AS TO THE ADMISSIBILITY OF
Application No. 16595/90
by Kole MANGOV
against Greece
The European Commission of Human Rights sitting in private on 18
February 1993, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
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 10 February 1989
by Kole MANGOV against Greece and registered on 16 May 1990 under file
No. 16595/90;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case as submitted by the parties may be
summarised as follows:
At the time of the introduction of the application the applicant
was a citizen of Yugoslavia. He was born in 1940 in Vevi (Greece). He
left Greece in 1945. He is a judge and resides in Skopje.
The applicant's grandfather, a Greek citizen, died in Vevi in
1962.
In 1982 the Ministers of the Interior and Public Order issued a
joint decree concerning the return to Greece and the acquisition of
Greek nationality by political refugees who had fled Greece during the
civil war. This decree provides inter alia that "persons of Greek
origin who took refuge abroad as political refugees during and because
of the civil war of 1946-1949 are free to take up residence in Greece
even if they have been deprived of their Greek nationality".
In April 1985 a law enacted by the Greek Parliament (Nomos
1540/1985) provided for the restitution of real property to political
refugees who wished to resettle in Greece. Article 1 para. 1 of this
law reads as follows:
"Political refugees within the meaning of the present law
are persons of Greek origin who have taken refuge abroad
after 1 January 1945 and those who have been imprisoned or
deported because of the civil war."
In April 1985 the Greek Government allowed persons coming from
the former Yugoslavia to enter Greece without border formalities. The
applicant went to Greece and met his brother, a Greek citizen residing
in Vevi. He consulted the land registry of his native place in order
to examine whether he could institute inheritance proceedings. By
notary act of 18 April 1985 he gave a general authority to his brother.
Upon his return to Skopje he was asked by a Greek frontier officer to
fill in a form. The applicant indicated on the form that his
nationality was "Macedonian". He submits that the frontier officer tore
the form and told his brother: "This is the reason we do not let them
in."
On 26 May 1988 the applicant requested his brother to institute
proceedings on his behalf. However, he was later informed by his
brother that no lawyer accepted his case.
A newspaper article was published in Greece on 9 September 1989
which criticised the applicant's militant activities abroad and the
Government's decision to allow him to enter Greece in April 1985.
In December 1989 the applicant requested the Greek Consulate
General in Skopje to provide him with an entry visa for Greece. The
applicant was asked to fill in an application form which was written
in Greek.
The following information should be given in the form:
- Name, first name
- Date and place of birth
- Name, date and place of birth of the parents
- Address in Yugoslavia
- Profession
- National origin
- Nationality
- Language(s)
- Object of the travel
- History of the departure from Greece
- Information concerning members of the family
- Information concerning relatives in Greece
In the applicant's view a number of questions included in the
form were specifically addressed to Yugoslav citizens born in Greece
with the purpose of singling out those claiming to belong to the
"Macedonian community". He did not apply for the visa considering that
the questions put to him were discriminatory and humiliating.
COMPLAINTS
1. The applicant complains of a discriminatory policy of the Greek
State towards persons expressing their belief of "Macedonian national
belonging". He claims that by a series of procedural barriers these
persons are singled out and excluded from any normal contact with Greek
authorities or citizens. In this respect the applicant refers to the
Ministerial Decree of 1982 and Law 1540/1985 and submits that the
wording of the decree excludes people born in Greece, but who are not
of Greek origin, from freely entering Greece. The applicant invokes
Articles 3, 9 and 14 of the Convention.
2. The applicant further complains of not being allowed to enter
Greece in order to meet his brother, visit his native place and his
father's tomb, institute proceedings for the recovery of his land and
express there his beliefs of belonging to the "Macedonian community".
He invokes Articles 6 para.1, 8, 10 and 14 of the Convention and
Article 1 of Protocol No 1.
The applicant also complains of the fact that he is obliged to
disclose information on his private and family life in the application
for a visa unlike other citizens of the former Yugoslavia. He considers
this to be humiliating and discriminatory. He invokes in this respect
Articles 3, 8, and 14 of the Convention.
3. Finally the applicant complains of the Greek lawyers' refusal to
represent him in proceedings in Greece.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 10 February 1989 and registered
on 16 May 1990.
