AS TO THE ADMISSIBILITY OF
Application No. 25701/94
by The Former King Constantinos of Greece
and 8 members of his family
against Greece
The European Commission of Human Rights sitting in private on
21 April 1998, the following members being present:
MM S. TRECHSEL, President
J.-C. GEUS
A. WEITZEL
J.-C. SOYER
F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
M.A. NOWICKI
B. CONFORTI
N. BRATZA
I. BÉKÉS
D. SVÁBY
G. RESS
P. LORENZEN
K. HERNDL
E.A. ALKEMA
M. VILA AMIGÓ
Mrs M. HION
MM R. NICOLINI
A. ARABADJIEV
Mr M. de SALVIA, 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 21 October 1994
by the Former King Constantinos of Greece and 8 members of his family
against Greece and registered on 17 November 1994 under file
No. 25701/94;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
9 October 1995 and the observations in reply submitted by the
applicants on 29 May 1996;
- the parties' oral submissions at the hearing on 21 April 1998;
Having deliberated;
Decides as follows:
THE FACTS
The application has been introduced by:
1. the former King Constantinos of Greece (hereinafter "the former
King"),
2. his wife, the former Queen Anne Marie of Greece, his five
children:
3. the Princess Alexia,
4. the Princess Theodora,
5. the Prince Pavlos,
6. the Prince Nikolaos, and
7. the Prince Theodoros,
8. his sister, the Princess Irene,
9. his aunt, the Princess Ekaterini.
The former King and his family do not possess a surname. However,
on certain occasions, the name "Glucksborg" has been applied to them
by the Greek State.
The first to seventh applicants live in London, the eighth
applicant lives in Madrid and the ninth applicant lives in
Buckinghamshire. Before the Commission the applicants are represented
by Messrs. Nathene & Co., Solicitors in London.
The facts of the case as submitted by the parties may be
summarised as follows.
A. Particular circumstances of the case
In 1864 a crowned democracy was established in Greece, when
George I, son of the Danish King Christian IX, was elected as King and
ascended the throne. The former King Constantinos of Greece is a direct
descendant of King George I. He ascended the Greek throne in 1964, at
the age of twenty-four, in succession to his father King Paul I.
On 21 April 1967 there was a military coup in Greece. The former
King remained in the country until 13 December 1967, when he left for
Rome.
On 15 November 1968 the military regime promulgated a new
constitution (the former had been enacted in 1952), which was amended
in 1973 when the former King was overthrown (see below). Article 21 of
the 1968 Constitution (as amended in 1973) guaranteed the right to
property and provided that nobody was to be deprived of property save
insofar as such deprivation was carried out in the public interest and
upon payment of full compensation, the amount of which was to be
determined by the civil courts. However, Article 134 para. 3 of the
same Constitution provided for a unique legislative measure to be
enacted, which would have the effect of confiscating the moveable and
immoveable property of the former King and the Royal family.
Between 21 April 1967 and 31 May 1973 the military dictatorship
formally maintained the crowned democracy, despite the former King's
self-imposed exile.
On 1 June 1973 the military regime purported to abolish the
crowned democracy, to declare the former King and his heirs deposed and
to establish a Presidential Parliamentary Republic.
In October 1973 the military dictatorship issued a legislative
decree No. 225/1973, pursuant to Article 134 para. 3 of the 1968
Constitution (as amended in 1973), whereby all moveable and immoveable
property of the former King and Royal family was confiscated with
effect from the date of publication of the decree in the Government
Gazette (4 October 1973), and whereby title to the confiscated property
passed to the Greek State. Land belonging to the former King at Tatoi
(Attica) and at the island of Kerkyra (Corfu), as well as land at
Polidendri belonging to the former King, Princess Irene and Princess
Ekaterini, were specifically mentioned as forming part of the
immoveable property being confiscated.
The above decree provided for compensation in the sum of Drs.
120.000.000 to be distributed amongst the members of the Royal family
whose property was confiscated, and this sum was deposited in a bank
account to be claimed by the Royal family. The former King's share of
the compensation was stated to be Drs. 94.000.000 and Princess Irene's
share Drs. 12.000.000. No compensation was provided for Princess
Ekaterini. It was further provided that the compensation had to be
claimed by 31 December 1975. No part of it was ever claimed.
On 24 July 1974 the military dictatorship in Greece was replaced
by a civilian Government under the leadership of Mr. Karamanlis.
By a legislative Act of 1 August 1974 ("the First Constitutional
Act of 1974"), the Government revived the Constitution of 1952, except
for the provisions relating to the form of government (Article 1).
Article 10 of this Act provided that, until the National Assembly
was reconvened, legislative power vested in the Council of Ministers
was to be exercised through legislative decrees. Article 10 para. 2
provided that such legislative decrees would be capable of having
retrospective effect as regards any issues arising from any
Constitutional Acts after 21 April 1967. Article 15 provided that the
1968 Constitution (as amended), as well as any other Constitutional Act
or act of a constitutional character passed under the military
dictatorship after 21 April 1967, was repealed.
Pursuant to Articles 1 and 10 of the First Constitutional Act of
1974, the Government issued a legislative decree (No. 72/1974) which
provided for the property of the former King and the Royal family to
be administered and managed by a seven member committee until the form
of regime had been finally determined.
The above decree was implemented by three Ministerial decisions:
1. By decision No. 18443/1509 of 1 October 1974, a seven member
committee was formed.
2. By decision No. 21987 of 24 October 1974, it was provided that
"the delivery [of the property] of the Royal family from the
State to the committee" was to be made by 31 December 1974.
3. By decision No. 25616 of 23 December 1974, it was provided that
the delivery of the property of the Royal family to the committee
would continue until completion, before delivery to its owners
or to a person nominated by them.
Between 1974 and 1979 all the moveable and immoveable property
of the former King and Royal family in Greece was administered and
managed in the name of the committee established pursuant to L.D.
72/1974, on behalf of the former King and Royal family. In 1979 the
property was delivered to them.
On 17 November 1974 there were elections to the National
Assembly, and the Assembly was thereafter reconvened. A referendum was
held on 8 December 1974, the outcome of which was in favour of a
Parliamentary Republic. By Resolution D 18/18.1.1975, the National
Assembly resolved and declared, inter alia, that democracy in Greece
was never lawfully abolished, and that the revolutionary coup of
21 April 1967, as well as the situation which resulted as a consequence
up to 23 July 1974, constituted a coup d'état which aimed to encroach
upon the power and the sovereign rights of the people.
In 1975 the National Assembly enacted the present Constitution,
which came into force on 11 June 1975.
On 12 February 1975 all Embassies were informed by the Ministry
of Foreign Affairs that "all members of the former Royal family retain
their Greek nationality (ithageneia)" and that if there was a request
to renew the Royal passports, a joint (family) passport should be
issued, in the name of "Constantinos, Former King of Greece" and in
comparable form for the other members of the Royal family.
In 1981 the socialist "PA.SO.K." party under the leadership of
Mr. Papandreou was elected to power in Greece. From January 1984
onwards discussions were held with the former King regarding his
property. By 1988 an agreement in principle had been reached between
the Government and the former King relating to the property and tax
liabilities of the Royal family. However, the agreement was never
executed because of the ill-health of the Prime Minister,
Mr. Papandreou.
On 1 July 1983 the Danish Prime Minister's Department stated that
"from King Christian IX [the former King's ancestor] onward no Danish
King or other member of the Danish Royal Family is or has been bearing
the name of 'Glucksborg' or any other surname".
The 1992 agreement
In 1990 the conservative "New Democracy" party was elected to
power.
In 1992 an agreement was reached between the former King and the
Greek State, in the following terms:
1. The former King transferred an area of 200.030 square metres of
his forest at Tatoi to the Greek State for the sum of Drs.
460.000.000.
2. The former King donated an area of 401.541,75 square metres of
his forest at Tatoi to a foundation for the benefit of the
public, namely the "Universal Hippocration Medical Foundation and
Research Centre".
3. A foundation for the benefit of the public, namely the National
Forest of Tatoi was created, and the former King donated an area
of 37.426.000 square metres of his forest at Tatoi to the
foundation.
4. The former King, the Royal family and the Greek State waived all
legal rights in connection with, and discontinued all pending
legal proceedings concerning the Royal family's tax liabilities.
5. The former King and the Royal family agreed to pay to the Greek
State the sum of Drs. 817.677.937 in respect of inheritance tax,
income tax and capital taxes, together with interest and
surcharges. The payment to be made by the former King would be
set off against any sums due to the former King pursuant to the
agreement.
The agreement was contained in and evidenced by notarial deed
No. 10573/1992 of 3 June 1992. On 28 September 1992 the division of
Scientific Studies (dieythinsi Epistimonikon Meleton) of the Greek
Parliament issued a report on a draft bill ratifying the above
mentioned notarial act. The report stated inter alia that legislative
decree No. 225/1973 was repealed by legislative decree No. 72/1974 and
that the property thereby "reverted to its former ownership status".
Subsequently the agreement was incorporated in and given the force of
law by Law No. 2086/1992. It has since been implemented.
It should be noted that in Law No. 2086/1992 the name
"Glucksborg" as applied to the Royal family is stated to be "devoid of
any legal foundation".
Remaining property and ownership titles
In addition to the property which was the subject of Law
No. 2086/1992, the former King, Princess Irene and Princess Ekaterini
own the following property in Greece:
a) The former King owns a further area of 41.990.000 square
metres of land and a building at Tatoi. This property was
formed during the reign of King George I (the first
applicant's grand-father), through successive purchases of
pieces of land:
- By deed No. 24101/15.5.1872, King George I purchased from Scarlatos
Soutzos the "Liopessi-Mahonia" estate and from Soutzos' wife the
adjacent "Tatoi" estate, for a total of Drs. 300.000.
- Under Law No. 599/17.2.1877, the Greek State transferred to King
George I the forest known as "Bafi", of approximately 15.567.000 square
metres. A part of approximately 1.000.000 square metres of the above
property was subsequently exchanged for another property of equal area,
adjacent to "Tatoi" estate and belonging to local landowners, who were
paid by King George I Drs. 3.000 to compensate for the difference in
value of the exchanged properties.
- By deed No. 55489/4.4.1891, King George I purchased from Andreas
Syngros a part of the "Kiourka" estate, which is adjacent to the
"Tatoi" estate, for Drs. 110.000.
- By certificate No. 382/20.10.1878, the mortgage registrar of
Marathonas attests that the "Keramydi" estate belongs to King George
I and was devolved to him by his predecessors in title Ioannis
Malakindis, Dimitrios, Vassilios and Panagis Dionyssiotis, George
Kyriazis, George Sardelis and Stamata Sykaminioti. These persons had
acquired the property in parts through successive purchases from 1844
to 1878.
By his holograph will dated 24 July 1904, King George I made the
"Tatoi" estate a family trust (familia-fideicommis) in order to serve
as a permanent residence of the reigning King of the Greeks. However,
according to the then prevailing Byzantine-Roman Law, a family trust
lasts only for four successions, which means that the trust is released
in the fourth successor.
Following the death of King George I on 5 March 1913, Tatoi
devolved to his successor, King Constantinos I, and following the
latter's deposition from the throne in 1917, to his second-born son,
King Alexander. After the latter's death in 1920 Tatoi came back to
King Constantinos I who had in the meantime returned to the throne.
After the latter's resignation from the throne in September 1922, Tatoi
came to his first-born son and Crown Prince George II.
Then, following the abolishment of the Crown and the proclamation
of the Republic by resolution of the fourth Constituent Assembly dated
25 March 1924, the Greek State expropriated Tatoi by Law
No. 2312/14/20.8.1924, while the "Bafi" estate came ipso jure and
without any compensation to the State, since it was donated by it.
Following the return of King George II to the throne, Emergency
Law of 22 January 1936 gave Tatoi back to the King "in full ownership
and possession", with the exception of the "Bafi-Keramydi" estate
which, in the meanwhile, had been allotted to landless refugees. The
explanatory report of this law stated inter alia that the expropriation
had been in breach of Article 11 of the Constitution of 1911, according
to which a compulsory expropriation must always be preceded by
compensation to the owner determined by the courts.
After the death of George II on 1st April 1947, his brother Paul
came to the throne. Legislative Decree 1136/5/11.10.1949 stated the
following: "The Tatoi estate, which was returned ... to the late King
George II, has become the unreserved, free and exclusive property of
H.M. King Paul from his accession to the throne". Following King Paul's
death on 6 March 1964, the property came to his son and successor
Constantinos II (the first applicant), by virtue of his father's
holograph will dated 8 December 1959.
b) The former King and Princess Irene each own 101,5/288 of an
area of 33.600.000 square metres of land at Polidendri, and
Princess Ekaterini owns 36/288 of that area.
By virtue of deed No. 38939/1906, Hassan Efendi Leondaritis, a
landowner of Larissa, transferred and sold to Crown Prince Constantinos
I the estate known as "Polidendri", for the amount of Drs. 397.500.
Following the death of Constantinos I, the estate devolved to his
intestate heirs as follows: to his wife Sophia 2/8 ab indivisio, and
to each of his children George II, Paul, Helen, Irene, Ekaterini and
the daughter of his predeceased son Alexander, Alexandra, 1/8 ab
indivisio.
By virtue of deeds Nos. 79847 of 18 February 1924 and 80452 of
24 March 1924, the above co-heirs and co-owners (with the exception of
Ekaterini) transferred and sold 7/8 ab indivisio of the estate to
Athanassios Galeos, a captain of the merchant marine, for the amount
of Drs. 4.585.000. As regards the 1/8 ab indivisio share of Ekaterini,
a price of Drs. 650.000 was preliminarily agreed and the land was
leased to the new owner pending the completion of the required
formalities, whereupon the land would be transferred to him.
By virtue of deed No. 4289 of 20 March 1925, Athanassios Galeos
and other people formed the "Forest Company" (Anonimos Dasiki Etairia),
to which Athanassios Galeos transferred the 7/8 ab indivisio of the
estate he had acquired. This company was dissolved by resolution of its
General Assembly dated 12 May 1938. By deed No. 22408 of 7 October
1939, the liquidators of the company transferred and sold to Crown
Prince Paul the 7/8 ab indivisio of the estate for the amount of Drs.
4.000.000 which was paid with funds from the dowry of his wife,
Princess Frederica. After his death, 14/32 of his share to "Polidendri"
devolved to his widow, and 14/96 to each of his three children, Sophia,
Constantinos (the first applicant) and Irene (the eighth applicant).
In 1968 Princess Sophia declined the inheritance, and her share of the
estate was added to the share of the remaining heirs pro rata. After
the death of Queen Frederica on 6 December 1981, and in the absence of
a will, her 49/96 ab indivisio share on "Polidendri" devolved to her
children in equal shares, i.e. each child received 49/288 of her share.
c) The Mon Repos estate at the island of Kerkyra
The original title on this property is minutes No. 278 of 1st
June 1864 of the Provincial Council of Kerkyra, by which the Council
decided to offer to King George I the house in which the British
Magistrate of the Supreme Council once lived, together with the
surrounding area, situated at the place known as "Aghios Pandeleïmon
of Garitza". The existing records from that time do not indicate the
area, exact location and limits of the donated estate.
Between 1870 and 1912 King George I enlarged the above estate by
successive purchases of certain smaller or bigger tracts of land
belonging to third parties, situated around or inside the farm. After
two purchases made by George II, Mon Repos took its final shape of
approximately 238.000 square metres.
Following the death of King George I, Mon Repos devolved to
Prince Andreas, by virtue of King George's holograph will dated 24 July
1904.
After the 1922 Revolution and by decision No. 1767/1923, the
compulsory expropriation of Mon Repos was proclaimed in favour of the
State in order to be used as the summer residence of the reigning King.
In 1931 the administrative eviction of Prince Andreas was ordered.
Legal proceedings were then instituted, and by judgment No. 57/1934,
the Kerkyra Court of Appeal (Efeteio) ordered the return of the Estate
to Prince Andreas. Following the restoration of the crowned democracy,
Emergency Law No. 514/1937 expressly provided that Mon Repos be
conceded and transferred in full ownership and possession to Prince
Andreas.
By deed No. 11909/1937, Prince Andreas sold Mon Repos to King
George II against a life annuity payable by yearly instalments of Drs.
400.000. King George II died on 1st April 1947. His co-heirs donated
their shares to King George's brother, King Paul, who acquired full
ownership of Mon Repos (deeds Nos. 3650/1957, 3816/1957 and 5438/1959).
Following King Paul's death, and by virtue of his holograph will, Mon
Repos devolved to his widow Frederica (usufruct) and to his son, the
first applicant (bare ownership). The usufruct was terminated by the
death of Queen Frederica on 6 December 1981, and the first applicant
acquired full title ownership of Mon Repos.
On or about 5 August 1994 the building of Mon Repos was broken
into and physically entered. It is now occupied by the Municipality of
Kerkyra.
Rescission of the 1992 agreement
Following the elections of autumn 1993, a Government under the
leadership of Mr. Papandreou was again returned to power in Greece.
This Government introduced Law No. 2215/1994 which was passed by the
Greek Parliament on 16 April 1994 and became law with effect from
11 May 1994. It provides as follows:
1. Law 2086/1992 is repealed and Deed No. 10573/1992 rescinded. Any
acts carried out pursuant thereto are void and of no legal
consequence (Article 1). The acts so declared void and of no
legal consequence include the "Universal Hippocration Medical
Foundation and Research Centre" at Tatoi and the National Forest
of Tatoi.
2. The Greek State becomes the owner of the moveable and immoveable
property of the former King, Princess Irene and Princess
Ekaterini (Article 2).
3. Title to the property Mon Repos on the island of Kerkyra is
transferred to the Municipality of Kerkyra (Article 4 para. 2).
4. Taxes already assessed are written off. All legal proceedings
pending before the administrative Courts or the Council of State
(Symvoulio tis Epikrateias) in respect of inheritance and other
taxes, surcharges and penalties are discontinued. Amounts paid
by the former King and other members of the Royal family in
respect of tax may be claimed back from the Greek State, but the
State may oppose any set-off of such a claim against any claim
of the State against the Royal family (Article 5 para. 1).
5. Any agreements concerning any property of the Royal family,
except leasehold agreements, are declared void. Any leases of
land belonging to the Royal family continue as if entered into
between the lessees and the Greek State (Article 5 para. 2).
6. Any legal proceedings brought by the former King or other members
of the Royal family before any Greek court using the designation
"King" or any other royal designation, even if combined with the
word "ex" or "former", will not be recognised (Article
6 para. 4).
7. Preconditions are imposed for the continued recognition of the
Greek nationality of the former King and the Royal family, and
for the retention of their Greek passports:
- A declaration must be submitted to the Registrar of
Births, Marriages and Deaths (liziarxeio) of Athens to the
effect that the former King and Royal family unreservedly
respect the 1975 Constitution and accept and recognise the
Greek Republic.
- A further declaration must be submitted to the Registrar
to the effect that the former King and Royal family
unreservedly waive any claim relating to the past holding
of any office or possession of any official title.
- The former King and Royal family must register in the
Municipal Register of Citizens (mitroa arrenon i
dimotologia) under a name and a surname. The law expressly
refers to the first applicant as "Constantinos Glucksborg".
8. Any legislative provision contrary to this legislation is
automatically repealed (Article 6 para. 5).
Legal proceedings before the Greek courts
The applicants have brought several legal proceedings before the
Greek courts, concerning the titles to their estates.
The applicants have also challenged the constitutionality of Law
No. 2215/1994. Following two conflicting judgments issued by the Court
of Cassation (Areios Pagos) and the Council of State, the case was
referred to the Special Supreme Court (Anotato Eidiko Dikastirio).
The judgment issued by the Special Supreme Court on 25 June 1997
The Court first examined whether the applicants were entitled to
bring legal proceedings before it without using a surname. The Court
made reference to Articles 20 of the Greek Constitution and 6 para. 4
of Law No. 2215/1994 and held that "the indication 'former King' is
mentioned in the legal documents not as a title of nobility which is
forbidden by the Constitution, but in order to define the identity of
this litigant, who for the reasons stated earlier, has no surname ...
It concerns a reference to a historic fact, which, like other elements,
can indeed designate the identity of the above person, so that this
person may enjoy judicial protection".
As regards the question of the Royal property, the Court stressed
that it "was from the beginning a political question", that the
property rights of the applicants were linked to the form of Government
and that "during the reign of the Royal family, the property that
belonged to the King and the Royal family was treated like a special
group of property". The Court noted inter alia the following:
"When the Constitution by Article 1 defines the form of the
regime, by the same provision, which is historically interpreted,
in the framework of the political and constitutional conjuncture
... in which it was voted, pursuant to the regulations of the
First Constitutional Act and of legislative decree No. 72/1974
that was issued on the basis of its Article 10, also solves the
issue of the Royal property. In other words, the referendum
renders irrevocable the devolvement of this property to the
State, in a way that its return by law to the former King was
contrary to the Constitution. Therefore, Article 1 of Law No.
2086/1992 ... whose regulations imply that the former Royal
property continued to belong to the deposed monarch and the
members of the former Royal family, and actually connect these
persons with the property, contravenes the Constitution."
Consequently, the Special Supreme Court, by thirteen votes to
four, held that Law No. 2215/1994 is constitutional. According to the
Greek Constitution the judgments of the Special Supreme Court are
irrevocable and binding on all Greek courts (Article 100 para. 4).
B. Relevant domestic law
The domestic law relevant to the present application, other than
the Law Nos. 2086/1992 and 2215/1994 already mentioned above, is
contained in the Greek Constitution of 1975.
Article 4 paras. 1, 2, 3 and 7
"1. All Greeks are equal before the law.
2. Greek men and women have equal rights and equal
obligations.
3. All persons possessing the qualifications for
citizenship as specified by law are Greek citizens.
Withdrawal of Greek citizenship shall be permitted only in
case of voluntary acquisition of another citizenship or of
undertaking service contrary to national interests in a
foreign country, under the conditions and procedures more
specifically provided by law. ...
7. Titles of nobility or distinction are neither conferred
upon nor recognised in Greek citizens."
Article 5
"1. All persons shall have the right to develop freely
their personality and to participate in the social,
economic and political life of the country, insofar as they
do not infringe upon the rights of others or violate the
Constitution and moral values.
2. All persons living within the Greek territory shall
enjoy full protection of their life, honour and freedom,
irrespective of nationality, race or language and of
religious or political beliefs. Exceptions shall be
permitted only in cases provided by international law."
Article 9 para. 1
"1. ... Personal and family life of the individual is
inviolable."
Article 17 paras. 1, 2 and 4
"1. Property is protected by the State; rights deriving
therefrom, however, may not be exercised contrary to 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.
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
beneficiary, who may be obliged, at the discretion of the
court, to furnish a commensurate guarantee for collecting
the compensation as provided by law."
Article 20 para. 1
"1. Every person is entitled to receive legal protection by
the courts and may plead before them his views concerning
his rights or interests, as specified by law."
COMPLAINTS
1. The applicants allege that Law No. 2215/1994 violates their
Convention rights in the following manner:
a. The applicants complain that the Law in itself and its effects
upon them constitute degrading treatment or punishment, in breach of
Article 3 of the Convention, by reason of subjecting the continued
recognition of their nationality and the retention of their passports
to conditions which themselves violate their rights under the Greek
Constitution and the Convention.
b. The applicants next complain that the Law in providing that no
action may be brought by them before the Greek courts if they use a
Royal designation, even if coupled with the prefix "ex" or "former",
violates their right of access to a court, guaranteed by Article 6
para. 1 of the Convention.
c. The applicants further complain that the Law in providing that
no action may be brought by them before the Greek courts if they use
a royal designation, even if coupled with the prefix "ex" or "former",
and requires, as a pre-condition for continued recognition of
nationality and retention of passports, the adoption of a surname,
namely that of "Glucksborg", violates their right to respect for their
private and family life, in breach of Article 8 of the Convention.
d. The applicants also complain that the Law in denying their title
to property they own and confiscating, or authorising the confiscation
of that property, violates their right to property, in breach of
Article 1 of Protocol No. 1.
e. The applicants further complain that they have been subject to
discriminatory treatment, in breach of Article 14 of the Convention,
read on its own and together with Articles 6 para. 1 and 8 of the
Convention and Article 1 of Protocol No. 1.
2. Following the judgment issued by the Special Supreme Court, the
applicants finally complain that the latter was lacking independence
and impartiality, in breach of Article 6 para. 1 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 21 October 1994 and registered
on 17 November 1994.
On 15 May 1995 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on 9 October
1995, after an extension of the time-limit fixed for that purpose. The
applicants replied on 29 May 1996, after two extensions of the time-
limit.
On 7 September 1996 the Commission decided to adjourn the
examination of the case pending the outcome of the proceedings before
the Special Supreme Court.
On 12 January 1998 the Commission decided to invite the parties
to an oral hearing on the admissibility and merits of the application.
The hearing took place on 21 April 1998. The parties were
represented as follows:
For the Government:
Mr Vassilios Kontolaimos, Senior Adviser (Paredros), Legal Advisory
Council of the State (Nomiko Symvoulio ton Kratons), Acting Agent
Mrs Kyriaki Grigoriou, Legal Assistant (Dikastikos Antiprosopos), Legal
Advisory Council of the State, Acting Agent
Mrs Mania Telalian, Member of the Special Legal Service (Eidiki Nomiki
Ypiresia) of the Ministry of Foreign Affairs, Acting Agent
Mr Peter Duffy Q.C., Barrister, Counsel
Professor Nicolaos Alivizatos, Counsel
Professor Michail-Constantinos Stathopoulos, Counsel
Mrs Maria Demitriou, Barrister, Counsel
Mr Charis Pampoukis, Adviser
Mr Georgios Katrougalos, Adviser
Mr Elias Kastanas, Adviser
Mr Petros Liacouras, Adviser
Mr Dimitri Konstas, Permanent Representative of Greece to the Council
of Europe, was also present at the hearing.
For the applicants:
Lord Anthony Lester Q.C., Barrister, Representative
Miss Monica Carss-Frisk, Barrister, Representative
Mrs Nathene Arnaoutis, Lawyer, Representative
Mr John Bravos, Lawyer, Representative
Professor Apostolos Georgiadis, Adviser
Mrs Angeliki Georgiadis, Lawyer, Adviser
The first, second, third, fifth, sixth and eighth applicants were
also present at the hearing.
THE LAW
1. The applicants complain that Law No. 2215/1994 which provides
that no action may be brought by them before the Greek courts if they
use a royal designation, even if coupled with the prefix "ex" or
"former", violates their right of access to a court, in breach of
Article 6 para. 1 (Art. 6-1) of the Convention, read on its own
together with Article 14 (Art. 14) of the Convention, in that it is
imposed for punitive political reasons and lacks an objective and
reasonable justification.
The relevant part of Article 6 para. 1 (Art. 6-1) of the
Convention provides as follows:
"In the determination of his civil rights and obligations ...
everyone is entitled to a fair ... hearing ... by an independent
and impartial tribunal established by law ..."
Article 14 (Art. 14) of the Convention reads as follows:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status."
The Government note that the Special Supreme Court permitted the
applicants to bring proceedings before it under the name of their
choice. The Government state in this respect that they will not impose
a specific surname to the applicants. Therefore the Government argue
that the applicants can no longer claim to be victims of a violation
of the Convention within the meaning of Article 25 (Art. 25) of the
Convention.
The applicants reply that it is not clear whether the validity
of the relevant provisions of Law No. 2215/1994 is affected or not by
the fact that the Special Supreme Court allowed them to bring legal
proceedings before it without using a surname. According to the
applicants, the judgement of the Special Supreme Court did not declare
those provisions invalid. It merely accepted the fact that the
applicants do not have a surname and that the personal particulars
concerning the former King and the other applicants mentioned in the
documents before it were sufficient to identify them for the purpose
of the proceedings before that court.
The Commission recalls its case-law according to which it falls
in the first place to the national authorities to redress any alleged
violation of the Convention (No. 10668/83, Dec. 13.5.87, D.R. 52, p.
177). Thus, where the national authorities have explicitly or in
substance recognised and subsequently redressed the alleged violation,
the applicant can no longer claim to be victim of a violation of the
Convention (No. 12719/87, Dec. 3.5.88, D.R. 56, p. 237).
In this case, the Commission notes that the Special Supreme Court
held that the applicants were entitled to bring legal proceedings
before it without using a surname: indeed, in order to determine his
procedural identity, the first applicant had designated himself as
"Constantinos, former King".
The Commission considers accordingly that the Special Supreme
Court has implicitly held that the relevant provisions of Law
No. 2215/1994 are contrary to Article 20 para. 1 of the Greek
Constitution (which provides that every person is entitled to receive
legal protection by the courts) and should not therefore be applied.
The Commission recalls in that respect that the judgments of the
Special Supreme Court are irrevocable and binding on all Greek courts.
