Published on 11 March 2024
THIRD SECTION
Application no. 64619/19
IERA MONI YPSOSEOS TIMIOU STAVROU THIVON
against Greece
lodged on 5 December 2019
communicated on 23 February 2024
SUBJECT MATTER OF THE CASE
The applicant is a monastery founded in 1995. On 8 April 1996 the Statute of the monastery was issued and on 6 June 1996 the Holy Synod decided to revoke it. By judgment no. 33/2009 the Supreme Administrative Court annulled the revocation of the monastery’s Statute ruling that it had not been properly published.
On 29 January 2010 the Metropolitan bishop requested from the Holy Synod the lawful revocation of the Statute of the monastery as it allegedly contained a series of arbitrary arrangements as regards its administration. On 14 January 2011 the Holy Synod issued a new decision on the revocation of the Statute. By act no. 4005/113 of 14 January 2011 the Metropolitan bishop of Thiva and Livadeia was requested to issue a new Statute of the monastery.
On 3 February 2015 a new decision of the Holy Synod reiterated the decisions of 6 June 1996 and 14 January 2011 as regards the revocation of the Statute and also annulled the Statute of the monastery. It relied on Article 51 § 3 of Law no. 4301/2014 which added to Article 39 § 4 of Law no. 590/1977 on the administration of monasteries, that their Statutes shall be reviewed and approved by the competent Metropolitan bishop and the Holy Synod before their publication. It also made reference to the elements which been taken into account by the decision issued on 14 January 2011.
On 16 March 2011 the applicant organisation lodged an application with the Supreme Administrative Court for annulment of the decision of 14 January 2011 and of act no. 4005/113 of the Holy Synod, relying among others on Articles 9 and 11 of the Convention. Following the issuance of the decision of 3 February 2015, it requested the continuation of the trial in accordance with Article 32 § 3 of Presidential Decree no. 18/89 and the annulment also of the decision issued on 3 February 2015.
The Supreme Administrative Court by its judgment no. 1484/2018 held that the applicant organisation lawfully requested the continuation of the trial and that the decision of 3 February 2015 replaced the decision of 14 January 2011. It further held that the Holy Synod and the Metropolitan bishop were competent to approve and revoke the Statutes of the monasteries on grounds of lawfulness even before the introduction of Article 51 § 3 of Law no. 4301/2014. Since that provision did not introduce a new arrangement, the court ruled that the decision issued on 3 February 2015 was lawful. The dissenting judges held that the administrative supervision of monasteries, which benefit of self-government, shall be exercised under certain conditions and within certain time-limits. The administrative supervision of the applicant organisation by the Holy Synod and the competent Metropolitan bishop had been exhausted by the issuance of its Statute and the application for annulment should have been thus accepted.
After the five-member Section of the Supreme Administrative Court referred the case to the seven-member Section. The latter by its judgment no. 1075/2019 held that as the applicant organisation did not lodge a separate application for annulment of the decision of 3 February 2015, which repealed the impugned decision of 14 January 2011, it could not adjudicate on the application for annulment. Had the applicant lodged an application for annulment of the decision of 3 February 2015, the court would have assessed the compliance of this provision with the invoked rights. It further held that the involvement of the Holy Synod in the issuance of the Statutes of monasteries was first introduced by Law no. 4301/2014 which had not abrogated the decision of 14 January 2011. This law had introduced a general provision on the right of approval of the Holy Synod on the Statutes of monasteries and did not aim at regulating in a certain manner any specific case pending before the Supreme Administrative Court. The judge rapporteur of the case held, however, that Law no. 4301/2014 did not introduce a new arrangement.
Relying on Article 6 § 1 of the Convention, the applicant organisation complains in essence of having been deprived of access to a court on account of judgment no. 1075/2019 of the Supreme Administrative Court, which refused to adjudicate on the case, arguing that the decision issued on 3 February 2015 reiterated the one of 14 January 2011. It also complains that by not adjudicating on the case without having examined whether Article 51 § 3 of Law no. 4301/2014 was in compliance with the Convention, the Supreme Administrative Court violated Articles 6 § 1 and 13 in conjunction with Articles 9 and 11 of the Convention. It further complains under Article 6 § 1 of a legislative change which altered the course of pending proceedings. Lastly, relying on Articles 9 and 11 of the Convention it argues that the supervision by the Holy Synod of the Statutes of the monasteries, which are self-governed, shall not be exercised continuously and with retroactive effect but until the publication of their Statutes and shall be exhausted when the Statute is published, which in the present case took place in July 1996.
QUESTIONS TO THE PARTIES
1. Is Article 6 § 1 of the Convention applicable in the circumstances of the present case? If so, was judgment no. 1075/2019 of the Supreme Administrative Court, by which it decided not to adjudicate on the case, in breach of the applicant organisation’s right of access to a court guaranteed under Article 6 § 1 of the Convention?
2. Subject to Article 6 § 1 being applicable, did the applicant organisation have a fair hearing in the determination of its civil rights and obligations, in accordance with Article 6 § 1 of the Convention? Reference is made in particular to Article 51 § 3 of Law no. 4301/2014 and the applicant organisation’s arguments (i) that the non-examination of its compliance with the Convention was in breach of Articles 6 § 1 and 13 in conjunction with Articles 9 and 11 of the Convention, and (ii) that it introduced a legislative change which altered the course of pending proceedings (see, for instance, Christian Baptist Church in Wrocław v. Poland, no. 32045/10, 5 April 2018 and Tarbuk v. Croatia, no. 31360/10, 11 December 2012).
3. Has there been an interference with the applicant organisation’s freedom of religion, within the meaning of Article 9 § 1 of the Convention? If so, was that interference prescribed by law and necessary in terms of Article 9 § 2?
4. Has there been an interference with the applicant organisation’s freedom of association, within the meaning of Article 11 § 1 of the Convention? If so, was that interference prescribed by law and necessary in terms of Article 11 § 2?