EUROPEAN COMMISSION OF HUMAN RIGHTS
FIRST CHAMBER
Application No. 28802/95
Gabriel Tsavachidis
against
Greece
REPORT OF THE COMMISSION
(adopted on 28 October 1997)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-16). . . . . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5-11) . . . . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 12-16). . . . . . . . . . . . . . . . . . .2
II. ESTABLISHMENT OF THE FACTS
(paras. 17-33) . . . . . . . . . . . . . . . . . . . . .3
A. The particular circumstances of the case
(paras. 17-28). . . . . . . . . . . . . . . . . . .3
B. Relevant domestic law and background information
(paras. 29-33). . . . . . . . . . . . . . . . . . .5
III. OPINION OF THE COMMISSION
(paras. 34-69) . . . . . . . . . . . . . . . . . . . . .7
A. Complaints declared admissible
(para. 34). . . . . . . . . . . . . . . . . . . . .7
B. Points at issue
(para. 35). . . . . . . . . . . . . . . . . . . . .7
C. As regards Article 8 of the Convention
(paras. 36-49). . . . . . . . . . . . . . . . . . .7
CONCLUSION
(para. 50). . . . . . . . . . . . . . . . . . . . 10
D. As regards Article 9 of the Convention
(paras. 51-54). . . . . . . . . . . . . . . . . . 10
(a) Opinion of Mr M.P. Pellonpää, Mr E. Busuttil,
Mr A. Weitzel, Mr B. Marxer, Mr N. Bratza
and Mr M. Vila Amigó
(para. 55) . . . . . . . . . . . . . . . . . 11
(b) Opinion of Mr B. Conforti, Mr C. Bîrsan
and Mr K. Herndl
(para. 56) . . . . . . . . . . . . . . . . . 11
CONCLUSION
(para. 57). . . . . . . . . . . . . . . . . . . . 11
TABLE OF CONTENTS
Page
E. As regards Article 11 of the Convention
(paras. 58-60). . . . . . . . . . . . . . . . . . 11
CONCLUSION
(para. 61). . . . . . . . . . . . . . . . . . . . 12
F. As regards Article 14 of the Convention
taken in conjunction with Articles 8, 9 and 14
(paras. 62-64). . . . . . . . . . . . . . . . . . 12
CONCLUSION
(para. 65). . . . . . . . . . . . . . . . . . . . 12
G. Recapitulation
(paras. 66-69). . . . . . . . . . . . . . . . . . 12
PARTLY CONCURRING, MOSTLY DISSENTING OPINION
OF MM K. HERNDL, B. CONFORTI AND C. BÎRSAN . . . . . . . . 13
PARTLY DISSENTING OPINION OF MR C.L. ROZAKIS. . . . . . . . 15
PARTLY DISSENTING OPINION OF MR L. LOUCAIDES,
JOINED BY MRS J. LIDDY, MM G. RESS AND A. PERENIC,
MRS M. HION AND MR R. NICOLINI. . . . . . . . . . . . . . . 16
PARTLY DISSENTING OPINION OF MR I. BÉKÉS. . . . . . . . . . 17
APPENDIX I : DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . 18
APPENDIX II : ORIGINAL TEXT OF REPORT OF 7 MARCH 1993. . . 30
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is a Greek citizen, born in 1942 and resident in
Kilkis. He was represented before the Commission by Mr P. Bitsaxis and
Mr Ch. Charalambeas, both lawyers practising in Athens.
3. The application is directed against Greece. The respondent
Government were represented by their Agent, Mr L. Papidas, President
of the Legal Advisory Council of the State (Nomiko Simvulio tu Kratus),
Mr V. Kontolaimos, Senior Adviser (Paredros) of the Legal Advisory
Council of the State, and Mr V. Kyriazopoulos, Legal Assistant
(Dikastikos Antiprosopos) of the Legal Advisory Council of the State.
4. The case concerns allegations of surveillance of a member of the
Church of Jehovah's Witnesses by the National Intelligence Service. The
applicant invokes Articles 8, 9, 11 and 14 of the Convention.
B. The proceedings
5. The application was introduced on 20 September 1995 and was
registered on 2 October 1995.
6. On 18 January 1996 the Commission (First Chamber) decided,
pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give
notice of the application to the respondent Government and to invite
the parties to submit written observations on its admissibility and
merits.
7. The Government's observations were submitted on 26 April 1996,
after an extension of the time-limit fixed for this purpose. The
applicant replied on 2 September 1996, also after an extension of the
time-limit.
