AS TO THE ADMISSIBILITY OF Application No. 26695/95 by Hristos SIDIROPULOS and 6 others against Greece The European Commission of Human Rights sitting in private on 24 June 1996, the following members being present: MM. S. TRECHSEL, President H. DANELIUS C.L. ROZAKIS E. BUSUTTIL G. JÖRUNDSSON A.S. GÖZÜBÜYÜK A. WEITZEL J.-C. SOYER H.G. SCHERMERS Mrs. G.H. THUNE Mr. F. MARTINEZ Mrs. J. LIDDY MM. L. LOUCAIDES J.-C. GEUS M.P. PELLONPÄÄ B. MARXER G.B. REFFI M.A. NOWICKI I. CABRAL BARRETO B. CONFORTI N. BRATZA I. BÉKÉS J. MUCHA D. SVÁBY G. RESS A. PERENIC C. BÎRSAN P. LORENZEN K. HERNDL E. BIELIUNAS Mr. M. de SALVIA, Deputy 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 14 November 1994 by Hristos SIDIROPULOS and 6 others against Greece and registered on 14 March 1995 under file No. 26695/95; Having regard to : - the reports provided for in Rule 47 of the Rules of Procedure of the Commission; - the Commission's decision of 26 June 1995 to communicate the application; - the observations submitted by the respondent Government on 29 November 1995 and the observations in reply submitted by the applicants on 6 March 1996; Having deliberated; Decides as follows: THE FACTS The application has been lodged by seven Greek citizens residing in Florina, a prefecture in the north of Greece bordering "the Former Yugoslav Republic of Macedonia": Hristos Sidiropulos, an electrician born in 1949 in Kastoria, Greece, Petros Dimtsis, a professor born in 1957 in Florina, Stavros Anastasiadis, a farmer born in 1944 in Florina, Konstantinos Gotsis, a manufacturer born in 1944 in Florina, Anastasios Bules, a farmer born in 1941 in Florina, Stavros Sovitslis, a farmer born in 1950 in Florina, and Dimitrios Seltsas, a dentist born in 1956 in Florina. The applicants claim that they are of "Macedonian" ethnic origin. They also claim to have a "Macedonian national conscience". In the proceedings before the Commission they are represented by Mrs. I. Kurtovik, a lawyer practising in Athens. A. The particular circumstances of the case The facts of the case, as they have been submitted by the parties, can be summarised as follows: On 18 April 1990 the applicants, together with 49 other persons, decided to establish a non-profit making association (somatio) entitled "Home of Macedonian Civilisation" ("Stegi Makedoniku Politismu"). The seat of the association would be Florina and its aims, according to Article 2 of its charter, were "(a) the cultural, intellectual and artistic development of its members and of the people of Florina in general as well as the development of a spirit of co-operation, solidarity and love between them (b) the cultural decentralisation and the protection of the intellectual and artistic manifestations and traditions, the monuments of civilisation and in general the preservation and development of folk culture and (c) the protection of the natural and cultural environment of the region". On 12 June 1990 the applicants, who constituted the provisional management committee of the association, applied to the Multi-Member First Instance Civil Court (Polimeles Protodikio) of Florina for registration under Article 79 of the Civil Code. On 9 August 1990 the first instance court, having heard the applicants, refused their application on the ground that "the real aim of the association was not the one mentioned in Article 2 of its charter; it was to cultivate the idea that a Macedonian minority existed in Greece and this was against the national interest of Greece and, consequently, against the law". On 7 September 1990 the applicants appealed. On 8 May 1991 the Court of Appeal (Efetio) of Thessaloniki, having heard the applicants, rejected their appeal. The court considered that, when examining an application for the registration of an association, it was not bound by ordinary rules concerning the burden of proof. When hearing such applications, the court should not and could not limit itself to the evidence proposed by the parties. In the particular case the court accepted the following as true, on the basis that it was a matter of public knowledge. The area which corresponds to the Greek province of Macedonia has always been Greek. The fact that part of its population speaks a second language, which is in essence Bulgarian mingled with Slavonic, Greek, Vlach and Albanian, is not proof of Slav or Bulgarian descent. The Socialist Republic of Macedonia aimed at the creation of a Slav Macedonian state so as to gain access to the Aegean Sea. To this effect it attempted to win over the Greek inhabitants of Greek Macedonia who speak the above-mentioned second language. Acting in compliance with a directive issued by Slav organisations abroad the applicants established the "Home of Macedonian Civilisation" to further this goal. The court further relied on reports, which had appeared in two newspapers, according to which two of the applicants took part in a meeting of the Conference for the Security and Cooperation in Europe in Copenhagen where they disputed the fact that Greek Macedonia was Greek, making a distinction between Greeks and Macedonians. The court considered that the latter fact together with the name of the association and the contents of its charter rendered its aims dubious. There existed the danger that the association would be used to trap young persons in the non-existent Slav-Macedonian minority, since Article 3 para. 2 of the charter provided that the youth of Florina would become members of the youth section of the association. Moreover, the court considered it suspicious that, although Article 4 of the charter provided that all members should accept the principles of the association, no mention of these