Sentenza 21 gennaio 1999, n.28802/95

Corte Europea dei Diritti dell’Uomo

28802/95
04/03/1997 Commissione Decisione Ricevibile 178 Application No. 28802/95 by Gabriel TSAVACHIDIS against Greece

The European Commission of Human Rights (First Chamber) sitting
in private on 4 March 1997, the following members being present:

Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 20 September 1995
by Gabriel TSAVACHIDIS against Greece and registered on 2 October 1995
under file No. 28802/95;

Having regard to:

– the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;

– the observations submitted by the respondent Government on
26 April 1996 and the observations in reply submitted by the
applicant on 2 September 1996;

– the parties’ oral submissions at the hearing on 4 March 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Greek citizen and a painter. He was born
in 1942 in Greece and he is currently residing in Kilkis, Greece. In
the proceedings before the Commission he is represented by
Mr. Panayiotis Bitsaxis and Mr. Charalambos Charalambeas, both lawyers
practising in Athens.

The facts of the case, as they have been submitted by the
parties, may be summarised as follows:

A. Particular circumstances of the case

The applicant is a Jehovah’s Witness. In 1981, in order to
conduct meetings of the Jehovah’s Witnesses community, the applicant
rented premises in Kilkis.

On 7 May 1993 the public prosecutor of Kilkis ordered a
preliminary inquiry into complaints that a Jehovah’s Witnesses church
had been established in Kilkis without the necessary permit from the
local ecclesiastical authority and the Ministry of National Education
and Cults, as specified in Article 1 of the Royal Decree
of 20 May/2 June 1939. The applicant was summoned to appear before a
judge in the context of this inquiry. He failed to do so and on
10 August 1993 the judge ordered the police to bring the applicant
before him by force on 25 August 1993. The applicant appeared before
the judge on that date and was examined.

On 23 December 1993 the public prosecutor of Kilkis pressed
charges against the applicant and another person for illegally
operating a church and summoned them to appear before the first
instance single-member criminal court (monomeles plimmeliodikio) of
Kilkis on 9 December 1994.

One week before the trial, the defence became aware that a “top
secret” information report dated 7 March 1993 had been included in the
case-file. This report stated:

“In execution of the preceding order, we wish to report the
following:

As a result of an investigation that was made in the Record
Office of our Department it was not established that the
…. Millenialists have ever submitted any petitions
requesting permits to operate churches within the area
under our jurisdiction.

The number of Jehovah’s Witnesses (Millenialists) amounts
to approximately 25 to 30 individuals in the city of
Kilkis.

In this city, at 16 Aristotelous Street, on the ground
floor of the building there is a hall, owned by
Athena Tsavachidou, which is used as a meeting place by the
Millenialists usually on Wednesday, Friday and Sunday every
week, as a rule in the evening hours. In this hall there
are chairs and a desk, laid out as in a classroom. In this
hall teaching is carried out, hymns are sung and the Gospel
is explained. It has not been established that there are
religious icons and utensils related to religious worship.
But according to information we have on hand, which has not
been verified however, weddings and baptism ceremonies are
held in the hall. Various individuals from Thessaloniki and
from local villages of the Kilkis Prefecture participate in
these meetings. The number of such individuals amounts to
approximately 50.

Similar Millenialists meetings have been taking place in
Kilkis for 30 years.

The ‘leader’ of the local Millenialists is
Gabriel Tsavachidis, son of Solon and Evdoxia, who was born
in 1942 in Kilkis, resides at 14 Solonos Street, and is a
painter by profession (and brother of the owner of the
hall).

The Millenialists, apart from the aforementioned hall, also
use the homes of their fellow-members as meeting places.”

The report was not signed.

The charges against the applicant were not heard on
9 December 1994 because the prosecution requested an adjournment and
the trial was postponed until 7 April 1995.

On 13 December 1994 the applicant’s lawyer denounced on the radio
the existence of an illegal network of surveillance of members of
religious minorities in Kilkis and requested the competent ministers
to investigate the matter. On 14 December 1994 the Minister of Justice
stated that an investigation would be carried out. It is not known
whether such an investigation has been carried out and, if so, what
were its results.

On 7 April 1995, before the trial commenced, the applicant wrote
to the Prosecutor’s Office of Kilkis, and requested to be informed of
the following: who delivered the “information report” to the
Prosecutor’s Office; who wrote it and under what capacity; in
compliance with whose order it was written; who put his private life
under surveillance, in which capacity that was done and on whose
orders; which bureau was responsible for and issued the document.

The applicant announced that he intended to use that information
to bring a criminal and civil action before the domestic courts and to
appeal to the European Court of Human Rights in order to protect his
rights and bring the perpetrators of his secret surveillance to
justice.

When the hearing started the applicant objected to the validity
of the indictment claiming that the “information report” could not be
used as part of the indictment as it was not signed. The court
rejected his objection considering that the applicant had had ample
opportunity to prepare his defence. However, it decided not to take
into account the report as evidence because it was anonymous.

Then, i.e. on the same day, the applicant filed a petition
requesting the court, according to Article 38 of the Criminal
Procedure, to compile and send a report to the competent Prosecutor so
that those responsible for the “information report” be prosecuted for
the offences provided for under Articles 134, 259, 239, 241, 334, 200
and 361A of the Criminal Code and Article 24 of Law 1489/1984. The
court rejected the petition also on the same day, i.e. on 7 April 1995,
on the ground that no facts had been disclosed which could come under
the definition of the offences in Articles 134, 259, 231 (sic), 241,
334, 200 and A of the Criminal Code and Article 24 of Law 1489/1984.

On 7 April 1995 the criminal court of Kilkis acquitted the
applicant of the charges.

On 9 May 1995, the assistant prosecutor of Kilkis replied to the
applicant stating, inter alia, that the “information report” was sent
anonymously by mail to the Prosecutor’s Office and that the document
was not drawn up by the Secret Service.

B. Relevant domestic law and background information.

1. The Criminal Code provides for the following offences:

Article 134 para. 2

“Any person which, by force or use of force or by abusing his
capacity of a State organ, attempts to abolish, or to alter or
to render inoperative permanently or temporarily the democratic
regime which is based on the sovereignty of the people or a
fundamental principle or institution of this regime … is
punished with life imprisonment or by imprisonment of no less
than five years and no more than twenty years.”

Article 134A

“The term fundamental principle or institution of the regime in
the previous article refers to … the general enjoyment and
protection of the fundamental rights provided for in the
Constitution.”

Article 200 para. 1

“Any person which, maliciously, tries to disturb or disturbs a
religious gathering for worship or a religious ceremony which are
tolerated by the Constitution is punished with imprisonment of
no less than ten days and no more than two years.”

Article 239 para. 1

“A punishment of imprisonment of no less than five years and no
more than ten years is inflicted on any civil servant responsible
for the prosecution of or investigation into criminal offences
who …, knowingly, renders an innocent person liable to
prosecution or punishment or fails to prosecute a guilty person
or ensures that a guilty person is not punished.”

Article 241

“Any civil servant who, using his official capacity, illegally
enters the house of another person against the latter’s will is
punished with imprisonment of no less than three months and no
more than two years.”

Article 259

“Any civil servant who maliciously fails to discharge his duties,
in order illegally to enrich himself or another person or to harm
the State or another person, is punished with imprisonment of no
less than ten days and no more than two years. This provision
applies only if the acts of the civil servant are not punishable
under another criminal provision.”

Article 334 para. 1

“Any person which illegally enters the home of another person or
another person’s place of work or any enclosed premises held by
another person or remains in such a home, place or premises
against that person’s will is punished with imprisonment of no
less than ten days and no more than a year or with a fine.”

Article 361A

“Any person which has insulted another by a deed without being
provoked is punished with imprisonment of no less than three
months and no more than five years.”

2. Article 24 of Law 1419/1984 provides for the punishment of racial
discrimination.

3. Article 46 of the Code of Criminal Procedure, read in conjunction
with Article 42 thereof, provides for the drawing up of a report when
a criminal complaint is lodged with the public prosecutor by the victim
of the alleged offence.

Article 40 of the Code of Criminal Procedure creates an
obligation for every person to inform the public prosecutor of criminal
offences which have come to its attention.

If the public prosecutor decides not to institute criminal
proceedings, the only person which has the right under Article 48 of
the Code of Criminal Procedure to appeal against the prosecutor’s
decision is the victim of the alleged offence, provided that it has
lodged a criminal complaint under Article 46 of the Code.

4. Article 38 of the Code of Criminal Procedure provides the
following:

“When during a civil or criminal trial facts are disclosed which
could qualify as criminal offenses, the judge, if by law he cannot
immediately hold the trial himself, should draw up a report and forward
it to the competent prosecutor’s office together with all the relevant
information and documents”.

According to the case-law of the Court of Cassation, a decision
by the court to the effect that Article 38 cannot be applied does not
bind the public prosecutor who may nevertheless institute criminal
proceedings (Court of Cassation decision No. 348/1962).