8. On 17 January 1997 the Commission decided to hold a hearing of
the parties. The hearing was held on 4 March 1997. The Government were
represented by Mr V. Kontolaimos and Mr V. Kyriazopoulos. The applicant
was represented by Mr P. Bitsaxis and Mr Ch. Charalambeas, as well as
Mr V. Dedotsis and Mr E. Kaparos, as advisers.
9. On 4 March 1997 the Commission declared inadmissible the
applicant's complaint under Article 5 of the Convention. It declared
admissible the remainder of the application.
10. The text of the Commission's decision on admissibility was sent
to the parties on 6 March 1997 and they were invited to submit such
further information or observations on the merits as they wished. Such
observations were submitted by the Government on 20 May 1997 and by the
applicant on 29 May 1997.
11. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
12. The present Report has been drawn up by the Commission (First
Chamber) in pursuance of Article 31 of the Convention and after
deliberations and votes, the following members being present:
Mrs J. LIDDY, President
MM M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
13. The text of this Report was adopted on 28 October 1997 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
14. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
15. The Commission's decision on the admissibility of the application
is annexed hereto.
16. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
17. The applicant is a Jehovah's Witness. In 1981, in order to
conduct meetings of the Jehovah's Witnesses community, the applicant
rented premises in Kilkis.
18. On 7 May 1993 the public prosecutor of Kilkis ordered a
preliminary inquiry into complaints that a Jehovah's Witnesses church
had been established in Kilkis without the necessary permit from the
local ecclesiastical authority and the Ministry of National Education
and Cults, as specified in Article 1 of the Royal Decree
of 20 May/2 June 1939. The applicant was summoned to appear before a
judge in the context of this inquiry. He failed to do so and on
10 August 1993 the judge ordered the police to bring the applicant
before him by force on 25 August 1993. The applicant appeared before
the judge on that date and was examined.
19. On 23 December 1993 the public prosecutor of Kilkis pressed
charges against the applicant and another person for illegally
operating a church and summoned them to appear before the first
instance single-member criminal court (monomeles plimmeliodikio) of
Kilkis on 9 December 1994.
20. One week before the trial, the defence became aware that a "top
secret" information report dated 7 March 1993 had been included in the
case-file. This report stated:
"In execution of the preceding order, we wish to report the
following:
As a result of an investigation that was made in the Record
Office of our Department it was not established that the
.... Millenialists have ever submitted any petitions
requesting permits to operate churches within the area
under our jurisdiction.
The number of Jehovah's Witnesses (Millenialists) amounts
to approximately 25 to 30 individuals in the city of
Kilkis.
In this city, at 16 Aristotelous Street, on the ground
floor of the building there is a hall, owned by
Athena Tsavachidou, which is used as a meeting place by the
Millenialists usually on Wednesday, Friday and Sunday every
week, as a rule in the evening hours. In this hall there
are chairs and a desk, laid out as in a classroom. In this
hall teaching is carried out, hymns are sung and the Gospel
is explained. It has not been established that there are
religious icons and utensils related to religious worship.
But according to information we have on hand, which has not
been verified however, weddings and baptism ceremonies are
held in the hall. Various individuals from Thessaloniki and
from local villages of the Kilkis Prefecture participate in
these meetings. The number of such individuals amounts to
approximately 50.
Similar Millenialists meetings have been taking place in
Kilkis for 30 years.
The 'leader' of the local Millenialists is
Gabriel Tsavachidis, son of Solon and Evdoxia, who was born
in 1942 in Kilkis, resides at 14 Solonos Street, and is a
painter by profession (and brother of the owner of the
hall).
The Millenialists, apart from the aforementioned hall, also
use the homes of their fellow-members as meeting places."
The report was not signed.
21. The charges against the applicant were not heard on
9 December 1994 because the prosecution requested an adjournment and
the trial was postponed until 7 April 1995.
22. On 13 December 1994 the applicant's lawyer denounced on the radio
the existence of an illegal network of surveillance of members of
religious minorities in Kilkis and requested the competent ministers
to investigate the matter. On 14 December 1994 the Minister of Justice
stated that an investigation would be carried out. It is not known
whether such an investigation has been carried out and, if so, what
were its results.
23. On 7 April 1995, before the trial commenced, the applicant wrote
to the Prosecutor's Office of Kilkis, and requested to be informed of
the following: who delivered the "information report" to the
Prosecutor's Office; who wrote it and under what capacity; in
compliance with whose order it was written; who put his private life
under surveillance, in which capacity that was done and on whose
orders; which bureau was responsible for and issued the document.
