ITEMID: 001-57906
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 1994
DOCNAME: CASE OF THE HOLY MONASTERIES v. GREECE
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (ratione personae);Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of P1-1;Violation of Art. 6-1;No violation of Art. 9;No violation of Art. 11;No violation of Art. 13;No violation of Art. 14+6;No violation of Art. 14+9;No violation of Art. 14+11;No violation of Art. 14+P1-1;Pecuniary damage - reserved;Costs and expenses award - Convention proceedings
JUDGES: N. Valticos
TEXT: 6. The applicant monasteries, which were founded between the ninth and thirteenth centuries, accumulated a considerable amount of property, in particular through donations made before the creation of the Greek State in 1829, but a large part of this property was expropriated during the early years of the State’s existence. The monasteries themselves also gave away whole tracts of land to the State or to individuals who had none. During the Byzantine and Ottoman empires the monasteries and religious institutions in general were almost the only institutions discharging important social, cultural and educational functions; even in the nineteenth century after the creation of the modern Greek State, they still discharged some of these functions.
The State never challenged their ownership, and the monasteries always relied on adverse possession as a subsidiary means of establishing it, particularly in cases where Byzantine or Ottoman title deeds were lacking or had been destroyed. On several occasions the State published decrees in the Official Gazette in which their ownership was acknowledged (decrees of 25 January, 28 and 31 March, 14 June, 4 and 18 August 1933, etc.).
7. Apart from property thus amassed over the centuries, the monasteries acquired numerous plots of land and buildings more recently, either as gifts or legacies or through purchase.
8. Under Law no. 4684/1930, their land and buildings were classified as either "property to be realised" (ekpiitea perioussia) or "property to be retained" (diatiritea perioussia).
The second category included property considered necessary for the needs of a given monastery, having regard, inter alia, to the number of its members and to its historic value as a place of pilgrimage, and they were listed in a decree adopted on a proposal by the Minister for Education and Religious Affairs. Responsibility for managing the property to be retained was vested in the Holy Monasteries and its exercise was governed by a decree of 5 March 1932. This provided, among other things, that the revenue arising from this management was to be applied to making good the monasteries’ deficit, repairing and maintaining buildings and furthering educational and charitable purposes.
Responsibility for managing the property to be realised was vested in the Office for the Management of Church Property (Organismos diikisis ekklisiastikis perioussias).
9. The 1952 Constitution authorised the government to expropriate land for the benefit of destitute farmers and stockbreeders for a period of three years from its entry into force. In pursuance of this transitional provision (Article 104), the Greek Orthodox Church and the State concluded an agreement which was ratified by the State in a decree (no. 2185) of 8 October 1952. Article 36 para. 5 of that decree stated in substance that the State would from then on waive its rights under Article 104 of the Constitution relating to expropriation or compulsory leasing of property of the Greek Church.
By the agreement, which covered "the purchase by the State of Greek Orthodox Church land for the purposes of restoring it to destitute farmers and stockbreeders", the Church and the monasteries would transfer to the State four-fifths of their agricultural land and two-thirds of their pastures and would receive in return a third of the real value of that property. Annexed were lists giving the type, location and area of the land thus sold to the State and of that kept by the monasteries. Under Article 8(a) agricultural land and pastures that were part of the "property to be retained" of the monasteries of Agia Lavra and Mega Spileo Kalavriton were not covered by the agreement.
10. The Office for the Management of Church Property ("the ODEP"), a public-law entity under the supervision of the Ministry of Education and Religious Affairs, was set up by Law no. 4684/1930 and replaced the General Ecclesiastical Fund that had existed since 1909.
In section 7 of the Law it was made responsible for the management of all the movable and immovable property belonging to the Holy Monasteries, but responsibility for the property to be retained was taken away from it after a time.
The ODEP’s function, as laid down in section 2, was (1) to realise the monasteries’ property, (2) to manage ecclesiastical property other than that belonging to the churches and (3) to make use of the revenues.
11. The ODEP was run by a board of governors, whose members originally included the Archbishop of Athens, two senior Church dignitaries, a senior member of the Supreme Administrative Court, a legal adviser, the head of the Treasury, a representative of the Bank of Greece and a representative of a commercial bank. Decree no. 2631/1953 reduced the number of members to seven, three of whom were laymen appointed by the Ministry of Education and Religious Affairs. Under regulations issued in 1981, which are still in force, the number of lay members was increased to four.
By Regulation 12, the ODEP’s revenue had to be applied to Church purposes, in particular the financing of missionary and educational events and the remuneration of certain members of the clergy.
12. The ties binding the Hellenic nation - and later the Greek State - to the Orthodox Church go back several centuries. The interdependence of State and Church was already apparent in the administrative reorganisation of the Church which followed the restructuring of the Byzantine State.
The Church’s historical role grew more important after the collapse of the Byzantine Empire. The Ecumenical Patriarch of Constantinople was recognised as millet basi - the spiritual leader, at the same time answerable to the Sublime Porte, of the Orthodox community, which became integrated into the administrative machinery of the Ottoman Empire through the Church.
13. The Greek Orthodox Church was proclaimed to be "autocephalous" in a royal decree of 23 July 1833 and was at the same time given its first Charter, which was very noticeably imbued with the spirit of State control; the Church was independent of the State only in matters of doctrine.
Article 3 of the Constitution of 11 June 1975, in its references to the Patriarchal Tome of 1850 and the Synodical Act of 1928, on the one hand, and to the Holy Synod of the Hierarchy ("Synod of serving metropolitans") as the supreme Church authority, on the other, evidences the intention of breaking with the old tradition of State control. The proclaimed independence of the Church is not, however, unlimited, as is shown by the fact that the Greek Orthodox Church is the church of the "dominant religion" and embodies the religion of the State itself.
14. The Law of 27/31 May 1977 (Law no. 590/1977) on the "Charter of the Greek Church" also provides for interdependence of Church and State.
Section 1(4) attributes to the Church and a number of its institutions, including the monasteries, legal personality in public law "as regards their legal relations".
Under section 2, the Church is to co-operate with the State in fields of common interest, such as the Christian upbringing of young people, enhancing the status of the institution of marriage and of the family, caring for those in need of protection and safeguarding sacred relics and ecclesiastical monuments. The Church’s role in public life is reflected more markedly by the presence of the Minister for Education and Religious Affairs at the sessions held to elect the Archbishop of Athens and by the participation of the Church authorities in all official State events.
The provisions on the Church’s finances and staffing testify even more eloquently to this interdependence. As to financing, the Law provides that the State is to contribute to the Church’s expenses (section 46(1)), that the Church’s resources are to be managed in a manner determined by decision of the Standing Holy Synod, approved by the Holy Synod of the Hierarchy (section 46(2)), and that managerial acts are subject to the State’s financial supervision (section 46(4)). As to staffing, the provisions governing public servants are to apply by analogy to the staff of Church public-law entities.
15. Section 39(1) of the Law describes the Holy Monasteries as ascetic religious institutions whose members live according to monastic principles, the sacred rules of asceticism and the traditions of the Christian Orthodox Church. The Holy Monasteries come under the spiritual supervision of the local archbishop (section 39(2)). The organisation and furtherance of spiritual life within the monasteries and the running of them are the responsibility of the monastic councils and conform to the holy rules and monastic traditions (section 39(4)).
The Holy Monasteries are public-law entities (section 1(4)). They may be founded, merged or dissolved by means of a presidential decree, adopted on a proposal by the Minister for Education and Religious Affairs after consultation of the local archbishop and with the approval of the Standing Holy Synod (section 39(3)).