5. On 4 August 1993, Eleftherotypia, a national newspaper, revealed
the existence of a strictly confidential report compiled by the
National Intelligence Service dated 19 January 1993, containing
derogatory allegations concerning Greek citizens not members of the
Greek Orthodox Church. The report described them as “non-genuine”,
“impure” and “corruptible” Greeks with “diminished national
conscience”, “due to their obedience to foreign international centres
of leadership”. It further considered that these para-religious
organizations endeavour to undermine and subvert the Greek conscience
and tradition. The report recommended taking a series of suppressive
and preventive measures namely measures so that radio and television
channels which are under the control of religious heretics should not
be permitted to operate, the religious purification of the theological
schools, making it more difficult to obtain a permission to operate
meeting halls for worship and, finally, deporting all aliens who are
actively engaged in all such organizations.

The Prime Minister issued a statement on 11 August 1993, claiming
that the report was produced by a low ranking civil servant and that
it had been rescinded immediately. The civil servant in question was
moved and “the service was disbanded”. The report did not in any way
express the position of the Government.

On 4 August 1993, the Eleftherotypia newspaper also published
another confidential report made by the National Intelligence Service.
This report, the date of which was not clear, stated, inter alia, that
the para-religious organization of “Jehovah’s Witnesses”
(Millenialists) was active in (a) the Messolongi area with
approximately 24 adherents whose activities were limited, their leader
being the glassware dealer Mr. R. and in (b) the Agrinio area where
they had a lot of money; for 15 years their members received
remittances coming from the U.S.A. and from Germany through the local
branch of the Bank of Greece; one of their leaders Mr. M. had acquired
a large personal fortune. The report went on to describe the existence
and activities of other religious minorities in other areas of Greece.

COMPLAINTS

1. The applicant complains that his right to respect for his private
life and home, guaranteed by Article 8 of the Convention, has been
violated by the surveillance he was placed under. He further complains
that he was placed under surveillance due to his religious beliefs and
that this constitutes a violation contrary to Article 9 of the
Convention. The applicant also complains that the surveillance and the
collecting of information concerning the gatherings of Jehovah’s
Witnesses violates his right of freedom of peaceful assembly contrary
to Article 11 of the Convention.

2. Moreover, the applicant complains that he is a victim of
religious discrimination contrary to Article 14 of the Convention in
conjunction with Articles 8 and 9 since persons of Greek Orthodox faith
are not placed under surveillance.

3. Finally, the applicant complains that the policy of the National
Intelligence Service of placing him under surveillance violates his
right to security contrary to Article 5 para. 1 (a) of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 20 September 1995 and
registered on 2 October 1995.

On 18 January 1996 the Commission (First Chamber) decided to
communicate the application.

The Government’s written observations were submitted on
26 April 1996, after an extension of the time-limit fixed for that
purpose. The applicant replied on 2 September 1996, also after an
extension of the time-limit.

On 17 January 1997 the Commission (First Chamber) decided to
invite the parties to submit oral observations on the admissibility and
merits of the application at a hearing.

The hearing took place on 4 March 1997.

At the hearing the parties were represented as follows:

For the Government:

Mr. Vassilios Kontolaimos, Agent, Senior Adviser (Paredros), Legal
Advisory Council of the State

Mr. Vassilios Kyriazopoulos, Counsel, Legal Assistant (Dikastikos
Antiprosopos), Legal Advisory Council of the State

For the Applicant:

Mr. Panayiotis Bitsaxis, Representative, Lawyer

Mr. Charalambos Charalambeas, Representative, Lawyer

Mr. Vassilios Dedotsis, Adviser

Mr. Evangelos Kaparos, Adviser

THE LAW

1. The applicant complains under Articles 5 para. 1, 8, 9 and 11
(Art. 5-1, 8, 9, 11) of the Convention that he was placed under secret
surveillance by a public authority. He also complains of discrimination
in the enjoyment of his rights under the Convention on grounds of
religion contrary to Article 14 (Art. 14) thereof.

The Commission recalls that the provisions invoked by the
applicant read as follows:

Article 5 para. 1 (Art. 5-1) of the Convention

“Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the following
cases and in accordance with a procedure prescribed by law:

a. the lawful detention of a person after conviction by
a competent court;

b. the lawful arrest or detention of a person for
non-compliance with the lawful order of a court or in order to
secure the fulfilment of any obligation prescribed by law;

c. the lawful arrest or detention of a person effected
for the purpose of bringing him before the competent legal
authority on reasonable suspicion of having committed an offence
or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so;

d. the detention of a minor by lawful order for the
purpose of educational supervision or his lawful detention for
the purpose of bringing him before the competent legal authority;

e. the lawful detention of persons for the prevention of
the spreading of infectious diseases, of persons of unsound mind,
alcoholics or drug addicts or vagrants;

f. the lawful arrest or detention of a person to prevent
his effecting an unauthorised entry into the country or of a
person against whom action is being taken with a view to
deportation or extradition.”

Article 8 (Art. 8) of the Convention

“1. Everyone has the right to respect for his private and
family life, his home and his correspondence.

2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests
of national security, public safety or the economic well-being
of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others.”

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 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. This Article shall not prevent
the imposition of lawful restrictions on the exercise of these
rights by members of the armed forces, of the police or of the
administration of the State.”

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.”

The Government submit that the applicant has not exhausted
domestic remedies because he did not lodge a criminal complaint with
the public prosecutor against the perpetrators of the alleged
violations, nor did he institute civil proceedings claiming damages
under Article 57 of the Civil Code or Article 105 of the law
introducing the Civil Code. Moreover, the Government point out that the
applicant has not alleged that there existed any special circumstances
which would have dispensed him from the obligation to exhaust domestic
remedies under Article 26 (Art. 26) of the Convention. Finally, the
Government submit that, if the Commission were to accept the
applicant’s contention that there were no effective remedies to
exhaust, the application should be declared inadmissible as having been
lodged out of time. Although the applicant became aware of the
existence of the alleged surveillance before 9 December 1994, the
application was introduced on 20 September 1995.

The applicant argues that, in the absence of an official inquiry
ordered ex officio into his allegations, he could not have any
effective remedies in Greece, given the nature of the violations
involved. Before attempting to institute any proceedings the applicant
needed to know who the perpetrators of the violations were and he could
not have known that without the cooperation of the competent
authorities. However, the criminal court refused to bring the
perpetrators to justice by exercising its powers under Article 38 of
the Code of Criminal Procedure and there was no appeal against this
decision.

The applicant further argues that his letter of 7 April 1995 to
the public prosecutor was in essence a criminal complaint. In any
event, if he had formally lodged a complaint against persons unknown,
the case would have been left pending. In other words, the prosecutor
would have taken no decision refusing to institute proceedings and, as
a result, there would be no act against which to appeal to the
prosecutor of the court of appeal under Article 48 of the Code of
Criminal Procedure.

Moreover, the applicant argues that he did not have a realistic
possibility of instituting civil proceedings. The courts would have
dismissed as unsubstantiated a civil action against the State if the
perpetrators of the act had not been named and if it could not be shown
that they were acting in an official capacity. Finally, the applicant
argues that the six-months period should be calculated from 9 May 1995,
when the assistant prosecutor of Kilkis replied to his request for
information.

The Commission recalls that, according to its case-law, the
obligation to exhaust domestic remedies requires only that an applicant
make normal use of remedies which are effective, sufficient and
accessible. To be effective, a remedy must be capable of remedying
directly the impugned state of affairs (No. 12742/87, Dec. 3.5.89,
D.R. 61 p. 206).

In the particular circumstances of the case, the Commission, in
examining whether the applicant has complied with the obligation to
exhaust domestic remedies, cannot lose sight of the nature of his
complaints and of the fact that the report which led him to believe
that he had been subjected to surveillance was unsigned.

In this connection, the Commission notes that the applicant, when
he became aware of the existence of the report, took two steps. First,
he requested information from the Prosecutor’s Office of Kilkis, which
has used the report to institute criminal proceedings against him, as
to the origins of the report, specifying that he needed this
information in order, inter alia, to institute criminal or civil
proceedings before the domestic courts. Secondly, he filed a petition
to the criminal court, before which the report had been produced by the
prosecution, under Article 38 of the Code of Criminal Procedure with
a view to having criminal proceedings instituted against the authors
of the report.

However, he did not obtain redress. Thus, on 7 April 1995 the
criminal court rejected his petition on the ground that no facts had
been disclosed which could give rise to a criminal prosecution.
Moreover, on 9 May 1995, the assistant prosecutor of Kilkis rejected
the applicant’s request for information. In these circumstances, the
Commission considers that the applicant took sufficient steps in order
to raise his grievances with the national authorities. Article 26
(Art. 26) of the Convention does not require that he should have, in
addition, lodged a criminal complaint against persons unknown or a
civil action against the State without specifying which of its organs
were responsible for the alleged surveillance.