24. The applicant announced that he intended to use that information
to bring a criminal and civil action before the domestic courts and to
appeal to the European Court of Human Rights in order to protect his
rights and bring the perpetrators of his secret surveillance to
justice.
25. When the hearing started the applicant objected to the validity
of the indictment claiming that the "information report" could not be
used as part of the indictment as it was not signed. The court
rejected his objection considering that the applicant had had ample
opportunity to prepare his defence. However, it decided not to take
into account the report as evidence because it was anonymous.
26. Then, i.e. on the same day, the applicant filed a petition
requesting the court, according to Article 38 of the Code of Criminal
Procedure, to compile and send a report to the competent Prosecutor so
that those responsible for the "information report" be prosecuted for
the offences provided for under Articles 134, 259, 239, 241, 334, 200
and 361A of the Criminal Code and Article 24 of Law 1489/1984. The
court rejected the petition on the same day, i.e. also on 7 April 1995,
on the ground that no facts had been disclosed which could come under
the definition of the offences in Articles 134, 259, 231 (sic), 241,
334, 200 and A of the Criminal Code and Article 24 of Law 1489/1984.
27. On 7 April 1995 the criminal court of Kilkis acquitted the
applicant of the charges.
28. On 9 May 1995, the assistant prosecutor of Kilkis replied to the
applicant stating, inter alia, that the "information report" had been
sent anonymously by mail to the Prosecutor's Office and that the
document had not been drawn up by the Secret Service.
B. Relevant domestic law and background information
29. Article 1 of the Royal Decree of 20 May/2 June 1939 provides as
follows:
"1. In order to obtain an authorisation for the
construction or operation of temples not subject to the
legislation on temples and priests of parishes belonging to
the Greek Orthodox Church, within the meaning of section 1
of the Law (1672/1939), the following steps must be
completed:
(a) An application shall be submitted by at least
fifty families, from more or less the same neighbourhood
and living in an area at a great distance from a temple of
the same denomination, it being assumed that the distance
makes it difficult for them to observe their religious
duties. The requirement of fifty families shall not apply
to suburbs or villages.
(b) The application shall be addressed to the local
ecclesiastical authorities and must be signed by the heads
of the families, who shall indicate their addresses. The
authenticity of their signatures shall be certified by the
local police authority, which following an inquiry on the
ground shall attest that the conditions referred to in the
preceding sub-paragraph are satisfied ...
(c) The local police authority shall issue a reasoned
opinion on the application. It shall then transmit the
application, with its opinion, to the Ministry of Education
and Religious Affairs, which may accept or reject the
application according to whether it considers that the
construction or use of a new temple is justified or whether
the provisions of the present decree have been complied
with.
2. ...
3. The provisions of paragraph 1 (a)-(b) above shall not
apply to the issue of an authorisation for the construction
or operation of a place of worship. It shall be for the
Minister of Education and Religious Affairs to determine
whether there are essential reasons warranting such
authorisation. In this connection the persons concerned
shall address to the Ministry of Education and Religious
Affairs through their priest a signed application, the
authenticity of the signatures being certified by the mayor
or the chairman of the district council. The application
shall also indicate the addresses of the persons concerned
...".
30. Law 1654/1986 on the National Intelligence Service provides that
the competence of this Service is, first, to collect, process and
distribute information concerning national security, secondly, to deal
with the spying activities of foreign intelligence services against
Greece, thirdly, to co-ordinate the activities of other services
collecting relevant information and, fourthly, to discharge any other
relevant functions assigned to it by the Council of National Security
or the Prime Minister. This law does not contain any specific separate
provisions concerning safeguards against abuses.
31. On 4 August 1993, Eleftherotypia, a national newspaper, revealed
the existence of a strictly confidential report compiled by the
National Intelligence Service dated 19 January 1993, containing
derogatory allegations concerning Greek citizens not members of the
Greek Orthodox Church. The report described them as "non-genuine",
"impure" and "corruptible" Greeks with "diminished national
conscience", "due to their obedience to foreign international centres
of leadership". It further considered that these para-religious
organizations endeavour to undermine and subvert the Greek conscience
and tradition. The report recommended taking a series of suppressive
and preventive measures namely measures so that radio and television
channels which are under the control of religious heretics should not
be permitted to operate, the religious purification of the theological
schools, making it more difficult to obtain a permission to operate
meeting halls for worship and, finally, deporting all aliens who are
actively engaged in all such organizations.
32. The Prime Minister issued a statement on 11 August 1993, claiming
that the report was produced by a low ranking civil servant and that
it had been rescinded immediately. The civil servant in question was
moved and "the service was disbanded". The report did not in any way
express the position of the Government.
33. On 4 August 1993, Eleftherotypia also published another
confidential report made by the National Intelligence Service. This
report, the date of which was not clear, stated, inter alia, that the
para-religious organization of "Jehovah's Witnesses" (Millenialists)
was active in (a) the Messolongi area with approximately 24 adherents
whose activities were limited, their leader being the glassware dealer
Mr R. and in (b) the Agrinio area where they had a lot of money; for
fifteen years their members received remittances coming from the U.S.A.
and from Germany through the local branch of the Bank of Greece; one
of their leaders Mr M. had acquired a large personal fortune. The
report went on to describe the existence and activities of other
religious minorities in other areas of Greece.
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
34. The Commission has declared admissible the applicant's complaints
that he was subjected to surveillance by the National Intelligence
Service, because of his religious beliefs.
B. Points at issue
35. The issues to be determined in the present case are:
- whether there has been a violation of Article 8 (Art. 8) of the
Convention
- whether there has been a violation of Article 9 (Art. 9) of the
Convention
- whether there has been a violation of Article 11 (Art. 11) of the
Convention and
- whether there has been a violation of Article 14 of the
Convention taken in conjunction with the above-mentioned
provisions (Art. 14+8, 14+9, 14+11) .
C. As regards Article 8 (Art. 8) of the Convention
36. 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."
37. The applicant submits that there are various indications that the
report of 7 March 1993 has been compiled by the National Intelligence
Service. The language used and the style is that of the Service. There
is expert evidence to the effect that the report of 7 March 1993 and
another document drafted by the Kilkis police have been typed using the
same type of typewriter. It has not been possible to establish whether
they have been written with the same typewriter because the public
prosecutor's office of Kilkis has refused to provide the applicant with
the original report of 7 March 1993. The very content of the report,
especially when seen against the background of the reports published
in the press on 4 August 1993, indicates that its author is the
National Intelligence Service. On 11 August 1993 the Government
accepted that the National Intelligence Service subjected non-Orthodox
Greeks to surveillance.
38. The applicant also submits that the report discloses an
interference with his right to respect for his private life, because
the information contained therein could have been obtained only through
secret surveillance. In any event, the applicant argues that there
would be an interference even if the information contained in the
report related to elements of the applicant's personal life which were
not meant to be kept secret. The recording of even every-day activities
conducted in public amounts to such an interference if it is not done
for a lawful purpose and in accordance with rules which provide
protection against abuses. The surveillance to which the applicant was
subjected was illegal. Moreover, the law on the National Intelligence
Service contains no safeguards against abuses. As a result, Article 8
(Art. 8) was violated.
39. The Government submit that there is no indication that the
applicant was subjected to surveillance by the National Intelligence
Service. There is no indication that the report of 7 March 1993 which
was included in the applicant's case-file had been compiled by a public
authority. It is not unusual for the public prosecutor's office of
Kilkis to receive anonymous letters informing it that Jehovah's
Witnesses churches function illegally in Kilkis. It is not within the
competence of the National Intelligence Service to subject persons to
surveillance because of their religious beliefs. Moreover, the National
Intelligence Service denies that it has ever subjected the applicant
to surveillance. It also denies that it is the author of the report of
7 March 1993.
40. The Government also submit that the author of the report dated
19 January 1993, which appeared in the Greek press on 4 August 1993,
had acted on his own initiative and had not followed any orders. The
administrative unit in which he used to serve at the time was disbanded
because his superiors had not noticed that he was drafting a report on
religious organisations which caused a lot of embarrassment to the
National Intelligence Service. In any event, the information contained
in the report of 19 January 1993 was of a general academic nature and
not the product of secret surveillance. The origins of the second
undated report, published in the Greek press on 4 August 1993, are not
known. In any event, no mention is made therein of the activities of
Jehovah's Witnesses in Kilkis.
41. The Government accept that there would have been a violation of
the Convention if the National Intelligence Service had subjected the
applicant to unjustified close surveillance because of his religious
beliefs. However, the Government submit that the information contained
in the report of 7 March 1993, in which the applicant was mentioned,
was accessible to everybody. In any event, the Government argue that
the activities of the National Intelligence Service are regulated in
a sufficiently circumscribed manner by a law which is adequately
accessible to everybody. The law also specifies the circumstances in
which an investigation, including surveillance, can be ordered in
connection with a criminal offence. Moreover, there exist adequate
guarantees against abuse or misuse of power by the executive branch of
the Government.
