HOLY MONASTERIES OF ANO XENIA ; OSSIOS LOUCAS ; AGHIA LAVRA KALAVRYTON ; METAMORPHOSIS SOTIROS IN MEGALO METEORO AND ASSOMATON PETRAKI ; AND SIX INDIVIDUAL APPLICANTS v. GREECE



Application No. 13092/87

by The Holy Monasteries of Ano Xenia, Ossios Loucas,

Aghia Lavra Kalavryton, Metamorphosis Sotiros in Megalo

Meteoro and Assomaton Petraki and six individual applicants

against Greece

Application No. 13984/88

by The Holy Monasteries of Chryssoleontissa Eginis,

Phlamourion Volou and Mega Spileo Kalavryton and

four individual applicants

against Greece

        The European Commission of Human Rights sitting in private

on 5 June 1990, the following members being present:

              MM. C.A. NØRGAARD, President

                  J.A. FROWEIN

                  S. TRECHSEL

                  G. SPERDUTI

                  E. BUSUTTIL

                  G. JÖRUNDSSON

                  J.-C. SOYER

                  H. DANELIUS

                  G. BATLINER

             Mrs.  G. H. THUNE

             Sir  Basil HALL

             Mr.  C. L. ROZAKIS

             Mrs.  J. LIDDY

             MM.  L. LOUCAIDES

                  J.-C. GEUS

             Mr.  H.C. KRÜGER, Secretary to the Commission

        Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms ;

        Having regard to :

        the application introduced on 16 July 1987 by The Holy

Monasteries of Ano Xenia, Ossios Loucas, Aghia Lavra Kalavryton,

Metamorphosis Sotiros in Megalo Meteoro and Assomaton Petraki and 6

Priest-Friars against Greece and registered on 21 July 1987 under file

No. 13092/87 ;

        the application introduced on 15 May 1988 by The Holy

Monasteries of Chryssoleontissa Eginis, Phlamourion Volou and Mega

Spileo Kalavryton and four individual applicants against Greece and

registered on 28 June 1988 under file No. 13984/88 ;

        the report provided for in Rule 40 of the Rules of Procedure

of the Commission ;

        the written observations submitted by the respondent

Government on 22 September 1988 on the admissibility and merits of

application No. 13092/87 and the observations submitted in reply by

the applicants on 9 January 1989 ;

        the written observations of the respondent Government on the

admissibility and merits of Application No. 13984/88 submitted on

26 June 1989 and the observations submitted in reply by the applicants on

22 September 1989 ;

        the Commission's Decision of 4 December 1989 to join the

applications ;

        the oral submissions of the parties at the hearing of 5 June

1990 ;

        Having deliberated ;

        Decides as follows :

THE FACTS

        The facts of the case may be summarised as follows.

        The applicants in Application No. 13092/87 are the following

monasteries and monks:

        1.  The Holy Monastery Ano Xenias of Ano Xenia established in

the 9th century A.D.;

        2.  The Holy Monastery of Ossios Loucas of Steirio, established

in the 10th century A.D.;

        3.  The Holy Monastery of Aghia Lavra Kalavryton in Achaia,

established in the 10th century A.D.;

        4.  The Holy Monastery of Metamorphosis Sotiros in Megalo

Meteoro, established in the 14th century A.D.;

        5.  The Holy Monastery Assomaton-Petraki of Athens, established

in the 10th century;

        6.  The Priest-Friar Archimandrite Nectarios Doras (known in

his secular life as Demetrios), Superior of the Holy Monastery

Ano Xenias;

        7.  The Priest-Friar Archimandrite Nikodimos Zaloumis (known

in his secular life as Georgios), Superior of the Holy Monastery

Ossios Loucas;

        8.  The Priest-Friar Archimandrite Nikodimos Dimakopoulos

(known in his secular life as Evangelos), Superior of the Holy

Monastery Aghia Lavra Kalavryton.

        9.  The Priest-Friar Archimandrite Athanassios Anastassiou

(known in his secular life as Alexios), Superior of the Holy

Monastery of Metamorphosis Sotiros in Megalo Meteoro;

        10.  The Priest-Deacon Vissarion Vassou (known in his secular

life as Spiridon), resident in the Holy Monastery of Assomaton-Petraki;

        11.  The Priest-Friar Konstantinos Ramiotis, Priest of the

Church Agios Demetrios in Neochorio Artas.

        Application No. 13984/88 has been introduced by the following

applicants:

        1.  The Holy Monastery of Chryssoleontissa Eginis;

        2.  The Holy Monastery of Phlamourion Volou;

        3.  The Holy Monastery of Mega Spileo Kalavryton;

        4.  Mother Catherine Kalamaki (known in her secular life as

Theodouli), Superior of the Holy Monastery of Chryssoleontissa

Eginis;

        5.  The Archimandrite Daniel Pourtsouklis (known in his secular

life as Dionyssios), Superior of the Holy Monastery of Phlamourion Volou;

        6.  The Archimandrite Nikiphoros Theodoropoulos (known in his

secular life as Constantinos);

        7.  The Priest-Friar Konstantinos Ramiotis, Priest of the

Church Agios Demetrios in Neochorio Artas;

        The applicants are represented before the Commission by

Mr.  P. H. Bernitsas, Attorney at Law.

        The applications concern the Law 1700/1987 which modifies the

rules governing the administration of monastic property and which

provides for the transfer of a large part of the applicants' immovable

property to the Greek State.

        The applicant monasteries accumulated extensive property by

donations before the formation of the Greek State in 1829.  A great

percentage of this property had already been expropriated during the

first years of the existence of the Greek State.  Moreover, large

segments of monastic property were offered by the monasteries to the

State or to landless people.

        The ownership of this property by the monasteries has not been

challenged.  Moreover "usucapio" (adverse possession) has always been

invoked by the monasteries as a subsidiary means to prove ownership of

land in cases where the original titles were either destroyed or could

not be produced.

        Apart from the aforementioned property acquired over the

centuries, the monasteries own land and buildings acquired by them in

recent times by normal civil law procedures such as purchase, donation

or inheritance.

        The legal status of the Church of Greece and of the

        applicant Holy Monasteries

        Article 3 para. 1 of the Greek Constitution of 1975 provides

as follows:

        "Relations of Church and State

        The prevailing religion in Greece is that of the Eastern

        Orthodox Church of Christ.  The Orthodox Church of Greece,

        acknowledging our Lord Jesus Christ as its head, is

        inseparably united in doctrine with the Great Church of

        Christ in Constantinople and with every other Church of

        Christ of the same doctrine, observing unwaveringly, as

        they do, the holy apostolic and synodal canons and sacred

        traditions.  It is autocephalous and is administered by the

        Holy Synod of serving Bishops and the Permanent Holy Synod

        originating therefrom and assembled as specified by the

        Statutory Charter of the Church in compliance with the

        provisions of the Patriarchal Tome of 29 June 1850 and

        the Synodal Act of 4 September 1928."

