Application No. 13092/87 by The Holy Monasteries of Ano Xenia, Ossios Loucas, Aghia Lavra Kalavryton, Metamorphosis Sotiros in Megalo Meteoro and Assomaton Petraki and six individual applicants against Greece Application No. 13984/88 by The Holy Monasteries of Chryssoleontissa Eginis, Phlamourion Volou and Mega Spileo Kalavryton and four individual applicants against Greece The European Commission of Human Rights sitting in private on 5 June 1990, the following members being present: MM. C.A. NØRGAARD, President J.A. FROWEIN S. TRECHSEL G. SPERDUTI E. BUSUTTIL G. JÖRUNDSSON J.-C. SOYER H. DANELIUS G. BATLINER Mrs. G. H. THUNE Sir Basil HALL Mr. C. L. ROZAKIS Mrs. J. LIDDY MM. L. LOUCAIDES J.-C. GEUS Mr. H.C. KRÜGER, Secretary to the Commission Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms ; Having regard to : the application introduced on 16 July 1987 by The Holy Monasteries of Ano Xenia, Ossios Loucas, Aghia Lavra Kalavryton, Metamorphosis Sotiros in Megalo Meteoro and Assomaton Petraki and 6 Priest-Friars against Greece and registered on 21 July 1987 under file No. 13092/87 ; the application introduced on 15 May 1988 by The Holy Monasteries of Chryssoleontissa Eginis, Phlamourion Volou and Mega Spileo Kalavryton and four individual applicants against Greece and registered on 28 June 1988 under file No. 13984/88 ; the report provided for in Rule 40 of the Rules of Procedure of the Commission ; the written observations submitted by the respondent Government on 22 September 1988 on the admissibility and merits of application No. 13092/87 and the observations submitted in reply by the applicants on 9 January 1989 ; the written observations of the respondent Government on the admissibility and merits of Application No. 13984/88 submitted on 26 June 1989 and the observations submitted in reply by the applicants on 22 September 1989 ; the Commission's Decision of 4 December 1989 to join the applications ; the oral submissions of the parties at the hearing of 5 June 1990 ; Having deliberated ; Decides as follows : THE FACTS The facts of the case may be summarised as follows. The applicants in Application No. 13092/87 are the following monasteries and monks: 1. The Holy Monastery Ano Xenias of Ano Xenia established in the 9th century A.D.; 2. The Holy Monastery of Ossios Loucas of Steirio, established in the 10th century A.D.; 3. The Holy Monastery of Aghia Lavra Kalavryton in Achaia, established in the 10th century A.D.; 4. The Holy Monastery of Metamorphosis Sotiros in Megalo Meteoro, established in the 14th century A.D.; 5. The Holy Monastery Assomaton-Petraki of Athens, established in the 10th century; 6. The Priest-Friar Archimandrite Nectarios Doras (known in his secular life as Demetrios), Superior of the Holy Monastery Ano Xenias; 7. The Priest-Friar Archimandrite Nikodimos Zaloumis (known in his secular life as Georgios), Superior of the Holy Monastery Ossios Loucas; 8. The Priest-Friar Archimandrite Nikodimos Dimakopoulos (known in his secular life as Evangelos), Superior of the Holy Monastery Aghia Lavra Kalavryton. 9. The Priest-Friar Archimandrite Athanassios Anastassiou (known in his secular life as Alexios), Superior of the Holy Monastery of Metamorphosis Sotiros in Megalo Meteoro; 10. The Priest-Deacon Vissarion Vassou (known in his secular life as Spiridon), resident in the Holy Monastery of Assomaton-Petraki; 11. The Priest-Friar Konstantinos Ramiotis, Priest of the Church Agios Demetrios in Neochorio Artas. Application No. 13984/88 has been introduced by the following applicants: 1. The Holy Monastery of Chryssoleontissa Eginis; 2. The Holy Monastery of Phlamourion Volou; 3. The Holy Monastery of Mega Spileo Kalavryton; 4. Mother Catherine Kalamaki (known in her secular life as Theodouli), Superior of the Holy Monastery of Chryssoleontissa Eginis; 5. The Archimandrite Daniel Pourtsouklis (known in his secular life as Dionyssios), Superior of the Holy Monastery of Phlamourion Volou; 6. The Archimandrite Nikiphoros Theodoropoulos (known in his secular life as Constantinos); 7. The Priest-Friar Konstantinos Ramiotis, Priest of the Church Agios Demetrios in Neochorio Artas; The applicants are represented before the Commission by Mr. P. H. Bernitsas, Attorney at Law. The applications concern the Law 1700/1987 which modifies the rules governing the administration of monastic property and which provides for the transfer of a large part of the applicants' immovable property to the Greek State. The applicant monasteries accumulated extensive property by donations before the formation of the Greek State in 1829. A great percentage of this property had already been expropriated during the first years of the existence of the Greek State. Moreover, large segments of monastic property were offered by the monasteries to the State or to landless people. The ownership of this property by the monasteries has not been challenged. Moreover "usucapio" (adverse possession) has always been invoked by the monasteries as a subsidiary means to prove ownership of land in cases where the original titles were either destroyed or could not be produced. Apart from the aforementioned property acquired over the centuries, the monasteries own land and buildings acquired by them in recent times by normal civil law procedures such as purchase, donation or inheritance. The legal status of the Church of Greece and of the applicant Holy Monasteries Article 3 para. 1 of the Greek Constitution of 1975 provides as follows: "Relations of Church and State The prevailing religion in Greece is that of the Eastern Orthodox Church of Christ. The Orthodox Church of Greece, acknowledging our Lord Jesus Christ as its head, is inseparably united in doctrine with the Great Church of Christ in Constantinople and with every other Church of Christ of the same doctrine, observing unwaveringly, as they do, the holy apostolic and synodal canons and sacred traditions. It is autocephalous and is administered by the Holy Synod of serving Bishops and the Permanent Holy Synod originating therefrom and assembled as specified by the Statutory Charter of the Church in compliance with the provisions of the Patriarchal Tome of 29 June 1850 and the Synodal Act of 4 September 1928." The Church of Greece, as well as all institutions depending upon it - including Greek orthodox monasteries - are legal entities of public law (Article 1 para. 4 of the Statutory Charter of the Church of Greece). According to Article 19 of the Statutory Charter of the Church of Greece, the Holy Monasteries are religious institutions for the asceticism of men and women living in them pursuing the monastic principles, the holy rules on asceticism and the traditions of the Orthodox Church of Christ. Protection of property under Greek constitutional law Article 17 of the Greek Constitution provides as follows: "1. Property is protected by the State; rights deriving therefrom, however, may not be exercised contrary to the public interest. 2. No one shall be deprived of his property except for the public benefit, which must be duly proven, when and as specified by law and always following full compensation, corresponding to the value of the expropriated property at the time of the court hearing on the provisional determination of compensation. In cases in which a request for the final determination of compensation is made, the value at the time of the court hearing of the request shall be considered. 3. Any change in the value of expropriated property occuring after publication of the act of expropriation and resulting exclusively therefrom shall not be taken into account. 