The decisions of the monastery councils are preparatory in nature, taking effect only after they have been ratified by the higher Church authority. Judicial review lies only against the decisions of the latter authority.
The Holy Synod of the Hierarchy, the supreme Church authority, has power to regulate the internal organisation and administration of the Church and the monasteries; it scrutinises the decisions of the Standing Holy Synod, of the archbishops and of the other Church legal entities including the monasteries (section 4(e) and (g)), over which the State exercises no authority. The ecclesiastical legal persons which make up the Greek Church, in the broad sense, constitute an entity distinct from the public service and enjoy complete autonomy.
16. The monastery of Ano Xenia was founded on Mount Othris in Thessaly in the ninth century. Its possessions include 278.70 hectares of forest surrounding the monastery buildings, olive groves, vineyards and other agricultural land with appurtenant buildings and a house and flats in Volos. The monastery estimates the value of its real property at more than 180 million drachmas (GRD).
17. Founded in the province of Boeotia in 947, the monastery of Ossios Loukas was a major cultural centre during the Byzantine period. The monastery complex and its mosaics are regarded as important works of Byzantine art. The monastery’s immovable property includes a hotel in Athens, a farm and several tracts of farming land around the monastery. A ministerial decree of 25 January 1933 contains a detailed list of these assets. The monastery estimates the value of the commercially exploitable real property at more than GRD 130 million, excluding all the monastery’s own buildings and treasures and the adjoining agricultural land.
18. The monastery of Agia Lavra Kalavriton, founded in the province of Achaea in 961, was likewise a major cultural centre in the Peloponnese. It was destroyed during the revolution of 1826 and rebuilt in 1830. In addition to the monastery complex, its properties include a number of churches and appurtenant buildings and adjoining land, several tracts of farming land, a forest, an oil-processing plant and numerous flats, offices and shops in Athens and Patras. Their value is said to exceed GRD 485 million, excluding the monastery complex and the churches.
19. The monastery of Metamorphosis Sotiros was built in Meteora in 1344 and enjoyed enormous prestige both on account of its location and as a centre for the arts. Its real property includes large areas of woodland, a farm, a flat and shops in Trikkala and Kalambaka. A ministerial decree of 16 October 1933 contains a list of the monastery’s agricultural land. The monastery assesses the value of its property at more than GRD 465 million.
20. The monastery of Asomaton Petraki was founded in 1000. Its development was most marked in the seventeenth and eighteenth centuries. It owns a very substantial amount of property, consisting of several buildings in Athens, large areas of agricultural land and forest, tourism facilities and urban land, which it values at GRD 43,230 million; it also owns marble quarries on Mount Parnassus. A ministerial decree of 14 February 1933 lists the monastery’s properties.
21. The monastery of Chryssoleontissa was founded on the island of Aegina in the thirteenth century and states that much of its landed property - in particular, uninhabited islands - was expropriated at the beginning of the twentieth century. Apart from the monastery complex itself, its immovable property includes agricultural land, olive groves, houses and flats on Aegina, and various shops, offices and flats in Athens. It estimates its wealth at more than GRD 880 million.
22. The monastery of Phlamourion Volou stands on the western slopes of Mount Pelion in the province of Magnesia. Its property includes two forests of an area of 8,241 hectares and 1,049 hectares, agricultural land and blocks of flats in Volos.
23. The monastery of Mega Spileo Kalavriton in Achaea was destroyed in 840 and rebuilt in 1280. Apart from the monastery complex and the surrounding woodland, its property includes several tracts of farming land, forests and offices in Athens; their value is said to exceed GRD 950 million.
24. Law no. 1700/1987 was published in the Official Gazette of 6 May 1987 and changed the rules on the management and representation of monastery property within the charge of the ODEP, most of whose members were now to be appointed by the State. It also provided that within six months of its publication the State would become the owner of all monastery property unless the monasteries proved title (kyriotita) established either by a duly registered deed (metegrammeno) or by a statutory provision or by a final court decision against the State.
In this connection, it should be noted that only real-property transactions concluded since 1856 have had to be registered (section 9 of the Law of 30 October 1856 on the registration of immovable property and of rights in rem relating thereto); similarly, the Civil Code has required legacies and inheritances to be registered only since 1946. Except in the Dodecanese, Greece does not have any official land survey.
The factors which prompted the State to enact new rules on Church property are set out in the explanatory memorandum to the bill. The following passages should be noted:
"This bill deals with the question of the immovable property in the Church’s possession today, a question that since the beginning of the modern Greek State has caused friction not only between State and Church but also between the latter and ... the people; under the present system, many national treasures remain unexploited ...
The Church’s current possessions are largely the remnants of a period in which the Church’s existence was dependent solely on its own property and even on its own labour. Since then, its operating conditions have radically changed. The State covers nearly all its needs. Concurrently with the provisions of this bill, provision is being made for the first time for subsidies from the State budget to the Holy Monasteries and the Church in general, so that they may expand their spiritual mission, which is so necessary for the nation and for the Orthodox faith in Greece and abroad ...
A large part of this immovable property has been wasted in unlawful and disadvantageous transactions or usurped by skilful exploiters, while the rest has largely been abandoned or is being utilised detrimentally by third parties. This national heritage is continually shrinking and tending to disappear as a productive source of wealth for the country’s agriculture, stockbreeding and forestry.
Furthermore, most of the lands now in the Church’s possession belong to the State. They are occupied without legal title and with the State’s toleration. This national property is constantly being diminished by illegal sales and encroachments which lead to usurpations of land and uncontrolled development; this is a situation which undermines the Church’s authority.
It should be remembered that since 1952 the State has legislated to make the transfer of four-fifths of the monasteries’ property to the State compulsory, for the benefit of those who do not have any land (Decree no. 2185/1952). This statutory obligation has not hitherto been enforced."
25. The following provisions are relevant:
"Section 1
1. As soon as this Law enters into force, the Office for the Management of Church Property (the ODEP) shall automatically be vested with the exclusive management and representation of all the immovable property of the Holy Monasteries, in respect of which it shall henceforth have full power to take or defend legal proceedings, whether the property belongs, under the legislation in force, to the category of ‘property to be retained’ or to that of ‘property to be realised’.
...
3. ... [T]he conditions and procedures governing the sale, leasing, grants of rights of user, and utilisation by the ODEP ... of movable and immovable monastery property, together with any other matter connected with the management of that property, shall be laid down in a presidential decree adopted on a proposal by the Minister for Education and Religious Affairs, the Minister for the Economy and the Minister of Agriculture. The same decree may authorise other administrative bodies to determine the details of its implementation in a regulatory decision. In the specific case of the sale of urban immovable property belonging to the monasteries or of the granting of any right in rem relating to it, the consent of the monastery concerned shall be required, failing which the contract shall be null and void.
Section 2
1. A right of user over any immovable property of the monasteries which, on the entry into force of this Law, is in the ownership (kyriotita) or the possession (katokhi) [of the ODEP] or of the Holy Monasteries or of third parties may be granted by the ODEP ..., for the purposes of utilisation and development ..., preferably either to farmers already members of agricultural co-operatives or becoming members in virtue of the grant, or to agricultural co-operatives and public bodies. In exchange for such a grant, the ODEP shall pay the monastery concerned 5% of the gross revenue from the grant for the monasteries’ needs.
For the purposes of the present provision, the following shall be regarded as immovable property: agricultural land and land capable of agricultural use, forests and wooded areas in general, pastures, meadows ... and quarries, mines and fish farms.