        The Church of Greece, as well as all institutions depending

upon it - including Greek orthodox monasteries - are legal entities of

public law (Article 1 para. 4 of the Statutory Charter of the Church

of Greece).

        According to Article 19 of the Statutory Charter of the Church

of Greece, the Holy Monasteries are religious institutions for the

asceticism of men and women living in them pursuing the monastic

principles, the holy rules on asceticism and the traditions of the

Orthodox Church of Christ.

        Protection of property under Greek constitutional law

        Article 17 of the Greek Constitution provides as follows:

        "1.  Property is protected by the State; rights deriving

        therefrom, however, may not be exercised contrary to

        the public interest.

        2.  No one shall be deprived of his property except for

        the public benefit, which must be duly proven, when and

        as specified by law and always following full compensation,

        corresponding to the value of the expropriated property

        at the time of the court hearing on the provisional

        determination of compensation.  In cases in which a

        request for the final determination of compensation is

        made, the value at the time of the court hearing of

        the request shall be considered.

        3.  Any change in the value of expropriated property

        occuring after publication of the act of expropriation

        and resulting exclusively therefrom shall not be taken

        into account.

        4.  Compensation shall in all cases be determined by

        civil courts.  Such compensation may also be determined

        provisionally by the court after hearing or summoning

        the expropriator, who may be obliged, at the discretion

        of the court, to furnish a commensurate guarantee for

        collecting the compensation as provided by law.  Prior

        to payment of the final or provisional compensation

        determined by the court, all rights of the owner shall

        be maintained intact and occupation of the property by

        the expropriator shall not be allowed.

        Compensation in the amount determined by the court must

        in all cases be paid within one and a half years at the

        latest from the date of promulgation of the decision on

        the provisional compensation payable and, in cases of a

        direct request for the final determination of compensation,

        on the date of promulgation of the court decision, otherwise

        the expropriation shall be revoked ipso jure.  The

        compensation as such is exempt from any taxes, deductions

        or contributions."

        Rules concerning monastic property

        According to Law 4684/1930 the property of the monasteries

was designated as property "to be sold" (ekpoiitea) or "to be

maintained" (diatiritea).  The property to be maintained was deemed to

be the property necessary for the functioning of the monasteries and

included all acquisitions after the publication of Law 4684/1930.

Property to be sold was deemed to be the remaining property.  The

classification of which property fell within which category has been

effected by decrees issued separately for each monastery.

        The management of the property to be maintained was left to

the Holy Monasteries and was exercised according to the laws and

decrees issued, the decisions of the Holy Synod (*) (Iera Synodos) of

the Church of Greece and the internal regulations of each monastery.

        The property to be sold remained in the ownership of the

monasteries but the management was exercised by a church institution,

the for the administration of church property).  According to the

statutory Charter of the Church of Greece (Law 590/1977), the ODEP was

under the supervisory authority and control of the Holy Synod which

appointed the members of its board.  In respect of its administration

of monastic property the ODEP had full legal capacity to act in all

legal proceedings concerening the monasteries.  The liquidation of

property to be sold by the ODEP presupposed an authorisation by the

Board of each monastery.

        On 6 May 1987 Law 1700/1987 was published in the

Official Gazette of Greece.  Article 1 of this Law reads as follows:

        "1.  On the coming into force of this law the Organisation

        for the administration of church property (ODEP) is assigned

        ipso jure the exclusive administration, management and

        representation of all the immovable property belonging to

        monasteries, in relation to which it already has active and

        passive legal capacity, regardless of whether such property

        belongs in accordance with the legislation in force to the

        category of property 'to be maintained' or property 'to be

        sold'."

        Paragraph 3 of the above Article reads:

        "By Presidential Decree issued following the proposal of

        the Ministers of National Education and Religion, Economy

        and Agriculture, there shall be laid down, in modification

        of the legal provisions in force, the terms and procedure

        for the sale, lease, concession of use and development by

        the ODEP of movable and immovable monastic property and

        any other question related to the administration and

        management of such property in general.  The same decree

        may also authorise other administrative bodies to regulate

        every detail of its application by regulatory decisions.

        Specifically in case of the sale of buildings or building

        land belonging to monasteries or a concession of any real

        property right thereon, it is necessary to have the consent

        of the Holy Monastery which is the owner, failing which the

        relevant contract is null and void."

        Further, Article 8 of this law provides that members of the

ODEP are to be appointed by ministerial decision of the Minister of

National Education and Religion.  According to this Article the

Central Administrative Board of the ODEP has the following membership:

        a) the Chairman who is appointed together with his deputy by

the Government following the proposal of the Minister of National

Education and Religion;

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(*)     The body of serving bishops and the executive organ of the

        Church of Greece cf.  Article 3 para. 1 of the Constitution

        quoted above.

        b) three members appointed together with their deputies by the

Permanent Church Council (DIS) and

        c) three members appointed with their deputies by the Minister

of National Education and Religion.

        Articles 2 and 3 of Law 1700/1987 read as follows:

        Article 2

        "1.  Monastic real property which on the coming into force

        of this law is in the ownership or possession of the ODEP,

        the Holy Monasteries or any third party, may be disposed

        of by the ODEP by concession of their use for development

        and exploitation, preferably to farmers who are members or

        by such concession become members of agricultural cooperatives,

        as well as to agricultural cooperatives and State agencies.

        In exchange for such a concession the ODEP shall pay to the

        Holy Monastery concerned 5 % of the gross revenue from the

        concession which will be used for the monastery's needs.

        Real property within the meaning of this provision includes

        agricultural land and land liable to agricultural exploitation,

        forest areas in general, pastures, grass meadows or other

        agricultural areas in general, as well as quarries, mines

        and fish farms.

        2.  Within a deadline of six months from the coming into force

        of this law the ODEP may transfer to the Greek State by

        contract to be signed between the former, as representative

        of the Holy Monasteries, and the Ministers of National

        Education and Religion, Agriculture and Economy, as

        representatives of the Greek State, the ownership of the

        aforementioned monastic real property, as well as the land

        belonging to Holy Monasteries which has become part of

        city plans (building land) after 1952.  This transfer of

        ownership to the Greek State does not affect the validity

        of a concession of use which has been granted in accordance

        with the terms of the previous paragraph, with the exception

        of the term concerning the payment of a percentage of the

        revenue, which percentage will now be paid to a corporation

        to be created and will be used for educational needs.  Until

        the creation of the above mentioned corporation this

        percentage of the revenue will be deposited in a special

        account of the Bank of Greece on behalf of the Ministry

        of National Education and Religion.