On 19 April 1991, the Commission decided to communicate the
application to the Greek Government and to invite them to submit
written observations on the admissibility and merits of the
application.
The Government submitted their observations on 24 July 1991. The
applicant submitted observations in reply on 26 September 1991.
THE LAW
1. The applicant first complains of an alleged discriminatory policy
of the Greek State towards persons who claim to be "Macedonians". This
discriminatory policy would appear from the provisions of the
Ministerial Decree of 1982 and the Law 1540/1985 excluding persons born
in Greece but of non-Greek origin from entering into Greece. In the
applicant's view this policy prevents him from freely manifesting the
belief of his national belonging. He invokes Articles 3, 9 and 14
(Art. 3, 9, 14) of the Convention.
The respondent Government submit that the Greek legislation
concerning repatriation of Greek political refugees does not intend to
restrict any individuals' right of entry into Greece but gives
preferential treatment to persons of Greek origin who wish to resettle
in Greece. The Government further refute the applicant's allegation
that it conducts a discriminatory policy as regards the right of entry
into Greece.
The Commission notes that the applicant claims to be victim of
a discrimination resulting from the provisions of the Ministerial
Decree of 1982 and the Law 1540/1985, which regulate resettlement in
Greece of categories of persons who had fled Greece during the civil
war. It recalls that the Convention does not provide for any actio
popularis (cf. No 8727/79, Dec. 8.7.80, D.R. 20, p. 230; No 9297/81,
Dec. 1.3.82, D.R. 28, p. 204). Therefore, the Commission is not
competent to examine in abstracto the compatibility of the law with the
Convention. The person who is unable to demonstrate that he is
personnally affected by the application of the law he criticises,
cannot claim to be a victim of a violation of the Convention, within
the meaning of Article 25 (Art. 25) (No. 7045/75, Dec. 10.12.76, D.R.
7, p. 87).
In the present case the applicant has submitted that he is
discriminated against with regard to the conditions of entry into
Greece, a matter which is not regulated by the legislation complained
of. He has neither shown nor alleged that he wished to take up
residence in Greece and that this was refused to him on the basis of
the challenged legislative provisions.
It follows that the applicant cannot claim to be a victim, within
the meaning of Article 25 para. 1 (Art. 25-1) of the Convention, of a
violation of his Convention rights because of the above-mentioned
legislation and that this part of the application must be rejected in
accordance with Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant further complains of not being allowed to enter
Greece as a result of a discriminatory policy of the Greek authorities.
Invoking Articles 3, 6, 8, 9, 10 and 14 (Art. 3, 6, 8, 9, 10, 14) of
the Convention he submits that he is not entitled to institute
proceedings in Greece and is therefore prevented from having access to
courts with regard to his inheritance; that he is prevented from
visiting the tomb of his parents, meeting his brother and visiting his
native place; that he is prevented from manifesting his beliefs of
belonging to the Macedonian nation and from expressing his ideas in
Greece.
The Commission first recalls that Article 14 (Art. 14) of the
Convention guarantees the principle of non-discrimination in the
enjoyment of the rights and freedoms recognised by the Convention (cf.
No 8493/79, Dec. 8.10.81, D.R. 25 p. 210) and cannot be applied
independently. The applicant's complaint relates to an alleged
discrimination as regards the right for a foreigner to enter the
territory of a Contracting State, a right which is not as such
guaranteed by the Convention (cf. e.g. No. 7816/77, Dec. 19.5.77, D.R.
9, p. 129).
However, the Commission recalls that the exercise of several
rights under the Convention by an alien can require that he be granted
permission to enter a Contracting State. The Commission has found,
inter alia, that an issue concerning an alien's right to respect for
his family life can arise under Article 8 (Art. 8) of the Convention
if the alien is prevented from entering the country where his family
lives (cf. e.g. No. 8378/78, Dec. 14.5.80, D.R. 20, p. 168; No.
9214/80, Dec. 11.5.82, D.R. 29, p. 176; No. 13078/87, Fadele v. United
Kingdom, Dec. 12.2.90). Furthermore, the Commission has not excluded
that a prohibition to visit a family grave may also raise an issue
under Article 8 (Art. 8) of the Convention (No. 15344/89,
Habsburg-Lothringen v. Austria, Dec. 14.12.89, not yet published).