42. The Commission recalls that, according to the Court's case-law,
the storing of information concerning a person's private life in a
secret register kept by a State authority amounts to an interference
with the right to respect for private life as guaranteed by Article 8
para. 1 (Art. 8-1) of the Convention (Eur. Court HR, Leander v. Sweden
judgment of 26 March 1987, Series A no. 116, p. 22, para. 48).
43. The Commission must, therefore, determine, first, whether a State
authority was responsible for the "top secret" information report dated
7 March 1993 which was included in the file of the criminal proceedings
against the applicant and, secondly, whether the above-mentioned report
contained data concerning the applicant's private life.
44. As regards the first issue, the Commission recalls that,
according to the Court, in cases, as the present one, where applicants
complain about specific measures of surveillance falling outside the
law, it must be established that there is a reasonable likelihood that
such measures were applied to them (Eur. Court HR, Halford
v. the United Kingdom judgment of 25 June 1997, to be published in
Reports of Judgments and Decisions 1997, para. 57).
45. The Commission has in this connection had regard to the two
reports published in the Greek press on 4 August 1993 and to the
statement issued by the Prime Minister on 11 August 1993, from which
it transpires that a branch of the National Intelligence Service was
compiling information about a number of minority religious groups, such
as that of the Jehovah's Witnesses. It has also taken into
consideration the form - e.g. type of typewriter used and style - and
the content - e.g. reference to the "execution of an order" and to the
"record office of a department" - of the report of 7 March 1993, in
which the applicant is specifically mentioned. Moreover, it notes that,
although the Government claim not to know its author, this report was
initially relied on by the public prosecutor to institute criminal
proceedings against the applicant. In these circumstances, the
Commission is satisfied that the report of 7 March 1993 was compiled
by a State authority and, in any event, there is at least a "reasonable
likelihood" that this was so.
46. As regards the second of the two issues identified above, namely,
whether the report of 7 March 1993 contained information about the
applicant's private life, the Commission recalls that, according to the
Court, it would be too restrictive to limit the notion of private life
in Article 8 para. 1 (Art. 8-1) of the Convention to an "inner circle"
in which the individual may live his own personal life as he chooses
and to exclude therefrom entirely the outside world not encompassed
within that circle (Eur. Court HR, Niemietz v. Germany judgment of
16 December 1992, Series A no. 251, p. 33, para. 29).
47. In the view of the Commission, it follows that the fact that an
activity of an individual occurs in a public place or is not intended
to be kept secret does not necessarily make such an activity a matter
outside the notion of private life in Article 8 para. 1 (Art. 8-1) of
the Convention (see, mutatis mutandis, Friedl v. Austria, Comm. Report
19.5.94, paras. 50 and 51, Eur. Court HR, Series A no. 305, p. 21).
Whether such an activity falls within the concept of private life or
not must be judged on the basis of the nature of the activity itself.
Thus, while Article 8 para. 1 (Art. 8-1) of the Convention might not
protect public appearances of well-known figures which are intended to
attract attention, the right to respect for private life would be
interfered with if State agents were to follow the personal activities
which an individual conducts in the open, record them and/or keep all
relevant information.
48. The Commission notes that the report of 7 March 1993 contained
a collection of information about the applicant's personal life, such
as his religious beliefs, his position within a religious movement,
premises over which he exercised control and the activities therein.
The Commission considers that there can be no doubt that the collection
of this information was the result of an organised operation of
surveillance - "watching" - of the applicant's life mounted by a State
authority. It follows that there was an interference with the
applicant's right to respect for his private life.
49. According to the Convention, such an interference is contrary to
Article 8 (Art. 8-2) unless it is "in accordance with the law",
directed at one or more of the legitimate aims set out in paragraph 2
and is "necessary in a democratic society" for achieving them. However,
the Government accept that it is not within the competence of the
National Intelligence Service to subject persons to surveillance
because of their religious beliefs. Moreover, although the report
contained information about the meeting place of a religious community
and although operating a place of worship without a permit from the
competent Minister is a criminal offence under domestic law, it has not
been alleged that this report was compiled by the police force in the
exercise of their crime investigation powers. It follows that the
interference was not "in accordance with the law" and, as a result, it
cannot be justified under the second paragraph of Article 8 (Art. 8)
of the Convention.
CONCLUSION
50. The Commission concludes, by 13 votes to 4, that in the present
case there has been a violation of Article 8 (Art. 8) of the
Convention.
D. As regards Article 9 (Art. 9) of the Convention
51. Article 9 (Art. 9) of the Convention provides as follows:
"1. Everyone has the right to freedom of thought, conscience
and religion; this right includes freedom to change his religion
or belief and freedom, either alone or in community with others
and in public or in private, to manifest his religion or belief,
in worship, teaching, practice and observance.
2. Freedom to manifest one's religion or beliefs shall be
subject only to such limitations as are prescribed by law and are
necessary in a democratic society in the interests of public
safety, for the protection of public order, health or morals, or
for the protection of the rights and freedoms of others."
52. The applicant submits that he was subjected to surveillance
because of his religious beliefs. This amounts to harassment and an
interference with the right to hold and manifest these beliefs.
Moreover, the report of 7 March 1993 was used to institute criminal
proceedings against him and domestic law on surveillance does not
provide any safeguards against abuses.
53. The Government reiterate the submissions they have made under
Article 8 (Art. 8) of the Convention.
54. The Commission has reached the conclusion that there has been no
violation of Article 9 (Art. 9) of the Convention. It expresses this
opinion by nine votes to eight. However, the majority of nine members
is divided as to the reasoning.
(a) Opinion of Mr M.P. Pellonpää, Mr E. Busuttil,
Mr A. Weitzel, Mr B. Marxer, Mr N. Bratza and
Mr M. Vila Amigó
55. These members note that the Commission has found that the
collection and retention of the information contained in the report of
7 March 1993 amounts to a violation of Article 8 (Art. 8) of the
Convention. They also note that underlying the Commission's position
concerning the applicant's complaints under Article 8 (Art. 8) is the
view that the right to respect for private life includes the right to
hold and practise religious beliefs (see para. 48). As a result, these
members consider that no separate issue arises under Article 9 (Art. 9)
of the Convention.
(b) Opinion of Mr B. Conforti, Mr C. Bîrsan and Mr K. Herndl
56. These members consider that, as Article 8 (Art. 8) of the
Convention in their view has not been violated, a fortiori there has
been no violation of Article 9 (Art. 9) of the Convention either.
CONCLUSION
57. The Commission concludes, by 9 votes to 8, that in the present
case there has been no violation of Article 9 (Art. 9) of the
Convention.
E. As regards Article 11 (Art. 11) of the Convention
58. Article 11 (Art. 11) of the Convention provides as follows:
"1. Everyone has the right to freedom of peaceful assembly and
to freedom of association with others, including the right to
form and to join trade unions for the protection of his
interests.
2. No restrictions shall be placed on the exercise of these
rights other than such as are prescribed by law and are necessary
in a democratic society in the interests of national security or
public safety, 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. This Article shall not prevent
the imposition of lawful restrictions on the exercise of these
rights by members of the armed forces, of the police or of the
administration of the State."
59. The applicant submits that the authorities, by subjecting to
surveillance the gatherings of the members of the church of Jehovah's
Witnesses and the premises which he had rented for these purposes,
violated his right to freedom of association. Moreover, the use of the
information contained in the report of 7 March 1993 to institute
criminal proceedings against him also amounts to a violation of
Article 11 (Art. 11) of the Convention. The Government reiterate the
submissions they have made under Article 8 (Art. 8) of the Convention.
60. The Commission has found that the collection and retention of
the information contained in the report of 7 March 1993 amounts to a
violation of Article 8 (Art. 8) of the Convention. As a result, it
considers that no separate issue arises under Article 11 (Art. 11) of
the Convention.
CONCLUSION
61. The Commission concludes, by 14 votes to 3, that in the present
case no separate issue arises under Article 11 (Art. 11) of the
Convention.
F. As regards Article 14 of the Convention taken in conjunction with
Articles 8, 9 and 11 (Art. 14+8, 14+9, 14+11)
62. Article 14 (Art. 14) of the Convention provides 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."
63. The applicant submits that he was singled out for surveillance
because of his religious beliefs. The Government reiterate the
submissions they have made under Article 8 (Art. 8) of the Convention.
64. The Commission has found that the collection and retention of
the information contained in the report of 7 March 1993 amounts to a
violation of Article 8 (Art. 8) of the Convention. As a result, it
considers that it is not necessary also to examine wether there has
been a violation of Article 14 of the Convention taken in conjunction
with this provision or Article 9 or Article 11 (Art. 14+8, 14+9,
14+11).
CONCLUSION
65. The Commission concludes, unanimously, that in the present case
it is not necessary also to examine whether there has been a violation
of Article 14 of the Convention taken in conjunction with Articles 8, 9
and 11 (Art. 14+8, 14+9, 14+11).
G. Recapitulation
66. The Commission concludes, by 13 votes to 4, that in the present
case there has been a violation of Article 8 (Art. 8) of the Convention
(para. 50).
67. The Commission concludes, by 9 votes to 8, that in the present
case there has been no violation of Article 9 (Art. 9) of the
Convention (para. 57).
68. The Commission concludes, by 14 votes to 3, that in the present
case no separate issue arises under Article 11 (Art. 11) of the
Convention (para. 61).
69. The Commission concludes, unanimously, that in the present case
it is not necessary to examine whether there has been a violation of
Article 14 of the Convention taken in conjunction with Articles 8, 9
and 11 (Art. 14+8, 14+9, 14+11) (para. 65).
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
(Or. English)
PARTLY CONCURRING, MOSTLY DISSENTING OPINION
OF MM K. HERNDL, B. CONFORTI AND C. BÎRSAN
We regret that we cannot concur with the opinion of the majority
to the effect that in the present case there has been a violation of
Article 8 and that no separate issue arises under Article 11 of the
Convention. Our legal assessment of the situation, following our
reading of the facts, leads to the conclusion that neither of these
provisions has been violated.
The following is a comprehensive presentation of how we look at
the case as a whole.
1. No violation of Article 8
The point of departure must be - and this is common ground - that
whenever it is alleged that measures of surveillance are actually
applied (by State authorities), in particular when such measures fall
outside the law, the Convention organs must be satisfied that there is
a reasonable likelihood that such measures were indeed applied
(Eur. Court HR, Halford v. the United Kingdom judgment of 25 June 1997,
para. 57).
The majority consider themselves "satisfied that the report of
7 March 1993" (hereinafter called the "report", ie. the sheet which was
found in the court file concerning the applicant) "was compiled by a
State authority". The majority however soften their position
subsequently by adding "and in any event there is at least 'a
reasonable likelihood' that this was so" (para. 43).
The majority further consider "that there can be no doubt that
the collection of this information was the result of an organised
operation of surveillance - 'watching' - of the applicant's life
mounted by a State authority" (para. 46).
These statements have to be contrasted with the repeated
insistence of the defendant government in their observations that the
applicant was never subjected to surveillance by the National
Intelligence Service. The Head of that service formally declared that
such had never been the case and so informed the Court of Kilkis.
The origin of the "report", unsigned and unmarked as it was,
remaining entirely unclear, we are not convinced that there are
sufficient, or even appropriate, elements to conclude that there was
indeed any State involvement in the "report's" compilation and
drafting. There is even less reason to speak of an "organised operation
of surveillance". In this connection one ought not to lose sight of
the fact that most, if not all, of the details mentioned in the
"report" were more or less public knowledge. Would any "organised
operation of surveillance of the applicant's life" lead to nothing else
but a meagre compilation of publicly known facts?
But even assuming that the "report" had been drafted by some
public authority, we believe that there could have been no violation
of the applicant's right to respect for his private life. While the
report mentions the applicant's name, gives some particulars about a
religious movement and contains some details on the premises in the
city of Kilkis, over which the movement and the applicant exercised
control, and the activities which took place there, this information
was by its very nature potentially accessible to everybody. It was,
as we have already said, more or less in the public domain. In our
view it follows that this information did not belong to the "private"
sphere and, as a result, the collection and putting on paper of this
type of information could not amount to an interference with the
applicant's rights under Article 8 of the Convention.
2. No violation of Article 9
The majority have concluded that there was no violation of
Article 9, albeit on the basis of a different argument. We do agree
with the statement of non violation for the simple reason that
according to us there has been no violation of Article 8 due to the
quasi-public nature of the information contained in the "report". A
fortiori there was no violation of the applicant's rights under
Article 9.
Here again we cannot see how the mere existence of the "report"
and the fact that it found its way into the court file might have
violated the applicant's right to freedom of thought, conscience and
religion. Moreover, the applicant was charged with illegally operating
a place of worship and was acquitted. Consequently, he cannot be
considered a victim of a violation of Article 9 resulting from the
possible use, in the course of the criminal proceedings, of the
information contained in the "report"
3. No violation of Article 11
The majority felt that in view of their finding of violation of
Article 8 no separate issue arose under Article 11. We are of the view
that in the present case no violation of Article 11 can be discerned
and that this should have been stated by the Commission. Our reasons
are the same as those advanced above in the framework of our
consideration of Article 9.
The information contained in the "report" being basically
available to everybody, it is indeed difficult to see how the summary
of facts, called the "report", which for unknown reasons appeared in
the court file, could have infringed the applicant's freedom of
peaceful assembly and of association with others. Again, considering
that the charge brought against the applicant concerned the illegal
operation of a place of worship where he and others were assembling,
and that the applicant was acquitted of that charge, he cannot be
considered to be a victim of a violation of Article 11 resulting from
the possible use, in the course of the criminal proceedings, of the
information contained in the "report".
4. No violation of Article 14
It is only legitimate to state in connection with Article 14 that
as in the present case we do not see any breach of Convention law as
far as the substantive articles at stake are concerned (Articles 8, 9
and 11), there can, by definition, not exist a violation of Article 14.
It was, therefore, logical for us to concur with the majority that it
was not necessary to examine whether there has been a violation of
Article 14 of the Convention taken in conjunction with Articles 8, 9
and 11.
(Or. English)
PARTLY DISSENTING OPINION OF MR C.L. ROZAKIS
I have voted for a violation of Article 8 of the Convention.
However, I consider that there has also been an independent violation
of Article 9 of the Convention, because the reason why the applicant
was subjected to surveillance was his religious beliefs.
Although surveillance always interferes with the private life of
an individual, I consider that a separate issue arises when the aim of
such surveillance is to undermine a value independently protected by
another provision of the Convention. For example, when somebody is
subjected to surveillance because of his political beliefs an issue
would arise under Article 10 of the Convention, which protects the
right to hold opinions, in addition to Article 8, which protects the
right to respect for one' private life; while when somebody is
subjected to surveillance because he engages in professional espionage,
only Article 8 of the Convention would be at stake.
In the circumstances of the case, it was clear that the applicant
was subjected to surveillance because he was a Jehovah's Witness, i.e.
because of his religion. Freedom of religion is a valued independently
protected by the Convention. I, therefore, consider that there was an
interference with Article 9 of the Convention, in addition to its
Article 8.
The reasons why I have concluded that Article 9 has been violated
are those set out in the partly dissenting opinion of Mr L. Loucaides.
(Or. English)
PARTLY DISSENTING OPINION OF MR L. LOUCAIDES
JOINED BY
MRS J LIDDY, MM G. RESS AND A. PERENIC, MRS M. HION AND MR R. NICOLINI
In our view, there has been a violation of Article 9 of the
Convention for the following reasons.
According to the Commission's case-law, Article 9 para. 1 of the
Convention can be divided in two parts. The first limb of paragraph 1
guarantees a general right to freedom of religion. Under the second
limb of paragraph 1, a more specific right to change and manifest one's
religion is protected. Paragraph 2 of Article 9 only permits
limitations of the freedom to manifest one's religion. Consequently
under Article 9 para. 1, a Contracting State is obliged to respect
everyone's general freedom of religion and that right may not be
restricted (Darby v. Sweden, Comm. Report 9.5.89, para. 44, Eur. Court
HR, Series A no. 187, p. 17).
When considering the applicant's complaints under Article 8 of
the Convention, the Commission found that it was established that the
authorities had mounted an organised operation of surveillance -
"watching" - of the applicant's life. It was also established that
domestic law provided no legal basis for the mounting of such an
operation.
In our view, it is also established on the basis of the report
of 7 March 1993 that the reason why this operation had been mounted was
the applicant's religious beliefs. The Government have failed to
identify a legitimate public purpose which such an operation could have
served.
We consider that an organised operation of surveillance of a
person's religious activities, because such activities are simply
considered undesirable by the State, amounts to an interference with
that persons's right to hold certain religious beliefs.
It follows that in the circumstances of the case there has been
an interference with the applicant's general right to freedom of
religion as guaranteed in the first limb of paragraph 1 of Article 9
of the Convention. This is a right which includes the right to hold
certain religious beliefs and which may not be restricted in any way.
We have, therefore, concluded that in the present case there has
been a violation of Article 9 of the Convention.
(Or. English)
PARTLY DISSENTING OPINION OF MR I. BÉKÉS
I consider that Article 9 of the Convention has been violated for
the reasons stated in the partly dissenting opinion of Mr L. Loucaides.
Having reached this conclusion, I consider that no separate issue
arises under Article 8 of the Convention. This is why I have voted for
no violation of this provision.
Full & Egal Universal Law Academy