principles was ever made in the charter. The title of the association itself could create confusion, because it initially created the impression that it referred to the Greek civilisation of Macedonia, while in reality it referred to a Slav civilisation, which, however, did not exist in the area. In the light of all the above, the court concluded that the applicants used the word "Macedonian" to contest the Greek identity of Macedonia and its inhabitants. The court was satisfied that the objective of the applicants was to undermine the territorial integrity of Greece and upheld the decision of the lower court, notwithstanding the fact that the latter was based on "a shorter and partially different reasoning". On 20 June 1991 the applicants appealed to the Court of Cassation (Arios Pagos) relying, inter alia, on Articles 2, 4, 5 and 12 of the Greek Constitution and the corresponding provisions of the Convention. They submitted that, contrary to the law, the court of appeal (a) did not limit itself to reviewing the lawfulness of the establishment of the association but exercised a much wider review as to the expediency of its establishment based on the presumed intentions of its founders, (b) took into consideration matters that had not been submitted by the parties, (c) took into consideration things of material importance without ordering the taking of evidence, (d) distorted the content of the association's charter, and (e) did not provide sufficient reasons for its decision. In a memorial submitted to the Court of Cassation on the occasion of the hearing the applicants specified that it was the decision of the court of appeal which violated their rights under Articles 2, 4, 5 and 12 of the Greek Constitution and the corresponding provisions of the Convention. They further submitted that, by taking into consideration things of material importance without ordering the taking of evidence, the court of appeal violated the applicants' right to a fair trial. In a judgment delivered on 16 May 1994 the Court of Cassation considered that the first, second, third and fourth grounds of appeal were unsubstantiated. In any event, it considered that the lower court could take into consideration matters which had not been submitted by the parties and that the "matters of material importance" referred to were either matters of public knowledge or proved on the basis of documents, namely the press reports mentioned in the decision. The Court of Cassation further considered that the decision of the court of appeal was adequately reasoned. It also noted that the applicants had not alleged that the decision of the court of appeal violated Articles 2, 4, 5 and 12 of the Constitution. In the applicants' submission, it was the decision of the first instance court which had failed to respect the above-mentioned provisions. However, even if the aim of the applicants had been to attack the constitutionality of the decision of the court of appeal, this ground of appeal would have had to be rejected as unsubstantiated. On the basis of all the above, the Court of Cassation dismissed the applicants' appeal in cassation. B. Relevant domestic law Article 4 para. 1 of the Constitution provides the following: "All Greeks are equal before the law." Article 12 of the Constitution provides the following: "Greeks have the right to form non-profit associations and unions, in compliance with the law, which, however, may never subject the exercise of this right to prior permission." The Civil Code provides in respect of non-profit making associations the following: Article 78 "An association of at least twenty persons with a non- profit making aim acquires legal personality upon registration in a special book kept by the competent first instance civil court." Article 79 "The founders of the association or its administration apply to the competent first instance civil court to have the association registered in the special book. The application must be accompanied by the act establishing the association, a list of the names of its administration and its charter which must be dated and signed by its members." Article 80 "The charter of the association must specify the following: (a) the aim, name and seat of the association, (b) the conditions of admission, withdrawal and expulsion of the members and their rights and obligations ... Otherwise it is not valid." Article 81 "The first instance civil court accepts the application if it is satisfied that all the conditions set by the law are met ..." Article 105 "The first instance civil court orders the dissolution of the association ... (c) if the association pursues other aims than those specified in its charter, or if the aim or the functioning of the association has become illegal, immoral or against the public order." The Code of Civil Procedure provides the following in respect of the special procedure (ekusia dikeodosia) according to which courts examine, inter alia, applications for the registration of associations: Article 744 "The court may proprio motu order any measures which could lead to the establishment of relevant facts, even if the latter have not been the subject matter of the parties' submissions ..." Article 759 para. 3 "Notwithstanding the legal rules concerning proof, the court may order proprio motu whatever it considers necessary for the establishment of the facts." Moreover, Article 336 para. 1 of the Code of Civil Procedure provides the following in respect of all proceedings before the civil courts: "The court may take into consideration, proprio motu and without taking evidence, facts which are so generally known that there can be no reasonable doubt as to their truth." COMPLAINTS 