        3.  Exempted from the provisions of this Article are areas

        belonging to the Holy Monasteries and destined exclusively

        for cultivation by the monks themselves.  The extent of these

        areas is to be determined for each monastery depending on

        the number of monks living therein, as well as the needs of

        each monastery for environmental protection.  Areas owned

        by the monasteries destined for camps and for the purposes

        of other church foundations are also exempted.  Such areas

        are determined by decisions of the Ministers of National

        Education and Religion, Agriculture and Environment and

        Public Works, which decisions are to be issued following

        the opinion of the ODEP for each Holy Monastery, camping

        and church foundation.

        Article 3

        1.  Should the deadline in paragraph 2 of Article 2 expire

        without results, the property rights over monastic assets

        are regulated in accordance with the following provisions:

        A) Real property which is under the use or ownership of the

        Holy Monasteries at the entry into force of this law is deemed

        to be the property of the Greek State, regardless of its form

        of administration, management or exploitation, unless the

        property right of the monastery a) is derived from a legal

        title issued before the day of deposit of the bill which has

        been registered or will be registered within an exclusive

        deadline of six months from the beginning of the validity of

        this law, b) has been recognised by law or by an irrevocable

        court decision against the State.  The same is also the case

        for real property which is used or possessed by a monastery

        but has been occupied by third persons.

        B) The use and possession of the real property which is

        considered to belong to the State in accordance with the

        preceding clause and whose ownership was not transferred to

        the State in accordance with Article 2 comes to an end and

        is transferred ipso jure to the Greek State.  Any form of

        administration, management and exploitation of such property

        ceases, regardless of the category to which this property

        belongs in accordance with the legislation in force.  The

        State exercises from now on, against any third party, the

        Holy Monasteries and the organisations for the management

        of their property the rights derived from ownership, use

        and possession of these assets.  Their management and

        administration is henceforth exercised by the Ministry

        of Agriculture in accordance with the provisions of the

        legislation formerly in force and this law.  This transfer

        of property does not affect the validity of a concession

        of use which has been effected in accordance with Article

        2 para. 1 of this law, with the exception of the term

        concerning the percentage of the revenue, which will be

        paid to the corporation provided for in Article 9 of this

        law and will be used for the needs of education.  Until the

        creation of the above mentioned corporation the percentage

        of the revenue will be deposited in a special account at

        the Bank of Greece on behalf of the Ministry of National

        Education and Religion.

        2.  Real property within the meaning of this Article includes

        agricultural land and land liable to agricultural exploitation,

        forest areas in general, pastures, grass meadows or other

        agricultural areas in general, as well as quarries, mines

        and fish farms.  Real property also encompasses building

        land, even if it has been included in city plans, provided

        this inclusion in city plans took place after 1952.

        3.  To Holy Monasteries which do not own sufficient real

        property there may be conceded free of charge land which is

        already in their possession in accordance with paragraph 1

        of this Article, exclusively for cultivation by the monks

        themselves.  The extent of such land will be determined for

        each monastery depending on the number of monks living

        therein as well as the needs of each monastery for

        environmental protection.  This concession shall take place

        within an exclusive deadline of one year from the end of the

        deadline in paragraph 1 of this Article, by contract between

        the State, represented by the Ministers of National Education

        and Religion, Environment and Public Works and Agriculture,

        and the legal person administering the monastery's assets in

        accordance with the legislation in force."

        Article 4 of Law 1700/1987 provides that within a deadline of

two months from the end of the above six month time-limit (Article 3

para. 1 (a)) any person being in possession of an immovable asset

considered to be the property of the State should "deliver" (i.e.

complete the contract of transferring ownership) it to the competent

State authorities.  An administrative expulsion procedure (compulsory

transfer) will be used to ensure "delivery".  Moreover, the contractual

rights of third parties over immovable property cease ipso jure six

months after the transfer of the property.

        Article 4 paras. 4 to 7 provides for remedies which may be

pursued in the context of the transfer procedure:

        " 4.  The person 'expelled' is entitled to appeal asking for

        invalidation of the transfer document, if the document was

        issued in violation of an essential form or without the

        legal prerequisites therefor.

        5.   The appeal must be made within 60 days of notification

        of the transfer document.  This deadline and the appeal

        do not suspend the enforcement.  The administrative court

        of appeal is competent to decide the appeal.  In all other

        respects the provisions of the Administrative Procedure

        Code are applicable.

        6.   The decision of the administrative court of appeal

        is subject to cassation appeal before the Council of State

        in accordance with the provisions of Law 170/1973.  The

        cassation appeal is submitted by all the parties which

        are entitled thereto within 60 days of notification of

        the decision of the court of appeal.

        7.   Regardless of the appeal against the transfer document, the

        person "expelled" and any third party are entitled to bring

        an action before the competent civil court in accordance with

        the general civil procedure provisions, claiming real rights

        over the property.  This action may be introduced within a

        strict time-limit of one year starting: a) in case of voluntary

        transfer of the property, on the date of the relevant transfer

        and transfer document and b) in case of compulsory transfer,

        if an appeal has not been introduced in time, on the date of

        the receipt of the compulsory transfer document and where an

        appeal has been introduced against that document, on the

        date of notification of the decision of the administrative

        court of appeal."

        Implementation of the provisions of the Law 1700/1987

        By decision of 10 July 1987 the Council of Ministers appointed

the President of the Central Administrative Board of the ODEP.  On

16 July 1987 the Minister of National Education issued a decision

concerning the organisation of the Central Administrative Board of

the ODEP in accordance with Article 8 of Law 1700/1987.

        The applicants in the Application No. 13984/88 challenged the

latter decisions before the Council of State (Symvoulio tis

Epikrateias), alleging that Law 1700/1987 was contrary to the

Constitution and the Convention.

        In its decision 5057/1987 of 7 December 1987 the Council of

State held the following:

        "The provisions of Article 3 para. 1 of the

Constitution ratify the holy canons and traditions of the

Orthodox Church.  However, such constitutional ratification,

referring to holy canons and dogmatic traditions and

concerning the sphere where the sovereign rights of the

Church are exercised cannot be considered as extending to

the canons and traditions related to matters of

administrative nature.  Such matters, under the influence

of time and newer concepts, are necessarily liable for

modification for the purpose of promoting the mutual

interest of the Church and the State and are settled by the

common legislator in accordance with social needs, pursuant

to the provisions of article 72 of the Constitution.

Nevertheless the legislator cannot, according to the spirit

of such provisions, modify by law the fundamental and

essential administrative institutions which have long been

estabished in the Orthodox Church.  On the other hand these

same provisions enshrine the self-government of the Church.