2. Within six months of the entry into force of this Law, the ODEP ... may, by contract to be signed by the Greek State as the representative of the Holy Monasteries and by the Minister for Education and Religious Affairs, the Minister for the Economy and the Minister of Agriculture as representatives of the Greek State, transfer to the State the ownership of the monasteries’ immovable property, together with such of the Holy Monasteries’ land as was included in the urban development plan after 1952. Such a transfer of ownership to the Greek State shall have no effect on the validity of any grant of a right of user made in accordance with the conditions set out in the preceding subsection, except for the required payment of a percentage of the revenue, which shall be paid to the entity provided for in section 9 of this Law and shall be used for educational purposes. Until this entity is created, the percentage shall be paid to a special account at the Bank of Greece in the name of the Minister for Education and Religious Affairs.
3. Immovable property belonging to the Holy Monasteries which is intended solely for cultivation by the monks themselves shall be exempt from the provisions of this section; it shall be delimited for each monastery according to the number of resident monks and in the light of the requirements of environment protection. Land earmarked for children’s holiday camps or to meet the needs of other Church institutions shall likewise be exempt.
This property shall be designated by a decision of the Minister for Education and Religious Affairs, the Minister of Agriculture and the Minister of Public Works and the Environment, after consultation of the ODEP ... in respect of each holy monastery, each children’s holiday camp and each Church institution.
Section 3
1. If nothing has taken place at the end of the six-month period provided for in subsection (2) of section 2, ownership of the monasteries’ property shall be regulated in accordance with the following provisions:
A. Immovable property in use (nomi) by or the possession (katokhi) of the Holy Monasteries when this Law comes into force shall be deemed to be the property of the Greek State irrespective of the manner in which it is managed or utilised unless a monastery’s ownership (a) derives from a title deed that antedates the day on which the Bill was tabled and has already been registered or will be registered within a strict time-limit of six months from the entry into force of this Law or (b) has been recognised in a statutory provision or in a final court decision against the State. The same shall apply to buildings which belong to the monasteries or are in their possession but are occupied by third parties.
B. The Holy Monasteries’ and third parties’ use and possession of immovable property deemed to belong to the State in accordance with the preceding subsection and ownership of which has not passed to the State under section 2 shall be terminated and be transferred automatically to the Greek State. All forms of management or utilisation of these buildings shall cease, irrespective of the category to which the property belongs under the current legislation. From that date the State shall exercise the rights associated with the ownership, use and possession of the property vis-à-vis third parties, the Holy Monasteries and bodies responsible for managing those monasteries’ property. The Minister of Agriculture shall henceforth manage this property in accordance with the provisions of the legislation already in force and of this Law. This change shall not affect the validity of any grant of a right of user made under subsection (1) of section 2, except for the requirement relating to the percentage of revenue to be paid to the entity provided for in section 9, which will now be assigned to the national education service ...
2. For the purposes of this section, the following shall be deemed to be immovable property: agricultural land and land capable of agricultural use, forests and wooded areas in general, pastures, meadows ... and quarries, mines and fish farms. Building land shall also be deemed to be immovable property even if it is entered in the urban development plan, on condition that the entry was made after 1952.
3. The Holy Monasteries which do not own sufficient immovable property may be granted, without consideration, land already in their possession in virtue of subsection (1) of this section, but solely for the purposes of cultivation by the monks themselves. Such land shall be delimited according to the number of resident monks and in the light of the requirements of environment protection. Such grants shall be made within a strict time-limit of one year from the deadline provided for in subsection (1) of this section, by means of a contract between the State ... on the one hand and the legal person responsible ... for managing the monasteries’ property on the other."
26. Section 4 provides that within two months of the expiry of the six-month period referred to in section 3(1)(A) any legal or natural person in possession of one of the buildings "deemed to belong to the State" must transfer it to the head of the appropriate agriculture or forestry department, failing which the latter will make an administrative eviction order, enforceable within fifteen days of its being served. The evicted person may apply for judicial review of such an order, but this will not have any suspensive effect (subsection (4)); furthermore, it is open to such a person, if he asserts rights in rem over the building, to apply to the civil courts under Articles 1094-1112 of the Civil Code (subsection (7)).
27. The arrangements for implementing sections 3 and 4 are to be specified in a presidential decree, to be adopted on a proposal by the Minister for Education and Religious Affairs, the Minister for the Economy and the Minister of Agriculture. To the Court’s knowledge, this has still not been issued.
28. Section 8 provides that the ODEP’s governing body shall be composed of a chairman and a vice-chairman, appointed by the Cabinet on a proposal by the Minister for Education and Religious Affairs, and six other members and their substitutes, half of whom are to be appointed by the Standing Holy Synod and half by the Minister for Education and Religious Affairs.
Section 9 provides for the creation, on a proposal by the Minister for Education and Religious Affairs and the Minister for the Economy, of a private-law entity to be responsible for implementing educational programmes to be established by the Ministry of Education and Religious Affairs.
Section 10 provides for the inclusion in the State budget of an appropriation to support and maintain the monasteries and strengthen the Church’s cultural work. The Minister for Education and Religious Affairs is to allocate the available funds with a view to implementing a special programme that he will draw up each year on a recommendation by the Standing Holy Synod.
29. Law no. 1700/1987 provides that it is not to apply to property of the Holy Monasteries which come under the Ecumenical Patriarchate of Constantinople or the patriarchates of Alexandria, Antioch and Jerusalem, or under the Holy Sepulchre or the Holy Monastery of Sinai.
30. The chairman and the other members of the ODEP’s governing body were appointed by the Minister for Education and Religious Affairs on 10 and 16 July 1987 (pursuant to section 8 of Law no. 1700/1987).
On 20 July the Greek Church challenged the lawfulness of their appointment in the Supreme Administrative Court (Symvoulio tis Epikratias) by means of an application for judicial review coupled with an application for a stay of execution. On 19 August 1987 the Supreme Administrative Court’s committee for hearing applications for stays of execution held that any attempt by the ODEP’s new governing body to exercise the powers conferred on it by Law no. 1700/1987 would be likely to compromise relations between Church and State; it consequently allowed the application and stayed the decisions until the Supreme Administrative Court had ruled on the merits.
On 11 September 1987 some of the monasteries, including three of the applicant monasteries and their archimandrites, also appealed against the decisions, alleging, among other things, that Law no. 1700/1987 infringed the Greek Constitution (Articles 3 para. 1, 13 para. 1 and 17) and the European Convention.
31. The Supreme Administrative Court gave its ruling on 7 December 1987 (judgment no. 5057/1987), stating:
"...
The provisions of Article 3 para. 1 of the Constitution safeguard the holy canons and traditions of the Orthodox Church. However, this constitutional protection ... cannot be regarded as extending to the canons and traditions relating to purely administrative matters. Such matters, which are affected by the passing of time and the advent of new ideas, necessarily lend themselves to changes designed to promote the common interests of Church and State. The ordinary legislature regulates them according to society’s needs, in accordance with Article 72 para. 1 of the Greek Constitution. It cannot, however, ... by means of the Church’s Charter or other statutory provisions, undertake a radical reform of the basic administrative institutions, which have long been solidly established in the Orthodox Church ... Furthermore, the same provisions also guarantee the Church’s autonomy, which includes the power to determine its own affairs through its own organs composed as provided for by law and to be governed by the Holy Synod of the Hierarchy and the Standing Holy Synod constituted in accordance with the law and the provisions of the Patriarchal Tome of 29 June 1850 and the Synodical Act of 4 September 1929 concerning the composition of these bodies.
