyers, academics, and representatives of the Muslim minority. These stakeholders have a possibility to submit their contributions by November-December 2024. A meeting is planned for December 2024, during which the Committee of Experts will meet with the Department for the Execution of Judgments. The roadmap also includes meetings with the Ministries of Justice, Citizen Protection, and Foreign Affairs in the first half of 2025. The document allows for adjustments, indicating that additional steps and actions may be incorporated as deemed necessary, and that the timetable may be revised at the end of each session.

Rule 9 communications: In a communication dated 11 October 2024 (DH-DD(2024)1205), the Federation of Western Thrace Turks in Europe expressed concern over the lack of publicly available information about the work of the Committee of Experts (no webpage or official email address allowing transparent access to its work). Additionally, they requested the inclusion of representatives of the applicants and their lawyer in the work of the Committee of Experts. In a communication dated 14 October 2024 (DH-DD(2024)1221), the Greek Helsinki Monitor criticised the roadmap for not establishing a final deadline for the Committee of Experts to submit their recommendations to the Government. They also point out that none of the applicants or civil society organisations had been invited to engage with this body. Their view is that amending the system concerning the registration of associations as previously recommended by the Committee of Ministers is the only possible way forward. Lastly, citing several Turkish and Macedonian minority associations that were either dissolved or denied registration, the Greek Helsinki Monitor urged the Committee of Ministers to join the supervision of the present group to the case of House of Macedonian Civilization and Others, final on 9 October 2015, as both concern similar issues. In their communication of 23 October 2024 (DH-DD(2024)1228), the applicants noted that the roadmap and Terms of Reference were  vague and lacking the details requested by the Committee of Ministers. They were concerned that the Committee of Experts was a tool for the authorities to further delay the implementation of this group.

In their subsequent letter dated 22 October 2024 (DH-DD(2024)1218), the Greek authorities indicated that the Committee of Experts intends to finalise its work and deliver its proposal to the authorities by June 2025. It was furthermore noted that the Committee of Experts has “come into contact with the applicants and has agreed to meet and exchange views with them in due time and according to its schedule, as envisaged in the roadmap”. The letter also indicates that preparations are in progress for the planned meeting between the Committee of Experts and the Department for the Execution of 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.^[7]

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, more than 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 established a Committee of Experts to study the ways forward and advise them how to achieve full execution of this group. The information provided, in response to the Committee of Ministers’ request at its last examination, regarding the full functionality and mandate of the Committee of Experts, is welcome. The letter from the President of the Committee of Experts, which included the Terms of Reference and the roadmap, has confirmed that the Committee is now fully operational, with its first session held in June 2024 and a planned schedule of activities for the period up to June 2025, when it should complete its work. It seems that the Committee of Experts is tasked with the drafting of comprehensive proposals for the authorities outlining potential solutions for the problems raised in the execution of this group.

It is also encouraging that the Committee of Experts has expressed its willingness to work with the Council of Europe, including a planned meeting with the Department for the Execution of Judgments. While not yet confirmed, it is expected that this meeting will take place before the end of 2024. As previously noted, the Council of Europe’s technical expertise remains fully available to assist the authorities and the Committee of Experts in their work so that any possible solution is in line with the Convention. The authorities could be encouraged once again to make full use of the Council of Europe’s assistance and expertise in this field.

Additionally, it is positive, in light of the concerns set out in the Rule 9 communications, that the last communication from the authorities (DH-DD(2024)1218) confirms that the Committee of Experts will soon meet with the applicants to discuss potential solutions and that the Committee of Experts plans to finalise its work by June 2025, when it is expected to submit its proposal to the government on the way forward. Given that any progress with respect to both individual and general measures appears to be dependent on it, it is crucial that the Committee of Experts follows the indicative timetable, proposing before the end of June 2025 the measures to be taken by the authorities with a view to ensuring that applicants have a meaningful opportunity for restitutio in integrum and that similar violations are effectively prevented. The authorities should sustain their efforts in this regard and regularly inform the Committee about developments in the work of the Committee of Experts, including about the consultative process with the applicants.

Lastly, it is recalled that the Committee of Ministers invited the Secretariat to examine the possibility of proposing a draft interim resolution for consideration at this meeting, in the event that the Committee of Experts had not yet become fully functional with a clear mandate and timetable for completion of its work. Since the information received confirms that these conditions have been met, the Secretariat has not prepared a draft interim resolution.  

Financing assured: YES