This includes its power to decide on its affairs through its

own organs composed as provided for by law and recognises

the right of the Church to be administered by the Holy Synod

and the Permanent Holy Synod organised in accordance with

the law and the provisions of the Patriarchal tome of the

29th June 1850 and the Synodical Act of the 4th September

1929 concerning the composition of these bodies.  In

accordance with the majority opinion of this Court, the

provisions of the 1700/1987 entrusting the ODEP, a public

law entity, whose Central Administrative Board members are

appointed in their majority by the State, with the

administration and management of the property of holy

monasteries are not contrary to the constitutional principle

of the self-government of the Church or to religious freedom

and Articles 9 and 11 of the Rome Convention, the Charter of

the U.N. of 16 February 1946 and the Final Act of Helsinki

of 1 July 1976.  These questions, which are not related to

dogma and cult are of a purely administrative nature and are

not even related to fundamental administrative church

institutions.  Moreover, the provisions of Law 1700/1987 do

not fundamentally modify ecclesiastical institutions since

the administration and management of the monastic and church

property had already been assigned to the ODEP, whose

Central Administrative Board when first formed consisted in

its majority of lay members proposed by the State.

Therefore, the allegations made are ill-founded and must be

rejected.

        However, one of the members of this Court supported the

following view, which was followed by one of the asessors.  The

provisions of Article 3 of the Constitution disposing that the

Church of Greece is administered by "the Synod of serving

Metropolites" does not only protect the self-government of the

Church in the sense that it is governed by Metropolites but also

its right to administer, manage and dispose of, according to

its own will, as any owner, any movable or real property

belonging to it and to the other church entities in order to

achieve its non-lucrative objectives, i.e. the establishment

and promotion of the orthodox faith of its members.  Monastic

communities constitute essential parts of this Church which,

despite their characterisation (by Article 1 para. 4 of Law

590/1977) as public law entities, are derived, like the

Church, from the area lying outside the jurisdiction of the

State.  Monastic life has also constituted a fundamental

mode of cult of God.  Therefore, the deprivation by the

provisions of Law 1700/1987 (Article 1 paras. 1 and 3) of

all Monasteries of the administration and management of

their existing and future property (movable and real

property, building and agricultural land), and the

assignment of such powers, without the Monasteries' consent,

to the ODEP most of whose members are appointed by the State

and which is therefore alien to the administrative structure

of the Church, limits in an impermissible manner the

self-government of the monasteries and consequently the

principle of the self-government of the Church, in view of

the fact that in accordance with the Holy Canons monks must

be landless.  Such a regulation violates first the

above-mentioned article of the Constitution which does not

permit modification of administrative institutions of the

Church to such an extent as to reverse its self-government,

and secondly, it seriously hinders the exercise of cult by

means of monastic life, since monastic cult cannot be

exercised "without hindrance" as guaranteed in Article 13

para. 2 of the Constitution.  Finally it should be noted

that since 1953 the ODEP had an Administrative Board

appointed in its majority by the Church and was presided

over by the Archbishop of Athens.  The precedents to the

contrary invoked by the majority opinion refer to isolated

particular cases and not to the administration of monastic

property as a whole.  Therefore, in accordance with the

opinion of the minority the allegations of the applicants

are well-founded.

        It is further alleged that the provisions of Law

1700/1987 entrusting the ODEP, an entity being alien to the

Church and not controlled by it, with the administration of

monastic property and permitting the transfer of such

property to the State without any exchange, are contrary to

Articles 17 and 7 para. 3 of the Constitution since they

impose a non-permissible confiscation of the above-mentioned

property, deprive the monasteries of their property and

impose restrictions on property rights which are not

permitted by the Constitution.

        Article 7 para. 3 of the Constitution provides that

general confiscation is prohibited.  Article 17 of the

Constitution rules that property is under the protection of the

State, but the rights derived therefrom may not be exercised to

the detriment of the public interest (para. 1).  No-one can be

deprived of his property unless for reasons of duly proven

public interest, according to the law and always following prior

complete indemnisation which must correspond to the value of the

expropriated property.  This last constitutional provision

prohibits deprivation of a person's property without the

fulfilment of the conditions specified therein.  However, the

legislator is not hindered from introducing on the basis of

objective criteria and in the public interest limitations in

property, provided that these limitations do not abolish or

inactivate property rights (cf.  Council of State decisions

1034/1978, 6711/1979, 3466/1980, 1503/1982 etc.)

        In accordance with the majority opinion of this Court

the stipulations of Law 1700/1987 which provide for the transfer

to the Greek State of monastic agricultural and other land being

in the possession of the monasteries without lawful property

titles are not contary to Article 17 of the Constitution.  Such

provisions do not deprive the monasteries of their property

rights on the above- mentioned land since the law provides that

such land does not belong to them.  Moreover, the provisions of

the same law, which refer to the sale of the urban assets of the

holy monasteries or the concession of rights thereon by decision

of the ODEP, a body functioning within the framework of the

administrative organisation of the Church, do not offend the

property rights of the monasteries, since their implementation

requires the consent of the monastery owning the asset.  Without

such consent the contract is absolutely null and void.  Finally,

the provisions referring to the exploitation by the ODEP of the

urban assets, mines, quarries and vivariums belonging to

monasteries or any other church institution, and those

concerning the administration and management of the agricultural

property of the monasteries in general, are not contrary to the

Constitution.  As regards (...), administration and management

of agricultural property of the monasteries in general and the

exploitation and further exploitation of urban assets, the

relevant stipulations do not entail deprivation of property

since the property as such of the land concerned remains with

the monasteries and in any event the income from the management

of the above-mentioned property by the ODEP is used for church

purposes.  This regulation imposes limitations which are

permitted by the Constitution and are imposed in the interests

of the monasteries and in the public interest as well.

Therefore, the allegations of the applicants relating to the

violation of Articles 12 paras. 5 and 6 and 20 of the Constitution

and Article 1 of the Additional Protocol of Paris of 20 March 1952

to the Convention of Rome, which contain provisions similar to

Article 17 of the Constitution, are ill-founded and must be

rejected.