Moreover, the Commission notes that the application was lodged
on 20 September 1995, i.e. less than six months after 9 May 1995, when
the assistant prosecutor of Kilkis rejected his request for
information, or even 7 April 1995, when the criminal court rejected the
petition he had lodged under Article 38 of the Code of Criminal
Procedure.

It follows that the applicant has complied with the requirements
of Article 26 (Art. 26) of the Convention concerning exhaustion of
domestic remedies and the time-limit for the introduction of complaints
before the Commission.

2. As regards the substance of the applicant’s complaints, the
Government submit that there is no indication that the applicant was
subjected to surveillance by the National Intelligence Service. There
is no indication that the report of 7 March 1993 which was included in
the applicant’s case-file had been compiled by a public authority. It
is not unusual for the public prosecutor’s office of Kilkis to receive
anonymous letters informing it that Jehovah’s Witnesses churches
function illegally in Kilkis. The information contained in the report
was accessible to everybody. So was the information contained in the
two reports published in the Greek press on 4 August 1993. It is not
within the competence of the National Intelligence Service to subject
persons to surveillance because of their religious beliefs. Moreover,
the National Intelligence Service denies that it has ever subjected the
applicant to surveillance. It also denies that it is the author of the
report of 7 March 1993.

In any event, the Government argue that the activities of the
National Intelligence Service are regulated in a sufficiently
circumscribed manner by a law which is adequately accessible to
everybody. The law also specifies the circumstances in which an
investigation, including surveillance, can be ordered in connection
with a criminal offence. Moreover, there exist adequate guarantees
against abuse or misuse of power by the executive branch of the
Government.

The applicant submits that there are various indications that the
report of 7 March 1993 has been compiled by the National Intelligence
Service. The language used is that of the Service. There is expert
evidence to the effect that the report of 7 March 1993 and another
document drafted by the Kilkis police have been typed using the same
type of typewriter. It has not been possible to establish whether they
have been written with the same typewriter because the public
prosecutor’s office of Kilkis has refused to provide the applicant with
the original report of 7 March 1993. The very content of the report,
especially when seen against the background of the reports published
in the press on 4 August 1993, indicates that its author is the
National Intelligence Service. On 11 August 1993 the Government
accepted that the National Intelligence Service subjected non-Orthodox
Greeks to surveillance.

The applicant also submits that the report discloses an
interference with the rights guaranteed by the provisions invoked,
because the information contained therein could have been obtained only
through secret surveillance. This surveillance was illegal. Moreover,
the law on the National Intelligence Service contains no safeguards
against abuses.

The Commission will first examine the applicant’s complaint that
Article 5 para. 1 (Art. 5-1) of the Convention has been violated. The
Commission does not consider it necessary to examine whether the facts
complained of engage the responsibility of the respondent Government
in this connection. Even assuming that this is so, the particular
complaint of the applicant is manifestly ill-founded.

In this connection, the Commission recalls that, in accordance
with its case-law, the term “liberty and security of person” in
Article 5 para. 1 (Art. 5-1) of the Convention must be read as a whole
and, in view of its context, as referring only to physical liberty and
security. “Liberty of person” thus means freedom from arrest and
detention and “security of a person” the protection against arbitrary
interference with this liberty (Nos. 5573/72 and 5670/72, Dec. 16.7.76,
Yearbook 20, p. 102). The applicant has not been deprived of his
liberty. As a result, no appearance of a violation of Article 5 para. 1
(Art. 5-1) is disclosed.

It follows that this part of the application is manifestly ill-
founded under Article 27 para. 2 (Art. 27-2) of the Convention.

3. As regards the remainder of the applicant’s complaints under
Article 8, 9, 11 and 14 (Art. 8, 9, 11, 14) of the Convention, the
Commission, in the light of the parties’ observations, considers that
they raise serious questions of fact and law which are of such
complexity that their determination should depend on an examination of
the merits. This part of 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,

DECLARES THE APPLICATION INADMISSIBLE as regards the complaint
concerning the alleged violation of the applicant’s right to
liberty and security of person,

and, by a majority,

DECLARES THE REMAINDER OF THE APPLICATION ADMISSIBLE, without
prejudging the merits of the case.

M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber

28/10/1997 Commissione Rapporto Accoglimento 127

EUROPEAN COMMISSION OF HUMAN RIGHTS
FIRST CHAMBER
Application No. 28802/95
Gabriel Tsavachidis against Greece
REPORT OF THE COMMISSION
(adopted on 28 October 1997)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-16). . . . . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5-11) . . . . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 12-16). . . . . . . . . . . . . . . . . . .2
II. ESTABLISHMENT OF THE FACTS
(paras. 17-33) . . . . . . . . . . . . . . . . . . . . .3
A. The particular circumstances of the case
(paras. 17-28). . . . . . . . . . . . . . . . . . .3
B. Relevant domestic law and background information
(paras. 29-33). . . . . . . . . . . . . . . . . . .5
III. OPINION OF THE COMMISSION
(paras. 34-69) . . . . . . . . . . . . . . . . . . . . .7
A. Complaints declared admissible
(para. 34). . . . . . . . . . . . . . . . . . . . .7
B. Points at issue
(para. 35). . . . . . . . . . . . . . . . . . . . .7
C. As regards Article 8 of the Convention
(paras. 36-49). . . . . . . . . . . . . . . . . . .7
CONCLUSION
(para. 50). . . . . . . . . . . . . . . . . . . . 10
D. As regards Article 9 of the Convention
(paras. 51-54). . . . . . . . . . . . . . . . . . 10
(a) Opinion of Mr M.P. Pellonpää, Mr E. Busuttil,
Mr A. Weitzel, Mr B. Marxer, Mr N. Bratza
and Mr M. Vila Amigó
(para. 55) . . . . . . . . . . . . . . . . . 11
(b) Opinion of Mr B. Conforti, Mr C. Bîrsan
and Mr K. Herndl
(para. 56) . . . . . . . . . . . . . . . . . 11
CONCLUSION
(para. 57). . . . . . . . . . . . . . . . . . . . 11

TABLE OF CONTENTS
Page
E. As regards Article 11 of the Convention
(paras. 58-60). . . . . . . . . . . . . . . . . . 11
CONCLUSION
(para. 61). . . . . . . . . . . . . . . . . . . . 12
F. As regards Article 14 of the Convention
taken in conjunction with Articles 8, 9 and 14
(paras. 62-64). . . . . . . . . . . . . . . . . . 12
CONCLUSION
(para. 65). . . . . . . . . . . . . . . . . . . . 12
G. Recapitulation
(paras. 66-69). . . . . . . . . . . . . . . . . . 12
PARTLY CONCURRING, MOSTLY DISSENTING OPINION
OF MM K. HERNDL, B. CONFORTI AND C. BÎRSAN . . . . . . . . 13
PARTLY DISSENTING OPINION OF MR C.L. ROZAKIS. . . . . . . . 15
PARTLY DISSENTING OPINION OF MR L. LOUCAIDES,
JOINED BY MRS J. LIDDY, MM G. RESS AND A. PERENIC,
MRS M. HION AND MR R. NICOLINI. . . . . . . . . . . . . . . 16
PARTLY DISSENTING OPINION OF MR I. BÉKÉS. . . . . . . . . . 17
APPENDIX I : DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . 18
APPENDIX II : ORIGINAL TEXT OF REPORT OF 7 MARCH 1993. . . 30

I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.

A. The application
2. The applicant is a Greek citizen, born in 1942 and resident in
Kilkis. He was represented before the Commission by Mr P. Bitsaxis and
Mr Ch. Charalambeas, both lawyers practising in Athens.

3. The application is directed against Greece. The respondent
Government were represented by their Agent, Mr L. Papidas, President
of the Legal Advisory Council of the State (Nomiko Simvulio tu Kratus),
Mr V. Kontolaimos, Senior Adviser (Paredros) of the Legal Advisory
Council of the State, and Mr V. Kyriazopoulos, Legal Assistant
(Dikastikos Antiprosopos) of the Legal Advisory Council of the State.

4. The case concerns allegations of surveillance of a member of the
Church of Jehovah’s Witnesses by the National Intelligence Service. The
applicant invokes Articles 8, 9, 11 and 14 of the Convention.

B. The proceedings

5. The application was introduced on 20 September 1995 and was
registered on 2 October 1995.

6. On 18 January 1996 the Commission (First Chamber) decided,
pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give
notice of the application to the respondent Government and to invite
the parties to submit written observations on its admissibility and
merits.

7. The Government’s observations were submitted on 26 April 1996,
after an extension of the time-limit fixed for this purpose. The
applicant replied on 2 September 1996, also after an extension of the
time-limit.

8. On 17 January 1997 the Commission decided to hold a hearing of
the parties. The hearing was held on 4 March 1997. The Government were
represented by Mr V. Kontolaimos and Mr V. Kyriazopoulos. The applicant
was represented by Mr P. Bitsaxis and Mr Ch. Charalambeas, as well as
Mr V. Dedotsis and Mr E. Kaparos, as advisers.

9. On 4 March 1997 the Commission declared inadmissible the
applicant’s complaint under Article 5 of the Convention. It declared
admissible the remainder of the application.

10. The text of the Commission’s decision on admissibility was sent
to the parties on 6 March 1997 and they were invited to submit such
further information or observations on the merits as they wished. Such
observations were submitted by the Government on 20 May 1997 and by the
applicant on 29 May 1997.

11. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties’ reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.

C. The present Report

12. The present Report has been drawn up by the Commission (First
Chamber) in pursuance of Article 31 of the Convention and after
deliberations and votes, the following members being present:

Mrs J. LIDDY, President
MM M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI

13. The text of this Report was adopted on 28 October 1997 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.

14. The purpose of the Report, pursuant to Article 31 of the
Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.

15. The Commission’s decision on the admissibility of the application
is annexed hereto.

16. The full text of the parties’ submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

17. The applicant is a Jehovah’s Witness. In 1981, in order to
conduct meetings of the Jehovah’s Witnesses community, the applicant
rented premises in Kilkis.

18. On 7 May 1993 the public prosecutor of Kilkis ordered a
preliminary inquiry into complaints that a Jehovah’s Witnesses church
had been established in Kilkis without the necessary permit from the
local ecclesiastical authority and the Ministry of National Education
and Cults, as specified in Article 1 of the Royal Decree
of 20 May/2 June 1939. The applicant was summoned to appear before a
judge in the context of this inquiry. He failed to do so and on
10 August 1993 the judge ordered the police to bring the applicant
before him by force on 25 August 1993. The applicant appeared before
the judge on that date and was examined.

19. On 23 December 1993 the public prosecutor of Kilkis pressed
charges against the applicant and another person for illegally
operating a church and summoned them to appear before the first
instance single-member criminal court (monomeles plimmeliodikio) of
Kilkis on 9 December 1994.

20. One week before the trial, the defence became aware that a “top
secret” information report dated 7 March 1993 had been included in the
case-file. This report stated:

“In execution of the preceding order, we wish to report the
following:

The number of Jehovah’s Witnesses (Millenialists) amounts
to approximately 25 to 30 individuals in the city of
Kilkis.

Similar Millenialists meetings have been taking place in
Kilkis for 30 years.

The Millenialists, apart from the aforementioned hall, also
use the homes of their fellow-members as meeting places.”

The report was not signed.

21. The charges against the applicant were not heard on
9 December 1994 because the prosecution requested an adjournment and
the trial was postponed until 7 April 1995.

22. On 13 December 1994 the applicant’s lawyer denounced on the radio
the existence of an illegal network of surveillance of members of
religious minorities in Kilkis and requested the competent ministers
to investigate the matter. On 14 December 1994 the Minister of Justice
stated that an investigation would be carried out. It is not known
whether such an investigation has been carried out and, if so, what
were its results.

23. On 7 April 1995, before the trial commenced, the applicant wrote
to the Prosecutor’s Office of Kilkis, and requested to be informed of
the following: who delivered the “information report” to the
Prosecutor’s Office; who wrote it and under what capacity; in
compliance with whose order it was written; who put his private life
under surveillance, in which capacity that was done and on whose
orders; which bureau was responsible for and issued the document.

24. The applicant announced that he intended to use that information
to bring a criminal and civil action before the domestic courts and to
appeal to the European Court of Human Rights in order to protect his
rights and bring the perpetrators of his secret surveillance to
justice.

25. When the hearing started the applicant objected to the validity
of the indictment claiming that the “information report” could not be
used as part of the indictment as it was not signed. The court
rejected his objection considering that the applicant had had ample
opportunity to prepare his defence. However, it decided not to take
into account the report as evidence because it was anonymous.

26. Then, i.e. on the same day, the applicant filed a petition
requesting the court, according to Article 38 of the Code of Criminal
Procedure, to compile and send a report to the competent Prosecutor so
that those responsible for the “information report” be prosecuted for
the offences provided for under Articles 134, 259, 239, 241, 334, 200
and 361A of the Criminal Code and Article 24 of Law 1489/1984. The
court rejected the petition on the same day, i.e. also on 7 April 1995,
on the ground that no facts had been disclosed which could come under
the definition of the offences in Articles 134, 259, 231 (sic), 241,
334, 200 and A of the Criminal Code and Article 24 of Law 1489/1984.

27. On 7 April 1995 the criminal court of Kilkis acquitted the
applicant of the charges.

28. On 9 May 1995, the assistant prosecutor of Kilkis replied to the
applicant stating, inter alia, that the “information report” had been
sent anonymously by mail to the Prosecutor’s Office and that the
document had not been drawn up by the Secret Service.

B. Relevant domestic law and background information

29. Article 1 of the Royal Decree of 20 May/2 June 1939 provides as
follows:

“1. In order to obtain an authorisation for the
construction or operation of temples not subject to the
legislation on temples and priests of parishes belonging to
the Greek Orthodox Church, within the meaning of section 1
of the Law (1672/1939), the following steps must be
completed:

(a) An application shall be submitted by at least
fifty families, from more or less the same neighbourhood
and living in an area at a great distance from a temple of
the same denomination, it being assumed that the distance
makes it difficult for them to observe their religious
duties. The requirement of fifty families shall not apply
to suburbs or villages.

(b) The application shall be addressed to the local
ecclesiastical authorities and must be signed by the heads
of the families, who shall indicate their addresses. The
authenticity of their signatures shall be certified by the
local police authority, which following an inquiry on the
ground shall attest that the conditions referred to in the
preceding sub-paragraph are satisfied …

(c) The local police authority shall issue a reasoned
opinion on the application. It shall then transmit the
application, with its opinion, to the Ministry of Education
and Religious Affairs, which may accept or reject the
application according to whether it considers that the
construction or use of a new temple is justified or whether
the provisions of the present decree have been complied
with.

2. …

3. The provisions of paragraph 1 (a)-(b) above shall not
apply to the issue of an authorisation for the construction
or operation of a place of worship. It shall be for the
Minister of Education and Religious Affairs to determine
whether there are essential reasons warranting such
authorisation. In this connection the persons concerned
shall address to the Ministry of Education and Religious
Affairs through their priest a signed application, the
authenticity of the signatures being certified by the mayor
or the chairman of the district council. The application
shall also indicate the addresses of the persons concerned
…”.

30. Law 1654/1986 on the National Intelligence Service provides that
the competence of this Service is, first, to collect, process and
distribute information concerning national security, secondly, to deal
with the spying activities of foreign intelligence services against
Greece, thirdly, to co-ordinate the activities of other services
collecting relevant information and, fourthly, to discharge any other
relevant functions assigned to it by the Council of National Security
or the Prime Minister. This law does not contain any specific separate
provisions concerning safeguards against abuses.

31. On 4 August 1993, Eleftherotypia, a national newspaper, revealed
the existence of a strictly confidential report compiled by the
National Intelligence Service dated 19 January 1993, containing
derogatory allegations concerning Greek citizens not members of the
Greek Orthodox Church. The report described them as “non-genuine”,
“impure” and “corruptible” Greeks with “diminished national
conscience”, “due to their obedience to foreign international centres
of leadership”. It further considered that these para-religious
organizations endeavour to undermine and subvert the Greek conscience
and tradition. The report recommended taking a series of suppressive
and preventive measures namely measures so that radio and television
channels which are under the control of religious heretics should not
be permitted to operate, the religious purification of the theological
schools, making it more difficult to obtain a permission to operate
meeting halls for worship and, finally, deporting all aliens who are
actively engaged in all such organizations.

32. The Prime Minister issued a statement on 11 August 1993, claiming
that the report was produced by a low ranking civil servant and that
it had been rescinded immediately. The civil servant in question was
moved and “the service was disbanded”. The report did not in any way
express the position of the Government.

33. On 4 August 1993, Eleftherotypia also published another
confidential report made by the National Intelligence Service. This
report, the date of which was not clear, stated, inter alia, that the
para-religious organization of “Jehovah’s Witnesses” (Millenialists)
was active in (a) the Messolongi area with approximately 24 adherents
whose activities were limited, their leader being the glassware dealer
Mr R. and in (b) the Agrinio area where they had a lot of money; for
fifteen years their members received remittances coming from the U.S.A.
and from Germany through the local branch of the Bank of Greece; one
of their leaders Mr M. had acquired a large personal fortune. The
report went on to describe the existence and activities of other
religious minorities in other areas of Greece.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

34. The Commission has declared admissible the applicant’s complaints
that he was subjected to surveillance by the National Intelligence
Service, because of his religious beliefs.

B. Points at issue

35. The issues to be determined in the present case are:

– whether there has been a violation of Article 8 (Art. 8) of the
Convention

– whether there has been a violation of Article 9 (Art. 9) of the
Convention

– whether there has been a violation of Article 11 (Art. 11) of the
Convention and

– whether there has been a violation of Article 14 of the
Convention taken in conjunction with the above-mentioned
provisions (Art. 14+8, 14+9, 14+11) .

C. As regards Article 8 (Art. 8) of the Convention

36. Article 8 (Art. 8) of the Convention provides as follows:

“1. Everyone has the right to respect for his private and
family life, his home and his correspondence.

37. The applicant submits that there are various indications that the
report of 7 March 1993 has been compiled by the National Intelligence
Service. The language used and the style is that of the Service. There
is expert evidence to the effect that the report of 7 March 1993 and
another document drafted by the Kilkis police have been typed using the
same type of typewriter. It has not been possible to establish whether
they have been written with the same typewriter because the public
prosecutor’s office of Kilkis has refused to provide the applicant with
the original report of 7 March 1993. The very content of the report,
especially when seen against the background of the reports published
in the press on 4 August 1993, indicates that its author is the
National Intelligence Service. On 11 August 1993 the Government
accepted that the National Intelligence Service subjected non-Orthodox
Greeks to surveillance.

38. The applicant also submits that the report discloses an
interference with his right to respect for his private life, because
the information contained therein could have been obtained only through
secret surveillance. In any event, the applicant argues that there
would be an interference even if the information contained in the
report related to elements of the applicant’s personal life which were
not meant to be kept secret. The recording of even every-day activities
conducted in public amounts to such an interference if it is not done
for a lawful purpose and in accordance with rules which provide
protection against abuses. The surveillance to which the applicant was
subjected was illegal. Moreover, the law on the National Intelligence
Service contains no safeguards against abuses. As a result, Article 8
(Art. 8) was violated.

39. The Government submit that there is no indication that the
applicant was subjected to surveillance by the National Intelligence
Service. There is no indication that the report of 7 March 1993 which
was included in the applicant’s case-file had been compiled by a public
authority. It is not unusual for the public prosecutor’s office of
Kilkis to receive anonymous letters informing it that Jehovah’s
Witnesses churches function illegally in Kilkis. It is not within the
competence of the National Intelligence Service to subject persons to
surveillance because of their religious beliefs. Moreover, the National
Intelligence Service denies that it has ever subjected the applicant
to surveillance. It also denies that it is the author of the report of
7 March 1993.

40. The Government also submit that the author of the report dated
19 January 1993, which appeared in the Greek press on 4 August 1993,
had acted on his own initiative and had not followed any orders. The
administrative unit in which he used to serve at the time was disbanded
because his superiors had not noticed that he was drafting a report on
religious organisations which caused a lot of embarrassment to the
National Intelligence Service. In any event, the information contained
in the report of 19 January 1993 was of a general academic nature and
not the product of secret surveillance. The origins of the second
undated report, published in the Greek press on 4 August 1993, are not
known. In any event, no mention is made therein of the activities of
Jehovah’s Witnesses in Kilkis.

41. The Government accept that there would have been a violation of
the Convention if the National Intelligence Service had subjected the
applicant to unjustified close surveillance because of his religious
beliefs. However, the Government submit that the information contained
in the report of 7 March 1993, in which the applicant was mentioned,
was accessible to everybody. In any event, the Government argue that
the activities of the National Intelligence Service are regulated in
a sufficiently circumscribed manner by a law which is adequately
accessible to everybody. The law also specifies the circumstances in
which an investigation, including surveillance, can be ordered in
connection with a criminal offence. Moreover, there exist adequate
guarantees against abuse or misuse of power by the executive branch of
the Government.

42. The Commission recalls that, according to the Court’s case-law,
the storing of information concerning a person’s private life in a
secret register kept by a State authority amounts to an interference
with the right to respect for private life as guaranteed by Article 8
para. 1 (Art. 8-1) of the Convention (Eur. Court HR, Leander v. Sweden
judgment of 26 March 1987, Series A no. 116, p. 22, para. 48).

43. The Commission must, therefore, determine, first, whether a State
authority was responsible for the “top secret” information report dated
7 March 1993 which was included in the file of the criminal proceedings
against the applicant and, secondly, whether the above-mentioned report
contained data concerning the applicant’s private life.

44. As regards the first issue, the Commission recalls that,
according to the Court, in cases, as the present one, where applicants
complain about specific measures of surveillance falling outside the
law, it must be established that there is a reasonable likelihood that
such measures were applied to them (Eur. Court HR, Halford
v. the United Kingdom judgment of 25 June 1997, to be published in
Reports of Judgments and Decisions 1997, para. 57).

45. The Commission has in this connection had regard to the two
reports published in the Greek press on 4 August 1993 and to the
statement issued by the Prime Minister on 11 August 1993, from which
it transpires that a branch of the National Intelligence Service was
compiling information about a number of minority religious groups, such
as that of the Jehovah’s Witnesses. It has also taken into
consideration the form – e.g. type of typewriter used and style – and
the content – e.g. reference to the “execution of an order” and to the
“record office of a department” – of the report of 7 March 1993, in
which the applicant is specifically mentioned. Moreover, it notes that,
although the Government claim not to know its author, this report was
initially relied on by the public prosecutor to institute criminal
proceedings against the applicant. In these circumstances, the
Commission is satisfied that the report of 7 March 1993 was compiled
by a State authority and, in any event, there is at least a “reasonable
likelihood” that this was so.

46. As regards the second of the two issues identified above, namely,
whether the report of 7 March 1993 contained information about the
applicant’s private life, the Commission recalls that, according to the
Court, it would be too restrictive to limit the notion of private life
in Article 8 para. 1 (Art. 8-1) of the Convention to an “inner circle”
in which the individual may live his own personal life as he chooses
and to exclude therefrom entirely the outside world not encompassed
within that circle (Eur. Court HR, Niemietz v. Germany judgment of
16 December 1992, Series A no. 251, p. 33, para. 29).

47. In the view of the Commission, it follows that the fact that an
activity of an individual occurs in a public place or is not intended
to be kept secret does not necessarily make such an activity a matter
outside the notion of private life in Article 8 para. 1 (Art. 8-1) of
the Convention (see, mutatis mutandis, Friedl v. Austria, Comm. Report
19.5.94, paras. 50 and 51, Eur. Court HR, Series A no. 305, p. 21).
Whether such an activity falls within the concept of private life or
not must be judged on the basis of the nature of the activity itself.
Thus, while Article 8 para. 1 (Art. 8-1) of the Convention might not
protect public appearances of well-known figures which are intended to
attract attention, the right to respect for private life would be
interfered with if State agents were to follow the personal activities
which an individual conducts in the open, record them and/or keep all
relevant information.

48. The Commission notes that the report of 7 March 1993 contained
a collection of information about the applicant’s personal life, such
as his religious beliefs, his position within a religious movement,
premises over which he exercised control and the activities therein.
The Commission considers that there can be no doubt that the collection
of this information was the result of an organised operation of
surveillance – “watching” – of the applicant’s life mounted by a State
authority. It follows that there was an interference with the
applicant’s right to respect for his private life.

49. According to the Convention, such an interference is contrary to
Article 8 (Art. 8-2) unless it is “in accordance with the law”,
directed at one or more of the legitimate aims set out in paragraph 2
and is “necessary in a democratic society” for achieving them. However,
the Government accept that it is not within the competence of the
National Intelligence Service to subject persons to surveillance
because of their religious beliefs. Moreover, although the report
contained information about the meeting place of a religious community
and although operating a place of worship without a permit from the
competent Minister is a criminal offence under domestic law, it has not
been alleged that this report was compiled by the police force in the
exercise of their crime investigation powers. It follows that the
interference was not “in accordance with the law” and, as a result, it
cannot be justified under the second paragraph of Article 8 (Art. 8)
of the Convention.

CONCLUSION

50. The Commission concludes, by 13 votes to 4, that in the present
case there has been a violation of Article 8 (Art. 8) of the
Convention.

D. As regards Article 9 (Art. 9) of the Convention

51. Article 9 (Art. 9) of the Convention provides as follows:

52. The applicant submits that he was subjected to surveillance
because of his religious beliefs. This amounts to harassment and an
interference with the right to hold and manifest these beliefs.
Moreover, the report of 7 March 1993 was used to institute criminal
proceedings against him and domestic law on surveillance does not
provide any safeguards against abuses.

53. The Government reiterate the submissions they have made under
Article 8 (Art. 8) of the Convention.

54. The Commission has reached the conclusion that there has been no
violation of Article 9 (Art. 9) of the Convention. It expresses this
opinion by nine votes to eight. However, the majority of nine members
is divided as to the reasoning.

(a) Opinion of Mr M.P. Pellonpää, Mr E. Busuttil,
Mr A. Weitzel, Mr B. Marxer, Mr N. Bratza and
Mr M. Vila Amigó

55. These members note that the Commission has found that the
collection and retention of the information contained in the report of
7 March 1993 amounts to a violation of Article 8 (Art. 8) of the
Convention. They also note that underlying the Commission’s position
concerning the applicant’s complaints under Article 8 (Art. 8) is the
view that the right to respect for private life includes the right to
hold and practise religious beliefs (see para. 48). As a result, these
members consider that no separate issue arises under Article 9 (Art. 9)
of the Convention.

(b) Opinion of Mr B. Conforti, Mr C. Bîrsan and Mr K. Herndl

56. These members consider that, as Article 8 (Art. 8) of the
Convention in their view has not been violated, a fortiori there has
been no violation of Article 9 (Art. 9) of the Convention either.

CONCLUSION

57. The Commission concludes, by 9 votes to 8, that in the present
case there has been no violation of Article 9 (Art. 9) of the
Convention.

E. As regards Article 11 (Art. 11) of the Convention

58. Article 11 (Art. 11) of the Convention provides as follows:

“1. Everyone has the right to freedom of peaceful assembly and
to freedom of association with others, including the right to
form and to join trade unions for the protection of his
interests.

59. The applicant submits that the authorities, by subjecting to
surveillance the gatherings of the members of the church of Jehovah’s
Witnesses and the premises which he had rented for these purposes,
violated his right to freedom of association. Moreover, the use of the
information contained in the report of 7 March 1993 to institute
criminal proceedings against him also amounts to a violation of
Article 11 (Art. 11) of the Convention. The Government reiterate the
submissions they have made under Article 8 (Art. 8) of the Convention.

60. The Commission has found that the collection and retention of
the information contained in the report of 7 March 1993 amounts to a
violation of Article 8 (Art. 8) of the Convention. As a result, it
considers that no separate issue arises under Article 11 (Art. 11) of
the Convention.

CONCLUSION

61. The Commission concludes, by 14 votes to 3, that in the present
case no separate issue arises under Article 11 (Art. 11) of the
Convention.

F. As regards Article 14 of the Convention taken in conjunction with
Articles 8, 9 and 11 (Art. 14+8, 14+9, 14+11)

62. Article 14 (Art. 14) of the Convention provides as follows:

63. The applicant submits that he was singled out for surveillance
because of his religious beliefs. The Government reiterate the
submissions they have made under Article 8 (Art. 8) of the Convention.

64. The Commission has found that the collection and retention of
the information contained in the report of 7 March 1993 amounts to a
violation of Article 8 (Art. 8) of the Convention. As a result, it
considers that it is not necessary also to examine wether there has
been a violation of Article 14 of the Convention taken in conjunction
with this provision or Article 9 or Article 11 (Art. 14+8, 14+9,
14+11).

CONCLUSION

65. The Commission concludes, unanimously, that in the present case
it is not necessary also to examine whether there has been a violation
of Article 14 of the Convention taken in conjunction with Articles 8, 9
and 11 (Art. 14+8, 14+9, 14+11).

G. Recapitulation

66. The Commission concludes, by 13 votes to 4, that in the present
case there has been a violation of Article 8 (Art. 8) of the Convention
(para. 50).

67. The Commission concludes, by 9 votes to 8, that in the present
case there has been no violation of Article 9 (Art. 9) of the
Convention (para. 57).

68. The Commission concludes, by 14 votes to 3, that in the present
case no separate issue arises under Article 11 (Art. 11) of the
Convention (para. 61).

69. The Commission concludes, unanimously, that in the present case
it is not necessary to examine whether there has been a violation of
Article 14 of the Convention taken in conjunction with Articles 8, 9
and 11 (Art. 14+8, 14+9, 14+11) (para. 65).

M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber

(Or. English)

PARTLY CONCURRING, MOSTLY DISSENTING OPINION
OF MM K. HERNDL, B. CONFORTI AND C. BÎRSAN

We regret that we cannot concur with the opinion of the majority
to the effect that in the present case there has been a violation of
Article 8 and that no separate issue arises under Article 11 of the
Convention. Our legal assessment of the situation, following our
reading of the facts, leads to the conclusion that neither of these
provisions has been violated.

The following is a comprehensive presentation of how we look at
the case as a whole.

1. No violation of Article 8

The point of departure must be – and this is common ground – that
whenever it is alleged that measures of surveillance are actually
applied (by State authorities), in particular when such measures fall
outside the law, the Convention organs must be satisfied that there is
a reasonable likelihood that such measures were indeed applied
(Eur. Court HR, Halford v. the United Kingdom judgment of 25 June 1997,
para. 57).

The majority consider themselves “satisfied that the report of
7 March 1993” (hereinafter called the “report”, ie. the sheet which was
found in the court file concerning the applicant) “was compiled by a
State authority”. The majority however soften their position
subsequently by adding “and in any event there is at least ‘a
reasonable likelihood’ that this was so” (para. 43).

The majority further consider “that there can be no doubt that
the collection of this information was the result of an organised
operation of surveillance – ‘watching’ – of the applicant’s life
mounted by a State authority” (para. 46).

These statements have to be contrasted with the repeated
insistence of the defendant government in their observations that the
applicant was never subjected to surveillance by the National
Intelligence Service. The Head of that service formally declared that
such had never been the case and so informed the Court of Kilkis.

The origin of the “report”, unsigned and unmarked as it was,
remaining entirely unclear, we are not convinced that there are
sufficient, or even appropriate, elements to conclude that there was
indeed any State involvement in the “report’s” compilation and
drafting. There is even less reason to speak of an “organised operation
of surveillance”. In this connection one ought not to lose sight of
the fact that most, if not all, of the details mentioned in the
“report” were more or less public knowledge. Would any “organised
operation of surveillance of the applicant’s life” lead to nothing else
but a meagre compilation of publicly known facts?

But even assuming that the “report” had been drafted by some
public authority, we believe that there could have been no violation
of the applicant’s right to respect for his private life. While the
report mentions the applicant’s name, gives some particulars about a
religious movement and contains some details on the premises in the
city of Kilkis, over which the movement and the applicant exercised
control, and the activities which took place there, this information
was by its very nature potentially accessible to everybody. It was,
as we have already said, more or less in the public domain. In our
view it follows that this information did not belong to the “private”
sphere and, as a result, the collection and putting on paper of this
type of information could not amount to an interference with the
applicant’s rights under Article 8 of the Convention.

2. No violation of Article 9

The majority have concluded that there was no violation of
Article 9, albeit on the basis of a different argument. We do agree
with the statement of non violation for the simple reason that
according to us there has been no violation of Article 8 due to the
quasi-public nature of the information contained in the “report”. A
fortiori there was no violation of the applicant’s rights under
Article 9.

Here again we cannot see how the mere existence of the “report”
and the fact that it found its way into the court file might have
violated the applicant’s right to freedom of thought, conscience and
religion. Moreover, the applicant was charged with illegally operating
a place of worship and was acquitted. Consequently, he cannot be
considered a victim of a violation of Article 9 resulting from the
possible use, in the course of the criminal proceedings, of the
information contained in the “report”

3. No violation of Article 11

The majority felt that in view of their finding of violation of
Article 8 no separate issue arose under Article 11. We are of the view
that in the present case no violation of Article 11 can be discerned
and that this should have been stated by the Commission. Our reasons
are the same as those advanced above in the framework of our
consideration of Article 9.

The information contained in the “report” being basically
available to everybody, it is indeed difficult to see how the summary
of facts, called the “report”, which for unknown reasons appeared in
the court file, could have infringed the applicant’s freedom of
peaceful assembly and of association with others. Again, considering
that the charge brought against the applicant concerned the illegal
operation of a place of worship where he and others were assembling,
and that the applicant was acquitted of that charge, he cannot be
considered to be a victim of a violation of Article 11 resulting from
the possible use, in the course of the criminal proceedings, of the
information contained in the “report”.

4. No violation of Article 14

It is only legitimate to state in connection with Article 14 that
as in the present case we do not see any breach of Convention law as
far as the substantive articles at stake are concerned (Articles 8, 9
and 11), there can, by definition, not exist a violation of Article 14.
It was, therefore, logical for us to concur with the majority that it
was not necessary to examine whether there has been a violation of
Article 14 of the Convention taken in conjunction with Articles 8, 9
and 11.

(Or. English)

PARTLY DISSENTING OPINION OF MR C.L. ROZAKIS

I have voted for a violation of Article 8 of the Convention.
However, I consider that there has also been an independent violation
of Article 9 of the Convention, because the reason why the applicant
was subjected to surveillance was his religious beliefs.

Although surveillance always interferes with the private life of
an individual, I consider that a separate issue arises when the aim of
such surveillance is to undermine a value independently protected by
another provision of the Convention. For example, when somebody is
subjected to surveillance because of his political beliefs an issue
would arise under Article 10 of the Convention, which protects the
right to hold opinions, in addition to Article 8, which protects the
right to respect for one’ private life; while when somebody is
subjected to surveillance because he engages in professional espionage,
only Article 8 of the Convention would be at stake.

In the circumstances of the case, it was clear that the applicant
was subjected to surveillance because he was a Jehovah’s Witness, i.e.
because of his religion. Freedom of religion is a valued independently
protected by the Convention. I, therefore, consider that there was an
interference with Article 9 of the Convention, in addition to its
Article 8.

The reasons why I have concluded that Article 9 has been violated
are those set out in the partly dissenting opinion of Mr L. Loucaides.

(Or. English)

PARTLY DISSENTING OPINION OF MR L. LOUCAIDES
JOINED BY
MRS J LIDDY, MM G. RESS AND A. PERENIC, MRS M. HION AND MR R. NICOLINI

In our view, there has been a violation of Article 9 of the
Convention for the following reasons.

According to the Commission’s case-law, Article 9 para. 1 of the
Convention can be divided in two parts. The first limb of paragraph 1
guarantees a general right to freedom of religion. Under the second
limb of paragraph 1, a more specific right to change and manifest one’s
religion is protected. Paragraph 2 of Article 9 only permits
limitations of the freedom to manifest one’s religion. Consequently
under Article 9 para. 1, a Contracting State is obliged to respect
everyone’s general freedom of religion and that right may not be
restricted (Darby v. Sweden, Comm. Report 9.5.89, para. 44, Eur. Court
HR, Series A no. 187, p. 17).

When considering the applicant’s complaints under Article 8 of
the Convention, the Commission found that it was established that the
authorities had mounted an organised operation of surveillance –
“watching” – of the applicant’s life. It was also established that
domestic law provided no legal basis for the mounting of such an
operation.

In our view, it is also established on the basis of the report
of 7 March 1993 that the reason why this operation had been mounted was
the applicant’s religious beliefs. The Government have failed to
identify a legitimate public purpose which such an operation could have
served.

We consider that an organised operation of surveillance of a
person’s religious activities, because such activities are simply
considered undesirable by the State, amounts to an interference with
that persons’s right to hold certain religious beliefs.

It follows that in the circumstances of the case there has been
an interference with the applicant’s general right to freedom of
religion as guaranteed in the first limb of paragraph 1 of Article 9
of the Convention. This is a right which includes the right to hold
certain religious beliefs and which may not be restricted in any way.

We have, therefore, concluded that in the present case there has
been a violation of Article 9 of the Convention.

(Or. English)

PARTLY DISSENTING OPINION OF MR I. BÉKÉS

I consider that Article 9 of the Convention has been violated for
the reasons stated in the partly dissenting opinion of Mr L. Loucaides.
Having reached this conclusion, I consider that no separate issue
arises under Article 8 of the Convention. This is why I have voted for
no violation of this provision.

21/01/1999 Corte Sentenza Cessata materia del 62

AFFAIRE TSAVACHIDIS c. GRÈCE
CASE OF TSAVACHIDIS v. GREECE

(Requête n°/Application no. 28802/95)

ARRÊT/JUDGMENT
STRASBOURG
21 janvier/January 1999

En l’affaire Tsavachidis c. Grèce,
La Cour européenne des Droits de l’Homme, constituée, conformément à l’article 27 de la Convention de sauvegarde des Droits de l’Homme et des Libertés fondamentales (« la Convention »), telle qu’amendée par le Protocole n° 11 , et aux clauses pertinentes de son règlement , en une Grande Chambre composée des juges dont le nom suit :
Mme E. PALM, présidente,
MM. L. FERRARI BRAVO,
GAUKUR JÖRUNDSSON,
L. CAFLISCH,
P. KURIS,
I. CABRAL BARRETO,
J.-P. COSTA,
W. FUHRMANN,
K. JUNGWIERT,
M. FISCHBACH,
Mme N. VAJIC,
M. J. HEDIGAN,
Mmes W. THOMASSEN,
M. TSATSA-NIKOLOVSKA,
MM. T. PANTIRU,
E. LEVITS,
C. YERARIS, juge ad hoc,
ainsi que de M. M. DE SALVIA, greffier,
Après en avoir délibéré en chambre du conseil le 17 décembre 1998,
Rend l’arrêt que voici, adopté à cette date :
PROCéDURE
1250. L’affaire a été déférée à la Cour, telle qu’établie en vertu de l’ancien article 19 de la Convention , par la Commission européenne des Droits de l’Homme (« la Commission ») le 15 décembre 1997, dans le délai de trois mois qu’ouvraient les anciens articles 32 § 1 et 47 de la Convention. A son origine se trouve une requête (no 28802/95) dirigée contre la République hellénique et dont un ressortissant de cet Etat, M. Gabriel Tsavachidis, avait saisi la Commission le 20 septembre 1995 en vertu de l’ancien article 25.

La demande de la Commission renvoie aux anciens articles 44 et 48 ainsi qu’à la déclaration grecque reconnaissant la juridiction obligatoire de la Cour (ancien article 46). Elle a pour objet d’obtenir une décision sur le point de savoir si les faits de la cause révèlent un manquement de l’Etat défendeur aux exigences des articles 8, 9, 11 et 14 de la Convention.
1251. En réponse à l’invitation prévue à l’article 33 § 3 d) du règlement A , le requérant a exprimé le désir de participer à l’instance et désigné son conseil, Me P. Bitsaxis, avocat au barreau d’Athènes. Le Gouvernement a indiqué qu’il serait représenté par M. M. Apetsos, conseiller auprès du Conseil juridique de l’Etat, et M. V. Kyriazopoulos, auditeur auprès du Conseil juridique de l’Etat.
1252. En sa qualité de président de la chambre initialement constituée (ancien article 43 de la Convention et article 21 du règlement A) pour connaître notamment des questions de procédure pouvant se poser avant l’entrée en vigueur du Protocole n° 11, M. R. Bernhardt, président de la Cour à l’époque, a consulté, par l’intermédiaire du greffier, l’agent du gouvernement grec (« le Gouvernement »), le conseil du requérant et le délégué de la Commission au sujet de l’organisation de la procédure écrite. Conformément à l’ordonnance rendue en conséquence, le greffier a reçu les mémoires du Gouvernement et du requérant les 27 et 29 mai 1998 respectivement.
1253. Le 16 juillet 1998, la Commission a produit le dossier de la procédure suivie devant elle ; le greffier l’y avait invitée sur les instructions du président de la chambre.
1254. A la suite de l’entrée en vigueur du Protocole n° 11 le 1er novembre 1998, et conformément à l’article 5 § 5 dudit Protocole, l’examen de l’affaire a été confié à la Grande Chambre de la Cour. Cette Grande Chambre comprenait de plein droit M. C.L. Rozakis, juge élu au titre de la Grèce (articles 27 § 2 de la Convention et 24 § 4 du règlement), M. L. Wildhaber, président de la Cour, Mme E. Palm, vice-présidente de la Cour, ainsi que M. J.P. Costa et M. M. Fischbach, tous deux vice-présidents de section (articles 27 § 3 de la Convention et 24 §§ 3 et 5 a) du règlement). Ont en outre été désignés pour compléter la Grande Chambre : M. L. Ferrari Bravo, M. Gaukur Jörundsson, M. L. Caflisch, M. P. Kūris, M. I. Cabral Barreto, M. W. Fuhrmann, Mme N. Vajić, M. J. Hedigan, Mme W. Thomassen, Mme M. Tsatsa-Nikolovska, M. T. Pantiru et M. E. Levits (articles 24 § 3 et 100 § 4 du règlement). Ultérieurement, M. Rozakis, qui avait participé à l’examen de l’affaire par la Commission, s’est déporté de la Grande Chambre (article 28 du règlement). En conséquence, le Gouvernement a désigné M. C. Yeraris pour siéger en qualité de juge ad hoc (articles 27 § 2 de la Convention et 29 § 1 du règlement). Par la suite, Mme Palm a remplacé M. Wildhaber, empêché, à la présidence de la Grande Chambre, et M. K. Jungwiert, suppléant, l’a remplacé comme membre de celle-ci (articles 10 et 24 § 5 b) du règlement).
1255. A l’invitation de la Cour (article 99 du règlement), la Commission a délégué l’un de ses membres, M. B. Marxer, pour participer en qualité de délégué à la procédure devant la Grande Chambre.
1256. Les 4 et 5 novembre 1998, le Gouvernement puis le conseil de M. Tsavachidis ont communiqué à la Cour le texte d’un accord conclu entre eux, accompagné d’une demande de radiation de l’affaire du rôle. Consulté, le délégué de la Commission a déclaré, le 3 décembre 1998, ne pas s’opposer à la radiation.
1257. Le 9 novembre 1998, le président de la Cour a décidé d’annuler l’audience prévue pour le 12 novembre.
EN FAIT
1258. M. Tsavachidis, qui est né en 1941 et réside à Kilkis, est témoin de Jéhovah. En 1981, il loua une salle à Kilkis pour les besoins des réunions des témoins de Jéhovah.
1259. En 1993, une plainte, datée du 5 février 1993, fut transmise au parquet de Kilkis par un avocat de cette ville, selon laquelle une église des témoins de Jéhovah fonctionnait à Kilkis sans l’autorisation de l’autorité ecclésiastique locale et du ministre de l’Education nationale et des Cultes comme l’exige l’article 1 du décret royal des 20 mai/2 juin 1939. Le parquet reçut aussi un document anonyme, daté du 7 mars 1993 et portant la mention « rapport d’information hautement confidentiel ». Le rapport indiquait qu’il était rédigé en exécution d’un ordre (reproduit au recto de celui-ci) et précisait qu’il ressortait de l’investigation menée aux archives du service que dans le passé aucune demande d’autorisation pour le fonctionnement d’un lieu de culte n’avait été déposée par les témoins de Jéhovah dans le ressort de ce service. En outre, il décrivait de manière très détaillée les locaux dans lesquels les témoins de Jéhovah se rencontraient et relatait la manière dont les réunions de ceux-ci se déroulaient, le nombre de participants, ainsi que des informations personnelles sur leur chef présumé, le requérant.
1260. Le 7 mai 1993, le procureur de la République de Kilkis invita le juge du tribunal de police de cette ville à effectuer une enquête préliminaire afin de vérifier l’exactitude des informations susmentionnées.

1261. Compte tenu des conclusions de l’enquête préliminaire, le procureur engagea des poursuites contre M. Tsavachidis pour ouverture illégale d’un lieu de culte ; par une ordonnance du 23 décembre 1993, il le renvoya en jugement devant le tribunal correctionnel à juge unique de Kilkis.
1262. Le 13 décembre 1994 l’avocat de M. Tsavachidis dénonça à la radio l’existence à Kilkis d’un réseau illégal de surveillance des membres des minorités religieuses et invita les ministres concernés à ordonner une enquête.
1263. Le 7 avril 1995, au début de l’audience, le requérant contesta la validité de la citation à comparaître le renvoyant en jugement : selon lui, le rapport d’information ne pouvait pas être considéré comme faisant partie du dossier car il n’était pas signé.
Le tribunal refusa de prononcer la nullité de la citation mais décida de ne pas prendre en compte le rapport d’information car il ne portait aucune signature ni aucun autre élément permettant d’identifier son auteur.
Le tribunal, suivant les réquisitions du procureur de la République, acquitta le requérant au motif qu’il n’existait contre celui-ci aucun document ou témoignage de nature à prouver qu’il avait commis les infractions pour lesquelles il était accusé (jugement n° 664/1995).
1264. Le même jour, le procureur de la République de Kilkis et le tribunal refusèrent de mener – comme les y invitait le requérant – une enquête quant à l’origine du rapport litigieux et d’engager, le cas écheant, des poursuites contre ses auteurs.
1265. Le 4 août 1993, un quotidien de grande diffusion, Eleftherotypia, avait révélé l’existence d’un autre rapport hautement confidentiel, rédigé par le Service national de renseignements et daté du 19 janvier 1993, contenant des allégations attentatoires aux citoyens grecs qui n’étaient pas membres de l’Eglise orthodoxe grecque.
Le 11 août 1993, le premier ministre déclara que ledit rapport était le produit d’une initiative prise par un fonctionnaire de grade inférieur et qu’il n’exprimait en aucun cas la position du gouvernement en la matière.
1266. Le journal Eleftherotypia publia le même jour un autre rapport confidentiel émanant du Service national de renseignements, qui relatait, entre autres, l’existence et les activités des témoins de Jéhovah ainsi que d’autres minorités religieuses dans d’autres parties de la Grèce.
PROCéDURE DEVANT LA COMMISSION
1267. M. Tsavachidis a saisi la Commission le 20 septembre 1995. Il se plaignait de ce que le Service national de renseignements l’avait soumis à une surveillance en raison de son appartenance à l’église des témoins de Jéhovah. Il invoquait les articles 5, 8, 9, 11 et 14 de la Convention.
1268. La Commission a retenu la requête (n° 28802/95) en partie le 4 mars 1997. Dans son rapport du 28 octobre 1997 (ancien article 31 de la Convention), elle conclut qu’il y a eu violation du droit au respect de la vie privée garanti par l’article 8 (treize voix contre quatre) ; qu’il n’y a pas eu violation du droit à la liberté de religion garanti par l’article 9 (neuf voix contre huit) ; qu’aucune question distincte ne se pose sous l’angle de l’article 11 (droit à la liberté de réunion) (quatorze voix contre trois) ; et qu’il n’est pas nécessaire d’examiner s’il y a eu violation de l’article 14 (interdiction de discrimination) de la Convention combiné avec les articles 8, 9 et 11 (unanimité) .
CONCLUSIONS PRéSENTéES à LA COUR PAR LE GOUVERNEMENT
1269. Le Gouvernement invite la Cour « à rejeter la requête comme irrecevable ou à la déclarer non fondée pour l’ensemble des griefs relatifs à la violation des articles 8, 9, 11 et 14 de la Convention ».
EN DROIT
1270. Le 4 novembre 1998, la Cour a reçu de l’agent du Gouvernement communication du texte ci-après :

« Me référant à votre lettre du 13 octobre 1998, j’ai l’honneur de vous informer que le Gouvernement souhaite conclure en l’espèce un règlement amiable qui consistera en le paiement de 1 500 000 drachmes pour les frais du requérant occasionnés par la procédure devant la Commission européenne des Droits de l’Homme et en une déclaration selon laquelle les témoins de Jéhovah ne sont, et ne seront pas à l’avenir, soumis à aucune surveillance en raison de leurs convictions religieuses.
J’ai déjà contacté le représentant du requérant, M. Bitsaxis, qui est d’accord pour ce règlement amiable.
Par conséquent, j’invite la Cour à radier l’affaire du rôle. »

1271. Par une lettre du 5 novembre 1998 à la Cour, l’avocat du requérant a confirmé l’accord ainsi conclu en ces termes :

« De la part du requérant, M. Tsavachidis, j’ai l’honneur d’informer la Cour que le gouvernement hellénique et le requérant ont conclu un règlement amiable dans l’affaire (…) qui est pendante devant la Cour et dont l’audience est fixée pour le 12 novembre 1998.
Le Gouvernement déclare à ce stade de l’affaire que les témoins de Jéhovah ne sont pas soumis à une surveillance secrète en raison de leurs convictions religieuses et ne seront jamais soumis à une telle surveillance dans l’avenir. Le Gouvernement s’est en outre engagé à payer au requérant la somme de 1 500 000 drachmes pour les frais occasionnés par la procédure devant la Commission européenne des Droits de l’Homme.
Cette déclaration satisfait le requérant qui accepte par conséquent le règlement amiable de l’affaire. Il demande donc à la Cour de rayer l’affaire du rôle. »

1272. Consulté, le délégué de la Commission n’a soulevé aucune objection.
1273. La Cour prend acte de l’accord auquel ont abouti le Gouvernement et M. Tsavachidis. Elle note qu’il donne satisfaction au requérant. Elle pourrait néanmoins, eu égard aux responsabilités lui incombant aux termes de l’article 37 § 1 in fine de la Convention, décider de poursuivre l’examen de l’affaire si elle n’est pas assurée que ledit règlement s’inspire du respect des droits de l’homme tels que les reconnaissent la Convention ou ses Protocoles (article 62 § 3 du règlement), mais tel n’est pas le cas en l’espèce.
1274. A ce sujet, elle rappelle que plusieurs litiges antérieurs l’ont conduite à se pencher sur des systèmes de surveillance secrète dans d’autres Etats que la Grèce et à vérifier, sous l’angle de l’article 8 de la Convention, l’existence de garanties adéquates et suffisantes contre les abus de tels systèmes (arrêts Klass et autres c. Allemagne du 6 septembre 1978, série A n° 28, Malone c. Royaume-Uni du 2 août 1984, série A n° 82, et Leander c. Suède du 26 mars 1987, série A n° 116). En outre, les affaires Kokkinakis c. Grèce et Manoussakis et autres c. Grèce (arrêts du 25 mai 1993, série A n° 260-A, et du 26 septembre 1996, Recueil des arrêts et décisions 1996-IV, respectivement) – dont les faits se différenciaient cependant de ceux de la présente affaire – ont conduit la Cour à se prononcer, sous l’angle de l’article 9 de la Convention, sur l’application aux témoins de Jéhovah de la législation grecque pertinente. Par là même, elle a précisé la nature et l’étendue des obligations assumées dans ces domaines par les Etats contractants.
26. Partant, il échet de rayer l’affaire du rôle.
par ces motifs, la cour, à l’unanimité,
Décide de rayer l’affaire du rôle.

Fait en français et en anglais, puis prononcé en audience publique au Palais des Droits de l’Homme, à Strasbourg, le 21 janvier 1999.

Michele DE SALVIA Elisabeth PALM
Greffier Présidente