4. Compensation shall in all cases be determined by civil courts. Such compensation may also be determined provisionally by the court after hearing or summoning the expropriator, who may be obliged, at the discretion of the court, to furnish a commensurate guarantee for collecting the compensation as provided by law. Prior to payment of the final or provisional compensation determined by the court, all rights of the owner shall be maintained intact and occupation of the property by the expropriator shall not be allowed. Compensation in the amount determined by the court must in all cases be paid within one and a half years at the latest from the date of promulgation of the decision on the provisional compensation payable and, in cases of a direct request for the final determination of compensation, on the date of promulgation of the court decision, otherwise the expropriation shall be revoked ipso jure. The compensation as such is exempt from any taxes, deductions or contributions." Rules concerning monastic property According to Law 4684/1930 the property of the monasteries was designated as property "to be sold" (ekpoiitea) or "to be maintained" (diatiritea). The property to be maintained was deemed to be the property necessary for the functioning of the monasteries and included all acquisitions after the publication of Law 4684/1930. Property to be sold was deemed to be the remaining property. The classification of which property fell within which category has been effected by decrees issued separately for each monastery. The management of the property to be maintained was left to the Holy Monasteries and was exercised according to the laws and decrees issued, the decisions of the Holy Synod (*) (Iera Synodos) of the Church of Greece and the internal regulations of each monastery. The property to be sold remained in the ownership of the monasteries but the management was exercised by a church institution, the for the administration of church property). According to the statutory Charter of the Church of Greece (Law 590/1977), the ODEP was under the supervisory authority and control of the Holy Synod which appointed the members of its board. In respect of its administration of monastic property the ODEP had full legal capacity to act in all legal proceedings concerening the monasteries. The liquidation of property to be sold by the ODEP presupposed an authorisation by the Board of each monastery. On 6 May 1987 Law 1700/1987 was published in the Official Gazette of Greece. Article 1 of this Law reads as follows: "1. On the coming into force of this law the Organisation for the administration of church property (ODEP) is assigned ipso jure the exclusive administration, management and representation of all the immovable property belonging to monasteries, in relation to which it already has active and passive legal capacity, regardless of whether such property belongs in accordance with the legislation in force to the category of property 'to be maintained' or property 'to be sold'." Paragraph 3 of the above Article reads: "By Presidential Decree issued following the proposal of the Ministers of National Education and Religion, Economy and Agriculture, there shall be laid down, in modification of the legal provisions in force, the terms and procedure for the sale, lease, concession of use and development by the ODEP of movable and immovable monastic property and any other question related to the administration and management of such property in general. The same decree may also authorise other administrative bodies to regulate every detail of its application by regulatory decisions. Specifically in case of the sale of buildings or building land belonging to monasteries or a concession of any real property right thereon, it is necessary to have the consent of the Holy Monastery which is the owner, failing which the relevant contract is null and void." Further, Article 8 of this law provides that members of the ODEP are to be appointed by ministerial decision of the Minister of National Education and Religion. According to this Article the Central Administrative Board of the ODEP has the following membership: a) the Chairman who is appointed together with his deputy by the Government following the proposal of the Minister of National Education and Religion; ---------- (*) The body of serving bishops and the executive organ of the Church of Greece cf. Article 3 para. 1 of the Constitution quoted above. b) three members appointed together with their deputies by the Permanent Church Council (DIS) and c) three members appointed with their deputies by the Minister of National Education and Religion. Articles 2 and 3 of Law 1700/1987 read as follows: Article 2 "1. Monastic real property which on the coming into force of this law is in the ownership or possession of the ODEP, the Holy Monasteries or any third party, may be disposed of by the ODEP by concession of their use for development and exploitation, preferably to farmers who are members or by such concession become members of agricultural cooperatives, as well as to agricultural cooperatives and State agencies. In exchange for such a concession the ODEP shall pay to the Holy Monastery concerned 5 % of the gross revenue from the concession which will be used for the monastery's needs. Real property within the meaning of this provision includes agricultural land and land liable to agricultural exploitation, forest areas in general, pastures, grass meadows or other agricultural areas in general, as well as quarries, mines and fish farms. 2. Within a deadline of six months from the coming into force of this law the ODEP may transfer to the Greek State by contract to be signed between the former, as representative of the Holy Monasteries, and the Ministers of National Education and Religion, Agriculture and Economy, as representatives of the Greek State, the ownership of the aforementioned monastic real property, as well as the land belonging to Holy Monasteries which has become part of city plans (building land) after 1952. This transfer of ownership to the Greek State does not affect the validity of a concession of use which has been granted in accordance with the terms of the previous paragraph, with the exception of the term concerning the payment of a percentage of the revenue, which percentage will now be paid to a corporation to be created and will be used for educational needs. Until the creation of the above mentioned corporation this percentage of the revenue will be deposited in a special account of the Bank of Greece on behalf of the Ministry of National Education and Religion. 3. Exempted from the provisions of this Article are areas belonging to the Holy Monasteries and destined exclusively for cultivation by the monks themselves. The extent of these areas is to be determined for each monastery depending on the number of monks living therein, as well as the needs of each monastery for environmental protection. Areas owned by the monasteries destined for camps and for the purposes of other church foundations are also exempted. Such areas are determined by decisions of the Ministers of National Education and Religion, Agriculture and Environment and Public Works, which decisions are to be issued following the opinion of the ODEP for each Holy Monastery, camping and church foundation. Article 3 1. Should the deadline in paragraph 2 of Article 2 expire without results, the property rights over monastic assets are regulated in accordance with the following provisions: A) Real property which is under the use or ownership of the Holy Monasteries at the entry into force of this law is deemed to be the property of the Greek State, regardless of its form of administration, management or exploitation, unless the property right of the monastery a) is derived from a legal title issued before the day of deposit of the bill which has been registered or will be registered within an exclusive deadline of six months from the beginning of the validity of this law, b) has been recognised by law or by an irrevocable court decision against the