        Two of the members of this Court supported the following

opinion, which was followed by one of the assessors.  The

assignment under the above conditions of the administration and

management of all monastic property in general to the ODEP even

"in modification of the provisions in force" (Article 1 para. 3

of Law 1700/1987) does not merely constitute a limitation of

property tolerated by the Constitution, but affects in a

non-permissible manner and without complete indemnisation the

very essence of the monasteries' property rights.  This becomes

more evident from the fact that the sole power left to the

monasteries is to agree or disagree to the sale of their urban

assets or the concession of real rights thereon by the ODEP but

they may not decide on such sale or concession, since such

decision may be made only by the ODEP which resolves dominantly,

that is without even the opinion of the monastery, on the sale of

agricultural land and the "exploitation or further exploitation"

of their real property in accordance with Article 7 of Law

1700/1987.  As regards the movable property of the Monasteries,

some of which is of particularly high value (e.g. icons of

monastery museums, valuable relics, shares etc.) these are

managed by the ODEP without any limitations whatsoever.  Besides,

it should be noted that Law 1700/1987 does not specify the fate

of the income from exploitation of monastic property.  On the

contrary, it appears from Articles 2 para. 2, 3 para. 1 (b) and 9

of Law 1700/1987 that the income from "exploitation or concession

of use of monastic and church property in general" becomes the

possession of a private law entity, created under Article 9,

which has no church objects.  Thus the provisions of Law

1700/1987 are in acute opposition not only to Article 17 of the

Constitution but also to the provisions of the Rome Convention

(Article 1 of the Additional Protocol) and the EEC Treaty.  The

provisions of these treaties prevail over any provisions of law

(Article 28 para. 1 of the Constitution) and create international

responsiblity for the Greek State.  Therefore, in accordance with

the minority opinion, the allegations of the applicants are

well-founded.

        It is further submitted that the provisions of Article 8

para. 1 of Law 1700/1987 are contrary to the constitutionally

protected independence of the Orthodox Church of Greece (Article

3 para. 1 of the Constitution).  This allegation is ill-founded,

since the above-mentioned provisions of Law 1700/1987 are not

related to the independence of the Orthodox Church of Greece

declared in Article 3 para. 1 of the Constitution.

        It is further alleged that the provisions of Law

1700/1987 violate Article 4 para. 1 of the Constitution since

they introduce an unjustified discriminatory treatment of the

Orthodox Church of Greece in comparison to monasteries belonging

to the ÷cumenic Patriarchate and the ÷cumenic Patriarchate

itself, the Patriarchates of Alexandria, Jerusalem, the Holy

Sepulchre, the Holy Monastery of Sinai and monasteries of other

confessions or religions.  This allegation is ill-founded since

the Orthodox Church of Greece, being an instrument and expression

of the prevailing religion, according to Article 3 para. 1 of the

Constitution, is not under the same conditions in relation to

the other Orthodox churches, confessions or religions.

Therefore the legislative stipulations concerned do not violate

the constitutional principle of equal treatment.

        It is moreover submitted that the stipulations of the

Law 1700/1987 violate Article 5 para. 1 of the Constitution in

that orthodox citizens who desire to financially support

monasteries are hindered in the free development of their

personality since, against their will, the administration and

management of the donated property will not be entrusted to the

monasteries but to the ODEP.  Furthermore, it is alleged that

these stipulations affect the individual right of religious

freedom of the members of monastic communities, as well as of the

persons desiring to found a monastery.  The reasons invoked are

ill-founded since the individual right of free development of

personality, which is guaranteed in Article 5 para. 1 of the

Constitution is not absolute but is subject to the limitations

of the Constitution and the law.  In this case the limitations

imposed by the above-mentioned provisions of Law 1700/1987

do not violate Article 5 para. 1 of the Constitution.  As regards

its second aspect, the allegation is inadmissible since it

vaguely relates to eventual and future damage to the

applicants.

        It is claimed that the provisions of Law 1700/1987

violate the constitutional principles of protected confidence,

proportionality and necessity.  This allegation is ill-founded.

The principle of protected confidence is not directly protected

by the Constitution.  The principles of necessity and

proportionality are not violated since the stipulations

concerned are adequately justified."

        On 11 May 1988 The Permanent Holy Synod entered into an

agreement with the Greek State.  According to the provisions of the

agreement a number of monasteries, among them the Holy Monasteries of

Assomaton Petraki (Application No. 13092/87) and Ossios Loucas

(Application No. 13984/88), conceded their agricultural land to the

State.  The agreement was ratified by the Parliament (Law 1811/1988).

        The applicants submit that parts of monastic property have

already been conceded to agricultural co-operatives.

        They also submit judgments of first instance courts which

either annul proceedings (judgment 455/1987 of the Ioannina First

Instance Court) or declare inadmissible actions brought by other

monasteries (judgment 335/1987 of the Lassithi First Instance Court)

because of lack of the monasteries' locus standi.

COMPLAINTS

1.      The applicants complain that the provisions of Law

1700/1987 deprive them unconditionally of their rights to manage and

dispose of their property.  They submit that, as of the day of entry

into force of this law, the use of their property is transferred

to third parties and governmental institutions or agencies and that

within a six months' time-limit their property is automatically

transferred to the State.

        They note that most of their rights derive from unregistered

legal titles since according to the provisions of Law TS/1856, only

acts of transfer of property subsequent to 1 January 1856 had to be

registered.  Besides, since the property rights of the monasteries

have never been challenged by the Greek State, no court decisions

recognising the monasteries' property rights have been given.  They

also note that they cannot, within the six months limit set by Law

1700/1978, register their titles, nor can they obtain a court's

decision confirming their property rights vis-à-vis the Greek State,

since the applicant monasteries are deprived, as from the publication

of the law, of their right of active or passive legal capacity.

        Furthermore, in order to prove the existence of their rights,

the applicants refer to the governmental decrees by which their

property was classified as "property to be maintained" or "property to

be sold".  Such decrees explicitly describe the land belonging to each

monastery, as well as its extent and boundary.

        In these circumstances the applicants consider that their

property has been unconditionally expropriated.  They submit that no

public interest can be found for this expropriation.  They refer to

the Sporrong and Lönnroth case and denounce the extreme inflexibility

of Law 1700/1987, as well as the lack of a fair balance between the

legitimate aim eventually pursued  by the law and their property

rights.  Furthermore they submit that no full, prior compensation is

provided by law  1700/1987, which omission violates not only the Greek

Constitution but also the general principles of international law.

        The applicants submit that the expropriation affects also the

movable property of the monasteries, since this will be managed and

possibly even sold by the ODEP.  They note that the movable property

of the monasteries includes not only icons and objects destined for

the Holy Service, but also items of commercial value, be it money,

bonds, etc.

        The applicants note, finally, that monks are entitled to

acquire property during their lifetime, but have the obligation to

transfer the property acquired, be it money, movables or immovables,

to the monastery.

        The applicants allege a violation of Article 1 of Protocol

No. 1 to the Convention.

2.      The applicants also allege a violation of Article 6 of the

Convention, since the monasteries are deprived of their right to

litigate before the Greek courts for the purpose of determining their

civil rights and obligations.

        The applicants refer in particular to the Andorfer Tonwerke

case (No. 7987/77, Comm.  Report 8.4.82, D.R. 32 p. 94) and submit that

the fixing of the compensation to which an expropriation gives rise is

a matter which concerns the determination of civil rights and

obligations.  They note that the right to compensation following

expropriation is guaranteed by Article 17 of the Greek Constitution.

        In this respect, the applicants consider that they have been

denied the right of access to court, with regard in particular to

their civil right to adequate compensation.

        Moreover, the applicants complain of the annulment of pending

proceedings.  They submit that the provisions of Article 3 of Law

1700/1978, according to which immovable assets are deemed to be the

property of the Greek State, unless they have been recognised to be

the property of the Holy Monasteries by irrevocable court decisions

against the Greek State, implies that civil proceedings, which are not

terminated within the six months time-limit set out by the same

Article, are annulled.  This, they allege, constitutes a violation of

their right to a fair hearing guaranteed by Article 6 para. 1 of the

Convention.

3.      The applicants submit that they are deprived of the means

needed to preserve the monastic communities and thus hindered in the

exercise of the practice of their religious convictions of asceticism.

They allege a violation of Article 9 of the Convention.

4.      The applicants note that, pursuant to Article 3 para. 3 of the

Law 1700/1987, areas belonging to the Holy Monasteries and used

exclusively for cultivation by the monks themselves are not to be

transferred to the State.  However, these areas are to be determined

for each monastery depending on the number of monks living therein.

Consequently the number of monks allowed to live in each monastery

will be fixed and cannot be increased.

        The applicants allege further that Law 1700/1987

essentially prohibits the creation of new monasteries since newly

created monasteries solely depend on donations and the prospective

donors will be discouraged by the fact that their donations will be

administered by the ODEP.

        They accordingly allege a violation of Article 11 of the

Convention.

5.      The applicants claim furthermore that they are victims of

discrimination.  They submit that only monasteries belonging to the

Greek Orthodox Church are affected by Law 1700/1987, whereas the

rights of monasteries of other churches remain intact.  They allege a

violation of Article 14 in conjunction with Articles 6, 9 and 11 of

the Convention and Article 1 of Protocol No. 1.

6.      Finally, the applicants complain that they have no effective

remedy before a national authority in order to assert their rights

guaranteed by the Convention.  They invoke Article 13 in conjunction

with Articles 6, 9 and 11 of the Convention and Article 1 of Protocol

No. 1.

PROCEEDINGS BEFORE THE COMMISSION

        The application No. 13092/87 was introduced on 16 July 1978

and registered on 21 July 1987.  The Commission decided on 5 May 1988

to bring the application to the notice of the respondent Government,

inviting them to submit written observations on the admissibility and

merits of the case.

        The Government submitted their written observations on

22 September 1988 after an extension of the fixed time-limit for the

submission had been granted by the President of the Commission.  The

applicants submitted their observations in reply on 9 January 1989

after having been granted an extension of the time-limit for the

submissions.

        The application No. 13984/88 was introduced on 15 May 1988 and

registered on 28 June 1988.  The Commission decided on 10 March 1989

to bring the application to the notice of the respondent Government

and to invite them to submit written observations on the admissibility

and merits of the case.

        The Government submitted their observations on 26 June 1989.

The applicants presented their observations in reply on 22 September

1989 after an extension of the time-limit for the submissions had been

granted by the President.

        On 4 December 1989 the Commission decided to join the

applications and to invite the parties to a hearing on the

admissibility and merits of the applications.

        The hearing was held on 5 June 1990.  The parties were

represented as follows:

For the Government:

-       Mr.  Konstantinos Economides, Head of Special Legal Department

        of the Ministry of Foreign Affairs;  Agent

-       Mrs.  Maria Vondikaki-Telalian, Legal Adviser, of the Special

        Legal Department of the Ministry of Foreign Affaiars;  Counsel

-       Mrs.  Artemis Papathanassiou, Secretary to the Special

        Legal Department of the Ministry of Foreign Affairs; Counsel

-       Mr.  Charalambos Chrissanthakis, barrister; Counsel

For the applicants:

-       Mr.  Panayiotis Bernitsas, barrister at the Athens bar

-       Mrs.  Domniki Mirasyesi, barrister at the Athens bar

        Two of the applicants, Priest-Friar Konstantinos Ramiotis and

Priest-Friar Athanasios Athanasiou, were present at the hearing.

THE LAW

        The applicants complain of Law 1700/1987 modifying the rules

of administration of monastic property and providing for the transfer

of a part of it to the State.  The applicants allege a violation of

Article 1 of Protocol No. 1 (P1-1).  In their view the provisions of Law

1700/1987 entrusting the ODEP with the administration of their

property constitute an unjustified interference with their right to

peaceful enjoyment of their possessions.  They also allege that the

transfer of parts of their property to the State amounts to an

expropriation contrary to Article 1 para. 1 second sentence of

Protocol No. 1 (P1-1).  The applicants also complain that according to

the provisions of Law 1700/1987 they no longer have legal competence

to act before courts and that, consequently, any pending proceedings

concerning their property rights are annulled.  They allege a

violation of Articles 6 para. 1 (Art. 6-1) and 13 (Art. 13) of the

Convention.  Moreover, the applicants allege that the restrictions of

their right to manage their property and the taking of it pursuant to

the provisions of Law 1700/1987 constitute an unjustified interference

with their right to freedom of religion and to freedom of association

and invoke Articles 9 (art. 9) and 11 (Art. 11) of the Convention.

Finally, they allege that they are victims of discrimination and

invoke Article 14 (Art. 14) of the Convention.

        The respondent Government first note that the applicant

monasteries cannot be regarded as "non-governmental organisations"

within the meaning of Article 25 (Art. 25) of the Convention and cannot

therefore exercise the right of individual petition to the Commission.

They also contend that the applicants have not exhausted the domestic

remedies at their disposal according to the generally recognised rules

of international law.  Finally, the Government argue that no concrete

means of implementation of the provisions of Law 1700/1987 have been

taken and that therefore the applications are manifestly ill-founded.

        A.   As to the requirements of Article 25 (Art. 25) of

             the Convention

        Article 25 (Art. 25) of the Convention reads as follows:

"The Commission may receive petitions addressed to the Secretary-

General of the Council of Europe from any person,

non-governmental organisation or group of individuals claiming

to be the victim of a violation by one of the High Contracting

Parties of the rights set forth in this Convention, provided that

the High Contracting Party against which the complaint has been

lodged has declared that it recognises the competence of the

Commission to receive such petitions.  Those of the High

Contracting Parties who have made such a declaration undertake

not to hinder in any way the effective exercise of this right."

        i)  With regard to the applicant Holy Monasteries:

            ---------------------------------------------

        The Government submit that the requirements of Article 25

(Art. 25) are not met in the present case as far as the applicant

Monasteries are concerned since these bodies are not "non-governmental

organisations" within the meaning of the above provision.