In the view of the majority of this Court, the provisions of Law no. 1700/1987, which vests the management and representation of the Holy Monasteries’ property in the ODEP, a public-law entity integrated into the administrative framework of the Church and a majority of whose board of governors’ members are appointed by the State, are not incompatible with the Church’s autonomy - guaranteed by the Constitution - or with freedom of religion or with Articles 9 and 11 of the Rome Convention ... or with the Charter of the United Nations ... or with the Final Act of Helsinki ..., as these matters, unconnected with doctrine or worship, are purely administrative and unrelated to the Church’s basic administrative institutions; consequently, they must be freely regulated by the ordinary legislature ... Furthermore, the provisions of Law no. 1700/1987 do not materially affect those institutions as the management of monastery and Church property had always been vested in the ODEP, whose board of governors - as constituted under Law no. 4684/1930 - was composed, for the greater part, of lay members appointed by the State ... The grounds of nullity are accordingly ill-founded and must be rejected.
However, one of the senior members of the Court has expressed the following opinion, in which he is joined by one of the junior members (paredri). Article 3 of the Constitution, which provides that the Greek Church is to be governed by ‘the Synod of serving metropolitans’ safeguards not only the Church’s autonomy in the sense that it is governed by metropolitans elected by it but also the right to manage and dispose of, at its discretion ..., the movable and immovable property of every kind belonging to it in order to achieve its non-profit-making aims, namely the establishment and promotion of the Orthodox faith of its members. Monastic life in monastic communities, which are vital parts of that Church ... and which, despite their status as public-law entities, derive, like the Church itself, from an area lying outside the jurisdiction of the State, has always constituted a fundamental mode of the worship of God. To deprive all the monasteries of the management and representation of all their existing and future ... property and to assign those powers to the ODEP without their consent ... is consequently an unacceptable restriction of their autonomy and of that of the Church ... These provisions entail, in the first place, a breach of the aforementioned Article of the Constitution, which does not allow the Church’s administrative institutions to be altered to the point of removing its autonomy, and, secondly, seriously hamper the practice of worship through monastic life, since they prevent the ‘unrestricted’ practice of monastic worship, as secured in Article 13 para. 2 of the Constitution. Lastly, it must be pointed out that from 1953 the ODEP was run by a board of governors a majority of whose members were appointed by the Church and which was chaired by the Archbishop of Athens ...; the precedents to the contrary cited by the majority relate to isolated special cases and not to the monasteries’ property as a whole. The minority consequently consider the grounds of nullity to be well-founded.
The applicants also maintained that the provisions of Law no. 1700/1987, which vested the management and representation of the monasteries’ property in the ODEP - an entity separate from the Church and not controlled by it - and authorised the transfer of that property to the State without any compensation, were contrary to Articles 17 and 7 para. 3 (a) of the Constitution as they made mandatory provision for an unacceptable transfer of that property, deprived the Holy Monasteries of their ownership and introduced unconstitutional restrictions on property rights.
Article 7 para. 3 (a) of the Constitution prohibits any general confiscation. Article 17 ... provides that ownership is under the protection of the State but that rights deriving from it cannot be exercised to the detriment of the public interest ... No one may be deprived of his property unless in the public interest, duly made out, in the eventualities and according to the procedure laid down by law and in every case subject to full prior compensation ... This latter provision of the Constitution prohibits any deprivation of property that does not satisfy the foregoing conditions; nothing, however, prevents the legislature from restricting the right of ownership on the basis of objective criteria and in the public interest, on condition that such restrictions do not nullify the right and make it ineffective ...
In the view of the majority of the Court, the provisions of Law no. 1700/1987, ... which provide for the transfer to the Greek State of the ownership of the monasteries’ agricultural land and of other immovable property owned by the Holy Monasteries without any title deed, are not contrary to Article 17 of the Constitution as they do not deprive the Holy Monasteries of their ownership (idioktissia); the Law in fact means that this immovable property does not belong to them. Moreover, the provisions of the Law concerning the sale of the Holy Monasteries’ urban immovable property or the granting of rights in rem relating to it by decision of the ODEP ... do not infringe the Holy Monasteries’ right of ownership inasmuch as their implementation is subject to the agreement of the Holy Monastery which owns the immovable property, failing which the contract is void. Lastly, the provisions relating to the ... utilisation by the ODEP of urban immovable property and mines, quarries and fish farms belonging to the Holy Monasteries or any other Church institution and those relating to the management and representation of ... agricultural property ... and the present or future utilisation of urban immovable property do not entail any deprivation of ownership since the ownership as such remains in the hands of the Holy Monasteries, and in any case the revenue from the ODEP’s management of this property is used for ecclesiastical purposes ...; the provisions lay down constitutional restrictions on ownership which are designed to serve at one and the same time the monasteries’ interest and the public interest. In consequence, this ground of nullity, together with the complaints relating to Article 12 paras. 5 and 6 and Article 20 para. 1 of the Constitution and Article 1 of the Paris Protocol of 20 March 1952 (P1-1)..., are ill-founded and must be rejected ...
Two senior members of the Court, joined by one of the junior members, have expressed the following opinion. Transferring the management and representation of the whole of the monasteries’ property to the ODEP on the aforementioned terms, even ‘as an amendment to the legal provisions in force’ (section 1(3) of Law no. 1700/1987), does not amount to a restriction of ownership, which is allowed by the Constitution, but interferes unacceptably and without full compensation with the very essence of the right of ownership. This is all the more evident as the only possibility left open to the monasteries is either to consent or to object to the sale of their urban property or the granting of a right in rem relating to it by the ODEP, without being able to decide the matter for themselves: such a decision belongs exclusively to the ODEP, which has unfettered discretion to determine, without even consulting the monasteries, the sale of agricultural land and ‘the present and future utilisation’ of their immovable property such as is provided for in section 7 of Law no. 1700/1987. As to the monasteries’ movable property, some of which is extremely valuable (icons in monastery museums, precious relics, shares, etc.), they are managed by the ODEP without any restrictions whatever. Furthermore, it should be noted that Law no. 1700/1987 does not specify how the income from monastic property is to be applied; on the other hand, it appears from sections 2(2), 3(1)(B) and 9 of Law no. 1700/1987 that the State’s revenue from the ‘utilisation or granting of the use of monastic and Church property’ is to be transferred to a private-law entity set up under section 9 which does not have any ecclesiastical objectives. The provisions of Law no. 1700/1987 are thus wholly contrary not only to Article 17 of the Constitution but also ... to the provisions of the Rome Convention (Article 1 of the Protocol) and the treaty establishing the European Economic Community, and they engage the Greek State’s international responsibility. Consequently, the minority consider this ground of nullity to be well-founded.
...
As to the submission that the provisions of Law no. 1700/1987 infringe Article 4 para. 1 of the Constitution because they establish discrimination between the Greek Orthodox Church and the monasteries coming under the Ecumenical Patriarchate, the Ecumenical Patriarchate itself, the patriarchates of Alexandria, Jerusalem, the Holy Sepulchre and the Holy Monastery of Sinai and the monasteries of other denominations or religions, the complaint is ill-founded since the Greek Orthodox Church, as an instrument and expression of the dominant religion according to the terms of Article 3 para. 1 of the Constitution, does not occupy the same position as the other Orthodox churches and other denominations or religions, such that the statutory provisions in issue do not offend the constitutional principle of equal treatment of comparable legal situations.
...
Moreover, it is alleged that the provisions of Law no. 1700/1987 infringe Article 5 para. 1 of the Constitution in that Orthodox citizens who wish to support the monasteries financially are impeded in their self-fulfilment since, contrary to their wishes, the management of donations would vest not in the monasteries but in the ODEP.
Furthermore, it is submitted that these provisions infringe the individual freedom of religion of the members of monastic communities and of those who would like to found a monastery by dedicating their assets to that end. The first limb of the ground is ill-founded since the individual right of free self-fulfilment, secured in Article 5 para. 1 of the Constitution, is not an absolute right; it is subject to the restrictions laid down in the Constitution and in law. In the instant case the restrictions deriving from the aforementioned provisions of Law no. 1700/1987 ... do not infringe Article 5 para. 1 of the Constitution. The ground is also ill-founded in its second limb, since it refers vaguely to possible damage sustained by the applicants in the future.
..."
The Supreme Administrative Court nevertheless quashed the Minister for Education and Religious Affairs’ decision of 16 July 1987 (see paragraph 30 above), on the ground that the composition of the ODEP’s governing body did not satisfy the requirements of section 8 of Law no. 1700/1987.
32. The passing of Law no. 1700/1987 had produced a sharp reaction from the Greek Church. With a view to calming the situation, the Government and the Holy Synod of the Hierarchy held a series of meetings and concluded a preliminary accord under which the monasteries would, by means of a further agreement, transfer part of their property to the State. An essential condition of the preliminary accord was that the Greek Church would have to seek from each monastery council full powers to sign the further agreement.
33. On 11 May 1988 the Standing Holy Synod duly concluded a further agreement with the State, whereby 149 monasteries, including the applicant monasteries of Asomaton Petraki, Ossios Loukas and Phlamourion Volou, transferred their agricultural and forest property to the State; 47 monasteries declared that they were not affected by the agreement since they did not have any substantial property of that kind. Parliament ratified the agreement in section 1 of Law no. 1811/1988, section 2(3) of which provided: "On publication of this Law, the management of the urban property of the Holy Monasteries that are not parties to the agreement shall revert to the Standing Holy Synod of the Greek Church. The provisions of Law no. 1700/1987 shall apply to the remainder of these monasteries’ property."
Section 2(1) provided that monasteries which were not parties to the agreement could join it within a renewable period of one year from the commencement of the Law; the operation of Law no. 1700/1987 was not, however, suspended during that period.
34. Under clause 2 of the agreement, the monasteries parties to it are to cede to the State all their agricultural and forest property except for the land surrounding them within a radius of 200 metres; a monastery’s opinion must be sought before any leisure facilities, restaurants or business are established in its vicinity and operated. Furthermore, the monasteries are authorised to retain a proportion of their original real property - provided that the total area of land retained does not exceed 500,000 sq. m of forest or 200,000 sq. m of agricultural land - and 20% of land "usable for tourism purposes"; the Greek Church is allotted 40% of land included in the town development plan after 1952. Lastly, land in the monasteries’ possession by virtue of a title deed or which has passed to them under a will or a deed of gift is exempt from transfer.
A special committee set up in each prefecture by a decision of the Prefect is to determine which land is to be transferred to the State and which is to be kept by each monastery.
In exchange for the transfer of ownership, the State undertakes to pay a stipend to eighty-five preachers and to spend 1% of the budgetary appropriations earmarked for the Church on financially supporting the monasteries that are parties to the agreement (clause 4).
35. Under clause 3 of the agreement, the ODEP was destined to be wound up once the operations had been concluded; in fact the ODEP was dissolved after Parliament’s ratification of the agreement and the members of its staff were assigned to other State bodies in accordance with section 3 of Law no. 1811/1988. The management of the urban property and part of the agricultural and forest property remaining in the ownership of the monasteries parties to the agreement is to be their responsibility, while the Greek Church, having taken over the rights and obligations of the ODEP and having exclusive authority to act, is to be responsible for the property to be realised. The Standing Holy Synod is to lay down in canonical decisions published in the Official Gazette the manner in which ODEP property transferred to the Greek Church on the abolition of the ODEP is to be managed and utilised. Lastly, the monasteries parties to the agreement have capacity to take legal proceedings in any dispute relating to the property they retain under it (clause 5).
36. Some of the monasteries - including Phlamourion Volou - which had authorised the Greek Church to negotiate and sign the agreement with the State applied to the courts, alleging that the agreement was null and void.
They argued, inter alia, that (1) the agreement had been concluded by the Standing Holy Synod, a purely administrative body of the Greek Church with no legal personality of its own or any legal capacity; (2) the archbishops and metropolitans who had taken part in the drawing up of the agreement were not the Standing Holy Synod’s statutory representatives; (3) the tracts of land which the monasteries had undertaken to transfer were not precisely delimited and the agreement made no mention of their location, area or boundaries; (4) the Greek State had not acted through its statutory representative; (5) at the time that the agreement was concluded, the ODEP was responsible for the management and representation of the monasteries’ property and ownership of that property had already been transferred to the State under section 3 of Law no. 1700; (6) the authorisations issued by the monasteries to the Standing Holy Synod had not been in the form of notarial documents as required by law; and (7) the conditions that were stipulated by the monasteries for concluding the agreement and which appeared in the authorisations to act were not reproduced in the actual text of the agreement.
37. On 26 January 1990 the Athens Court of First Instance gave judgment against the monastery of Phlamourion Volou.
38. On 4 December 1990 the Athens Court of Appeal dismissed an appeal by the monastery against that judgment. It noted, in particular, like the court below but in more detail, that by Law no. 1811/1988 the legislature had expressed the intention of ratifying the agreement in its entirety even if it contained formal or substantive defects which might have rendered it null and void under enactments in force at the time it was concluded.
Complaint no. 5 was rejected by the Court of Appeal on the ground that the monastery of Phlamourion Volou had no locus standi, since at the time the agreement was concluded it had ceased to be the owner of the land in question. As for complaints nos. 3 and 7, the court held that because of the large number of monasteries involved, the agreement could only distinguish in a general way between the land to be transferred and the land to be retained and it assigned the task of laying down the precise boundaries to a committee to be set up in each prefecture.
Furthermore, the wording of clause 2 of the agreement did not suffice on its own to show that the full powers granted to the Standing Holy Synod had been exceeded or that there had been any misuse of powers on the part of the archbishops who had signed the agreement; if that had been the case and if land not covered by the authority to act had been transferred to the State, it would have amounted to a deprivation of property incompatible with Article 17 of the Constitution, a defect that could not have been cured by the ratification. It was, however, impossible to determine whether the full powers had been exceeded as the appellant had not stated whether the relevant committee had already carried out its task.
Lastly, the disputed agreement was an agreement for value, as the State undertook to support the monasteries that were parties to it by transferring to them 1% of the budgetary appropriations earmarked for the Church and to meet the cost of remunerating eighty-five preachers.
39. In a circular of 5 January 1989 the Ministry of Agriculture requested prefectures to set up the committees provided for in clause 2 of the agreement of 11 May 1988 (see paragraph 34 above). No action has yet been taken to this end.
Another circular, of 20 February 1989, drew the authorities’ attention to the fact that ownership of the immovable property belonging to the monasteries not parties to the agreement had been transferred to the State under Law no. 1700/1987. The circular also reminded the authorities of the possibility of transferring some of this property to agricultural co-operatives and of using the eviction procedure provided for in section 4 of Law no. 1700/1987 (see paragraph 26 above).
40. In practice, the transfer operations - and in particular the determination of which property is to pass to the State under Law no. 1700/1987 and Law no. 1811/1988 - have not been completed.
41. In the proceedings before the Commission and the Court the applicant monasteries relied on several judgments whereby proceedings brought against the State by non-applicant monasteries had been stayed (judgments no. 455/1987 of the Ioannina Court of First Instance and no. 175/1988 of the Chalcis Court of First Instance) and an appeal by another monastery had been declared inadmissible (judgment no. 335/1987 of the Lasithi Court of First Instance) on the ground that the monasteries concerned had ceased to have locus standi once Law no. 1700/1987 had come into force. In particular, proceedings were declared inadmissible in an action brought by a non-applicant monastery for a declaration of ownership arising, according to the monastery, from short adverse possession; the Patras Court of First Instance (in judgment no. 35/1991) also held that the ownership, possession and use of the disputed land had automatically passed to the State under section 3(1)(A) and (B) of Law no. 1700/1987 and pointed out that the monastery in question was not one of those that had signed the agreement of 11 May 1988.
42. In a letter of 7 February 1992 the Ministry of Agriculture replied as follows to a request from the Agent of the Government for information about the implementation of Laws nos. 1700/1987 and 1811/1988:
"... Laws nos. 1700/1987 and 1811/1988, which regulate questions of Church property, have not been implemented as the procedures laid down in them for transferring to the State the land falling to it and for distinguishing that land from the land to be retained by the monasteries have not yet been carried out ... A problem has arisen with the management of the monasteries’ forest land ..., because the proceedings whereby the State is to take possession of the land have not been set in motion ... and also because of disagreements between the State and the Holy Monasteries concerning the interpretation of the Laws in question ... [I]t appears from document no. 147224/21.12.1991 of the Regional Development Department of our Ministry ... and from the fact that the Ministry of Education has set up a team to study the problem of Church property that the State intends to re-examine the issue in order to resolve it."
43. Counsel for the applicant monasteries stated at the hearing before the Court that, to date, none of the land in dispute had been transferred to agricultural co-operatives or the State. He maintained, however, that since the entry into force of Law no. 1700/1987 the administrative authorities had refused to grant the authorisations necessary for carrying out certain day-to-day operations.
In this connection he relied on and produced correspondence between the Kalambaka forestry authority, on the one hand, and the co-operative at Vlakhava and the monastery of Metamorphosis Sotiros, on the other; the forestry authority had prevented the co-operative from cutting down trees in forests belonging to the monastery by virtue of Decree no. 2185 of 1952 (see paragraph 9 above), although the co-operative had already, in 1985, paid the monastery for the felling.
Similarly, the forestry authority of Almiros in Magnesia had declined to approve the four-year plan for exploiting a forest belonging to the monastery of Ano Xenia, on the ground that there was uncertainty about the ownership of the forest.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 11
13
14
6
9
P1
NON_VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-22806
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: ANDRASIK AND OTHERS v. SLOVAKIA
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The particulars of the applicants appear in the appendix. Mr F. Čerman and Mr S. Dubravický were represented by Ms K. Miháliková, a lawyer practising in Bratislava. The Government of the Slovak Republic were represented by Mr P. Vršanský, their Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1982 the Bratislava Regional Court convicted the applicants of criminal offences relating to the rape and subsequent murder of a student. Prison terms of between four and twenty-four years were imposed. In 1983 the Supreme Court of the Slovak Republic upheld the firstinstance judgment.
On 19 October 1990 the Supreme Court of the Czech and Slovak Federal Republic, upon a complaint lodged by the General Prosecutor, quashed the decisions convicting the applicants. The case was sent back to the Bratislava Regional Court for a fresh examination.
In March and April 1991 the Bratislava Regional Court took several procedural steps.
A hearing scheduled for 13 May 1991 had to be adjourned as one of the accused had challenged the presiding judge. On the same day the president of the Regional Court decided that the judge in question was not disqualified.
On 22 May 1991 the Regional Court appointed experts with a view to having the mental health of one of the accused examined. The experts were ordered to submit their opinion before 30 June 1991. The case was adjourned. The experts submitted their opinion on 5 March 1992.
A hearing which was to be held from 14 September to 2 October 1992 had to be adjourned as one of the accused persons and several witnesses could not attend.
On 26 October 1992 the presiding judge requested the experts to supplement their opinion concerning the mental health of one of the accused, who had attempted to commit suicide.
A hearing was held between 17 November and 3 December 1992 at which several witnesses failed to appear. On the latter date the case was adjourned as one of the judges had fallen ill.
On 20 November 1992 the Regional Court stayed the proceedings in respect of Mr R. Brázda as the experts had established that he suffered from a mental disorder as a result of which he was not capable of understanding the purpose of the criminal proceedings. The Regional Court further decided that the charges against Mr Brázda would be dealt with in a separate set of proceedings (see below).
A hearing in the proceedings against the above six applicants was scheduled for 6 September 1993. On 7 July 1993 the Regional Court requested that several witnesses be brought by the police.
At the hearing held between 6 and 17 September 1993 the Regional Court heard witnesses and experts. Several witnesses failed to appear and the case was adjourned.
Another hearing was held from 21 to 25 February 1994. On the latter date the case was adjourned as several witnesses and an expert did not appear.
On 18 May 1994 the lawyer of one of the accused requested the Regional Court not to proceed with the case before September 1994 because of her absence.
On 9 January 1995 the presiding judge asked the police to bring two witnesses to the hearing scheduled for 13 February 1995.
On 13 and 14 February 1995 the case was adjourned as the police had failed to comply with the above request. On 15 February 1995 the police informed the Regional Court that the whereabouts of one of the witnesses in question were unknown and that the other witness had stayed abroad.
On 21 July 1995 the Regional Court scheduled the next hearing for 16 October 1995. On 9 October 1995 the lawyer of one of the accused informed the court that she could not attend as she was on maternity leave until 31 March 1996. On 10 October 1995 the presiding judge adjourned the case until the end of March 1996.
The next hearing was scheduled for 3 June 1996. On 15 April 1996 the Regional Court requested the police to ensure the attendance of three witnesses.
On 27 May 1996 the hearing was cancelled as the lawyer of one of the accused persons had informed the court that she had ceased to represent her client. The accused was requested to appoint another lawyer to represent him in the proceedings.
On 20 November 1996 the lawyer of another accused informed the Regional Court that her authority had expired.
On 21 February 1997 the case was assigned to Judge G. On 26 February 1998 the latter requested the lawyers of the accused to inform the court of the addresses of their clients. The lawyers replied between 9 and 16 March 1998.
On 4 March 1998 one of the accused persons was requested to appoint a lawyer to represent him in the proceedings or, in the alternative, to inform the court whether he wished to have an official lawyer assigned.
In May 1998 the Regional Court made enquiries with a view to finding out whether two of the accused persons were represented by a lawyer and establishing the whereabouts of one of them.
On 20 October 1998, owing to the illness of Judge G., the President of the Bratislava Regional Court assigned a different judge to preside in the case as well as a new judge to sit in the case. The decision was quashed upon the return of Judge G.
On 5 November 1998 one of the accused persons applied to have Judge G. disqualified on the ground that he had been involved in the case at the initial stage of the proceedings leading to the applicants’ conviction. On 17 February 1999 Judge G. submitted written comments on the request and the case file was submitted to the Supreme Court on 3 March 1999. On 23 March 1999 the Supreme Court found that Judge G. was not disqualified. The case file was returned to the Regional Court on 31 March 1999.
On 2 August 1999 the President of the Bratislava Regional Court appointed a new presiding judge and another judge as Judge G. had been suspended from his duties by the Minister of Justice.
On 2 May 2000 the case was assigned to a different presiding judge on account of the transfer of the judge who had been appointed on 2 August 1999.
The presiding judge appointed on 2 May 2000 resigned. For this reason the President of the Regional Court assigned the case, on 2 October 2000, to Judge G.
A hearing scheduled for April 2001 was adjourned as Judge G. had expressed doubts about his own impartiality and a complaint to that effect had also been made by the accused persons.
On 4 May 2001 the Supreme Court found that Judge G. was not disqualified from dealing with the case. On 25 June 2001 a panel of judges of the Regional Court dismissed the accused persons’ complaint about Judge G.
The case was adjourned in October 2001 and on 14 January 2002.
On 7 February 2002 the President of the Bratislava Regional Court assigned a different judge to preside over the case on the ground that Judge G. had fallen ill.
On 23 October 1997 the judge heard evidence from Mr Brázda. Between 23 October 1997 and 21 May 1998 the presiding judge made several enquiries with a view to having the expert opinion concerning Mr Brázda’s health supplemented.
On 21 May 1998 the Regional Court appointed an official lawyer to represent Mr Brázda.
On 24 August 1998 an expert recommended that Mr Brázda be examined in hospital. On 10 November 1998 the Regional Court issued a decision to that effect.
On 13 June 1999 Mr Brázda informed the presiding judge that he had not yet been summoned to an examination and complained about delays in the proceedings.
On 6 August 1999 the experts informed the Regional Court that they had examined Mr Brázda and that a further examination by means of psychological tests appeared necessary. On 12 August 1999 the presiding judge agreed to such an examination. Its results were submitted on 30 November 1999. The psychologist diagnosed no anomalies which would affect the ability of Mr Brázda to participate in the proceedings.
On 6 December 1999 Mr Brázda asked to be exempted from the obligation to pay his lawyer’s fees.
A new comprehensive expert opinion concerning the health of Mr Brázda was submitted on 16 February 2000. In it the experts concluded that he suffered from a mental disorder which prevented him from understanding the purpose of the criminal proceedings, and that he required continued treatment.
On 23 March 2000 the Regional Court invited the experts who had submitted the above opinions of 30 November 1999 and of 16 February 2000 to harmonise their conclusions. The two experts who had submitted the opinion on 16 February 2000 explained their position on 25 April 2000.
On 2 May 2000 the case was assigned to another judge.
On 21 May 2000 Mr Brázda requested the Minister of Justice to prevent further delays in the proceedings.
On 7 December 2000 the Regional Court decided on the experts’ fees.
On 23 January 2001 the psychologist who had examined Mr Brázda amended his opinion of 30 November 1999. He stated that the long-term development of the health of Mr Brázda justified the other two experts’ conclusion that he could not understand the purpose of the criminal proceedings against him.
In a note of 24 January 2001 included in the case file the judge stated that, in view of the experts’ conclusions, the decision to stay the proceedings was still justified.
According to the explanation submitted by the President of the Regional Court in 2001, the criminal proceedings against Mr Brázda could not be discontinued as his mental disorder had begun after the offences in question had been committed. The note further stated that the Regional Court would examine the validity of the reasons for staying the proceedings at sixmonth intervals.
On 26 February 2001 the case file was submitted to the Ministry of Justice, which was to examine whether the case was covered by the presidential pardon of 14 December 2000.
Article 48 § 2 of the Constitution provides, inter alia, that every person has the right to have his or her case tried without unjustified delay.
Pursuant to Article 130 § 3 of the Constitution, as in force until 30 June 2001, the Constitutional Court could commence proceedings upon a petition (podnet) presented by any individual or a corporation claiming that their rights had been violated.
As from 1 January 2002, the Constitution has been amended in that, inter alia, individuals and legal persons can complain about a violation of their fundamental rights and freedoms under Article 127, the relevant part of which provides:
“1. The Constitutional Court shall decide on complaints lodged by natural or legal persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by the Slovak Republic ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court.
2. When the Constitutional Court finds that a complaint is justified, it shall deliver a decision stating that a person’s rights or freedoms set out in paragraph 1 were violated as a result of a final decision, by a particular measure or by means of other interference. It shall quash such a decision, measure or other interference. When the violation found is the result of a failure to act, the Constitutional Court may order [the authority] which violated the rights or freedoms in question to take the necessary action. At the same time the Constitutional Court may return the case to the authority concerned for further proceedings, order the authority concerned to abstain from violating fundamental rights and freedoms ... or, where appropriate, order those who violated the rights or freedoms set out in paragraph 1 to restore the situation existing prior to the violation.
3. In its decision on a complaint the Constitutional Court may grant adequate financial satisfaction to the person whose rights under paragraph 1 were violated.” ...
The implementation of the above constitutional provisions is set out in more detail in sections 49 to 56 of Law no. 38/1993 (the Constitutional Court Act), as amended. The relevant amendments entered into force on 20 March 2002 and provide the following.
Pursuant to section 50(3), a person claiming adequate financial compensation must specify the amount and explain the reasons for such a claim.
Section 56(3) provides that, when a violation of fundamental rights or freedoms is found, the Constitutional Court may order the authority liable for the violation to proceed in accordance with the relevant rules. It may also return the case to the authority concerned for further proceedings, prohibit the continuation of the violation or, as the case may be, order the restoration of the situation existing prior to the violation.
Under section 56(4), the Constitutional Court may grant adequate financial compensation for non-pecuniary damage to a person whose rights or freedoms were violated.
Section 56(5) provides that the authority which violated a person’s rights is in such a case obliged to pay the compensation within two months after the Constitutional Court’s decision has become final.
According to its case-law under former Article 130 § 3 of the Constitution, as in force until 30 June 2001, the Constitutional Court lacked jurisdiction to draw legal consequences from a violation of a petitioner’s rights under Article 48 § 2 of the Constitution. It could neither grant damages to the person concerned nor impose a sanction on the public authority liable for the violation found. In the Constitutional Court’s view, it was therefore for the authority concerned to provide redress to the person whose rights were violated.
On 30 May 2002 the Constitutional Court delivered decision No. III. ÚS 17/02-35 in which it found, upon a complaint under Article 127 of the Constitution, a violation of Article 48 § 2 of the Constitution and of Article 6 § 1 of the Convention as a result of undue delays in proceedings concerning the plaintiff’s action for recovery of property filed with the general court on 24 February 1999.
The Constitutional Court’s decision stated that the firstinstance court dealing with the case had remained inactive for a total period of fourteen months and that the property claimed by the plaintiff was necessary for the every day life of the latter and of her children.
The plaintiff had claimed 25,000 Slovakian korunas
In its decision of 10 July 2002 in a case registered as No. I. ÚS 15/02 the Constitutional Court found a violation of the plaintiffs’ rights under Article 48 § 2 of the Constitution. At the moment of the delivery of the Constitutional Court’s decision the civil proceedings complained of had been pending for more than six years at first instance. The Constitutional Court examined their length in the light of the criteria established by its case-law, namely the complexity of the matter and the conduct of the parties. It established delays in the proceedings imputable to the court dealing with the case, the total length of which amounted to twenty-two months.
In view of this finding, the Constitutional Court ordered the general court concerned to proceed with the case without further delays. The Constitutional Court granted in full the plaintiffs’ claim for SKK 20,000 each in compensation for non-pecuniary damage, and pointed out that the general court in question was obliged to pay those sums within two months after the Constitutional Court’s decision had become final. The decision expressly stated that, when deciding on the above claim, the Constitutional Court had also considered the relevant case-law of the European Court of Human Rights. Reference was made to the Court’s judgment in the case of Zander v. Sweden (25 November 1993, Series A no. 279-B).
The Constitutional Court has subsequently delivered several other decisions to the same effect.
According to an explanatory letter of 6 June 2002 by the President of the Constitutional Court, nothing prevents the Constitutional Court from dealing with complaints about the length of proceedings in cases in which proceedings have also been instituted before the European Court of Human Rights provided that the domestic proceedings complained of are still pending at the moment when the constitutional complaint is filed.
The letter further states that the Constitutional Court can also examine complaints about delays in proceedings in cases in which it has earlier found a violation of Article 48 § 2 of the Constitution. In such cases, the Constitutional Court would only consider the period after the delivery of its first decision. However, it would take into account the fact that a violation of Article 48 § 2 of the Constitution had earlier been found in the proceedings under consideration.


ITEMID: 001-23714
LANGUAGEISOCODE: ENG
RESPONDENT: PRT
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: DAVENPORT v. PORTUGAL
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress;Mark Villiger
TEXT: The applicant, Mr David Davenport, is a United Kingdom national who was born in 1939. He was represented before the Court by Ms C. Harby, a lawyer from the AIRE centre in London. On 9 April 2002, the Court was informed of the applicant’s death. His son, Mr Mark Davenport, expressed the wish to pursue the application. He is represented by Ms C. Harby.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 25 October 1990, the applicant bought a plot of land situated in Silves (Portugal). The purchase was registered in the Land Registry (Conservatória do Registo Predial) of Silves. The previous owner of the land had applied to the Silves City Council (Câmara Municipal) seeking permission for the land (including the plot of the applicant as well as other plots) to be developed for urban construction. The City Council granted a construction permit (alvará) on 25 February 1983.
On 21 June 1993, the Public Attorney instituted proceedings against the Silves City Council in the Administrative Tribunal (Tribunal Administrativo de círculo) of Lisbon. He submitted that the decision passed by the City Council granting the permit was void, as some administrative procedures had not been followed. The Public Attorney asserted that when the permit was granted, the City Council had not drawn up a formal plan for the urbanisation of the area. In those circumstances, the previous approval of the Directorate-General of Urban Services (Direcção-Geral dos Serviços de Urbanismo) was necessary pursuing to the Decree-Law no. 289/73 of 6 June 1973. As such approval had not taken place, the permit was null and void. Finally, the Public Attorney asked the Tribunal to serve summonses on the individuals having bought land on the area in question as private defendants.
The applicant filed his defence on 16 March 1994. He submitted that he had purchased the property in good faith and that he was unaware of any alleged failures in the issue of the permit. In his view, even if the Administrative Tribunal annulled the permit, that could not affect his rights.
On 7 November 1994, the judge suspended the proceedings in view of the death of one of the private defendants.
By a decision of 29 September 1998, the judge considered that the proceedings could be resumed.
On 27 March 2001, the Administrative Tribunal gave its judgment in favour of the Public Attorney and declared the construction permit granted by the Silves City Council to be null and void. The applicant was notified of this decision on 22 November 2001.
On 6 December 2001, the applicant filed an appeal against this judgment with the Supreme Administrative Court.
On 12 February 2003, the Supreme Administrative Court rejected the appeal.


ITEMID: 001-4759
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: MARTIN v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicants are British national, born in 1958 and detained in H.M. Prison Shotts, Scotland.
He represented before the Court by Mr. Harvie S. Diamond, a lawyer practising at Ross Harper, Solicitors, in Glasgow, Scotland.
A.
The applicant owned a public house jointly with a partner. The applicant had financial difficulties and agreed to accept a sizeable loan from a customer which he was unable to repay. He agreed to act as a drugs courier in the hope of clearing his debt to the customer. On 2 February 1996 he drove a car from Glasgow to Liverpool to collect the packages and on his return to Glasgow he was stopped by the police and about 50kg of cannabis was found to the value of £135,000-£156,000.
On 20 January 1997, the applicant pleaded guilty to a charge that on 2 February 1996 he was concerned in the supplying of a controlled substance, namely cannabis resin, contrary to section 4(3)(b) of the Misuse of Drugs Act 1971. At the trial the Crown accepted that the applicant's involvement was as a courier only.
The court adjourned to consider a number of reports prior to sentencing the applicant. These reports included, inter alia, a Social Enquiry report, reports from the applicant's psychologist and general practitioner and a letter from the applicant's sister. These reports revealed that the applicant was previously of good character and had no previous convictions. He was a married man with 2 children and retained the support of his family. He had come under extreme financial pressure in his partnership of the public house, and the business had been repossessed. This financial anxiety, combined with the resurgence of repressed psychological problems due to childhood sexual abuse, caused the applicant to become depressed, for which he sought professional help. The applicant had become less depressed with medical assistance and had commenced a college course.
On 10 February 1997, the court sentenced the applicant to five years' imprisonment.
Counsel advised the applicant that the sentence was excessive and the applicant lodged a written note seeking leave to appeal against his sentence referring to, inter alia, his previous good character, the stress and depression he was under when the offence was committed, and the fact that his role was limited to that of a courier of a class B drug on one day. The medical and social reports relied on at his trial were attached to the note.
The trial judge prepared a note for the appeal against sentence in which he stated that he had to balance, on the one hand, the serious nature of the offence involving a substantial quantity of cannabis, the need for the court to publicly recognise this and, on the other hand, the mitigating factors. He considered the balance had been appropriately struck. Furthermore, the grounds of appeal appeared to add nothing to that which was put before him in mitigation.
Leave to appeal against the sentence was refused by a single High Court judge on 14 March 1997. He stated:
"Having regard to the whole circumstances of the offence, it cannot be argued that the sentence imposed failed to take account of the matters raised in the Court of Appeal, nor that (even for an offence on a single day) the sentence excessive."
The applicant was not present when the application for leave to appeal was considered and was not heard on the application by the judge.
The applicant appealed against the refusal of leave to appeal. Counsel's written opinion supporting the appeal was filed at the court. His appeal against the refusal to grant leave to appeal was refused by the High Court on 3 April 1997, which adopted the same reasons as the single judge. The applicant was not present when the application for leave to appeal was being considered and was not heard on the application by the court.
B. Relevant domestic law and practice
In Scotland, appeals against the sentences imposed by the High Court of Justiciary are regulated by Part VIII of the Criminal Procedure (Scotland) Act 1995. The appeal lies to the High Court of Justiciary sitting as an appellate court. It is necessary for leave to appeal to be granted. There is no provision in the law of Scotland for an appeal against sentence to be heard without leave being granted, and no further national remedy if leave is refused. If leave to appeal is granted, the Crown is represented at the hearing of the appeal.
Section 107 of the Criminal Procedure (Scotland) Act 1995 provides;
" (1) The decision whether to grant leave to appeal for the purposes of s.106(1) of this Act shall be made by a judge of the High Court who shall -
(a) if he considers that the documents mentioned in this subsection (2) below disclose arguable grounds of appeal, grant leave to appeal and make such comments in writing as he considers appropriate; and
(b) in any other case-
(i) refuse leave to appeal and give reasons in writing for the refusal ...
(2) The documents referred to in subsection (1) above are -
(a) the note of Appeal...
(c) where the judge who presided at the trial furnishes a report under section 113 of this Act, that report; ...
(4) Where leave to appeal is refused under subsection (1) above the appellant may, within 14 day....., apply to the High Court for leave to appeal.
(5) In deciding an application under subsection (4) above the High Court shall-
(a) if after considering the documents mentioned in the subsection (2) above and the reasons for the refusal, the court is of the opinion that there are arguable grounds of appeal, grant leave to appeal and make such comments in writing as the court considers appropriate; and
(b) in any other case -
(i) refuse leave to appeal and give reasons in writing for the refusal; ...
(6) Consideration whether or not to grant leave to appeal under subsections (1) or (5) shall take place in chambers without the parties being present.”
The Crown have the right to appeal against unduly lenient sentences under section 108 of the Act. Such an appeal does not require the granting of leave to appeal.