Moreover, the Commission recalls that Article 6 para. 1
(Art. 6-1) of the Convention, which guarantees the right of access to
court in civil matters, may be infringed where an alien, whose civil
rights in a Convention State are in dispute, is prevented from entering
that State and from being effectively represented before the courts.
In this respect the Commission recalls that a factual obstacle may
infringe the Convention just like a legal impediment (cf. Eur. Court
H.R., Golder judgment of 21 February 1975, Series A no. 18, p. 13,
para. 20).
The Commission further recalls that measures whereby an
individual is refused admission into or is expelled from a particular
territory of a Contracting State can, if they are proved to be taken
with the purpose of preventing this individual from expressing his
ideas or opinions, raise issues under Article 10 (Art. 10) of the
Convention (Nos 15773 and 15774/89, Piermont v. France, Dec. 3.12.92,
not yet published).
The Commission concludes, therefore, that the applicant's
complaints fall within the general area covered by the above-mentioned
provisions of the Convention.
The respondent Government underline the fact that the applicant
has not applied for a visa and cannot therefore establish that there
is an actual interference with the exercise of his Convention rights
by the authorities.
The applicant admits that he did not apply for a visa but alleges
that several questions in the application form he received from the
Greek Consular authorities in Skopje are discriminatory and humiliating
and thus contrary to Articles 3 and 14 (Art. 3, 14) of the Convention.
The applicant notes that he was asked to disclose information
concerning his private and family life. He also observes that the form
was in the Greek language.
The Commission has examined the applicant's allegations
concerning the application form. It finds that neither the obligation
to disclose information when applying for a visa for entry into a
foreign country nor the fact that the application form was in Greek can
be regarded as humiliating or discriminatory.
The Commission finds therefore that the above formalities did not
prevent the applicant from duly applying for a visa and that he has not
been confronted with any formal refusal of leave to enter Greece.
It follows that the applicant cannot in this respect claim to be
a victim of a violation of the Convention, within the meaning of
Article 25 para. 1 (Art. 25-1) of the Convention, and that this part
of the application must also be rejected in accordance with Article 27
para. 2 (Art. 27-2).
3. The applicant finally complains of the alleged refusal of Greek
lawyers to represent him in proceedings in Greece. He submits that this
refusal is due to his activities in favour of the Human Rights of
Macedonians in Greece.
The Commission has examined this complaint under Article 6 para.
1 (Art. 6-1) of the Convention which secures to everyone the right of
access to court in civil matters (cf. Eur.Court of H.R. Philis judgment
of 27 August 1991, Series A No 209, p. 20, para. 59).
The Government submit that the right of access to court is
guaranteed in cases where there exists on arguable grounds a civil
right in issue. The Government state that this condition is not
fulfilled in the applicant's case. They further note that it was open
to the applicant, pursuant to Article 47 of Law 3026/1954, to request
the President of the competent civil court to appoint a lawyer for him.
The applicant submits in reply that he is prevented from having
contacts with the judiciary and that he does not want to subject the
protection of his rights to the discriminatory conditions imposed by
Greece.
The Commision finds, assuming that the alleged attitude of the
Greek lawyers towards the applicant may be imputable to Greece and
further assuming that Article 6 para. 1 (Art. 6-1) applies in the
present case, that this part of the application should be rejected for
the following reasons.
Under Article 26 (Art. 26) of the Convention the Commission may
only deal with an application after the exhaustion of domestic remedies
according to the generally recognised rules of international law. In
the present case it appears clearly from the information submitted by
the parties that the applicant has not requested the President of the
competent court to appoint a lawyer for the defence of his interests,
although such a remedy was accessible to him and to his brother to whom
he has given a general authority. Moreover this remedy was capable of
providing adequate redress of the situation he complains of, i.e. the
alleged refusal of Greek lawyers to represent him before courts.
Moreover, the examination of the case has not disclosed any particular
circumstance which could, in accordance with the generally recognised
principles of international law, absolve the applicant from the
obligation to exhaust the domestic remedies at his disposal.
It follows that the applicant has not complied with the
requirement as to the exhaustion of domestic remedies and that this
part of the application must be rejected in accordance with Article 27
para. 3 (Art. 27-3) of the Convention.
For these reasons the Commission, by majority
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy