Information Note on the Court’s case-law
December 1994
The Holy Monasteries v. Greece - 13092/87 and 13984/88
Judgment 9.12.1994
Article 1 of Protocol No. 1
Article 1 para. 1 of Protocol No. 1
Deprivation of property
Peaceful enjoyment of possessions
Legislation assigning to the State a large part of the agricultural and forest property of the monasteries coming under the Greek Church: violation, no violation
[This summary is extracted from the Court’s official reports (Series A or Reports of Judgments and Decisions). Its formatting and structure may therefore differ from the Case-Law Information Note summaries.]
I.THE GOVERNMENT'S PRELIMINARY OBJECTIONS
A.Court's lack of jurisdiction ratione personae
Applicant monasteries not exercising governmental powers — ascetic religious institutions — objectives not such as to enable them to be classed with governmental organisations established for public‑administration purposes — their classification as public-law entities designed to afford them the same legal protection vis-à-vis third parties as accorded to other public-law bodies — entities distinct from the State and completely independent of it — non‑governmental organisations within the meaning of Article 25.
Conclusion: objection dismissed (unanimously).
B.Failure to exhaust domestic remedies
Supreme Administrative Court had considered that the relevant provisions of Law no. 1700/1987 were compatible with Article 17 of the Constitution and with the European Convention on Human Rights — statements by judges of one of the highest courts in the land, which, even though obiter, had substantially limited the prospects of success of any other appeal the applicant monasteries might bring.
Other possibilities mentioned by Government: either did not relate to violation complained of and were not apt to redress the matters complained of by applicants or were not relevant.
Conclusion: objection dismissed (unanimously).
II.ARTICLE 1 OF PROTOCOL No. 1
A.Preliminary remarks
Necessary to examine the actual provisions of Laws nos. 1700/1987 and 1811/1988, which had begun to be applied inasmuch as ministerial circulars had been issued and administrative decisions taken.
Agricultural and forest property now governed by two parallel sets of legal rules — distinction between monasteries which had signed agreement of 11 May 1988 and those which had not.
B.Position of the monasteries not parties to the agreement of 11 May 1988
1.Whether there had been an interference with right of property and determination of relevant rule under Article 1
Presumption of State ownership (section 3(1)(A) of Law no. 1700/1987): shifted burden of proof, which now fell on the applicant monasteries — these could no longer rely, in order to adduce proof to the contrary, on all the means of acquiring property provided for in Greek law, including adverse possession and a final court decision against a private individual.
The applicant monasteries had accumulated substantial immovable property over the centuries — title deeds acquired during Byzantine and Ottoman empires lost or destroyed — the period of possession required in order that adverse possession might be relied upon against the State had been completed by the time Law no. 1700/1987 had come into force — no land survey in Greece.
State automatically given use and possession of such agricultural and forest property (section 3(1)(B)) — a substantive provision whose effect was to transfer full ownership of land in question to the State.
Remedies provided in subsections (4) and (7) of section 4, relied on by Government, had no suspensive effect and presupposed that plaintiffs should have voluntarily ceded their property.
Fact that no administrative eviction orders had been issued was no guarantee that none would be issued in the future.
Interference amounted to a "deprivation" of property within meaning of second sentence of first paragraph of Article 1.
2."In the public interest"
Overall objective of Law no. 1700/1987 legitimate "in the public interest".
3.Proportionality of the interference
No provisions in Law no. 1700/1987 similar to those laid down in 1952 when the State expropriated a large portion of monastery agricultural property.
Measures provided for in sections 9 and 10 could not be regarded as payment of compensation. The considerable burden thus imposed by the Law did not preserve a fair balance between the various interests in question.
Conclusion: violation (unanimously).
C.Position of the monasteries parties to the agreement of 11 May 1988
Three applicant monasteries had signed the agreement — Athens Court of Appeal had held that Parliament's ratification of agreement had had effect of validating any substantive and formal defects — on the evidence before the Court, it was not possible to conclude that these monasteries had acted under duress — no interference with right of property.
Conclusion: no violation (unanimously).
III.ARTICLE 6 § 1 OF THE CONVENTION
Fact that the applicant monasteries not parties to the agreement of 11 May 1988 were unable to bring before the appropriate courts any dispute concerning the management of the property they retained impaired the very essence of their "right to a court".
Conclusion: violation (unanimously).
The applicant monasteries not parties to the agreement of 11 May 1988 had been deprived of the right to ask a court to determine any dispute over the fixing of compensation for the expropriation of part of their property — applicants could not derive any entitlement to compensation from Law no. 1700/1987.
Conclusion: unnecessary to give a ruling (unanimously).
IV.ARTICLES 9 AND 11 OF THE CONVENTION
The provisions held to be contrary to Article 1 of Protocol No. 1 in no way concerned monastery property intended for the celebration of divine worship and consequently did not interfere with the exercise of the right to freedom of religion.
The assertion concerning Article 11 seemed hypothetical.
Conclusion: no violation (unanimously).
V.ARTICLE 13 OF THE CONVENTION
Article 13 does not go so far as to require a remedy whereby the laws of a Contracting State may be impugned before a national authority as being contrary to the Convention.
Conclusion: no violation (unanimously).
VI.ARTICLE 14 OF THE CONVENTION TAKEN TOGETHER WITH ARTICLES 6, 9 AND 11 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1
Distinctions between applicant monasteries and monasteries coming under other patriarchates did not lack an objective and reasonable justification.
Conclusion: no violation (unanimously).
Distinction created by Law no. 1811/1988 between the monasteries which had signed the agreement of 11 May 1988 and those which had not: unnecessary to rule on the complaint.
Conclusion: unnecessary to give a ruling (unanimously).
VII.ARTICLE 50 OF THE CONVENTION
A.Pecuniary damage
Question not ready for decision.
Conclusion: question reserved (unanimously).
B.Costs and expenses
Costs incurred before the Convention institutions — allowed in full.
Conclusion: respondent State to pay a specified sum to the applicant monasteries (unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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