        The Government first note the particular relation between the

Greek State and the Greek Orthodox Church and refer in this respect to

Article 3 (Art. 3) of the Greek Constitution.  A particular aspect of this

relation is that the development of the religious conscience of Greek

citizens is not only an aim pursued by church institutions but also,

according to Article 16 para. 2 of the Greek Constitution,

one of the missions of the State.  Moreover, the existence of the

Greek Orthodox Church is provided by the Constitution and its nature

as a body occupying an important place in the framework of the

organisation of the State cannot be challenged.  The Greek Orthodox

Church has an important educational mission which contributes to the

achievement of the constitutional aims of the State.  Church

institutions, despite their degree of autonomy or independence

vis-à-vis the Greek Orthodox Church, inevitably contribute to the

educational functions of the State as defined in Article 16 para. 2

of the Constitution and can therefore be regarded as State organs lato

sensu.  The Monasteries, as institutions of the Greek Orthodox Church,

are to be regarded as bodies exercising one of the main functions of

the State, that is the development of religious conscience, and are,

thus, governmental organisations.

        The Government also observe that it is for the national law to

determine what the State aims are and that reference to domestsic law

must be made when it comes to determining whether an organisation

pursues such aims or not.

        In this respect the Government refer to national

administrative law and point out that the Monasteries are legal

entities of public law.  The establishment and liquidation of

monasteries can be made only by Presidential Decree after approval by

the competent ecclesiastical authority and after proposal by the

Minister of National Education and Religion.  The establishment of a

monastic community is not only a spiritual issue but also a matter

which necessitates regulation in the context of domestic legal order

since the proper functioning of the Holy Monasteries is an important

matter to the State.

        The applicants contend that the Holy Monasteries are not

governmental organisations.  The State aims referred to in Article 16

of the Constitution are certainly the aims pursued by the State but

not necessarily those pursued by the Greek Orthodox Church and

obviously not those pursued by the Holy Monasteries.  The applicants

note in this respect that the development of the religious conscience

of Greek citizens does not coincide with the promotion of the Greek

orthodox religion, since, under Article 13 of the Constitution, this

religion is placed on an equal footing with all other religions.  They

argue that under the Greek Constitution of 1975 the Greek Orthodox

Church is no longer a State Church and emphasise the status of

separation between Church and State under this Constitution.

        Moreover, the applicants submit that the fact that the Holy

Monasteries are legal entities of public law is irrelevant for the

question at issue.  In their view a governmental organisation is a

body belonging to the the so-called public administration.  They

observe that public administration bodies are often governed by

private law, in particular when entrusted with implementation of

specific aims such as housing, transport, health etc.  On the other

hand not all public law entities are State organs.  In particular, as

far as the Greek Orthodox Church and its institutions are concerned,

their character of public law entities has the sole purpose of

guaranteeing a special protection to these corporations because of the

long and specific ties between the Greek Orthodox Church and the Greek

nation.  However the only power granted by the legislator to the Holy

Monasteries is the issuing by its governing organ of regulations

concerning the promotion of spiritual life.

        The applicants conclude that the ecclesiastical bodies cannot

be considered to be governmental organisations, since they do not belong

to the public administration.  Especially the Holy Monasteries and

their governing organs have no power whatsoever which could lead to

their qualification as governmental organisations.

        The Commission first observes that it does not have to examine

whether the Greek Orthodox Church can be regarded as a

"non-governmental organisation" within the meaning of Article 25

para. 1 (Art. 25-1) of the Convention.  It notes that the applications

have been introduced by the applicant Holy Monasteries which, under

domestic law, are separate legal entities and can be distinguished

from the Greek Orthodox Church as such.

        The Commission further observes that a corporation pursuing

social, educational or cultural aims does not by the mere fact that

such aims are also pursued by the State become a governmental

organisation.  Moreover, the private or public law nature of a

corporation, although an important indication, is not decisive for the

determination of the governmental or non-governmental character of an

organisation under the Convention.  As the Commission has previously

held, governmental organisations which are precluded from exercising

the right of individual petition under Article 25 (Art. 25) of the

Convention are those which normally exercise public functions

(cf.  Nos. 5767/72, 5922/72, 5929-5931/72, 5953-5957/72, Dec. 31.5.74,

Coll. 46 p. 118, Yearbook 17 p. 338).

        The Commission notes that, according to Article 19 of the

Statutory Charter of the Church of Greece, the Holy Monasteries are

religious institutions for the asceticism of men and women living in

them pursuing the monastic principles, the holy rules of asceticism

and the tradition of the Orthodox Church of Christ.  It finds that the

above-mentioned activities cannot be regarded as public functions

since they are not related either to the exercise of public power or

to State controlled activities in the field of public services.

Therefore the Commission concludes that the applicant Holy Monasteries

are "non-governmental organisations" within the meaning of Article 25

para. 1 (Art. 25-1) of the Convention.

        ii)  With regard to the individual applicants

             ----------------------------------------

        As regards the individual applicants, the Commission observes

that it may receive applications only from persons who claim

themselves to be victims of a violation of the rights set forth in the

Convention.  However, in the present case the Commission finds that

the individual applicants complain of Law 1700/1987 and in particular

of the provisions concerning the administration and the alleged

expropriation of the property of the applicant Holy Monasteries, of

the monasteries' lack of access to court and of the resulting

interference therefrom by the State authorities with the monasteries'

right to freedom of religion and to freedom of association.

        It finds that the individual applicants cannot themselves

claim to be victims of a violation resulting from the provisions of

Law 1700/1987 which affect only the Holy Monasteries as such.

        It follows that as far as introduced by the individual

applicants the applications are incompatible ratione personae with the

provisions of the Convention within the meaning of Article 27 para. 2

(Art. 27-2).

        B.  As to the exhaustion of domestic remedies

        The Government submit that the applicant monasteries have not

complied with the requirements of Article 26 (Art. 26) of the

Convention as to the exhaustion of domestic remedies.  They observe

that pursuant to Article 93 para. 4 of the Constitution, "the courts

shall be bound not to apply laws, the contents of which are contrary

to the Constitution" and that Article 20 para. 1 of the Constitution

guarantees to everyone a right "to receive legal protection by the

courts" and "to plead before them his views concerning his rights or

interests, as specified by law."  Moreover, all courts are independent

and are not bound to follow the views of superior courts.

        The Government submit that it was open to the applicants to

lodge with the civil courts actions for declaratory judgments

(anagnoristiki agogi) and request the courts to recognise that they

are the owners of the property affected by the provisions of Law

1700/1987.  They note in particular that civil courts are the natural

judge of any dispute concerning monastic property.  In the context of

such litigation the civil courts should examine the constitutionality

of Law 1700/1987 without being bound by the opinion expressed by

the Council of State in its decision 5057/1987.