1. The applicants complain of a violation of Article 6 of the Convention in that their case was not heard by impartial tribunals. They submit that the courts were hostile to them because of their ethnic origin and national conscience. In substantiation of their claim they rely on passages of the decisions where the courts assert that the Slav-Macedonian minority is non-existent and conclude that the applicants acted against the interests of Greece to further the aims of a foreign power. The applicants also complain that they did not have a fair hearing because, contrary to the law, the courts (a) did not limit themselves to reviewing the lawfulness of the establishment of the association but exercised a much wider review as to the expediency of its establishment based on the presumed intentions of its founders, (b) took into consideration matters that had not been submitted by the parties, and (c) took into consideration things of material importance without ordering the taking of evidence. 2. The applicants further complain of a violation of Articles 9, 10 and 11 of the Convention in that they were not allowed to establish a cultural association. As the refusal of the courts to register the association was not related to the aims of the association, the applicants submit that this was a sanction imposed on them because of their publicly expressed beliefs. 3. The applicants finally complain of a violation of Articles 1 and 14 of the Convention in that they were denied the enjoyment of the above-mentioned Convention rights because of their ethnic origin, their association with a national minority and their beliefs and national conscience. PROCEEDINGS BEFORE THE COMMISSION The application was introduced on 14 November 1994 and registered on 14 March 1995. On 26 June 1995 the Commission decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure. The Government's written observations were submitted on 29 November 1995, after an extension of the time-limit fixed for that purpose. The applicants replied on 6 March 1996, also after an extension of the time-limit. THE LAW 1. The Commission notes that the fourth applicant, Mr. Konstantinos Gotsis, died on 29 September 1995. There is no indication that there are any heirs who wish to pursue his application. It follows that, insofar as the application has been introduced by the fourth applicant, it must be struck off the lists of cases pursuant to Article 30 para. 1 (c) (Art. 30-1-c) of the Convention. 2. The remaining applicants complain of a violation of their rights under Article 6 (Art. 6) of the Convention in that the courts were hostile to them, did not apply correctly national law and took into consideration matters that had not been submitted by the parties and things of material importance without ordering the taking of evidence. They also complain of a violation of Articles 9, 10 and 11 (Art. 9, 10, 11) of the Convention in that they were not allowed to establish a cultural association. Finally, they complain of a violation of Articles 1 and 14 (Art. 1, 14) of the Convention in that they were denied the enjoyment of the above-mentioned Convention rights because of their ethnic origin, their association with a national minority and their beliefs and national conscience. The provisions invoked by the applicants, insofar as relevant, provide as follows: Article 1 (Art. 1) of the Convention "The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention." Article 6 para. 1 (Art. 6-1) of the Convention "In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an ... impartial tribunal ...". Article 9 (Art. 9) of the Convention "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." Article 10 (Art. 10) of the Convention "1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary." Article 11 (Art. 11) of the Convention "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. ..." Article 14 (Art. 14) of the Convention "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." 3. As a preliminary point, the Government submit that the application constitutes an abuse of the right of individual petition. Its real aim is to obtain a ruling by the Convention organs that the name Macedonia belongs to the recently established Slav nation of Skopje. The applicants attempt to remove the dispute between Greece and "the Former Yugoslav Republic of Macedonia" concerning the name of the latter from the competence of the various international fora charged with maintaining international peace and prosperity and to oblige the European Convention organs to resolve it. At a time when Greece is engaged in negotiations concerning the name of "the Former Yugoslav Republic of Macedonia", it cannot permit the use of the name Macedonia by organisations of the Slavs of Skopje on its territory. The applicants submit that the application has nothing to do with the dispute between Greece and "the Former Yugoslav Republic of Macedonia". The Commission notes that the application originates in the applicants' attempt to establish in Greece an association entitled "Home of Macedonian Civilisation" and that the applicants are Greek citizens who claim to be of "Macedonian" ethnic origin and have a "Macedonian national conscience". The Government's argument concerning the abusive character of the application is based, in essence, on the thesis that no "Macedonian" minority exists in Greece, which the applicants appear to contest. The Commission considers that the difference of opinion between the parties on these matters raises issues which are relevant for the examination of the justification of the alleged interference with the applicants' rights under Articles 9, 10 and 11 (Art. 9, 10, 11) of the Convention. It also considers that it would be failing in its duty under Article 19 (Art. 19) of the Convention to ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention if it were to refuse to examine the application on the basis of the possible impact, if any, that it might have on the dialogue between Greece and "the Former Yugoslav Republic of Macedonia". The Commission considers, therefore, that the application does not constitute an abuse of the right of petition within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. 