State. The same is also the case for real property which is used or possessed by a monastery but has been occupied by third persons. B) The use and possession of the real property which is considered to belong to the State in accordance with the preceding clause and whose ownership was not transferred to the State in accordance with Article 2 comes to an end and is transferred ipso jure to the Greek State. Any form of administration, management and exploitation of such property ceases, regardless of the category to which this property belongs in accordance with the legislation in force. The State exercises from now on, against any third party, the Holy Monasteries and the organisations for the management of their property the rights derived from ownership, use and possession of these assets. Their management and administration is henceforth exercised by the Ministry of Agriculture in accordance with the provisions of the legislation formerly in force and this law. This transfer of property does not affect the validity of a concession of use which has been effected in accordance with Article 2 para. 1 of this law, with the exception of the term concerning the percentage of the revenue, which will be paid to the corporation provided for in Article 9 of this law and will be used for the needs of education. Until the creation of the above mentioned corporation the percentage of the revenue will be deposited in a special account at the Bank of Greece on behalf of the Ministry of National Education and Religion. 2. Real property within the meaning of this Article includes agricultural land and land liable to agricultural exploitation, forest areas in general, pastures, grass meadows or other agricultural areas in general, as well as quarries, mines and fish farms. Real property also encompasses building land, even if it has been included in city plans, provided this inclusion in city plans took place after 1952. 3. To Holy Monasteries which do not own sufficient real property there may be conceded free of charge land which is already in their possession in accordance with paragraph 1 of this Article, exclusively for cultivation by the monks themselves. The extent of such land will be determined for each monastery depending on the number of monks living therein as well as the needs of each monastery for environmental protection. This concession shall take place within an exclusive deadline of one year from the end of the deadline in paragraph 1 of this Article, by contract between the State, represented by the Ministers of National Education and Religion, Environment and Public Works and Agriculture, and the legal person administering the monastery's assets in accordance with the legislation in force." Article 4 of Law 1700/1987 provides that within a deadline of two months from the end of the above six month time-limit (Article 3 para. 1 (a)) any person being in possession of an immovable asset considered to be the property of the State should "deliver" (i.e. complete the contract of transferring ownership) it to the competent State authorities. An administrative expulsion procedure (compulsory transfer) will be used to ensure "delivery". Moreover, the contractual rights of third parties over immovable property cease ipso jure six months after the transfer of the property. Article 4 paras. 4 to 7 provides for remedies which may be pursued in the context of the transfer procedure: " 4. The person 'expelled' is entitled to appeal asking for invalidation of the transfer document, if the document was issued in violation of an essential form or without the legal prerequisites therefor. 5. The appeal must be made within 60 days of notification of the transfer document. This deadline and the appeal do not suspend the enforcement. The administrative court of appeal is competent to decide the appeal. In all other respects the provisions of the Administrative Procedure Code are applicable. 6. The decision of the administrative court of appeal is subject to cassation appeal before the Council of State in accordance with the provisions of Law 170/1973. The cassation appeal is submitted by all the parties which are entitled thereto within 60 days of notification of the decision of the court of appeal. 7. Regardless of the appeal against the transfer document, the person "expelled" and any third party are entitled to bring an action before the competent civil court in accordance with the general civil procedure provisions, claiming real rights over the property. This action may be introduced within a strict time-limit of one year starting: a) in case of voluntary transfer of the property, on the date of the relevant transfer and transfer document and b) in case of compulsory transfer, if an appeal has not been introduced in time, on the date of the receipt of the compulsory transfer document and where an appeal has been introduced against that document, on the date of notification of the decision of the administrative court of appeal." Implementation of the provisions of the Law 1700/1987 By decision of 10 July 1987 the Council of Ministers appointed the President of the Central Administrative Board of the ODEP. On 16 July 1987 the Minister of National Education issued a decision concerning the organisation of the Central Administrative Board of the ODEP in accordance with Article 8 of Law 1700/1987. The applicants in the Application No. 13984/88 challenged the latter decisions before the Council of State (Symvoulio tis Epikrateias), alleging that Law 1700/1987 was contrary to the Constitution and the Convention. In its decision 5057/1987 of 7 December 1987 the Council of State held the following: "The provisions of Article 3 para. 1 of the Constitution ratify the holy canons and traditions of the Orthodox Church. However, such constitutional ratification, referring to holy canons and dogmatic traditions and concerning the sphere where the sovereign rights of the Church are exercised cannot be considered as extending to the canons and traditions related to matters of administrative nature. Such matters, under the influence of time and newer concepts, are necessarily liable for modification for the purpose of promoting the mutual interest of the Church and the State and are settled by the common legislator in accordance with social needs, pursuant to the provisions of article 72 of the Constitution. Nevertheless the legislator cannot, according to the spirit of such provisions, modify by law the fundamental and essential administrative institutions which have long been estabished in the Orthodox Church. On the other hand these same provisions enshrine the self-government of the Church. This includes its power to decide on its affairs through its own organs composed as provided for by law and recognises the right of the Church to be administered by the Holy Synod and the Permanent Holy Synod organised in accordance with the law and the provisions of the Patriarchal tome of the 29th June 1850 and the Synodical Act of the 4th September 1929 concerning the composition of these bodies. In accordance with the majority opinion of this Court, the provisions of the 1700/1987 entrusting the ODEP, a public law entity, whose Central Administrative Board members are appointed in their majority by the State, with the administration and management of the property of holy monasteries are not contrary to the constitutional principle of the self-government of the Church or to religious freedom and Articles 9 and 11 of the Rome Convention, the Charter of the U.N. of 16 February 1946 and the Final Act of Helsinki of 1 July 1976. These questions, which are not related to dogma and cult are of a purely administrative nature and are not even related to fundamental administrative church institutions. Moreover, the provisions of Law 1700/1987 do not fundamentally modify ecclesiastical