        The Government admit that such actions have been introduced by

other monasteries before civil courts of first instance and that

these courts have actually followed the opinion of the Council of

State.  However, in the Government's view, the exhaustion of domestic

remedies requirement is not complied with in so far as the Court of

Cassation (Areios Pagos) has not reached a decision in the matter.  The

Government emphasise that the Court of Cassation can take and has

indeed on several occasions taken a different view from that of the

Council of State on constitutionality issues.  In such cases the

Special Highest Court (Anotato Eidiko Dikastirio) has competence to

settle the controversy according to Article 100 para. 1 e) of the

Constitution.

        Furthermore, every specific act by the ODEP concerning the

management of the monastic property and any act concerning the

transfer of monastic property to the State can be challenged before the

competent administrative courts.

        In conclusion the Government submit that the applicants have

not exhausted the domestic remedies and that their argument to the

contrary is inconsistent with the domestic legal order.

        The applicants first observe that Greek law does not provide

for a direct remedy permitting the annulment of legislative

provisions.  They submit that in cases of an alleged ex lege violation

an applicant is not required to pursue remedies which concern only

incidentally the matter in dispute.  Moreover they note that the

Council of State found incidentally that all provisions of Law 1700/1987

were in conformity with the Constitution.  In these circumstances any

further remedy before either the civil or administrative courts would

be futile.

        The Commission recalls that the remedies which are to be taken

into account in applying the general rules of international law

concerning the exhaustion of domestic remedies are those which are

capable of providing an effective and sufficient means of redressing

the wrongs which are the subject of the international claim (cf. No.

214/56, Dec. 9.6.58, Yearbook I p. 412 ;  No. 712/60, Yearbook IV

p. 384 ; No. 5964/72, Dec. 29.9.75, D.R. 3 p. 57).

        The Commission observes that in the present case the Holy

Monasteries of Chryssoleontissa Eginis, Phlamourion Volou and

Mega Spileo challenged the ministerial decision by which the central

administrative board of the ODEP was constituted and that the Council

of State has incidentally examined the compatibility of the provisions

of Law 1700/1987 with the Greek Constitution and the Convention.  The

Council of State found that these provisions do not infringe either

the Constitution or the Convention.  The Commission finds that the

remedy pursued by the above-mentioned monasteries can be regarded as

effective according to the general principles of international law.

It observes in this respect that a decision of that court concluding

that legislative provisions are contrary to the Constitution leads to

the non-implementation of these provisions, although under Greek law

a court has no power to annul legislative provisions.

        Moreover, the Commission considers that the decisions given by

the Council of State on the recourse of the above mentioned

monasteries absolve the remaining applicant monasteries, which are in

an identical situation, from the obligation to pursue that remedy (cf.

mutatis mutandis No. 7819/77, Dec. 12.7.78, D.R. 14 p. 186).

        The Commission examined the Government's argument according to

which the domestic remedies are not exhausted in the present case

since the civil courts and in particular the Court of Cassation have

not given a decision on the issue of compatibility of Law 1700/1987

with the Greek Constitution and the Convention.  The Government note on

this point that civil courts may take a different position from the

Council of State as to the constitutionality issues.

        The Commission recalls that the basis of the rule of

exhaustion of domestic remedies is that before proceedings are brought

in an international judicial organ the State made answerable must have

an opportunity of redressing the alleged damage by domestic means.  In

interpreting this rule, the Commission always has regard to what

remedies an applicant can be expected to use in order to obtain

redress of an alleged violation.  The Commission considers that the

applicants' recourse to the Council of State is sufficient in this

respect.  In the present case, the availability and effectiveness of

an action before the civil courts may be in doubt.  In this respect

the Commission has regard to the decision of the Council of State and

to the provision of Article 1 para. 1 of Law 1700/1987 according to

which the applicant monasteries have no competence to act before

courts in relation to matters concerning their property.  It moreover

considers that a decision by a supreme court expressly stating that

legislative provisions are in accordance with the Constitution has the

effect of significantly reducing the prospects of success of any

further remedy.

        The Commission recalls that an applicant who has exhausted a

remedy which is apparently effective and sufficient cannot be required

to have recourse to other remedies which exist but whose availability

and effectiveness may be in doubt (No. 9248/81, Dec. 10.10.83, D.R. 34

p. 78).

        Therefore, the Commission finds that the applicants have

exhausted the domestic remedies according to the general principles of

international law and that the Government's objection must be rejected.

        C.  As to the merits of the complaints made by the

            Holy Monasteries

        The Government first submitted that the provisions of Articles

2 and 3 Law 1700/1987 have not been implemented.  Therefore no

expropriation has taken place and no interference with the

applicant's rights to freedom of religion or to freedom of association

can be found in the present case.  Moreover, the administration of

monastic property by the ODEP does not affect the monasteries' right

to peaceful enjoyment of their possessions.

        Finally, the Government submit that specific legislative

regulation of matters concerning the property of monasteries depending

on the Greek Orthodox Church is necessary because of the specific

relation between the Greek Orthodox Church and the Greek State.  The

Government conclude that the application is manifestly ill-founded.

        The applicant monasteries submit that the provisions of

Law 1700/1987 are in force and have actually been implemented.  The

taking of monastic property results directly from the law provisions

and no specific acts of property transfer are necessary.  Moreover,

the courts apply the new law in all proceedings concerning monastic

property.  The applicants insist that Articles 6, 9, 11, 13 and 14

(Art. 6, 9, 11, 13, 14) of the Convention and Article 1 of Protocol

No. 1 (P1-1) are violated by the provisions of Law 1700/1987.

        The Commission considers that the applications, as far as

introduced by the Holy Monasteries, raise complex issues of fact and

law which call for an examination of the merits.  They cannot

therefore be regarded as manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention and must be declared

admissible, no other ground for declaring them inadmissible having

been established.

        For these reasons, the Commission

        DECLARES THE APPLICATIONS ADMISSIBLE without prejudging

        the merits, as far as introduced by the applicant Holy

        Monasteries (cf. p. 3, applicants 1 to 5 in Application

        No. 13092/87 and 1 to 3 in Application No. 13984/88);

        DECLARES THE APPLICATIONS INADMISSIBLE as far as

        introduced by the individual applicants (cf. pp. 3 and 4,

        applicants 6 to 11 in Application No. 13092/87 and

        4 to 7 in Application No. 13984/88)

  Secretary to the Commission                President of the Commission

         H.C. KRÜGER                                  C.A. NØRGAARD

 

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