In these circumstances, the Commission finds that the alleged
violation of the Convention regarding the applicants' right of access
to a court was rectified at the domestic level. Consequently, the
applicants can no longer claim to be victims of a violation of their
rights under Article 6 para. 1 (Art. 6-1) of the Convention.
It follows that this part of the application is inadmissible
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicants further complain that Law No. 2215/1994 which
requires, as a pre-condition for continued recognition of nationality
and retention of passports, the adoption of a surname, in particular
that of "Glucksborg", constitutes a degrading treatment or punishment,
in breach of Article 3 (Art. 3) of the Convention, and violates their
right to respect for their private and family life, in breach of
Article 8 (Art. 8) of the Convention, read on its own and in connection
with Article 14 (Art. 14) of the Convention.
Article 3 (Art. 3) of the Convention reads as follows:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
Article 8 (Art. 8) of the Convention provides as follows:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests
of national security, public safety or the economic well-being
of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others."
The Government submit that the applicants have not exhausted
domestic remedies as they have taken no legal action to redress the
alleged violations of the Convention. In particular the Government
claim that, following the judgment of the Special Supreme Court, the
applicants may initiate any legal proceedings they deem appropriate
before any Greek court, under whatever name they choose to use; they
may also address themselves under the same name to any competent
administrative authority.
Alternatively, the Government submit that this part of the
application is manifestly ill-founded. The Government first stress, as
a matter of historical fact, that it is not accurate to say that the
applicants have no name to relate to, given that the Royal house of
Schleswig-Holstein-Sontenburg-Glucksborg is the house of Christian IX
of which the applicants are direct descendants. However, Law
No. 2215/1994 does not compel the applicants to have a specific
surname, but leaves open to the family the choice of any non-royal
surname should they wish to register in accordance with it.
In this respect, the Government argue that it is manifestly
within the margin of appreciation of a Contracting State which has
moved from monarchy to a presidential republic to require the former
King and his family to register under a surname like all other citizens
and to declare formally acceptance of the Constitution and the
country's republican status. In a democratic society such a requirement
does not constitute a lack of respect for the applicants' right to
private and family life, nor can it be regarded as being humiliating
or degrading within the meaning of Article 3 (Art. 3) of the
Convention.
The applicants stress from the outset that they have always
recognised the Republic and the 1975 Constitution, and that they make
no claim to any title or privilege available to them during the time
of the crowned monarchy.
As regards domestic remedies, the applicants consider that they
are not obliged to attempt to exhaust any domestic remedies as regards
their rights under Articles 3 and 8 (Art. 3, 8) of the Convention. They
consider that the judgment of the Special Supreme Court amounts to a
manifest denial of justice; it is therefore evident that there is no
realistic prospect of their being granted an effective remedy in
respect of their rights in the Greek courts.
The applicants further consider that the effect of Law
No. 2215/1994 is to compel them to change the names given to them at
birth and recorded in official documents, by adopting a surname which
was never theirs. They claim that, unlike the members of some Royal
houses, they themselves and their ancestors have never possessed a
surname. There is no foundation as a matter of historical fact or Greek
law for associating the Greek Royal family with the name "Glucksborg",
as the 1994 Law seeks to do. This was expressly recognised in the 1992
agreement reached between the Greek State and the former King, and was
also accepted by the Special Supreme Court in its judgment.
Furthermore, the applicants do not accept the Government's
argument that their choice of a surname under the 1994 Law is not
restricted to a specific name, given that Article 6 para. 5 of this Law
expressly refers to the former King as "Constantinos Glucksborg".
The applicants conclude that, in any event, even if Law
No. 2215/1994 leaves it open to them to adopt another surname, this is
as much an interference with their private life as the imposition of
a specific surname, involving as it does an enforced change of the name
by which they have been recognised all their lives.
The Commission does not consider that it is required to rule on
the objection of non-exhaustion of domestic remedies raised by the
Government, since this part of the application can be rejected for the
following reason.
The Commission recalls that Article 8 (Art. 8) does not contain
any explicit reference to names. Nonetheless, since it constitutes a
means of personal identification and a link to a family, an
individual's name does concern his or her private and family life (see
Eur. Court HR, Burghartz v. Switzerland judgment of 22 February 1994,
Series A no. 280-B, p. 28, para. 24).
The Commission further recalls that in the particular sphere
under consideration the Contracting States enjoy a wide margin of
appreciation. The Commission's task is not to substitute itself for the
competent Greek authorities in determining the most appropriate policy
in regulating use of surnames in Greece, but rather to review under the
Convention the decisions that these authorities take in the exercise
of their power of appreciation (see, mutatis mutandis, Eur. Court HR,
Stjerna v. Finland judgment of 25 November 1994, Series A no. 299-B,
p. 61, para. 39).
The Commission notes that all Greek citizens have surnames and
would therefore see no harm in obliging the applicants to have a
surname too. Furthermore the Commission notes that it has been
expressly stressed by the respondent Government that the applicants may
have the surname of their choice. In the Commission's view this
position is also supported by the text of Law No. 2215/1994.
In view of these circumstances the Commission finds that the
requirement to have a surname does not amount to a degrading treatment
or punishment, nor does it constitute a lack of respect for the
applicants' private and family life within the meaning of the
Convention.
It follows that this part of the application is manifestly ill-
founded and must be rejected in accordance with Article 27 para. 2
(Art. 27-2) of the Convention.
3. The applicants next complain that Law No. 2215/1994, which
deprives the first, eight and ninth applicants of their title to their
property and confiscates, or authorises the confiscation of that
property, violates their right to property, in breach of Article 1 of
Protocol No. 1 (P1-1), read on its own and in connection with Article
14 (P1-1+14) of the Convention.
Article 1 of Protocol No. 1 (P1-1) reads as follows:
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way impair
the right of a State to enforce such laws as it deems necessary
to control the use of property in accordance with the general
interest or to secure the payment of taxes or other contributions
or penalties."
The Government first contend that, with the exception of the
first applicant, the rest of the applicants cannot claim to be victims
of a violation of Article 1 of Protocol No. 1 (P1-1).
The Government further allege that this complaint is inadmissible
ratione materiae. In particular the Government note that a common
feature all over Europe is the existence of a clear-cut distinction
between, on the one hand, public and, on the other, private possessions
of monarchs. Public possessions are owned by the States and their use
is put at the disposal of the monarchs for the exercise of their
function as Heads of State. The Government submit that such properties,
held under special privileges and immunities, do not come within the
concept of property or possessions protected under Article 1 of
Protocol No. 1 (P1-1). On the other hand, the private property of
European monarchs has no privileges whatsoever compared with the
property of ordinary citizens. It is acquired, used and transferred in
accordance with the common rules of domestic civil law, as applied to
all transactions between private individuals. According to the
Government, such private possessions would reasonably be protected
under Article 1 of Protocol No. 1 (P1-1).
In the present case, the Government argue that the acquisition
of all three contested estates by the former Royal family did not occur
in accordance with the general provisions of Greek civil law but
because of the functions of the beneficiaries. The Government add that
the most significant particularity of the legal status of the alleged
"Royal property" of the Greek Crown lay in the fact that it had always
had a sui generis and quasi-public character. According to the
Government, this is demonstrated by the fact that the property in
question had not only been assimilated to State property for procedural
purposes (i.e. special time-limits, award of State privileges for the
recovery of debts, prohibition of provisional forced execution, etc),
but it had also benefited from substantial State prerogatives (i.e.
non-prescription of claims, plain prohibition of usucaption,
criminalisation of trespass, etc). The Government conclude that, no
matter how each of the contested estates had been acquired, these
lands, which include constitutionally protected forests, historical and
archaeological sites, were conserved in their integrality and even
expanded only because of the privileges attached to the monarchs'
public status.
The Government further contend that the complaint under Article 1
of Protocol No. 1 (P1-1) is in any case inadmissible ratione temporis,
because any violation of this Article took place before 20 November
1985, i.e. when Greece recognised the right to individual petition. In
particular, the Government submit that the applicants' property was
expropriated by virtue of legislative decree No. 225/1973, and has
remained expropriated by virtue of that decree and as a result of the
establishment under the 1975 Constitution of a Presidential
Parliamentary Republic. The Government conclude that Law No. 2215/1994
was a confirmation of the existing constitutional position as was later
decided by the Special Supreme Court; accordingly any taking of
property occurred years earlier and any ownership complaint is now
inadmissible.
Alternatively, the Government argue that the applicants have not
exhausted domestic remedies. In any event, the Government submit that
the transfer of the properties in question to the Greek State satisfied
the requirements of Article 1 of Protocol No. 1 (P1-1).
As regards the Government's argument that the application is
inadmissible ratione materiae, the applicants reply that there is
manifestly no foundation whatever, as a matter of historical fact or
Greek law, for the Government's novel argument that the property which
is the subject of their claim never belonged to the Royal family. The
applicants stress that this argument has never been advanced by any
Government of Greece except in the course of the proceedings before the
Commission. The fact that the Royal family has owned private property
was consistently recognised by public authorities throughout the period
of the so-called "crowned democracy" which was established when the
first applicant's ancestor, George I, was elected King in 1863. Such
private property was always recognised to be distinct from any property
that was made available to the Royal family by virtue of the
constitutional status of the King (i.e. the Royal Palace in Athens),
which is not and has never been the private property of the Royal
family.
The applicants further submit that the fact that the Royal family
owned private property was clearly recognised even during the period
of the unconstitutional military dictatorship between 21 April 1967 and
24 July 1974. The 1968 Constitution included a provision, Article 134
para. 3, which provided for a unique legislative measure to be enacted
to expropriate or confiscate the movable and immovable property of the
former King and his family. A legislative decree was subsequently
issued by the dictatorship to confiscate the property of the Royal
family. These measures would have served no purpose if the Royal
property had always belonged to the State. After the fall of the
dictatorship, a legislative decree of 1974 recognised that the property
confiscated by the dictatorship belonged to the Royal family. In 1979
the property was delivered into the possession of the Royal family.
Protocols governing the delivery of the immovable and movable property
were duly signed by the appropriate governmental authorities and by the
Special Committee. The status of the property was in no way affected
by the outcome of the referendum of 8 December 1974 which resulted in
the establishment of a Presidential Parliamentary Republic. The status
of the property of the Royal family simply was not in issue in that
referendum. Nor was the status of the property affected by the
enactment of the 1975 Constitution. If it had been, the State would not
have returned the property to their possession in 1979 in recognition
of their ownership of it.
Furthermore, the applicants stress that from 1974, they filed tax
returns and paid tax in respect of the property in question. They
cannot understand how lands could be properly taxable unless they were
owned by the tax-payers, nor how the Government could properly and in
good faith have demanded and accepted the payment of such taxes except
on that basis.
The applicants conclude that there is no basis in Greek law for
the notion of a connection between the constitutional role of the
former King and the status of his property. Greek civil law does not
recognise a so-called sui generis concept of ownership.
As regards the Government's argument that the application is
inadmissible ratione temporis, the applicants reply that they are
complaining about Law No. 2215/1994, which was enacted and came into
force in 1994. In any case, legislative decree No. 225/1973 was never
a valid law, having been issued by an unconstitutional military
dictatorship in order to persecute them and inflict a personal
punishment upon them. Furthermore, the effect of this decree was to
deprive the applicants of all their property, without prior
compensation determined by the courts and corresponding to the value
of the property, in other words, a general confiscation. As such, the
taking contravened not only the fundamental principles of the rule of
law, but also all Greek Constitutions from 1827 onwards.
Even assuming that this Decree was ever valid, the applicants
argue that it was repealed after the fall of the dictatorship on
24 July 1974. In this respect the applicants invoke in particular
Article 15 of the First Constitutional Act of 1974, which provided that
the 1968 Constitution, as well as any other Constitutional Act or act
of a constitutional character passed under the military dictatorship
after 21 April 1967, was repealed.