4. The Government also contend that the applicants have failed to observe the six-month rule of Article 26 (Art. 26) of the Convention. They submit that more than six months elapsed between the delivery of the judgment of the Court of Cassation on 16 May 1994 and the introduction of the application on 14 November 1994. The applicants agree that the six months' time-limit should be calculated from the date of the delivery of the judgment of the Court of Cassation and submit that their application has been submitted within the period provided for in Article 26 (Art. 26) of the Convention. The Commission takes note of the Government's submission, which must be, however, the result of a calculation error. The Commission considers that, as the Government in reality accept, the application has been introduced within six months from the final domestic decision in the applicants' case. 5. The Government further submit that the applicants have not exhausted domestic remedies. According to the decision of the Court of Cassation, the applicants did not complain that the decision of the Court of Appeal violated their rights under the Convention. The applicants complained, without however substantiating their allegations, that their Convention rights had been violated by the decision of the first instance court. However, this decision could not be challenged before the Court of Cassation. It follows that the applicants did not raise their complaints in accordance with the rules of national law and, as a result, did not give the Court of Cassation the opportunity to redress the alleged violations. The applicants submit that they raised before the Court of Cassation all their complaints referring to the relevant articles of the Greek Constitution and the corresponding provisions of the Convention. The Commission recalls that, in accordance with its constant case-law, a person is deemed to have exhausted domestic remedies if he has raised before the national authorities, at least in substance, the complaint he puts to the Commission (No. 10563/83, Dec. 5.7.85, D.R. 44 p. 113). The Commission has examined the five grounds on the basis of which the applicants challenged the decision of the Court of Appeal before the Court of Cassation on 20 June 1991. It considers that by relying on these five grounds the applicants raised in substance all the complaints they have now put before the Commission. It also notes that the Court of Cassation, before rejecting the appeal, examined all the grounds raised by the applicants at length. It follows that the application cannot be rejected under Article 27 para. 3 (Art. 27-3) for failure to exhaust domestic remedies. 6. As regards the substance of the applicants' complaints, the Government submit that the national courts had the power under Greek law to examine whether the aims of the association were unlawful or against public order. The Court of Cassation interpreted the relevant provisions of the Code of Civil Procedure correctly when it rejected the applicants' appeal in cassation. The domestic courts had the power to take into consideration certain incontrovertible facts and in particular the threat which certain recent acts of "the Former Yugoslav Republic of Macedonia" posed for the national integrity and the cultural heritage of Greece. They also had the power to take into consideration certain publications in the Greek and Yugoslav press concerning the applicants. The Government argue that it is clear from the applicants' submissions before the Commission that their real aim was to establish an association on behalf of the minority of the Slavs of Skopje in order to protect the cultural traditions of Skopje, which are in reality of Bulgarian and Yugoslav origin. The Government affirm that such a minority and such cultural traditions do not exist in Greece. It transpires, however, from the applicants' submissions before the Commission that the real aims of the association were different from those mentioned in its charter. In any event, the domestic courts have exclusive competence to establish that the real aim of the association is different from the aim mentioned in its charter, provided that the courts do not act in a discriminatory manner. The Government argue, in the alternative, that the domestic courts were correct in concluding that the intention of the applicants was to assist various Slav associations operating outside Greece in their attempt to undermine the territorial integrity of Greece. The domestic courts have found that the case concerned the national security of Greece. It follows that they have exclusive competence in the matter. On the basis of all the above, the Government submit that there could be no violation of Article 6 (Art. 6) of the Convention, because the courts were impartial and heard the applicants. It was lawful under domestic law not to order the taking of evidence. The judges did not review the expediency of the establishment of the association, but did their duty to protect the existence of their country. As regards the applicants' complaints under Articles 9 and 10 (Art. 9, 10) of the Convention, the Government submit that the decisions in question do not prohibit the applicants from assuming that they are not of Greek ethnic origin. The interference with their Convention rights was necessary in a democratic society to protect national security, public order and the rights and freedoms of the Greek people in its entirety. The Greek people has the right to protect Macedonia which belongs to it historically and culturally and lies within its territory and which the Slavs of Skopje want to appropriate for themselves. As regards the applicants' complaints under Article 11 (Art. 11) of the Convention, the Government contend that the interference with the applicants' right to freedom of association was justified under para. 2 of that provision for the reasons stated above. Finally, insofar as the applicants' complaints under Articles 1 and 14 (Art. 1, 14) of the Convention are concerned, the Government submit that the refusal of the courts to register the association was not an act of discrimination against the applicants because of their ethnic origin and beliefs. The association was found to pursue different aims from those stated and its real aims were against public order. The applicants submit that the Government's arguments amount to acknowledging that their rights under the Convention have been violated. They contend that, under Greek law and in particular Article 12 (Art. 12) of the Constitution, the domestic courts should have limited their review to ascertaining that the conditions set forth in Articles 78-80 of the Civil Code were fulfilled and that the stated aims of the association were not illegal, or against morality or public order. They could not engage in speculation as to real aims of the association. Nor could they decide on the expediency of its establishment on the basis of the presumed intentions of its founders. According to the case-law, a judge, when applying the special procedure for examining applications for the registration of associations, may order proprio motu whatever measures he considers necessary for the establishment of the truth. He cannot, however, rely on documents or evidence which have not been officially submitted to the court or on his private knowledge. Moreover, he cannot consider that certain material facts have been established without ordering, even proprio motu, the taking of evidence. It cannot be considered that the propositions on which the national courts based their decisions in the case were "common knowledge". Part of the information invoked was derived from certain racist newspapers. The reasoning in the courts' decisions is limited to a historical analysis and certain unfounded disparaging remarks for the applicants. No attempt was made by the courts to link the above in a reasoned manner with the charter of the association and the rejection of the request for its registration. The Court of Cassation, in upholding these decisions, violated national law and the rights of the accused under Article 6 para. 1 (Art. 6-1) of the Convention. The applicants also affirm that their association had no links with "the Former Yugoslav Republic of Macedonia" and stress that it was set up long before the declaration of independence of that country. In any event, a court cannot base its decision on a particular interpretation of certain historical events which it considers to be established facts without ordering the taking of evidence. The applicants further contend that the aims of their association were lawful. They involved the study of the local culture of the area of Florina, in which, as it is well-known, a distinct linguistic, cultural and historic group of people, to which the applicants belong, lives. The study of the local culture is protected by the Constitution, the Convention, other international human rights instruments and the agreements of the Organisation for the Security and Cooperation in Europe in which Greece participates. In accordance with these agreements, every person has the right to consider that he belongs to a particular group. As regards the necessity of the interference with their Convention rights, the applicants submit that, if the aims of the association turned out to be unlawful or against morality or public order, the State could protect itself using the means provided by national law. The courts could order the dissolution of the association under Article 105 of the Civil Code. Finally, the applicants argue that it is clear that the courts discriminated against them, since they refused the registration of the association in blatant disregard of domestic law. The Commission considers that the applicants' various complaints, including those concerning procedural fairness, are so closely linked to each other that they cannot be separated at this stage and must be examined as a whole. In the light of the parties' observations, the Commission considers that the application raises serious questions of fact and law, including the question of the applicability of Article 6 (Art. 6) of the Convention to the proceedings in question, which are of such complexity that their determination should depend on an examination of the merits. The application cannot, therefore, be regarded as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention, and no other ground for declaring it inadmissible has been established. For these reasons the Commission, unanimously, STRIKES THE APPLICATION OUT OF ITS LIST OF CASES, in so far as it has been introduced by the fourth applicant, DECLARES THE REMAINDER OF THE APPLICATION ADMISSIBLE, without prejudging the merits of the case. Deputy Secretary President of the Commission to the Commission (M. de SALVIA) (S. TRECHSEL)