institutions since the administration and management of the monastic and church property had already been assigned to the ODEP, whose Central Administrative Board when first formed consisted in its majority of lay members proposed by the State. Therefore, the allegations made are ill-founded and must be rejected. However, one of the members of this Court supported the following view, which was followed by one of the asessors. The provisions of Article 3 of the Constitution disposing that the Church of Greece is administered by "the Synod of serving Metropolites" does not only protect the self-government of the Church in the sense that it is governed by Metropolites but also its right to administer, manage and dispose of, according to its own will, as any owner, any movable or real property belonging to it and to the other church entities in order to achieve its non-lucrative objectives, i.e. the establishment and promotion of the orthodox faith of its members. Monastic communities constitute essential parts of this Church which, despite their characterisation (by Article 1 para. 4 of Law 590/1977) as public law entities, are derived, like the Church, from the area lying outside the jurisdiction of the State. Monastic life has also constituted a fundamental mode of cult of God. Therefore, the deprivation by the provisions of Law 1700/1987 (Article 1 paras. 1 and 3) of all Monasteries of the administration and management of their existing and future property (movable and real property, building and agricultural land), and the assignment of such powers, without the Monasteries' consent, to the ODEP most of whose members are appointed by the State and which is therefore alien to the administrative structure of the Church, limits in an impermissible manner the self-government of the monasteries and consequently the principle of the self-government of the Church, in view of the fact that in accordance with the Holy Canons monks must be landless. Such a regulation violates first the above-mentioned article of the Constitution which does not permit modification of administrative institutions of the Church to such an extent as to reverse its self-government, and secondly, it seriously hinders the exercise of cult by means of monastic life, since monastic cult cannot be exercised "without hindrance" as guaranteed in Article 13 para. 2 of the Constitution. Finally it should be noted that since 1953 the ODEP had an Administrative Board appointed in its majority by the Church and was presided over by the Archbishop of Athens. The precedents to the contrary invoked by the majority opinion refer to isolated particular cases and not to the administration of monastic property as a whole. Therefore, in accordance with the opinion of the minority the allegations of the applicants are well-founded. It is further alleged that the provisions of Law 1700/1987 entrusting the ODEP, an entity being alien to the Church and not controlled by it, with the administration of monastic property and permitting the transfer of such property to the State without any exchange, are contrary to Articles 17 and 7 para. 3 of the Constitution since they impose a non-permissible confiscation of the above-mentioned property, deprive the monasteries of their property and impose restrictions on property rights which are not permitted by the Constitution. Article 7 para. 3 of the Constitution provides that general confiscation is prohibited. Article 17 of the Constitution rules that property is under the protection of the State, but the rights derived therefrom may not be exercised to the detriment of the public interest (para. 1). No-one can be deprived of his property unless for reasons of duly proven public interest, according to the law and always following prior complete indemnisation which must correspond to the value of the expropriated property. This last constitutional provision prohibits deprivation of a person's property without the fulfilment of the conditions specified therein. However, the legislator is not hindered from introducing on the basis of objective criteria and in the public interest limitations in property, provided that these limitations do not abolish or inactivate property rights (cf. Council of State decisions 1034/1978, 6711/1979, 3466/1980, 1503/1982 etc.) In accordance with the majority opinion of this Court the stipulations of Law 1700/1987 which provide for the transfer to the Greek State of monastic agricultural and other land being in the possession of the monasteries without lawful property titles are not contary to Article 17 of the Constitution. Such provisions do not deprive the monasteries of their property rights on the above- mentioned land since the law provides that such land does not belong to them. Moreover, the provisions of the same law, which refer to the sale of the urban assets of the holy monasteries or the concession of rights thereon by decision of the ODEP, a body functioning within the framework of the administrative organisation of the Church, do not offend the property rights of the monasteries, since their implementation requires the consent of the monastery owning the asset. Without such consent the contract is absolutely null and void. Finally, the provisions referring to the exploitation by the ODEP of the urban assets, mines, quarries and vivariums belonging to monasteries or any other church institution, and those concerning the administration and management of the agricultural property of the monasteries in general, are not contrary to the Constitution. As regards (...), administration and management of agricultural property of the monasteries in general and the exploitation and further exploitation of urban assets, the relevant stipulations do not entail deprivation of property since the property as such of the land concerned remains with the monasteries and in any event the income from the management of the above-mentioned property by the ODEP is used for church purposes. This regulation imposes limitations which are permitted by the Constitution and are imposed in the interests of the monasteries and in the public interest as well. Therefore, the allegations of the applicants relating to the violation of Articles 12 paras. 5 and 6 and 20 of the Constitution and Article 1 of the Additional Protocol of Paris of 20 March 1952 to the Convention of Rome, which contain provisions similar to Article 17 of the Constitution, are ill-founded and must be rejected. Two of the members of this Court supported the following opinion, which was followed by one of the assessors. The assignment under the above conditions of the administration and management of all monastic property in general to the ODEP even "in modification of the provisions in force" (Article 1 para. 3 of Law 1700/1987) does not merely constitute a limitation of property tolerated by the Constitution, but affects in a non-permissible manner and without complete indemnisation the very essence of the monasteries' property rights. This becomes more evident from the fact that the sole power left to the monasteries is to agree or disagree to the sale of their urban assets or the concession of real rights thereon by the ODEP but they may not decide on such sale or concession, since such decision may be made only by the ODEP which resolves dominantly, that is without even the opinion of the monastery, on the sale of agricultural land and the "exploitation or further exploitation" of their real property in accordance with Article 7 of Law 1700/1987. As regards the movable property of the Monasteries, some of which is of particularly high value (e.g. icons of monastery museums, valuable relics, shares etc.) these are managed by the ODEP without any limitations whatsoever. Besides, it should be noted that Law 1700/1987 does not specify the fate of the income from exploitation of monastic property. On the contrary, it appears from Articles 2 para. 2, 3 para. 1 (b) and 9 of Law 1700/1987 that the income from "exploitation or concession of use of monastic and church property in general" becomes the possession of a private law entity, created under Article 9, which has no church objects. Thus the provisions of Law 1700/1987 are in acute opposition not only to Article 17 of the Constitution but also to the provisions of the Rome Convention (Article 1 of the Additional Protocol) and the EEC Treaty. The provisions of these treaties prevail over any provisions of law (Article 28 para. 1 of the Constitution) and create international responsiblity for the Greek State. Therefore, in accordance with the minority opinion, the allegations of the applicants are well-founded. It is further submitted that the provisions of Article 8 para. 1 of Law 1700/1987 are contrary to the constitutionally protected independence of the Orthodox Church of Greece (Article 3 para. 1 of the Constitution). This allegation is ill-founded, since the above-mentioned provisions of Law 1700/1987 are not related to the independence of the Orthodox Church of Greece declared in Article 3 para. 1 of the Constitution. It is further alleged that the provisions of Law 1700/1987 violate Article 4 para. 1 of the Constitution since they introduce an unjustified discriminatory treatment of the Orthodox Church of Greece in comparison to monasteries belonging to the ÷cumenic Patriarchate and the ÷cumenic Patriarchate itself, the Patriarchates of Alexandria, Jerusalem, the Holy Sepulchre, the Holy Monastery of Sinai and monasteries of other confessions or religions. This allegation is ill-founded since the Orthodox Church of Greece, being an instrument and expression of the prevailing religion, according to Article 3 para. 1 of the Constitution, is not under the same conditions in relation to the other Orthodox churches, confessions or religions. Therefore the legislative stipulations concerned do not violate the constitutional principle of equal treatment. It is moreover submitted that the stipulations of the Law 1700/1987 violate Article 5 para. 1 of the Constitution in that orthodox citizens who desire to financially support monasteries are hindered in the free development of their personality since, against their will, the administration and management of the donated property will not be entrusted to the monasteries but to the ODEP. Furthermore, it is alleged that these stipulations affect the individual right of religious freedom of the members of monastic communities, as well as of the persons desiring to found a monastery. The reasons invoked are ill-founded since the individual right of free development of personality, which is guaranteed in Article 5 para. 1 of the Constitution is not absolute but is subject to the limitations of the Constitution and the law. In this case the limitations imposed by the above-mentioned provisions of Law 1700/1987 do not violate Article 5 para. 1 of the Constitution. As regards its second aspect, the allegation is inadmissible since it vaguely relates to eventual and future damage to the applicants. It is claimed that the provisions of Law 1700/1987 violate the constitutional principles of protected confidence, proportionality and necessity. This allegation is ill-founded. The principle of protected confidence is not directly protected by the Constitution. The principles of necessity and proportionality are not violated since the stipulations concerned are adequately justified." On 11 May 1988 The Permanent Holy Synod entered into an agreement with the Greek State. According to the provisions of the agreement a number of monasteries, among them the Holy Monasteries of Assomaton Petraki (Application No. 13092/87) and Ossios Loucas (Application No. 13984/88), conceded their agricultural land to the State. The agreement was ratified by the Parliament (Law 1811/1988). The applicants submit that parts of monastic property have already been conceded to agricultural co-operatives. They also submit judgments of first instance courts which either annul proceedings (judgment 455/1987 of the Ioannina First Instance Court) or declare inadmissible actions brought by other monasteries (judgment 335/1987 of the Lassithi First Instance Court) because of lack of the monasteries' locus standi. COMPLAINTS 1. The applicants complain that the provisions of Law 1700/1987 deprive them unconditionally of their rights to manage and dispose of their property. They submit that, as of the day of entry into force of this law, the use of their property is transferred to third parties and governmental institutions or agencies and that within a six months' time-limit their property is automatically transferred to the State. They note that most of their rights derive from unregistered legal titles since according to the provisions of Law TS/1856, only acts of transfer of property subsequent to 1 January 1856 had to be registered. Besides, since the property rights of the monasteries have never been challenged by the Greek State, no court decisions recognising the monasteries' property rights have been given. They also note that they cannot, within the six months limit set by Law 1700/1978, register their titles, nor can they obtain a court's decision confirming their property rights vis-à-vis the Greek State, since the applicant monasteries are deprived, as from the publication of the law, of their right of active or passive legal capacity. Furthermore, in order to prove the existence of their rights, the applicants refer to the governmental decrees by which their property was classified as "property to be maintained" or "property to be sold". Such decrees explicitly describe the land belonging to each monastery, as well as its extent and boundary. In these circumstances the applicants consider that their property has been unconditionally expropriated. They submit that no public interest can be found for this expropriation. They refer to the Sporrong and Lönnroth case and denounce the extreme inflexibility of Law 1700/1987, as well as the lack of a fair balance between the legitimate aim eventually pursued by the law and their property rights. Furthermore they submit that no full, prior compensation is provided by law 1700/1987, which omission violates not only the Greek Constitution but also the general principles of international law. The applicants submit that the expropriation affects also the movable property of the monasteries, since this will be managed and possibly even sold by the ODEP. They note that the movable property of the monasteries includes not only icons and objects destined for the Holy Service, but also items of commercial value, be it money, bonds, etc. The applicants note, finally, that monks are entitled to acquire property during their lifetime, but have the obligation to transfer the property acquired, be it money, movables or immovables, to the monastery. The applicants allege a violation of Article 1 of Protocol No. 1 to the Convention. 2. The applicants also allege a violation of Article 6 of the Convention, since the monasteries are deprived of their right to litigate before the Greek courts for the purpose of determining their civil rights and obligations. The applicants refer in particular to the Andorfer Tonwerke case (No. 7987/77, Comm. Report 8.4.82, D.R. 32 p. 94) and submit that the fixing of the compensation to which an expropriation gives rise is a matter which concerns the determination of civil rights and obligations. They note that the right to compensation following expropriation is guaranteed by Article 17 of the Greek Constitution. In this respect, the applicants consider that they have been denied the right of access to court, with regard in particular to their civil right to adequate compensation. Moreover, the applicants complain of the annulment of pending proceedings. They submit that the provisions of Article 3 of Law 1700/1978, according to which immovable assets are deemed to be the property of the Greek State, unless they have been recognised to be the property of the Holy Monasteries by irrevocable court decisions against the Greek State, implies that civil proceedings, which are not terminated within the six months time-limit set out by the same Article, are annulled. This, they allege, constitutes a violation of their right to a fair hearing guaranteed by Article 6 para. 1 of the Convention. 3. The applicants submit that they are deprived of the means needed to preserve the monastic communities and thus hindered in the exercise of the practice of their religious convictions of asceticism. They allege a violation of Article 9 of the Convention. 4. The applicants note that, pursuant to Article 3 para. 3 of the Law 1700/1987, areas belonging to the Holy Monasteries and used exclusively for cultivation by the monks themselves are not to be transferred to the State. However, these areas are to be determined for each monastery depending on the number of monks living therein. Consequently the number of monks allowed to live in each monastery will be fixed and cannot be increased. The applicants allege further that Law 1700/1987 essentially prohibits the creation of new monasteries since newly created monasteries solely depend on donations and the prospective donors will be discouraged by the fact that their donations will be administered by the ODEP. They accordingly allege a violation of Article 11 of the Convention. 5. The applicants claim furthermore that they are victims of discrimination. They submit that only monasteries belonging to the Greek Orthodox Church are affected by Law 1700/1987, whereas the rights of monasteries of other churches remain intact. They allege a violation of Article 14 in conjunction with Articles 6, 9 and 11 of the Convention and Article 1 of Protocol No. 1. 6. Finally, the applicants complain that they have no effective remedy before a national authority in order to assert their rights guaranteed by the Convention. They invoke Article 13 in conjunction with Articles 6, 9 and 11 of the Convention and Article 1 of Protocol No. 1. PROCEEDINGS BEFORE THE COMMISSION The application No. 13092/87 was introduced on 16 July 1978 and registered on 21 July 1987. The Commission decided on 5 May 1988 to bring the application to the notice of the respondent Government, inviting them to submit written observations on the admissibility and merits of the case. The Government submitted their written observations on 22 September 1988 after an extension of the fixed time-limit for the submission had been granted by the President of the Commission. The applicants submitted their observations in reply on 9 January 1989 after having been granted an extension of the time-limit for the submissions. The application No. 13984/88 was introduced on 15 May 1988 and registered on 28 June 1988. The Commission decided on 10 March 1989 to bring the application to the notice of the respondent Government and to invite them to submit written observations on the admissibility and merits of the case. The Government submitted their observations on 26 June 1989. The applicants presented their observations in reply on 22 September 1989 after an extension of the time-limit for the submissions had been granted by the President. On 4 December 1989 the Commission decided to join the applications and to invite the parties to a hearing on the admissibility and merits of the applications. The hearing was held on 5 June 1990. The parties were represented as follows: For the Government: - Mr. Konstantinos Economides, Head of Special Legal Department of the Ministry of Foreign Affairs; Agent - Mrs. Maria Vondikaki-Telalian, Legal Adviser, of the Special Legal Department of the Ministry of Foreign Affaiars; Counsel - Mrs. Artemis Papathanassiou, Secretary to the Special Legal Department of the Ministry of Foreign Affairs; Counsel - Mr. Charalambos Chrissanthakis, barrister; Counsel For the applicants: - Mr. Panayiotis Bernitsas, barrister at the Athens bar - Mrs. Domniki Mirasyesi, barrister at the Athens bar Two of the applicants, Priest-Friar Konstantinos Ramiotis and Priest-Friar Athanasios Athanasiou, were present at the hearing. THE LAW The applicants complain of Law 1700/1987 modifying the rules of administration of monastic property and providing for the transfer of a part of it to the State. The applicants allege a violation of Article 1 of Protocol No. 1 (P1-1). In their view the provisions of Law 1700/1987 entrusting the ODEP with the administration of their property constitute an unjustified interference with their right to peaceful enjoyment of their possessions. They also allege that the transfer of parts of their property to the State amounts to an expropriation contrary to Article 1 para. 1 second sentence of Protocol No. 1 (P1-1). The applicants also complain that according to the provisions of Law 1700/1987 they no longer have legal competence to act before courts and that, consequently, any pending proceedings concerning their property rights are annulled. They allege a violation of Articles 6 para. 1 (Art. 6-1) and 13 (Art. 13) of the Convention. Moreover, the applicants allege that the restrictions of their right to manage their property and the taking of it pursuant to the provisions of Law 1700/1987 constitute an unjustified interference with their right to freedom of religion and to freedom of association and invoke Articles 9 (art. 9) and 11 (Art. 11) of the Convention. Finally, they allege that they are victims of discrimination and invoke Article 14 (Art. 14) of the Convention. The respondent Government first note that the applicant monasteries cannot be regarded as "non-governmental organisations" within the meaning of Article 25 (Art. 25) of the Convention and cannot therefore exercise the right of individual petition to the Commission. They also contend that the applicants have not exhausted the domestic remedies at their disposal according to the generally recognised rules of international law. Finally, the Government argue that no concrete means of implementation of the provisions of Law 1700/1987 have been taken and that therefore the applications are manifestly ill-founded. A. As to the requirements of Article 25 (Art. 25) of the Convention Article 25 (Art. 25) of the Convention reads as follows: "The Commission may receive petitions addressed to the Secretary- General of the Council of Europe from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in this Convention, provided that the High Contracting Party against which the complaint has been lodged has declared that it recognises the competence of the Commission to receive such petitions. Those of the High Contracting Parties who have made such a declaration undertake not to hinder in any way the effective exercise of this right." i) With regard to the applicant Holy Monasteries: --------------------------------------------- The Government submit that the requirements of Article 25 (Art. 25) are not met in the present case as far as the applicant Monasteries are concerned since these bodies are not "non-governmental organisations" within the meaning of the above provision. The Government first note the particular relation between the Greek State and the Greek Orthodox Church and refer in this respect to Article 3 (Art. 3) of the Greek Constitution. A particular aspect of this relation is that the development of the religious conscience of Greek citizens is not only an aim pursued by church institutions but also, according to Article 16 para. 2 of the Greek Constitution, one of the missions of the State. Moreover, the existence of the Greek Orthodox Church is provided by the Constitution and its nature as a body occupying an important place in the framework of the organisation of the State cannot be challenged. The Greek Orthodox Church has an important educational mission which contributes to the achievement of the constitutional aims of the State. Church institutions, despite their degree of autonomy or independence vis-à-vis the Greek Orthodox Church, inevitably contribute to the educational functions of the State as defined in Article 16 para. 2 of the Constitution and can therefore be regarded as State organs lato sensu. The Monasteries, as institutions of the Greek Orthodox Church, are to be regarded as bodies exercising one of the main functions of the State, that is the development of religious conscience, and are, thus, governmental organisations. The Government also observe that it is for the national law to determine what the State aims are and that reference to domestsic law must be made when it comes to determining whether an organisation pursues such aims or not. In this respect the Government refer to national administrative law and point out that the Monasteries are legal entities of public law. The establishment and liquidation of monasteries can be made only by Presidential Decree after approval by the competent ecclesiastical authority and after proposal by the Minister of National Education and Religion. The establishment of a monastic community is not only a spiritual issue but also a matter which necessitates regulation in the context of domestic legal order since the proper functioning of the Holy Monasteries is an important matter to the State. The applicants contend that the Holy Monasteries are not governmental organisations. The State aims referred to in Article 16 of the Constitution are certainly the aims pursued by the State but not necessarily those pursued by the Greek Orthodox Church and obviously not those pursued by the Holy Monasteries. The applicants note in this respect that the development of the religious conscience of Greek citizens does not coincide with the promotion of the Greek orthodox religion, since, under Article 13 of the Constitution, this religion is placed on an equal footing with all other religions. They argue that under the Greek Constitution of 1975 the Greek Orthodox Church is no longer a State Church and emphasise the status of separation between Church and State under this Constitution. Moreover, the applicants submit that the fact that the Holy Monasteries are legal entities of public law is irrelevant for the question at issue. In their view a governmental organisation is a body belonging to the the so-called public administration. They observe that public administration bodies are often governed by private law, in particular when entrusted with implementation of specific aims such as housing, transport, health etc. On the other hand not all public law entities are State organs. In particular, as far as the Greek Orthodox Church and its institutions are concerned, their character of public law entities has the sole purpose of guaranteeing a special protection to these corporations because of the long and specific ties between the Greek Orthodox Church and the Greek nation. However the only power granted by the legislator to the Holy Monasteries is the issuing by its governing organ of regulations concerning the promotion of spiritual life. The applicants conclude that the ecclesiastical bodies cannot be considered to be governmental organisations, since they do not belong to the public administration. Especially the Holy Monasteries and their governing organs have no power whatsoever which could lead to their qualification as governmental organisations. The Commission first observes that it does not have to examine whether the Greek Orthodox Church can be regarded as a "non-governmental organisation" within the meaning of Article 25 para. 1 (Art. 25-1) of the Convention. It notes that the applications have been introduced by the applicant Holy Monasteries which, under domestic law, are separate legal entities and can be distinguished from the Greek Orthodox Church as such. The Commission further observes that a corporation pursuing social, educational or cultural aims does not by the mere fact that such aims are also pursued by the State become a governmental organisation. Moreover, the private or public law nature of a corporation, although an important indication, is not decisive for the determination of the governmental or non-governmental character of an organisation under the Convention. As the Commission has previously held, governmental organisations which are precluded from exercising the right of individual petition under Article 25 (Art. 25) of the Convention are those which normally exercise public functions (cf. Nos. 5767/72, 5922/72, 5929-5931/72, 5953-5957/72, Dec. 31.5.74, Coll. 46 p. 118, Yearbook 17 p. 338). The Commission notes that, according to Article 19 of the Statutory Charter of the Church of Greece, the Holy Monasteries are religious institutions for the asceticism of men and women living in them pursuing the monastic principles, the holy rules of asceticism and the tradition of the Orthodox Church of Christ. It finds that the above-mentioned activities cannot be regarded as public functions since they are not related either to the exercise of public power or to State controlled activities in the field of public services. Therefore the Commission concludes that the applicant Holy Monasteries are "non-governmental organisations" within the meaning of Article 25 para. 1 (Art. 25-1) of the Convention. ii) With regard to the individual applicants ---------------------------------------- As regards the individual applicants, the Commission observes that it may receive applications only from persons who claim themselves to be victims of a violation of the rights set forth in the Convention. However, in the present case the Commission finds that the individual applicants complain of Law 1700/1987 and in particular of the provisions concerning the administration and the alleged expropriation of the property of the applicant Holy Monasteries, of the monasteries' lack of access to court and of the resulting interference therefrom by the State authorities with the monasteries' right to freedom of religion and to freedom of association. It finds that the individual applicants cannot themselves claim to be victims of a violation resulting from the provisions of Law 1700/1987 which affect only the Holy Monasteries as such. It follows that as far as introduced by the individual applicants the applications are incompatible ratione personae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2). B. As to the exhaustion of domestic remedies The Government submit that the applicant monasteries have not complied with the requirements of Article 26 (Art. 26) of the Convention as to the exhaustion of domestic remedies. They observe that pursuant to Article 93 para. 4 of the Constitution, "the courts shall be bound not to apply laws, the contents of which are contrary to the Constitution" and that Article 20 para. 1 of the Constitution guarantees to everyone a right "to receive legal protection by the courts" and "to plead before them his views concerning his rights or interests, as specified by law." Moreover, all courts are independent and are not bound to follow the views of superior courts. The Government submit that it was open to the applicants to lodge with the civil courts actions for declaratory judgments (anagnoristiki agogi) and request the courts to recognise that they are the owners of the property affected by the provisions of Law 1700/1987. They note in particular that civil courts are the natural judge of any dispute concerning monastic property. In the context of such litigation the civil courts should examine the constitutionality of Law 1700/1987 without being bound by the opinion expressed by the Council of State in its decision 5057/1987. The Government admit that such actions have been introduced by other monasteries before civil courts of first instance and that these courts have actually followed the opinion of the Council of State. However, in the Government's view, the exhaustion of domestic remedies requirement is not complied with in so far as the Court of Cassation (Areios Pagos) has not reached a decision in the matter. The Government emphasise that the Court of Cassation can take and has indeed on several occasions taken a different view from that of the Council of State on constitutionality issues. In such cases the Special Highest Court (Anotato Eidiko Dikastirio) has competence to settle the controversy according to Article 100 para. 1 e) of the Constitution. Furthermore, every specific act by the ODEP concerning the management of the monastic property and any act concerning the transfer of monastic property to the State can be challenged before the competent administrative courts. In conclusion the Government submit that the applicants have not exhausted the domestic remedies and that their argument to the contrary is inconsistent with the domestic legal order. The applicants first observe that Greek law does not provide for a direct remedy permitting the annulment of legislative provisions. They submit that in cases of an alleged ex lege violation an applicant is not required to pursue remedies which concern only incidentally the matter in dispute. Moreover they note that the Council of State found incidentally that all provisions of Law 1700/1987 were in conformity with the Constitution. In these circumstances any further remedy before either the civil or administrative courts would be futile. The Commission recalls that the remedies which are to be taken into account in applying the general rules of international law concerning the exhaustion of domestic remedies are those which are capable of providing an effective and sufficient means of redressing the wrongs which are the subject of the international claim (cf. No. 214/56, Dec. 9.6.58, Yearbook I p. 412 ; No. 712/60, Yearbook IV p. 384 ; No. 5964/72, Dec. 29.9.75, D.R. 3 p. 57). The Commission observes that in the present case the Holy Monasteries of Chryssoleontissa Eginis, Phlamourion Volou and Mega Spileo challenged the ministerial decision by which the central administrative board of the ODEP was constituted and that the Council of State has incidentally examined the compatibility of the provisions of Law 1700/1987 with the Greek Constitution and the Convention. The Council of State found that these provisions do not infringe either the Constitution or the Convention. The Commission finds that the remedy pursued by the above-mentioned monasteries can be regarded as effective according to the general principles of international law. It observes in this respect that a decision of that court concluding that legislative provisions are contrary to the Constitution leads to the non-implementation of these provisions, although under Greek law a court has no power to annul legislative provisions. Moreover, the Commission considers that the decisions given by the Council of State on the recourse of the above mentioned monasteries absolve the remaining applicant monasteries, which are in an identical situation, from the obligation to pursue that remedy (cf. mutatis mutandis No. 7819/77, Dec. 12.7.78, D.R. 14 p. 186). The Commission examined the Government's argument according to which the domestic remedies are not exhausted in the present case since the civil courts and in particular the Court of Cassation have not given a decision on the issue of compatibility of Law 1700/1987 with the Greek Constitution and the Convention. The Government note on this point that civil courts may take a different position from the Council of State as to the constitutionality issues. The Commission recalls that the basis of the rule of exhaustion of domestic remedies is that before proceedings are brought in an international judicial organ the State made answerable must have an opportunity of redressing the alleged damage by domestic means. In interpreting this rule, the Commission always has regard to what remedies an applicant can be expected to use in order to obtain redress of an alleged violation. The Commission considers that the applicants' recourse to the Council of State is sufficient in this respect. In the present case, the availability and effectiveness of an action before the civil courts may be in doubt. In this respect the Commission has regard to the decision of the Council of State and to the provision of Article 1 para. 1 of Law 1700/1987 according to which the applicant monasteries have no competence to act before courts in relation to matters concerning their property. It moreover considers that a decision by a supreme court expressly stating that legislative provisions are in accordance with the Constitution has the effect of significantly reducing the prospects of success of any further remedy. The Commission recalls that an applicant who has exhausted a remedy which is apparently effective and sufficient cannot be required to have recourse to other remedies which exist but whose availability and effectiveness may be in doubt (No. 9248/81, Dec. 10.10.83, D.R. 34 p. 78). Therefore, the Commission finds that the applicants have exhausted the domestic remedies according to the general principles of international law and that the Government's objection must be rejected. C. As to the merits of the complaints made by the Holy Monasteries The Government first submitted that the provisions of Articles 2 and 3 Law 1700/1987 have not been implemented. Therefore no expropriation has taken place and no interference with the applicant's rights to freedom of religion or to freedom of association can be found in the present case. Moreover, the administration of monastic property by the ODEP does not affect the monasteries' right to peaceful enjoyment of their possessions. Finally, the Government submit that specific legislative regulation of matters concerning the property of monasteries depending on the Greek Orthodox Church is necessary because of the specific relation between the Greek Orthodox Church and the Greek State. The Government conclude that the application is manifestly ill-founded. The applicant monasteries submit that the provisions of Law 1700/1987 are in force and have actually been implemented. The taking of monastic property results directly from the law provisions and no specific acts of property transfer are necessary. Moreover, the courts apply the new law in all proceedings concerning monastic property. The applicants insist that Articles 6, 9, 11, 13 and 14 (Art. 6, 9, 11, 13, 14) of the Convention and Article 1 of Protocol No. 1 (P1-1) are violated by the provisions of Law 1700/1987. The Commission considers that the applications, as far as introduced by the Holy Monasteries, raise complex issues of fact and law which call for an examination of the merits. They cannot therefore be regarded as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention and must be declared admissible, no other ground for declaring them inadmissible having been established. For these reasons, the Commission DECLARES THE APPLICATIONS ADMISSIBLE without prejudging the merits, as far as introduced by the applicant Holy Monasteries (cf. p. 3, applicants 1 to 5 in Application No. 13092/87 and 1 to 3 in Application No. 13984/88); DECLARES THE APPLICATIONS INADMISSIBLE as far as introduced by the individual applicants (cf. pp. 3 and 4, applicants 6 to 11 in Application No. 13092/87 and 4 to 7 in Application No. 13984/88) Secretary to the Commission President of the Commission H.C. KRÜGER C.A. NØRGAARD