The applicants further claim that legislative decree No. 225/1973
was repealed by legislative decree No. 72/1974. In this respect they
refer to the report issued on 28 September 1992 by the division of
Scientific Studies of the Greek Parliament, which stated inter alia
that legislative decree No. 225/1973 was repealed by legislative decree
No. 72/1974 and that the property thereby "reverted to its former
ownership status".
The applicants stress that it is tantamount to bad faith for the
Government now to argue that the Royal family did not own the property
in question before the coming into force of Law No. 2215/1994.
As regards the Government's argument that the taking of their
property was justified by reasons of public interest, the applicants
submit that nothing in the Government's case justifies the enactment
of a special measure for confiscating their property without
compensation. Furthermore, the applicants claim that the right to
reclaim taxes paid since 1992 could not possibly constitute a fair
compensation for the expropriation of all their private property. As
for the wholly inadequate compensation offered to them in respect of
the arbitrary and illegal confiscation of their property by the
dictatorship in 1973, the applicants submit that this is in any case
of no relevance to the taking of their restored property which occurred
in 1994.
The applicants conclude that the Government have failed to offer
any credible or sufficient justification for the taking of their
property, which was motivated by political and personal antipathy,
rather than by any genuine desire to serve the public interest.
The Commission must first examine whether the first, eighth and
ninth applicants qualify as possible victims of a violation of Article
1 of Protocol No. 1 (P1-1).
In the Commission's view, an applicant cannot claim to be the
victim of a breach of one of the rights and freedoms protected by the
Convention unless there is a sufficiently direct connection between the
applicant as such and the injury he maintains he suffered as a result
of the alleged breach (No. 24581/94, Dec. 6.4.95, D.R. 81, p. 123).
In the present case the Commission notes that before the
enactment of Law No. 2215/1994 the property in question was claimed by
the former King and Princesses Irene and Ekaterini. Therefore, the
Commission considers that these applicants are personally affected by
the application of Law No. 2215/1994 as regards property issues, and
that they may accordingly claim to be victims of a violation of Article
1 of Protocol No. 1 (P1-1).
As regards the objection raised by the Government as to the
applicants' failure to exhaust domestic remedies, the Commission
recalls that under the Greek Constitution the courts are obliged not
to apply a law whose contents contravene the Constitution. Accordingly,
the only way by which the applicants could seek judicial protection of
their property rights was by challenging the constitutionality of Law
No. 2215/1994, which stipulated that the Greek State is the owner of
the moveable and immoveable Royal property.
Consequently, having held that Law No. 2215/1994 is not contrary
to the Constitution, the Special Supreme Court's decision renders
henceforth ineffective any further attempt of the applicants to
institute civil or administrative proceedings in order to seek judicial
protection of their property rights. The Commission recalls in that
respect that the judgments of the Special Supreme Court are irrevocable
and binding on all Greek courts. Therefore, the Commission considers
that there is no point in pursuing such proceedings as the applicants
have no prospect of success.
It follows that the objection based on the non-exhaustion of
domestic remedies cannot be upheld.
In the light of the parties' observations, the Commission
considers that this part of the application raises serious questions
of fact and law which are of such complexity that their determination
should depend on an examination of the merits. This part of the
application cannot, therefore, be regarded as being manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention, and no other ground for declaring it inadmissible has been
established.
4. Following the judgment issued by the Supreme Special Court on the
constitutionality of Law No. 2215/1994, the applicants lastly complain
that the latter Court lacked independence and impartiality, and denied
them justice in breach of Article 6 para. 1 (Art. 6-1) of the
Convention.
The Government affirm that the applicants have received a fair
hearing before the Special Supreme Court, and consider that the
applicants have adduced no concrete evidence whatsoever to support
their allegations. Therefore the Government firmly reject the
applicants' criticism of the independence and impartiality of the Greek
judiciary.
The applicants contend that the Special Supreme Court rendered
its judgment on wholly spurious and extra-judicial grounds, evidencing
a lack of independence and a bias in favour of the Greek Government.
In particular the applicants complain that the Special Supreme Court
upheld Law No. 2215/1994 as being consistent with the Constitution,
despite the fact that this legislation was arbitrary and plainly
motivated by the political hostility of the Greek Government towards
the former King and his family.
The Commission recalls that the existence of impartiality for the
purposes of Article 6 para. 1 (Art. 6-1) of the Convention must be
determined according to a subjective test, that is on the basis of the
personal conviction of a particular judge in a given case, and also
according to an objective test, that is ascertaining whether the judge
offered guarantees sufficient to exclude any legitimate doubt in this
respect (see, mutatis mutandis, Eur. Court HR, Hauschildt v. Denmark
judgment of 24 May 1989, Series A no. 154, p. 21, para. 46).
As to the subjective test, the personal impartiality of a judge
must be presumed until there is proof to the contrary (ibid, para. 48),
and no evidence has been produced in the present case which might
suggest bias on the part of the magistrates of the Special Supreme
Court. The Commission notes moreover that the case was decided by a
majority and that the opinion of the four judges who dissented is
included in the text of the judgment.
The Commission considers therefore that the outcome of the
proceedings before the Special Supreme Court is not sufficient in
itself to justify apprehensions as to the impartiality of this court.
As to the objective test, it must be determined whether, quite
apart from the judges' conduct, there are ascertainable facts which may
raise doubts as to their impartiality. In this respect even appearances
may be of a certain importance (op. cit.).
However, the Commission considers that the applicants have not
produced anything to suggest that the necessary safeguards of the
Special Supreme Court's independence and impartiality were lacking in
the present case.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES ADMISSIBLE, without prejudging the merits of the case,
the complaint concerning the alleged violation of the first,
eighth and ninth applicants' right to a peaceful enjoyment of
their possessions, and also the complaint that these applicants
were discriminated against in the enjoyment of this right,
and, by a majority,
DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.
M. de SALVIA S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy