Sentenza 10 luglio 1998, n.26695/95

Corte Europea dei Diritti dell’Uomo

26695/95
24/06/1996 Commissione Decisione Ricevibile 273
AS TO THE ADMISSIBILITY OF Application No. 26695/95
by Hristos SIDIROPULOS and 6 others against Greece
The European Commission of Human Rights sitting in private on
24 June 1996, the following members being present:

MM. S. TRECHSEL, President
H. DANELIUS
C.L. ROZAKIS
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS

Mr. M. de SALVIA, Deputy Secretary to the Commission

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

Having regard to the application introduced on 14 November 1994
by Hristos SIDIROPULOS and 6 others against Greece and registered on
14 March 1995 under file No. 26695/95;

Having regard to :

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

– the Commission’s decision of 26 June 1995 to communicate the
application;

– the observations submitted by the respondent Government on
29 November 1995 and the observations in reply submitted by the
applicants on 6 March 1996;

Having deliberated;

Decides as follows:

THE FACTS

The application has been lodged by seven Greek citizens residing
in Florina, a prefecture in the north of Greece bordering “the Former
Yugoslav Republic of Macedonia”: Hristos Sidiropulos, an electrician
born in 1949 in Kastoria, Greece, Petros Dimtsis, a professor born in
1957 in Florina, Stavros Anastasiadis, a farmer born in 1944 in
Florina, Konstantinos Gotsis, a manufacturer born in 1944 in Florina,
Anastasios Bules, a farmer born in 1941 in Florina, Stavros Sovitslis,
a farmer born in 1950 in Florina, and Dimitrios Seltsas, a dentist born
in 1956 in Florina. The applicants claim that they are of “Macedonian”
ethnic origin. They also claim to have a “Macedonian national
conscience”. In the proceedings before the Commission they are
represented by Mrs. I. Kurtovik, a lawyer practising in Athens.

A. The particular circumstances of the case

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

On 18 April 1990 the applicants, together with 49 other persons,
decided to establish a non-profit making association (somatio) entitled
“Home of Macedonian Civilisation” (“Stegi Makedoniku Politismu”). The
seat of the association would be Florina and its aims, according to
Article 2 of its charter, were “(a) the cultural, intellectual and
artistic development of its members and of the people of Florina in
general as well as the development of a spirit of co-operation,
solidarity and love between them (b) the cultural decentralisation and
the protection of the intellectual and artistic manifestations and
traditions, the monuments of civilisation and in general the
preservation and development of folk culture and (c) the protection of
the natural and cultural environment of the region”.

On 12 June 1990 the applicants, who constituted the provisional
management committee of the association, applied to the Multi-Member
First Instance Civil Court (Polimeles Protodikio) of Florina for
registration under Article 79 of the Civil Code.

On 9 August 1990 the first instance court, having heard the
applicants, refused their application on the ground that “the real aim
of the association was not the one mentioned in Article 2 of its
charter; it was to cultivate the idea that a Macedonian minority
existed in Greece and this was against the national interest of Greece
and, consequently, against the law”.

On 7 September 1990 the applicants appealed. On 8 May 1991 the
Court of Appeal (Efetio) of Thessaloniki, having heard the applicants,
rejected their appeal. The court considered that, when examining an
application for the registration of an association, it was not bound
by ordinary rules concerning the burden of proof. When hearing such
applications, the court should not and could not limit itself to the
evidence proposed by the parties. In the particular case the court
accepted the following as true, on the basis that it was a matter of
public knowledge.

The area which corresponds to the Greek province of Macedonia has
always been Greek. The fact that part of its population speaks a second
language, which is in essence Bulgarian mingled with Slavonic, Greek,
Vlach and Albanian, is not proof of Slav or Bulgarian descent. The
Socialist Republic of Macedonia aimed at the creation of a Slav
Macedonian state so as to gain access to the Aegean Sea. To this effect
it attempted to win over the Greek inhabitants of Greek Macedonia who
speak the above-mentioned second language. Acting in compliance with
a directive issued by Slav organisations abroad the applicants
established the “Home of Macedonian Civilisation” to further this goal.

The court further relied on reports, which had appeared in two
newspapers, according to which two of the applicants took part in a
meeting of the Conference for the Security and Cooperation in Europe
in Copenhagen where they disputed the fact that Greek Macedonia was
Greek, making a distinction between Greeks and Macedonians.

The court considered that the latter fact together with the name
of the association and the contents of its charter rendered its aims
dubious. There existed the danger that the association would be used
to trap young persons in the non-existent Slav-Macedonian minority,
since Article 3 para. 2 of the charter provided that the youth of
Florina would become members of the youth section of the association.
Moreover, the court considered it suspicious that, although Article 4
of the charter provided that all members should accept the principles
of the association, no mention of these principles was ever made in the
charter. The title of the association itself could create confusion,
because it initially created the impression that it referred to the
Greek civilisation of Macedonia, while in reality it referred to a Slav
civilisation, which, however, did not exist in the area. In the light
of all the above, the court concluded that the applicants used the word
“Macedonian” to contest the Greek identity of Macedonia and its
inhabitants. The court was satisfied that the objective of the
applicants was to undermine the territorial integrity of Greece and
upheld the decision of the lower court, notwithstanding the fact that
the latter was based on “a shorter and partially different reasoning”.

On 20 June 1991 the applicants appealed to the Court of Cassation
(Arios Pagos) relying, inter alia, on Articles 2, 4, 5 and 12 of the
Greek Constitution and the corresponding provisions of the Convention.
They submitted that, contrary to the law, the court of appeal (a) did
not limit itself to reviewing the lawfulness of the establishment of
the association but exercised a much wider review as to the expediency
of its establishment based on the presumed intentions of its founders,
(b) took into consideration matters that had not been submitted by the
parties, (c) took into consideration things of material importance
without ordering the taking of evidence, (d) distorted the content of
the association’s charter, and (e) did not provide sufficient reasons
for its decision.

In a memorial submitted to the Court of Cassation on the occasion
of the hearing the applicants specified that it was the decision of the
court of appeal which violated their rights under Articles 2, 4, 5 and
12 of the Greek Constitution and the corresponding provisions of the
Convention. They further submitted that, by taking into consideration
things of material importance without ordering the taking of evidence,
the court of appeal violated the applicants’ right to a fair trial.

In a judgment delivered on 16 May 1994 the Court of Cassation
considered that the first, second, third and fourth grounds of appeal
were unsubstantiated. In any event, it considered that the lower court
could take into consideration matters which had not been submitted by
the parties and that the “matters of material importance” referred to
were either matters of public knowledge or proved on the basis of
documents, namely the press reports mentioned in the decision. The
Court of Cassation further considered that the decision of the court
of appeal was adequately reasoned. It also noted that the applicants
had not alleged that the decision of the court of appeal violated
Articles 2, 4, 5 and 12 of the Constitution. In the applicants’
submission, it was the decision of the first instance court which had
failed to respect the above-mentioned provisions. However, even if the
aim of the applicants had been to attack the constitutionality of the
decision of the court of appeal, this ground of appeal would have had
to be rejected as unsubstantiated. On the basis of all the above, the
Court of Cassation dismissed the applicants’ appeal in cassation.

B. Relevant domestic law

Article 4 para. 1 of the Constitution provides the following:

“All Greeks are equal before the law.”

Article 12 of the Constitution provides the following:

“Greeks have the right to form non-profit associations and
unions, in compliance with the law, which, however, may
never subject the exercise of this right to prior
permission.”

The Civil Code provides in respect of non-profit making
associations the following:

Article 78

“An association of at least twenty persons with a non-
profit making aim acquires legal personality upon
registration in a special book kept by the competent first
instance civil court.”

Article 79

“The founders of the association or its administration
apply to the competent first instance civil court to have
the association registered in the special book. The
application must be accompanied by the act establishing the
association, a list of the names of its administration and
its charter which must be dated and signed by its members.”

Article 80

“The charter of the association must specify the following:
(a) the aim, name and seat of the association, (b) the
conditions of admission, withdrawal and expulsion of the
members and their rights and obligations … Otherwise it
is not valid.”

Article 81

“The first instance civil court accepts the application if
it is satisfied that all the conditions set by the law are
met …”
Article 105

“The first instance civil court orders the dissolution of
the association … (c) if the association pursues other
aims than those specified in its charter, or if the aim or
the functioning of the association has become illegal,
immoral or against the public order.”

The Code of Civil Procedure provides the following in respect of
the special procedure (ekusia dikeodosia) according to which courts
examine, inter alia, applications for the registration of associations:

Article 744

“The court may proprio motu order any measures which could
lead to the establishment of relevant facts, even if the
latter have not been the subject matter of the parties’
submissions …”

Article 759 para. 3

“Notwithstanding the legal rules concerning proof, the
court may order proprio motu whatever it considers
necessary for the establishment of the facts.”

Moreover, Article 336 para. 1 of the Code of Civil Procedure
provides the following in respect of all proceedings before the civil
courts:

“The court may take into consideration, proprio motu and
without taking evidence, facts which are so generally known
that there can be no reasonable doubt as to their truth.”

COMPLAINTS

1. The applicants complain of a violation of Article 6 of the
Convention in that their case was not heard by impartial tribunals.
They submit that the courts were hostile to them because of their
ethnic origin and national conscience. In substantiation of their claim
they rely on passages of the decisions where the courts assert that the
Slav-Macedonian minority is non-existent and conclude that the
applicants acted against the interests of Greece to further the aims
of a foreign power. The applicants also complain that they did not have
a fair hearing because, contrary to the law, the courts (a) did not
limit themselves to reviewing the lawfulness of the establishment of
the association but exercised a much wider review as to the expediency
of its establishment based on the presumed intentions of its founders,
(b) took into consideration matters that had not been submitted by the
parties, and (c) took into consideration things of material importance
without ordering the taking of evidence.

2. The applicants further complain of a violation of Articles 9, 10
and 11 of the Convention in that they were not allowed to establish a
cultural association. As the refusal of the courts to register the
association was not related to the aims of the association, the
applicants submit that this was a sanction imposed on them because of
their publicly expressed beliefs.

3. The applicants finally complain of a violation of Articles 1 and
14 of the Convention in that they were denied the enjoyment of the
above-mentioned Convention rights because of their ethnic origin, their
association with a national minority and their beliefs and national
conscience.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 14 November 1994 and registered
on 14 March 1995.

On 26 June 1995 the Commission decided to communicate the
application to the respondent Government, pursuant to Rule 48
para. 2 (b) of the Rules of Procedure.

The Government’s written observations were submitted on
29 November 1995, after an extension of the time-limit fixed for that
purpose. The applicants replied on 6 March 1996, also after an
extension of the time-limit.

THE LAW

1. The Commission notes that the fourth applicant, Mr. Konstantinos
Gotsis, died on 29 September 1995. There is no indication that there
are any heirs who wish to pursue his application.

It follows that, insofar as the application has been introduced
by the fourth applicant, it must be struck off the lists of cases
pursuant to Article 30 para. 1 (c) (Art. 30-1-c) of the Convention.

2. The remaining applicants complain of a violation of their rights
under Article 6 (Art. 6) of the Convention in that the courts were
hostile to them, did not apply correctly national law and took into
consideration matters that had not been submitted by the parties and
things of material importance without ordering the taking of evidence.
They also complain of a violation of Articles 9, 10 and 11
(Art. 9, 10, 11) of the Convention in that they were not allowed to
establish a cultural association. Finally, they complain of a violation
of Articles 1 and 14 (Art. 1, 14) of the Convention in that they were
denied the enjoyment of the above-mentioned Convention rights because
of their ethnic origin, their association with a national minority and
their beliefs and national conscience.

The provisions invoked by the applicants, insofar as relevant,
provide as follows:

Article 1 (Art. 1) of the Convention

“The High Contracting Parties shall secure to everyone
within their jurisdiction the rights and freedoms defined
in Section 1 of this Convention.”

Article 6 para. 1 (Art. 6-1) of the Convention

“In the determination of his civil rights and obligations
…, everyone is entitled to a fair … hearing … by an
… impartial tribunal …”.

Article 9 (Art. 9) of the Convention

“1. Everyone has the right to freedom of thought,
conscience and religion; this right includes freedom to
change his religion or belief and freedom, either alone or
in community with others and in public or in private, to
manifest his religion or belief, in worship, teaching,
practice and observance.

2. Freedom to manifest one’s religion or beliefs shall be
subject only to such limitations as are prescribed by law
and are necessary in a democratic society in the interests
of public safety, for the protection of public order,
health or morals, or for the protection of the rights and
freedoms of others.”

Article 10 (Art. 10) of the Convention

“1. Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to receive
and impart information and ideas without interference by
public authority and regardless of frontiers. …

2. The exercise of these freedoms, since it carries with
it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic
society, in the interests of national security, territorial
integrity or public safety, for the prevention of disorder
or crime, for the protection of health or morals, for the
protection of the reputation or rights of others, for
preventing the disclosure of information received in
confidence, or for maintaining the authority and
impartiality of the judiciary.”

Article 11 (Art. 11) of the Convention

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

2. No restrictions shall be placed on the exercise of
these rights other than such as are prescribed by law and
are necessary in a democratic society in the interests of
national security or public safety, for the prevention of
disorder or crime, for the protection of health or morals
or for the protection of the rights and freedoms of others.
…”

Article 14 (Art. 14) of the Convention

“The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any
ground such as sex, race, colour, language, religion,
political or other opinion, national or social origin,
association with a national minority, property, birth or
other status.”

3. As a preliminary point, the Government submit that the
application constitutes an abuse of the right of individual petition.
Its real aim is to obtain a ruling by the Convention organs that the
name Macedonia belongs to the recently established Slav nation of
Skopje. The applicants attempt to remove the dispute between Greece and
“the Former Yugoslav Republic of Macedonia” concerning the name of the
latter from the competence of the various international fora charged
with maintaining international peace and prosperity and to oblige the
European Convention organs to resolve it. At a time when Greece is
engaged in negotiations concerning the name of “the Former Yugoslav
Republic of Macedonia”, it cannot permit the use of the name Macedonia
by organisations of the Slavs of Skopje on its territory.

The applicants submit that the application has nothing to do with
the dispute between Greece and “the Former Yugoslav Republic of
Macedonia”.

The Commission notes that the application originates in the
applicants’ attempt to establish in Greece an association entitled
“Home of Macedonian Civilisation” and that the applicants are Greek
citizens who claim to be of “Macedonian” ethnic origin and have a
“Macedonian national conscience”. The Government’s argument concerning
the abusive character of the application is based, in essence, on the
thesis that no “Macedonian” minority exists in Greece, which the
applicants appear to contest.

The Commission considers that the difference of opinion between
the parties on these matters raises issues which are relevant for the
examination of the justification of the alleged interference with the
applicants’ rights under Articles 9, 10 and 11 (Art. 9, 10, 11) of the
Convention. It also considers that it would be failing in its duty
under Article 19 (Art. 19) of the Convention to ensure the observance
of the engagements undertaken by the High Contracting Parties in the
Convention if it were to refuse to examine the application on the basis
of the possible impact, if any, that it might have on the dialogue
between Greece and “the Former Yugoslav Republic of Macedonia”.

The Commission considers, therefore, that the application does
not constitute an abuse of the right of petition within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.

4. The Government also contend that the applicants have failed to
observe the six-month rule of Article 26 (Art. 26) of the Convention.
They submit that more than six months elapsed between the delivery of
the judgment of the Court of Cassation on 16 May 1994 and the
introduction of the application on 14 November 1994.

The applicants agree that the six months’ time-limit should be
calculated from the date of the delivery of the judgment of the Court
of Cassation and submit that their application has been submitted
within the period provided for in Article 26 (Art. 26) of the
Convention.

The Commission takes note of the Government’s submission, which
must be, however, the result of a calculation error. The Commission
considers that, as the Government in reality accept, the application
has been introduced within six months from the final domestic decision
in the applicants’ case.

5. The Government further submit that the applicants have not
exhausted domestic remedies. According to the decision of the Court of
Cassation, the applicants did not complain that the decision of the
Court of Appeal violated their rights under the Convention. The
applicants complained, without however substantiating their
allegations, that their Convention rights had been violated by the
decision of the first instance court. However, this decision could not
be challenged before the Court of Cassation. It follows that the
applicants did not raise their complaints in accordance with the rules
of national law and, as a result, did not give the Court of Cassation
the opportunity to redress the alleged violations.

The applicants submit that they raised before the Court of
Cassation all their complaints referring to the relevant articles of
the Greek Constitution and the corresponding provisions of the
Convention.

The Commission recalls that, in accordance with its constant
case-law, a person is deemed to have exhausted domestic remedies if he
has raised before the national authorities, at least in substance, the
complaint he puts to the Commission (No. 10563/83, Dec. 5.7.85, D.R. 44
p. 113).

The Commission has examined the five grounds on the basis of
which the applicants challenged the decision of the Court of Appeal
before the Court of Cassation on 20 June 1991. It considers that by
relying on these five grounds the applicants raised in substance all
the complaints they have now put before the Commission. It also notes
that the Court of Cassation, before rejecting the appeal, examined all
the grounds raised by the applicants at length.

It follows that the application cannot be rejected under
Article 27 para. 3 (Art. 27-3) for failure to exhaust domestic
remedies.

6. As regards the substance of the applicants’ complaints, the
Government submit that the national courts had the power under Greek
law to examine whether the aims of the association were unlawful or
against public order. The Court of Cassation interpreted the relevant
provisions of the Code of Civil Procedure correctly when it rejected
the applicants’ appeal in cassation. The domestic courts had the power
to take into consideration certain incontrovertible facts and in
particular the threat which certain recent acts of “the Former Yugoslav
Republic of Macedonia” posed for the national integrity and the
cultural heritage of Greece. They also had the power to take into
consideration certain publications in the Greek and Yugoslav press
concerning the applicants.

The Government argue that it is clear from the applicants’
submissions before the Commission that their real aim was to establish
an association on behalf of the minority of the Slavs of Skopje in
order to protect the cultural traditions of Skopje, which are in
reality of Bulgarian and Yugoslav origin. The Government affirm that
such a minority and such cultural traditions do not exist in Greece.
It transpires, however, from the applicants’ submissions before the
Commission that the real aims of the association were different from
those mentioned in its charter. In any event, the domestic courts have
exclusive competence to establish that the real aim of the association
is different from the aim mentioned in its charter, provided that the
courts do not act in a discriminatory manner.
The Government argue, in the alternative, that the domestic
courts were correct in concluding that the intention of the applicants
was to assist various Slav associations operating outside Greece in
their attempt to undermine the territorial integrity of Greece. The
domestic courts have found that the case concerned the national
security of Greece. It follows that they have exclusive competence in
the matter.

On the basis of all the above, the Government submit that there
could be no violation of Article 6 (Art. 6) of the Convention, because
the courts were impartial and heard the applicants. It was lawful under
domestic law not to order the taking of evidence. The judges did not
review the expediency of the establishment of the association, but did
their duty to protect the existence of their country.

As regards the applicants’ complaints under Articles 9 and 10
(Art. 9, 10) of the Convention, the Government submit that the
decisions in question do not prohibit the applicants from assuming that
they are not of Greek ethnic origin. The interference with their
Convention rights was necessary in a democratic society to protect
national security, public order and the rights and freedoms of the
Greek people in its entirety. The Greek people has the right to protect
Macedonia which belongs to it historically and culturally and lies
within its territory and which the Slavs of Skopje want to appropriate
for themselves. As regards the applicants’ complaints under Article 11
(Art. 11) of the Convention, the Government contend that the
interference with the applicants’ right to freedom of association was
justified under para. 2 of that provision for the reasons stated above.

Finally, insofar as the applicants’ complaints under Articles 1
and 14 (Art. 1, 14) of the Convention are concerned, the Government
submit that the refusal of the courts to register the association was
not an act of discrimination against the applicants because of their
ethnic origin and beliefs. The association was found to pursue
different aims from those stated and its real aims were against public
order.

The applicants submit that the Government’s arguments amount to
acknowledging that their rights under the Convention have been
violated. They contend that, under Greek law and in particular
Article 12 (Art. 12) of the Constitution, the domestic courts should
have limited their review to ascertaining that the conditions set forth
in Articles 78-80 of the Civil Code were fulfilled and that the stated
aims of the association were not illegal, or against morality or public
order. They could not engage in speculation as to real aims of the
association. Nor could they decide on the expediency of its
establishment on the basis of the presumed intentions of its founders.

According to the case-law, a judge, when applying the special
procedure for examining applications for the registration of
associations, may order proprio motu whatever measures he considers
necessary for the establishment of the truth. He cannot, however, rely
on documents or evidence which have not been officially submitted to
the court or on his private knowledge. Moreover, he cannot consider
that certain material facts have been established without ordering,
even proprio motu, the taking of evidence. It cannot be considered that
the propositions on which the national courts based their decisions in
the case were “common knowledge”. Part of the information invoked was
derived from certain racist newspapers. The reasoning in the courts’
decisions is limited to a historical analysis and certain unfounded
disparaging remarks for the applicants. No attempt was made by the
courts to link the above in a reasoned manner with the charter of the
association and the rejection of the request for its registration. The
Court of Cassation, in upholding these decisions, violated national law
and the rights of the accused under Article 6 para. 1 (Art. 6-1) of the
Convention.

The applicants also affirm that their association had no links
with “the Former Yugoslav Republic of Macedonia” and stress that it was
set up long before the declaration of independence of that country. In
any event, a court cannot base its decision on a particular
interpretation of certain historical events which it considers to be
established facts without ordering the taking of evidence.

The applicants further contend that the aims of their association
were lawful. They involved the study of the local culture of the area
of Florina, in which, as it is well-known, a distinct linguistic,
cultural and historic group of people, to which the applicants belong,
lives. The study of the local culture is protected by the Constitution,
the Convention, other international human rights instruments and the
agreements of the Organisation for the Security and Cooperation in
Europe in which Greece participates. In accordance with these
agreements, every person has the right to consider that he belongs to
a particular group.

As regards the necessity of the interference with their
Convention rights, the applicants submit that, if the aims of the
association turned out to be unlawful or against morality or public
order, the State could protect itself using the means provided by
national law. The courts could order the dissolution of the association
under Article 105 of the Civil Code.

Finally, the applicants argue that it is clear that the courts
discriminated against them, since they refused the registration of the
association in blatant disregard of domestic law.

The Commission considers that the applicants’ various complaints,
including those concerning procedural fairness, are so closely linked
to each other that they cannot be separated at this stage and must be
examined as a whole.

In the light of the parties’ observations, the Commission
considers that the application raises serious questions of fact and
law, including the question of the applicability of Article 6
(Art. 6) of the Convention to the proceedings in question, which are
of such complexity that their determination should depend on an
examination of the merits. The application cannot, therefore, be
regarded as being manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention, and no other ground
for declaring it inadmissible has been established.

For these reasons the Commission, unanimously,

STRIKES THE APPLICATION OUT OF ITS LIST OF CASES, in so far as
it has been introduced by the fourth applicant,

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

Deputy Secretary President of the Commission
to the Commission

(M. de SALVIA) (S. TRECHSEL)

11/04/1997 Commissione Rapporto Accoglimento 172

EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 26695/95
Hristos Sidiropulos and 5 others
against
Greece
REPORT OF THE COMMISSION
(adopted on 11 April 1997)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1

A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . .1

B. The proceedings
(paras. 5-10) . . . . . . . . . . . . . . . . . . .1

C. The present Report
(paras. 11-15). . . . . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS
(paras. 16-30) . . . . . . . . . . . . . . . . . . . . .4

A. The particular circumstances of the case
(paras. 16-25). . . . . . . . . . . . . . . . . . .4

B. Relevant domestic law
(paras. 25-30). . . . . . . . . . . . . . . . . . .6

III. OPINION OF THE COMMISSION
(paras. 31-79) . . . . . . . . . . . . . . . . . . . . .8

A. Complaints declared admissible
(para. 31). . . . . . . . . . . . . . . . . . . . .8

B. Points at issue
(para. 32). . . . . . . . . . . . . . . . . . . . .8

C. As regards Article 11 of the Convention
(paras. 33-59). . . . . . . . . . . . . . . . . . .8

CONCLUSION
(para. 60). . . . . . . . . . . . . . . . . . . . 14

D. As regards Article 6 para. 1 of the Convention
(paras. 61-64). . . . . . . . . . . . . . . . . . 14

CONCLUSION
(para. 65). . . . . . . . . . . . . . . . . . . . 15

E. As regards Articles 9 and 10 of the Convention
(paras. 66-69). . . . . . . . . . . . . . . . . . 15

CONCLUSION
(para. 70). . . . . . . . . . . . . . . . . . . . 16

TABLE OF CONTENTS

Page

F. As regards Article 14 of the Convention
(paras. 71-74). . . . . . . . . . . . . . . . . . 16

CONCLUSION
(para. 75). . . . . . . . . . . . . . . . . . . . 16

G. Recapitulation
(paras. 76-79). . . . . . . . . . . . . . . . . . 17

APPENDIX I: DECISION OF THE COMMISSION AS TO
THE ADMISSIBILITY OF THE APPLICATION . . . . 18

APPENDIX II: FULL TEXT OF THE DECISION OF
THE COURT OF APPEAL OF THESSALONIKI
OF 8 MAY 1991. . . . . . . . . . . . . . . . 31

APPENDIX III: ORIGINAL TEXT OF RELEVANT DOMESTIC LAW
PROVISIONS . . . . . . . . . . . . . . . . . 35

APPENDIX IV: EXTRACTS FROM PRESS REPORTS RELIED ON
BY THE DOMESTIC COURTS . . . . . . . . . . . 37

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 applicants are six Greek citizens residing in Florina,
Greece: Hristos Sidiropulos, an electrician born in 1949 in Kastoria,
Greece, Petros Dimtsis, a professor born in 1957 in Florina, Stavros
Anastasiadis, a farmer born in 1944 in Florina, Anastasios Bules, a
farmer born in 1941 in Florina, Stavros Sovitslis, a farmer born
in 1950 in Florina, and Dimitrios Seltsas, a dentist born in 1956 in
Florina. They were represented before the Commission by
Mrs. I. Kurtovik, a lawyer 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 State (Nomiko Simvulio tu Kratus),
Mr. P. Kamarineas, Member (Simvulos) of the Legal Advisory Council of
State, and Mrs. F. Dedoussi (Legal Assistant) of the Legal Advisory
Council of State.

4. The case concerns the refusal of the Greek courts to register an
association formed by the applicants and the fairness of the related
proceedings. The applicants invoke Articles 1, 6, 9, 10, 11 and 14 of
the Convention.

B. The proceedings

5. The application was introduced on 16 November 1994 and registered
on 14 March 1995.

6. On 26 June 1995 the Commission 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 29 November 1995
after an extension of the time-limit fixed for this purpose. The
applicants replied on 6 March 1996 after an extension of the
time-limit.

8. On 24 June 1996 the Commission declared the application
admissible insofar as it had been introduced by the six above-mentioned
applicants. It struck the application out of its list of cases insofar
as it had been introduced by a seventh applicant who had died in the
meantime.

9. The text of the Commission’s decision on admissibility was sent
to the parties on 10 July 1996 and they were invited to submit such
further information or observations on the merits as they wished. The
parties have not availed themselves of this possibility.

10. 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

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

Mr. S. TRECHSEL, President
Mrs. G.H. THUNE
Mrs. J. LIDDY
MM. E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI

12. The text of this Report was adopted on 11 April 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.

13. 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.

14. The Commission’s decision on the admissibility of the application
is annexed hereto as Appendix I.

15. 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

16. On 18 April 1990 the applicants, who claim to be of “Macedonian”
ethnic origin and to have a “Macedonian national conscience”, together
with 49 other persons, decided to establish a non-profit making
association (somatio) entitled “Home of Macedonian Civilisation”
(“Stegi Makedoniku Politismu”). The seat of the association would be
Florina in a prefecture in the north of Greece bordering “the Former
Yugoslav Republic of Macedonia”. Its aims, according to Article 2 of
its charter, were “(a) the cultural, intellectual and artistic
development of its members and of the people of Florina in general as
well as the development of a spirit of co-operation, solidarity and
love between them, (b) the cultural decentralisation and the protection
of the intellectual and artistic manifestations and traditions, the
monuments of civilisation and in general the preservation and
development of folk culture, and (c) the protection of the natural and
cultural environment of the region”.

17. On 12 June 1990 the applicants, who constituted the provisional
management committee of the association, applied to the Multi-Member
First Instance Civil Court (Polimeles Protodikio) of Florina for
registration under Article 79 of the Civil Code.

18. On 9 August 1990 the first instance court, having heard the
applicants, refused their application on the ground that “the real aim
of the association was not the one mentioned in Article 2 of its
charter; it was to promote the idea that a Macedonian minority existed
in Greece and this was against the national interest of Greece and,
consequently, against the law”.

19. On 7 September 1990 the applicants appealed. On 8 May 1991 the
Court of Appeal (Efetio) of Thessaloniki, having heard the applicants,
rejected their appeal (the full text of the appeal court’s decision
appears in Appendix II). The court considered that, when examining an
application for the registration of an association, it was not bound
by ordinary rules concerning the burden of proof. When hearing such
applications, the court should not and could not limit itself to the
evidence proposed by the parties. In the particular case the court
accepted the following as true, on the basis that it was a matter of
public knowledge.

20. The area which corresponds to the Greek province of Macedonia has
always been Greek. The fact that part of its population speaks a second
language, which is in essence Bulgarian mingled with Slavonic, Greek,
Vlach and Albanian, is not proof of Slav or Bulgarian descent. The
Socialist Republic of Macedonia aimed at the creation of a Slav
Macedonian state so as to gain access to the Aegean Sea. To this effect
it attempted to win over the Greek inhabitants of Greek Macedonia who
speak the above-mentioned second language. Acting in compliance with
a directive issued by Slav organisations abroad the applicants
established the “Home of Macedonian Civilisation” to further this goal.

21. The court further relied on reports, which had appeared in the
Ethnos newspaper on 5 February 1991 and in the Ellinikos Vorras
newspaper on 12 May 1991, according to which two of the applicants took
part in a meeting of the Conference for the Security and Cooperation
in Europe in Copenhagen where they disputed the fact that Greek
Macedonia was Greek, making a distinction between Greeks and
Macedonians.

22. The court considered that the latter fact together with the name
of the association and the contents of its charter rendered its aims
dubious. There existed a danger that the association would be used to
trap young persons in the non-existent Slav-Macedonian minority, since
Article 3 para. 2 of the charter provided that the youth of Florina
would become members of the youth section of the association. Moreover,
the court considered it suspicious that, although Article 4 of the
charter provided that all members should accept the principles of the
association, no mention of these principles was ever made in the
charter. The title of the association itself could create confusion,
because initially it created the impression that it referred to the
Greek civilisation of Macedonia, while in reality it referred to a Slav
civilisation, which, however, did not exist in the area. In the light
of all the above, the court concluded that the applicants used the word
“Macedonian” to contest the Greek identity of Macedonia and its
inhabitants. The court was satisfied that the objective of the
applicants was to undermine the territorial integrity of Greece and
upheld the decision of the lower court, notwithstanding the fact that
the latter was based on “a shorter and partially different reasoning”.

23. On 20 June 1991 the applicants appealed to the Court of Cassation
(Arios Pagos) relying, inter alia, on Articles 2, 4, 5 and 12 of the
Greek Constitution and the corresponding provisions of the Convention.
They submitted that, contrary to the law, the court of appeal (a) did
not limit itself to reviewing the lawfulness of the establishment of
the association but exercised a much wider review as to the expediency
of its establishment based on the presumed intentions of its founders,
(b) took into consideration matters that had not been submitted by the
parties, (c) took into consideration matters of essential importance
without ordering the taking of evidence, (d) distorted the content of
the association’s charter, and (e) did not provide sufficient reasons
for its decision.

24. In a memorial submitted to the Court of Cassation on the occasion
of the hearing the applicants specified that it was the decision of the
court of appeal which violated their rights under Articles 2, 4, 5
and 12 of the Greek Constitution and the corresponding provisions of
the Convention. They further submitted that, by taking into
consideration matters of essential importance without ordering the
taking of evidence, the court of appeal violated the applicants’ right
to a fair trial.

25. In a judgment delivered on 16 May 1994, the Court of Cassation
considered that the first, second, third and fourth grounds of appeal
were unsubstantiated. In any event, it considered that the lower court
could take into consideration matters which had not been submitted by
the parties and that the “matters of material importance” referred to
were either matters of public knowledge or proved on the basis of
documents, namely the press reports mentioned in the decision. The
Court of Cassation further considered that the decision of the court
of appeal was adequately reasoned. It also noted that the applicants
had not alleged that the decision of the court of appeal violated
Articles 2, 4, 5 and 12 of the Constitution. In the applicants’
submission, it was the decision of the first instance court which had
failed to respect the above-mentioned provisions. However, even if the
aim of the applicants had been to attack the constitutionality of the
decision of the court of appeal, this ground of appeal would have had
to be rejected as unsubstantiated. On the basis of all the above, the
Court of Cassation dismissed the applicants’ appeal in cassation.

B. Relevant domestic law

26. Article 4 para. 1 of the Constitution provides the following:

“All Greeks are equal before the law.”

27. Article 12 para. 1 of the Constitution provides the following:

“Greeks have the right to form non-profit associations and
unions, in compliance with the law, which, however, may
never subject the exercise of this right to prior
permission.”

28. The Civil Code provides in respect of non-profit making
associations the following:

Article 78

“An association of at least twenty persons with a non-
profit making aim acquires legal personality upon
registration in a special book kept by the competent first
instance civil court.”

Article 79

Article 80

Article 81

“The first instance civil court accepts the application if
it is satisfied that all the conditions set by the law are
met …”

Article 105

29. The Code of Civil Procedure provides the following in respect of
the special procedure (ekusia dikeodosia) according to which courts
examine, inter alia, applications for the registration of associations:

Article 744

“The court may proprio motu order any measures which could
lead to the establishment of relevant facts, even if the
latter have not been the subject matter of the parties’
submissions …”

Article 759 para. 3

“Notwithstanding the legal rules concerning proof, the
court may order proprio motu whatever it considers
necessary for the establishment of the facts.”

30. Moreover, Article 336 para. 1 of the Code of Civil Procedure
provides the following in respect of all proceedings before the civil
courts:

“The court may take into consideration, proprio motu and
without taking evidence, facts which are so generally known
that there can be no reasonable doubt as to their truth.”

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

31. The Commission has declared admissible the applicants’ complaints
that their application to establish an association was not examined in
a fair manner by the courts, that the refusal of the application in
question amounted to an unjustified interference with their rights to
freedom of conscience, expression and association, and that they were
discriminated against in the enjoyment of the above-mentioned rights
because of their ethnic origin, their association with a national
minority and their beliefs and national conscience.

B. Points at issue

32. The issues to be determined are the following:

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

– whether there has been a violation of Article 6 (Art. 6) of the
Convention,

– whether there has been a violation of Articles 9 and 10
(Art. 9, 10) of the Convention and

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

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

33. Article 11 (Art. 11) of the Convention, insofar as relevant,
provides as follows:

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

2. No restrictions shall be placed on the exercise of these
rights other than such as are prescribed by law and are necessary
in a democratic society in the interests of national security or
public safety, for the prevention of disorder or crime, for the
protection of health or morals or for the protection of the
rights and freedoms of others. …”

34. The applicants submit that they were prohibited from establishing
a cultural association. They argue that the interference with their
right to freedom of association was not provided by law. They contend
that, under Greek law and in particular Article 12 (Art. 12) of the
Constitution, the domestic courts should have limited their review to
ascertaining that the conditions set forth in Articles 78-80 of the
Civil Code were fulfilled and that the stated aims of the association
were not illegal, or against morality or public order. They could not
engage in speculation as to the real aims of the association. Nor could
they decide on the expediency of its establishment on the basis of the
presumed intentions of its founders.

35. The applicants further submit that, according to the case-law of
the Greek courts, a judge, when applying the special procedure for
examining applications for the registration of associations, may order
proprio motu whatever measures he considers necessary for the
establishment of the truth. He cannot, however, rely on documents or
evidence which have not been officially submitted to the court or on
his private knowledge. Moreover, he cannot consider that certain
material facts have been established without ordering, even proprio
motu, the taking of evidence. It cannot be considered that the
propositions on which the national courts based their decisions in the
case were “common knowledge”. Part of the information invoked was
derived from certain racist newspapers. The reasoning in the courts’
decisions is limited to a historical analysis and certain unfounded
disparaging remarks for the applicants. No attempt was made by the
courts to link the above in a reasoned manner with the charter of the
association and the rejection of the request for its registration. The
Court of Cassation, in upholding these decisions, violated national
law.

36. The applicants also affirm that their association had no links
with “the Former Yugoslav Republic of Macedonia” and stress that it was
set up long before the declaration of independence of that country. In
any event, a court cannot base its decision on a particular
interpretation of certain historical events which it considers to be
established facts without ordering the taking of evidence.

37. The applicants further contend that the aims of their association
were lawful. They involved the study of the local culture of the area
of Florina, in which, as it is well-known, a distinct linguistic,
cultural and historic group of people, to which the applicants belong,
lives. The study of the local culture is protected by the Constitution,
the Convention, other international human rights instruments and the
agreements of the Organisation for the Security and Cooperation in
Europe in which Greece participates. In accordance with these
agreements, every person has the right to consider that he belongs to
a particular group.

38. As regards the necessity of the interference with their right to
freedom of association, the applicants submit that, if the aims of the
association turned out to be unlawful or against morality or public
order, the State could protect itself using the means provided by
national law. The courts could order the dissolution of the association
under Article 105 of the Civil Code. It follows that the interference
with their right to freedom of association was not necessary in a
democratic society.

39. The Government contend that the interference with the applicants’
right to freedom of association was justified under para. 2 of that
provision. They submit that the national courts had the power under
Greek law to examine whether the aims of the association were unlawful
or against public order. The Court of Cassation interpreted the
relevant provisions of the Code of Civil Procedure correctly when it
rejected the applicants’ appeal in cassation. The domestic courts had
the power to take into consideration certain incontrovertible facts and
in particular the threat which certain recent acts of “the Former
Yugoslav Republic of Macedonia” posed for the national integrity and
the cultural heritage of Greece. They also had the power to take into
consideration certain publications in the Greek and Yugoslav press
concerning the applicants.

40. The Government argue that it is clear from the applicants’
submissions before the Commission that their real aim was to establish
an association on behalf of the minority of the Slavs of Skopje in
order to protect the cultural traditions of Skopje, which are in
reality of Bulgarian and Yugoslav origin. The Government affirm that
such a minority and such cultural traditions do not exist in Greece.
It transpires, however, from the applicants’ submissions before the
Commission that the real aims of the association were different from
those mentioned in its charter. In any event, the domestic courts have
exclusive competence to establish that the real aim of the association
is different from the aim mentioned in its charter, provided that the
courts do not act in a discriminatory manner.

41. The Government argue, in the alternative, that the domestic
courts were correct in concluding that the intention of the applicants
was to assist various Slav associations operating outside Greece in
their attempt to undermine the territorial integrity of Greece. The
domestic courts have found that the case concerned the national
security of Greece. It follows that they have exclusive competence in
the matter. In any event, the courts heard the applicants and it was
lawful under domestic law not to order the taking of evidence. The
judges did not review the expediency of the establishment of the
association, but did their duty to protect the existence of their
country.

42. The Government conclude that the interference with the
applicants’ right to freedom of association was necessary in a
democratic society to protect national security, public order and the
rights and freedoms of the Greek people in its entirety. The Greek
people has the right to protect Macedonia which belongs to it
historically and culturally and lies within its territory and which the
Slavs of Skopje want to appropriate for themselves.

43. The Commission must first examine whether there has been an
interference with the applicants’ right to freedom of association. The
Commission recalls in this connection that, in accordance with its
case-law, a refusal of the authorities to register an association does
not necessarily involve an interference with the right of its members
under Article 11 (Art. 11) of the Convention where the association is
nevertheless free to continue its activities (No. 14233/88,
Dec. 5.6.91, D.R. 70 p. 218; No. 18874/91, Dec. 12.1.94, D.R. 76 p. 44;
and No. 27608/95, Dec. 29.11.95, unpublished).

44. The Commission notes that the applicants argue that the courts’
refusal of registration meant that they were effectively prohibited
from establishing such an association. Moreover, the Government have
not contested that the courts’ decisions in this matter constituted an
interference with the applicants’ right under Article 11 (Art. 11) of
the Convention. The Commission considers that the parties’ failure to
dispute the issue cannot be disassociated from the particular context
of the case involving an association which, in the words of the
Government, the judges had a duty not to register in order “to protect
the existence of their country”. In the light of the above, the
Commission considers that the courts’ refusal of registration
constitutes an interference with the applicants’ right to freedom of
association under Article 11 (Art. 11) of the Convention.

45. The Commission considers that such an interference is contrary
to Article 11 (Art. 11) of the Convention unless it is “prescribed by
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.

46. The Commission notes that the parties are in disagreement on
whether the extent of the control exercised by the courts over the aims
of the association was in accordance with domestic law. However, it
does not consider it necessary to rule on the question whether the
interference in issue was “prescribed by law” in this instance because,
in any event, it was incompatible with Article 11 (Art. 11) of the
Convention on other grounds (see, mutatis mutandis, Eur. Court HR,
Manoussakis and others v. Greece judgment of 26 September 1996, to be
published in the Reports of Judgments and Decisions).

47. The Commission also notes that the domestic courts refused to
register the association because they considered that its real aim was
to question the Greek character of the Greek province of Macedonia with
a view to undermining the territorial integrity of Greece. The
Commission considers that it follows that the interference was directed
at the protection of national security and public safety and the
prevention of disorder, all of which are legitimate aims set out in
paragraph 2 of Article 11 (Art. 11-2) of the Convention.

48. Concerning the issue whether the interference was “necessary in
a democratic society”, the Commission recalls that, in accordance with
its case-law, freedom of association, as enshrined in Article 11
(Art. 11) of the Convention, constitutes one of the essential
foundations of a democratic society and one of the basic conditions for
its progress (TBKP, Sargin and Yagci v. Turkey, Comm. Report 3.9.96,
para. 76, unpublished). It follows that the exceptions to freedom of
association under the second paragraph of Article 11 (Art. 11) must be
narrowly interpreted and the necessity for any restrictions must be
convincingly established, as in the case of freedom of expression which
also constitutes an essential foundation of a democratic society (see
Eur. Court HR, Sunday Times v. United Kingdom (No. 2) judgment of
26 November 1991, Series A no. 217, p. 29, para. 50).

49. The Commission also recalls that the adjective “necessary”,
within the meaning of Article 11 para. 2 (Art. 11-2) of the Convention,
implies the existence of a “pressing social need” (see Sargin and Yagci
v. Turkey, Comm. Report, loc. cit., referring to Eur. Court HR, Lingens
v. Austria of 8 July 1986, Series A no. 103, p. 25, para. 39, and
Handyside v. United Kingdom judgment of 7 December 1976, Series A
no. 24, p. 23, para. 49). The Contracting States have a certain margin
of appreciation in assessing whether such a need exists and, where
matters of national security are concerned, this margin is wide (see
Eur. Court HR, Leander v. Sweden judgment of 26 March 1987, Series A
no. 116, p. 25, para. 59). However, the States’ margin of appreciation
always goes hand in hand with a European supervision, embracing both
the law and the decisions applying it, including those given by
independent courts. Even in matters of national security, it remains
ultimately for the Government to satisfy the Commission that an
interference is reconcilable with freedom of association as protected
by Article 11 (Art. 11) of the Convention. It follows that the
Commission cannot accept the Government’s argument that, because the
case concerned the national security of Greece, the domestic courts had
exclusive competence in the matter.

50. The Commission must exercise its supervisory jurisdiction and,
in doing so, it will look at the interference complained of in the
light of the case as a whole in order to determine whether it was
“proportionate to the legitimate aim pursued” and whether the reasons
adduced by the domestic authorities to justify it are “relevant and
sufficient”. Moreover, the Commission has to satisfy itself that the
national authorities based themselves on an acceptable assessment of
the relevant facts (see, mutatis mutandis, Eur. Court HR, Jersild v.
Denmark judgment of 23 September 1994, Series A no. 298, pp. 23 and 24,
para. 31).

51. The Commission notes in this connection that the aims of the
applicants’ association, as stated in its charter, were lawful.
Moreover, it considers that nothing in the charter could justify a
different conclusion. However, inquiring into the real aims of the
association is not in itself incompatible with the Convention, since
it cannot be excluded that the establishment of an association may
raise serious public order questions. As a result, the Commission
cannot agree with the applicants who argue that the competence of the
courts in this matter should have been limited to establishing the
lawfulness of the aims of the association as stated in its charter. Nor
can the Commission agree with the Government who argue that the
domestic courts had exclusive competence to establish that the real
aims of the association were different from the aims mentioned in its
charter, provided that they did not act in a discriminatory manner.
Accepting such a proposition would have amounted to the Commission
effectively relinquishing its supervisory jurisdiction.

52. As a result, the Commission must examine the courts’ decisions
in depth to identify the factual considerations on which they based the
conclusion that the applicants’ real aim in setting up the association
was to question the Greek character of the Greek province of Macedonia
with a view to undermining the territorial integrity of Greece. The
Commission’s examination will focus on the reasoning of the
Thessaloniki Court of Appeal, which replaced the reasoning of the First
Instance Civil Court of Florina and which was upheld by the Court of
Cassation (see paras. 22 and 25).

53. The Commission notes that, in order to reach this conclusion, the
domestic courts invoked two elements, the first of which was the
existence of a directive issued by Slav organisations abroad. The
applicants argue that this directive did not form part of the case-file
in the proceedings before the domestic courts and the Government have
not disputed this. However, the Government have produced before the
Commission a press report to which the domestic courts made reference
and which contains an extract from the relevant directive. According
to this extract, the aim of the association was “in a lawful manner to
question the denial of the rights of the Macedonians by the
Greek State”.

54. Secondly, the domestic courts relied on press reports on the
presence of two of the applicants at a meeting of the Conference for
the Security and Cooperation in Europe in Copenhagen where, in the
words of the appeal court, “they disputed that Greek Macedonia was
Greek, making a distinction between Greeks and Macedonians”. The
Commission has had the benefit of examining these reports, which were
produced by the Government before it. It emerges that at the above-
mentioned meeting the applicants declared that they were “citizens of
Greece, albeit of a Macedonian ethnic origin, and denounced that the
Greek State oppressed the Macedonians of the Aegean Macedonia depriving
them of all their human rights”.

55. The Commission, having examined the evidence which had been
placed before the domestic courts, considers that it has not been
established that the applicants harboured separatist intentions. It is
not, therefore, necessary to decide whether this would have justified
an interference with the right to freedom of association.

56. It is true that the domestic courts, on the basis of the evidence
before them, could have reached the reasonable conclusion that the real
aim of the association was to promote the idea that a “Macedonian”
minority exists in Greece and that the rights of the members of such
a minority are not fully respected. However, the Commission considers
that this could not have justified in itself a restriction in the
applicants’ right to freedom of association. According to the case-law
of the Court, a democratic society must, in principle, tolerate the
free discussion not only of ideas which are favourably received or are
regarded as inoffensive or as a matter of indifference, but also of
ideas that offend, shock or disturb the State or any sector of the
population (Eur. Court HR, Handyside v. United Kingdom judgment of
29 April 1976, Series A no. 24, para. 49, p. 23). The Commission,
applying this principle, has considered that imposing a prison sentence
on a person who, in the context of an election campaign, used the term
“Turk” in respect of the Muslim minority of Western Thrace could not
be regarded as a “necessary” measure in the democratic society
(Sadik Ahmet v. Greece, Comm. Report 4.4.95, para. 53, to be published
in Eur. Court HR, Reports 1996-I). In the particular circumstances of
the case, the Commission notes that, although the applicants have
stated that they have “a Macedonian national conscience”, there is no
indication that they have advocated the use of violence or of
undemocratic or unconstitutional means (see, mutatis mutandis, TBKP,
Sargin and Yagci v. Turkey, Comm. Report, op. cit., para. 82).

57. Moreover, the Commission considers that the domestic courts could
have sought to clarify the question of the real aims of the applicants
by ordering proprio motu the taking of further evidence into the
matter, as they had the power to do under domestic law.

58. However, what the Commission considers of primary importance is
that domestic law put at the disposal of the courts effective means
which would have enabled them to ensure that the applicants’
association, once established, would not have engaged in illegal
activities. Under Article 105 of the Civil Code, the courts may order
the dissolution of an association if the aim or functioning of the
association has become illegal, immoral or against the public order
(see para. 28).

59. In the light of all the above and the domestic margin of
appreciation notwithstanding, the Commission is not satisfied that the
reasons adduced by the domestic authorities to justify the interference
with the applicants’ freedom of association were “relevant and
sufficient”; nor was the interference “proportionate to the legitimate
aim pursued”. It follows that it has not been established that the
measure complained of was “necessary in a democratic society in the
interests of national security or public safety, for the prevention of
disorder … or for the protection of the rights and freedoms of
others”.

CONCLUSION

60. The Commission concludes, unanimously, that in the present case
there has been a violation of Article 11 (Art. 11) of the Convention.

D. As regards Article 6 para. 1 (Art. 6-1) of the Convention

61. Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, provides as follows:

“In the determination of his civil rights and obligations …,
everyone is entitled to a fair … hearing … by an …
impartial tribunal…”

62. The applicants argue that their case was not heard by impartial
tribunals. They submit that the courts were hostile towards them
because of their ethnic origin and national conscience. In
substantiation of their claim, they rely on passages of the decisions
where the courts assert that the Slav-Macedonian minority is non-
existent and conclude that the applicants acted against the interests
of Greece to further the aims of a foreign power. The applicants also
submit that they did not have a fair hearing because, contrary to the
law, the courts did not limit themselves to reviewing the lawfulness
of the establishment of the association but exercised a much wider
review as to the expediency of its establishment based on the presumed
intentions of its founders. The courts also took into consideration
matters that had not been submitted by the parties as well as things
of material importance without ordering the taking of evidence.

63. The Government submit that the courts were impartial, that the
applicants were heard and that national law was correctly applied.

64. The Commission does not consider it necessary to examine whether
Article 6 para. 1 (Art. 6-1) of the Convention applies in the
proceedings in question. The Commission recalls that, when examining
the applicants’ complaints under Article 11 (Art. 11) of the
Convention, it had to pronounce on whether it was justifiable for the
domestic courts to reach certain conclusions on the basis of the
material before them without ordering further evidence. Since the
Commission has found that Article 11 (Art. 11) of the Convention has
been violated on the basis, inter alia, that the domestic courts should
not have reached these conclusions, it considers that it is not
necessary to examine whether there has also been a violation of Article
6 para. 1 (Art. 6-1) of the Convention.

CONCLUSION

65. The Commission concludes, unanimously, that in the present case
it is not necessary to examine whether there has been a violation of
Article 6 para. 1 (Art. 6-1) of the Convention.

E. As regards Articles 9 and 10 (Art. 9, 10) of the Convention

66. These articles, insofar as relevant, provide as follows:

Article 9 (Art. 9)

“1. Everyone has the right to freedom of thought, conscience
and religion; this right includes freedom to change his religion
or belief and freedom, either alone or in community with others
and in public or in private, to manifest his religion or belief,
in worship, teaching, practice and observance.

2. Freedom to manifest one’s religion or beliefs shall be
subject only to such limitations as are prescribed by law and are
necessary in a democratic society in the interests of public
safety, for the protection of public order, health or morals, or
for the protection of the rights and freedoms of others.”

Article 10 (Art. 10)

“1. Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to receive and
impart information and ideas without interference by public
authority and regardless of frontiers. …

2. The exercise of these freedoms, since it carries with it
duties and responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law
and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for
the prevention of disorder or crime, for the protection of health
or morals, for the protection of the reputation or rights of
others, for preventing the disclosure of information received in
confidence, or for maintaining the authority and impartiality of
the judiciary.”

67. The applicants submit that the refusal of the courts to register
the association was not related to the aims of the association. It
follows that this was a sanction imposed on them because of their
publicly expressed beliefs.

68. The Government submit that the court decisions in question do not
prohibit the applicants from assuming that they are not of Greek ethnic
origin. They also argue that any interference with the applicants’
rights was necessary in a democratic society to protect national
security, public order and the rights and freedoms of the Greek people
in its entirety.

69. The Commission considers that, insofar as the establishment of
associations is concerned, Article 11 (Art. 11) is the lex specialis
in relation to Articles 9 and 10 (Art. 9, 10) of the Convention (see,
mutatis mutandis, Eur. Court HR, Ezelin v. France judgment of
26 April 1991, Series a no. 202, p. 20, para. 35; and TBKP, Sargin and
Yagci v. Turkey, Comm. Report, op. cit., para. 88). It follows that a
separate examination of the facts of the case under Articles 9 and 10
(Art. 9, 10) of the Convention is not called for.

CONCLUSION

70. The Commission concludes, unanimously, that in the present case
no separate issue arises under Articles 9 and 10 (Art. 9, 10) of the
Convention.

F. As regards Article 14 (Art. 14) of the Convention

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

“The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status.”

72. The applicants submit that they were denied the enjoyment of
their Convention rights because of their ethnic origin, their
association with a national minority and their beliefs and national
conscience.

73. The Government submit that the refusal of the courts to register
the association was not an act of discrimination against the applicants
because of their ethnic origin and beliefs. The association was found
to pursue different aims from those stated and its real aims were
against public order.

74. The Commission, having regard to its conclusion concerning
Article 11 (Art. 11) of the Convention, does not consider it necessary
to examine whether there has also been a violation of Article 14
(Art. 14) of the Convention.

CONCLUSION

75. The Commission concludes, unanimously, that in the present case
it is not necessary to examine whether there has been a violation of
Article 14 (Art. 14) of the Convention.

G. Recapitulation

76. The Commission concludes, unanimously, that in the present case
there has been a violation of Article 11 (Art. 11) of the Convention
(see para. 60).

77. The Commission concludes, unanimously, that in the present case
it is not necessary to examine whether there has been a violation of
Article 6 para. 1 (Art. 6-1) of the Convention (see para. 65).

78. The Commission concludes, unanimously, that in the present case
no separate issue arises under Articles 9 and 10 (Art. 9, 10) of the
Convention (see para. 70).

79. The Commission concludes, unanimously, that in the present case
it is not necessary to examine whether there has been a violation of
Article 14 (Art. 14) of the Convention (see para. 75).

H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission

APPENDIX II

DECISION OF THE COURT OF APPEAL OF THESSALONIKI OF 8 MAY 1991

I. The appellants, whose application to the Multi-Member First
Instance Civil Court of Florina on 12 June 1990 was already an appeal
against an earlier decision, applied for registration, in the special
book kept by that court, of an association which they and others had
founded together under the name “Home of Macedonian Civilisation”. The
grounds of the application were refused as unsubstantiated with final
decision no. 73/296/26/1990 of the above-mentioned court, which tried
the case under the relevant special procedure (articles 740 and 787 of
the Code of Civil Procedure). The applicants are pleading against this
decision with their present appeal. The appeal was made legally and
within the fixed term and has to be accepted on formal grounds and
investigated in its substance.

II. Paris Stefanou Niflis, lawyer, resident of Thessaloniki, made an
oral statement which was entered on the case report, and submitted
statements following the discussion of the case before the public
audience, claiming that he was intervening as a third party and
pleading not for the admission but for the rejection of the appeal
which was being tried. Such a petition means that the intervention
against the relevant special procedure does not qualify as an
additional intervention, and could only be upheld if it was made by
means of a separate legal process, according to article 752 paragraph
I of the Code of Civil Procedure (see Athens Court of Appeal 2184/1987,
Armenopoulos 41, 953 and notes by Har. Apalagakis). The intervention
therefore has to be rejected as unacceptable.

III. In investigating the grounds of an application being tried under
the special procedure, as in the present case, and in view of the
strong public interest involved in this procedure, the court may and
indeed is obliged to take into consideration, proprio motu, matters
beyond what is submitted to the court by the parties -in particular
real events and situations contained in publications (books,
magazines, newspapers etc.) which are accessible to any interested
person- and this notwithstanding the ordinary rules concerning the
burden of proof. On the basis of the below well-known facts, whose
validity the Court does not doubt, the Court admits the following in
relation to the case: ancient (classical) Macedonia is defined to the
south by the Aegean Sea and Mounts Kamvounia, Pieria and Olympus; to
the north by Lake Ohrid, the Prespa lakes, and Mounts Babouna-Skomion
(Rila Planina) and Rodopi; to the east by the river Nestos; and to the
west by Mounts Grammos and Pindus (see: Ekdotiki Athinon, Makedonia,
pp.10ff.; Ap. Vakalopulos, Synchrona Valkanika Ethnologika Provlimata,
p.II; G. Mintsis, Istoria tou Makedonikou Zetematos, p. 29). Its
inhabitants (the Macedonians) were one of the most ancient Greek
tribes, closely related to the Thessalians, who were also of Eolian
origin, and especially to the Magnesians. Their language was one of the
oldest Greek idioms, akin to Eolian and Arcado-Cyprian, but also to the
Mycenean dialect. Their religion was that common to the Greeks and
their myths and traditions were similar to those present elsewhere in
the Greek world (See H.G. Wells, The Outline of History, trans. by
K. Yeroyannis under the title Pankosmios Istoria, Pergaminai, chapter
B’I, p.439 and chapter I’, p.367; Will Durant, Pankosmios Istoria tou
Politismou, ed. Ap. Daskalakis, 1965, p. 483V; Pandit Jawaharlal Nehru,
Maties stin Pankosmia Istoria, trans. P. Drakou, Faros, 1954, p.25; Ap.
Vakalopulos, op. cit., pp.14ff; M. Sakellariou, I taftotita ton
Makedonon, communication to the Academy of Athens on 8 November 1988;
K. Vavuskou, correction of the draft for the article “Macedonia” for
the new Australian encyclopædia Australian People, speech to the
special meeting of the Academy of Athens on 7 March 1989; N. Andriotis:
The Language and the Greek Origin of the Ancient Macedonians,
Thessaloniki 1978). The Macedonian kings Phillip II and Alexander the
Great acted not just as Greeks but as pan-Hellenists, in the sense that
they incarnated the old idea of the creation of a unified Greek State
by bringing together the smaller Greek territories; they were bearers,
and the latter was a disseminator, not of an underaccomplished
Macedonian civilisation, but of Greek civilisation (see Johann Gustav
Droysen, Istoria tou Megalou Alexandrou, trans., comments, etc. by
Renos Apostolidis, 1988, pp.1-9, 28ff; Ekdotiki Athinon, Istoria tou
Ellinikou Ethnous, vol. D, pp.10ff). And in later years especially
after the appearance in the Balkans of the Bulgars and Slavs (6th-7th
cent. A.D.) the Macedonian region as it was defined above was a
stronghold and a bastion of Hellenism just as it had been in ancient
times. Polybius describes Macedonia as a ‘shield’ and bestows honours
on the Macedonians because they fought the barbarians (non-Greeks) to
ensure the safety of the (other) Greeks (Polybius, Historae, Leipzig
edition, 1898, vol. 3, book 9, p.35). For the byzantine period the same
thing is affirmed by French historian Paul Lemerle in his classic work
Philippe et la Macédoine Orientale, Paris, 1945, pp.516-517. In
addition, in a guide to Thessaloniki written by German historians and
archaeologists during the last world war it is stated that “the
sweeping migrations of peoples which frequently inundated the Balkan
peninsula disintegrated on this most powerful bastion of Hellenism”
(see A. Vakalopoulos, op. cit., pp.17ff.). Nowhere in either the recent
or the distant past are Macedonia and the Macedonians mentioned in any
official document as a specific ethnic grouping. The Treaty of Berlin,
and the Treaty of San Stefano which it replaced, ignore such notions.
In the official Turkish census of 1905 there is mention of Greeks and
of Bulgarians, or inhabitants whose identity was partly Bulgarian, in
the vilayets of Thessaloniki and Monastiri, where there was a Greek
ethnic majority; but no mention of Macedonians, since nobody declared
such descent (A. Vakalopoulos op. cit., pp.84ff.; G. Russos, Neoteri
Istoria tou Ellinikou Ethnous, vol. 5, pp.83ff, which includes a
reproduction of the census tables). In his work Voyage dans la
Macédoine (Paris, 1831) E.M. Cousinery, the French Consul in
Thessaloniki, says that the Bulgarians (as all speakers of Slavic were
then called) never penetrated the woodlands below Vermio, where the
population remained Greek (see vol.1, pp.67-68 and vol.2, p.140). With
reference to the same area German geographer Leonard D. Schultze
observes that in their language, traditions, cultural affinity, ethnic
preference and religion, its inhabitants are as legitimately and
authentically Greek as their brothers further to the south (Macedonien
Landschafts und Kulturbilder, Iena, 1927, p.106). In this he reiterates
the formulation of Lord Salisbury, Great Britain’s representative at
the Berlin Congress on 19 June 1878, when he said that “Macedonia and
Thrace are just as Greek as Crete” (K. Vavuskos, op. cit., p.84). The
fact that a small part of this region’s population also speaks a
language which is basically a form of Bulgarian with admixtures of
Slavic, Greek, Vlach and Albanian words, does not prove that this
minority is of Slavic or Bulgarian origin; in isolation this criterion
is of no value whatsoever, as is borne out by the experience in the
recent past of the forced migration from Asia Minor to Greece of
populations which were undisputably Greek but totally ignorant of the
Greek language. It is indicative that among the fighters of the
Macedonian Campaign (1904-1908) there were men who spoke the
Bulgarian-Slav idiom but who had a purely Greek national conscience;
for example Kotas, Dalipis, Kyrou, Gonos and others. In his Short
History of the Bulgarian, Serb and Romanian Orthodox Churches (Moscow
1871), the Russian historian E. Golubinstii wrote of these non
Greek-speaking Greeks that they bore implacable hatred and scorn
towards all Slavs and Bulgarians (see K. Vavuskos, op. cit., pp.85ff.).
After the Balkan Wars of 1912-1913, 51,57% of the region corresponding
to ancient Macedonia was under Greek domination, 38,32% under Yugoslav
domination, and 10,11% under Bulgarian domination (see Ekdotiki
Athinon, Makedonia, p.504, which includes a map). In this way a
territorial status came into being. There were exchanges of population,
either voluntary or following bilateral agreements such as the
Kafantari-Molov agreement between Greece and Bulgaria in 1926; and
Greeks from Turkey populated the Greek part of Macedonia, so that only
Greeks remained in this part of Macedonia, even if some of them were
biligual. Therefore Greek Macedonia became a completely homogeneous
part of the Greek territory (see K. Vavuskos, op. cit., p.92; and Ap.
Vakalopulos op. cit. p;31, who refers to the work of the German Stephan
Ronart, Griechenland von Heute). This was especially true in the period
immediately following World War II (1945-1949), when almost all the
bilingual inhabitants of this region who did not have a Greek national
conscience emigrated to neighbouring countries (see E. Kofos,
Nationalism and Communism in Macedonia, Thessaloniki, 1964, pp.185ff.).
There they experienced a mutation of their partly Greek or partly
Bulgarian nationality into a “Macedonian”, ie into a Slav-Macedonian,
nationality (see E. Kofos in “Yugoslavia today”, Athens 1990, p. 50;
Kentron Apodimu Ellinismou, Makedonia, Istoria kai Politismos, Ekdotiki
Athinon, 1989, pp.29ff.). This situation was preceded by certain
violent events, such as the Ilinden revolt, when the Bulgarians claim
to have revolted against the Turks on 2 August 1903 at Krusovo, a town
near Monastiri whose ethnic composition was overwhelmingly Greek. In
fact they turned against the town’s Greek inhabitants, whom they tried
to wipe out with the cooperation of the Turks and without causing the
rest of the population any significant harm (see K. Vavuskos, op. cit.,
p.89; Douglas Dakin, The Greek struggle in Macedonia 1897-1913,
Thessaloniki 1966, pp.92ff.; Douglas Dakin, E.K. Mazarakis-Ainianos,
E. Kofou, I. Diamanturou, O Makedonikos Agonas, Athens 1985, pp.30ff.;
G. Mintsis, op. cit., pp53ff.). Until the year 1914 “Macedonia” as a
Slavic state and “Macedonian Nation” as a specific nation were unheard
of. The part of Macedonia which fell under Jugoslav domination, like
that which fell to Bulgaria, constitutes a narrow strip of land along
the Greek border and represents only a small part of Serbia. Skopje,
which today is the capital of the misleadingly named Socialist Republic
of Macedonia of the Federal Yugoslav State, lies far from Macedonia.
The S.R.M. was founded under the German occupation (see E. Kofos, The
Impact of the Macedonian Question on Civil Conflict in Greece
1943-1948, Athens, 1989). Its foundation was part of a conscious
strategy according to which when the regions of Skopje and Tetovo
(which belonged to ancient Dardania, a non-Macedonian country) were
ceded, a Serb population could be said to exist in the sparsely
populated part of Macedonia which lies beyond the Greek borders and
which contained Serbs, Greeks, Greek Vlachs, Muslims with partly
Turkish identity, and Bulgarians; a Slav-speaking population with a
specific linguistic idiom and an unstable national conscience (see
Vakalopulos, op. cit., pp.12ff.; N. Andriotis, The Confederate State
of Skopje and its language, Athens, 1957; also contains relevant
bibliography). The long-term purpose of the founding of the S.R.M. was
to re-establish a Macedonian state of a Slavic nature with access to
the Aegean Sea. One of the means to this end is the enlisting by
various means of bilingual Greeks from Greek Macedonia. The setting up
of an association in Florina with the name “Home of Macedonian
Civilisation” is part of this effort and applies a directive issued by
Slavic organizations abroad. The aim is to create a Macedonian Question
with international ramifications (see statements by Serb politicians
to the newspaper Borba, 8 November 1990, and to Nin magazine, 1
February 1991). The parties applying for recognition of the above
association are the enablers in this operation. Among them are Hristos
Sidiropoulos and Stavros Anastasiadis, who appeared at an international
conference to dispute the Greekness of (Greek) Macedonia; the former
in particular by distinguishing between Macedonians and Greeks (see the
newspaper Makedonikos Vorras, 17 March 1991, which includes photographs
of the above persons among 16 members of the “Macedonian”
representation at the CSCE in Copenhagen; and the newspaper Ethnos,
5 February 1991, p.10). This, in combination with the name of the
proposed association and with the whole content of its charter, renders
at least dubious the association’s aims, which according to the
founding members’ seemingly lawful statement in article 2 of the
charter, consist in the cultural, intellectual and artistic advancement
of its members, in cultural decentralisation, etc. This judgment is
supported by the content of article 3 paragraph 2 of the same charter,
which states that all youths in the Florina area will be enrolled in
the proposed association’s Youth Section. It is clear from this that
there is a danger that the immaturity of young people will be
exploited and that youths will be trapped by suitable propaganda into
an ethnologically non-existent and historically evacuated
Slav-Macedonian minority. Article 4 of the same charter puts down the
condition that enrolment of a member in the association is subject to
that member’s written acceptance of the principles of the association.
However nowhere in the association’s charter are these principles
defined. Thus the charter does not provide a clear idea of who will
enrol, since the clear determination of the principles governing the
proposed association is deliberately avoided. Finally the very name of
the association can be a source of confusion, because on initial
consideration it creates the impression that it refers to Macedonia’s
Greek civilisation, whereas in reality it envisages a specifically
Slavic civilisation which does not exist in the region in question.
Generally this Court has sound reasons to be convinced by the above
that the objective of the use of the word “Macedonian” is to contest
the Greek identity of Macedonia and its inhabitants by indirect and
therefore underhand means, and discerns an intention in the founders
to break up Greece’s territorial integrity. Therefore the refusal
presently under appeal of the application in question was justified,
notwithstanding the fact that it was based on a shorter and partially
different reasoning; and the opposing arguments as they stand in the
present appeal have to be rejected.

For these reasons, the Court, having examined both the appeal and the
intervention, rejects the intervention as unacceptable. It formally
admits the appeal and rejects it in substance.

EXTRACTS FROM PRESS REPORTS RELIED ON BY THE DOMESTIC COURTS

1. Report appearing in the newspaper “Ethnos” on 5 February 1991

Skopje: Skopje has made use of three Greeks -one of them a public
employee- who made allegations of repression against the Greek
Government to a representative of the American Embassy visiting
villages in Florina.

The three testified against Greece at a meeting of the Conference
for Security and Cooperation in Europe which was held in Denmark on 15
June 1990. According to the American Macedonian Association the men in
question are Hristos Stergiu Sidiropulos, Constantinos Gotsis, and
Stavros Anastasiadis.

Sidiropulos is a forestry official on the payroll of the Greek
State. These and other Greeks belonging to an association called “Home
of Macedonian Civilisation” are under the guidance of Vasil
Tuvorkovsky, a member of the central committee of Yugoslavia’s
Presidential Council and a frequent visitor to Greece, where he stays
in a mobile home in Halkidiki.

2. Report appearing in the newspaper “Ellinikos Vorras” on
17 March 1991

First title: Skopje’s trojan horse in Thessaloniki’s Court of
Appeal tomorrow – Expulsion of ringleader S. Todorovsky – Decisive
documents

Second title: Leader of secret organization is a public servant
– Spectre of “Aegean Macedonians” – How the international plot against
Greece was set up; who will be promoting it tomorrow – Tomorrow’s
appeal hearing in Thessaloniki carries out a directive issued in 1989.
Radin, Popov, Skopje and “Consul” Todorovsky are directing the local
leader. – Application is a trap aimed at vilifying Greece in the
International Court.

As dramatic developments in a rapidly dissolving Yugoslavia and
in the broader Balkan region unfold into something resembling a
thriller, with the emergence of a ‘new order’ in the Balkans whose
targets include Greek Macedonia and Thrace, the leader of a secret
organization called “Macedonians of the Aegean”, Hristos Sidiropulos,
also a full-time employee of the Greek State, will be trying in
Thessaloniki tomorrow to embroil Greece in a satanic plot organized
abroad by Skopje and the independence movements it operates in
Australia. This accounts for the announcement of the expulsion of the
Jugoslav consul in Thessaloniki, Sasko Todorovski, just 72 hours before
tomorrow’s hearing. Todorovski’s cover was blown when on February 17
Ellinikos Vorras revealed that he was the leader of a triangular
structure opposed to Greek Macedonia and comprising the American
viceconsul Colonel Donald Miller as well as the educational adviser of
the American embassy in Athens, John Kiesling.

It is also known that Donald Miller left Thessaloniki “overnight”
for the United States when Ellinikos Vorras exposed his dark
‘triangular’ role in the State Department’s contemptible report.
Todorovski is an organ of the Yugoslav secret service and used agents
to lead an operation of international destabilization in Greek
Macedonia.

One stage of this operation of destabilization unfolds tomorrow
in Thessaloniki. The city’s Court of Appeal will deliberate on the
application for approval, by 17 inhabitants of the prefecture of
Florina, of their charter for the establishment of an association
called “Home of Macedonian Civilisation”. The charter is formulated
with expert care so as to provide full and international legal cover
for a well-planned destabilization of the country; the legal wrapping
of a Trojan horse at Greece’s borders. The application in question was
refused by the lower court in Florina, where an earlier less veiled
version drawn up by the same persons had also been refused. The new
application at the Court of Appeal in Thessaloniki tomorrow will be
discussed as ‘a common and straightforward case’.

However combined evidence and information from Slavic sources
reveals that:

a. The leaders of the 17, most of whom were ensnared by what seemed
an innocent ‘cultural’ project, are Hristos Sidiropulos from Amindaio,
a forester with the Department of Agriculture, and Stavros
Anastasiadis, a wealthy businessman from Meliti in the prefecture of
Florina, both of whom sign the application. The two also appeared last
June at a meeting of the Conference for Security and Cooperation in
Europe (CSCE) held in Copenhagen on the subject of human rights,
declaring that they were Greek citizens but Macedonian nationals, and
denounced the Greek State for “oppressing” the “Macedonians” of “Aegean
Macedonia” and “depriving” them of all human rights. In fact according
to the newspaper run by the emigrant independence movement in
Australia, “Australian Macedonian” (1/8/1990), the two men carried
letters containing similar allegations from Petros Dimtsis of Kato
Klines, a village in the prefecture of Florina who made a complaint in
Strasbourg in May 1989, and from Stefos Skenderis, a teacher for the
Greek State from Florina.

b. As disclosed by the “Australian-Macedonian Committee for Human
Rights” on 1 August 1990, Hristos Sidiropulos is the invisible leader
of a secret phantom organization of “Aegean Macedonians”, the “Central
organizing committee for the Macedonian human rights of the Macedonians
of Aegean Macedonia”. In 1984 this organization mailed a manifesto
containing the “demands of the Macedonians of Aegean Macedonia” which
caused the Greek people profound unease and distress concerning the
activities of invisible agents belonging to an independence movement
within Greek Macedonia. This secret phantom movement remains unknown;
however it claims to be based in Thessaloniki and it is certain that
it is directed from abroad and imports all its printed propaganda
against Greek Macedonia from foreign countries.

c. The application under discussion tomorrow in Thessaloniki’s Court
of Appeal for the “Home of Macedonian Civilisation” will in fact set
in motion a provocation of Greek justice which was planned abroad as
far back as 1989. The aim is to trap Greece into a series of legal
refusals which will then be used against Greece by Skopje in the
European Court of Human Rights and the Council of Ministers at the
Council of Europe in Strasbourg. The plot is satanic because if the
Greek courts accept the application by the leader of the “Aegean
Macedonians” Greece will be legalizing a Trojan horse sent by Skopje
to trap unwitting bilingual Greek Macedonians and deliver them to the
claws of foreigners and of propaganda inspired from abroad.

The Slavic plot which is to be submitted tomorrow in Thessaloniki
to unsuspecting Appeal Court judges is part of a directive released by
independence activists in Australia two years ago, in 1989, following
their first appearance on the international stage at the Council of
Europe in Strasbourg. At the time “Macedonian” professors Michael Radin
and Chris Popov, who are Australian citizens, released a plan of action
entitled “The road to Macedonian human rights” on behalf of the
Thessaloniki “section”. The report was written and printed abroad in
English and its title mentions that it is a publication of Hristos
Sidiropulos’ secret phantom organization in Thessaloniki. It contains
55 pages; page 38 contains the following revelations:

“The following scenario is a convincing way of questioning in a
lawful manner the denial of the rights of the Macedonians by the Greek
State. Macedonians from Aegean Macedonia could for instance set up an
association for popular dances with the name “Macedonian Folklore
Association”. The association will undoubtedly be forbidden by the laws
mentioned above, which forbid the establishment of groups on grounds
of nationality. Provided all appeals to the lower courts are turned
down, the case will go through the Greek legal system until it reaches
the country’s highest court, the Court of Cassation. The refusal of an
appeal at this level will mean that all local legal remedies have been
exhausted. Therefore one of the conditions for submission of a case to
the Convention for the Protection of Human Rights will have been
fulfilled. Within six months of the High Court’s decision an
application can be submitted on the grounds that the right to freedom
of peaceful assembly and association has been violated, with the result
that the Convention for the Protection of Human Rights, or the Council
of Ministers of the Council of Europe, will pronounce a decision
against Greece.”

This foreign directive will be carried out to the letter tomorrow
when the Thessaloniki Court of Appeal deliberates over the application
for the “Home of Macedonian Civilisation”.

Hristos Sidiropulos and Stavros Anastasiadis are acting under the
guidance of independence activists Radin and Popov who drew up the
above report or directive. With them as leaders, along with two others
from Skopje and about ten other representatives of “Macedonian”
independence movements from the United States, Canada and Europe,
Sidiropulos and Anastasiadis appeared in Copenhagen at a meeting of the
Conference for Security and Cooperation in Europe to accuse Greece in
a press conference organized by Yugoslavia’s official diplomatic
representation at the CSCE. At the conference Sidiropulos was seated
beside the secretary of the Yugoslav embassy, who directed the
discussion with the foreign journalists.

“Macedonia”, a newspaper in the service of Slav independence
activists fighting in the United States and Canada for the separation
of Greek Macedonia and its incorporation into Skopje, published a
revelatory photograph on 15 July 1990 in which Sidiropulos and
Anastasiadis appear beside their instructors Radin and Popov and their
leaders from Skopje in the midst of the group of agents presented by
the Yugoslavian diplomatic mission at the CSCE. In this newspaper which
is run by Slav independence activists, the photograph and report figure
under the headline “Yugoslavia protecting minority rights”.

10/07/1998 Corte Sentenza Accoglimento 117

CASE OF SIDIROPOULOS AND OTHERS v. GREECE
(57/1997/841/1047)
JUDGMENT
STRASBOURG
10 July 1998

The present judgment is subject to editorial revision before its reproduction in final form in Reports of Judgments and Decisions 1998. These reports are obtainable from the publisher Carl Heymanns Verlag KG (Luxemburger Straße 449, D-50939 Köln), who will also arrange for their distribution in association with the agents for certain countries as listed overleaf.

List of Agents

Belgium: Etablissements Emile Bruylant (rue de la Régence 67,
B-1000 Bruxelles)

Luxembourg: Librairie Promoculture (14, rue Duchscher
(place de Paris), B.P. 1142, L-1011 Luxembourg-Gare)

The Netherlands: B.V. Juridische Boekhandel & Antiquariaat
A. Jongbloed & Zoon (Noordeinde 39, NL-2514 GC ‘s-Gravenhage)

SUMMARY
Judgment delivered by a Chamber
Greece – refusal of courts to register an association suspected of undermining the country’s territorial integrity
I. THE GOVERNMENT’S PRELIMINARY OBJECTIONS
A. Failure to exhaust domestic remedies
Notwithstanding its autonomous role and particular sphere of application, Article 11 can also be considered in the light of Articles 9 and 10. Applicants’ complaints under Articles 9, 10 and 14 of the Convention also went to the very substance of Article 11 – applicants had relied on grounds of equivalent effect within the meaning of the Court’s case-law.
Complaints under Article 6 § 1 identical with those raised under Article 11.
Conclusion: objection dismissed (unanimously).
B. Abuse of right of individual petition
There was nothing in the relevant association’s memorandum of association to warrant the conclusion that the association had relied on the Convention to engage in activity or perform acts aimed at the destruction of any of the rights and freedoms set forth in it.
Conclusion: objection dismissed (unanimously).
II. ARTICLE 11 OF THE CONVENTION
A. Whether there had been an interference
Interference with exercise of right to freedom of association: Greek courts’ refusal to register applicants’ association had deprived applicants of any possibility of jointly or individually pursuing the aims they had laid down in the memorandum of association and thus of exercising the right in question.
B. Justification for the interference
1. “Prescribed by law”
Articles 79 to 81 of the Civil Code allowed courts to refuse an application to register an association where they found that the validity of its memorandum of association was open to question.
2. Legitimate aim
Protection of national security and prevention of disorder.
3. “Necessary in a democratic society”
That citizens should be able to form a legal entity in order to act collectively in a field of mutual interest was one of the most important aspects of the right to freedom of association – way in which national legislation enshrined that freedom and its practical application by the authorities revealed state of democracy in the country concerned.
Aims of association set out in its memorandum of association had been exclusively to preserve and develop traditions and folk culture of Florina region – perfectly clear and legitimate.
Relevant press articles had reported matters some of which were unconnected with applicants and drawn inferences derived from a subjective assessment by authors of the articles – courts had taken those articles into consideration and also the political dispute that then dominated relations between Greece and the Former Yugoslav Republic of Macedonia and had held that the applicants and their association represented a danger to Greece’s territorial integrity – statement based on a mere suspicion as to true intentions of association’s founders.
Greek law did not lay down a system of preventive review for setting up non-profit-making associations – Article 105 of the Civil Code empowered courts to order that the association should be dissolved if after its registration it pursued an aim different from the one laid down in its memorandum of association.
Refusal to register association disproportionate to objectives pursued.
Conclusion: violation (unanimously).
III. ARTICLE 6 § 1 OF THE CONVENTION
Complaints largely the same as those raised under Article 11.
Conclusion: unnecessary to rule on complaint (unanimously).
IV. ARTICLES 9, 10 AND 14 OF THE CONVENTION
Complaint related to same facts as ones based on Article 11.
Conclusion: unnecessary to rule on complaint (unanimously).
V. ARTICLE 50 OF THE CONVENTION
A. Non-pecuniary damage: sufficiently compensated by finding of violation.
B. Costs and expenses: assessed on equitable basis.
Conclusion: respondent State to pay the applicants specified sum for costs and expenses (unanimously).
COURT’S CASE-LAW REFERRED TO
13.8.1981, Young, James and Webster v. the United Kingdom; 20.9.1993, Saïdi v. France; 30.1.1998, United Communist Party of Turkey and Others v. Turkey

In the case of Sidiropoulos and Others v. Greece ,
The European Court of Human Rights, sitting, in accordance with Article 43 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) and the relevant provisions of Rules of Court A , as a Chamber composed of the following judges:
Mr R. BERNHARDT, President,
Mr C. RUSSO,
Mr N. VALTICOS,
Mr I. FOIGHEL,
Mr J.M. MORENILLA,
Mr L. WILDHABER,
Mr D. GOTCHEV,
Mr U. LŌHMUS,
Mr V. BUTKEVYCH,
and also of Mr H. PETZOLD, Registrar, and Mr P.J. MAHONEY, Deputy Registrar,
Having deliberated in private on 30 March and 27 June 1998,
Delivers the following judgment, which was adopted on the last-mentioned date:
PROCEDURE
1100. The case was referred to the Court by the European Commission of Human Rights (“the Commission”) on 29 May 1997, within the three-month period laid down by Article 32 § 1 and Article 47 of the Convention. It originated in an application (no. 26695/95) against the Hellenic Republic lodged with the Commission under Article 25 by seven Greek nationals, Mr Christos Sidiropoulos, Mr Petros Dimtsis, Mr Stavros Anastassiadis, Mr Constantinos Gotsis, Mr Anastassios Boules, Mr Dimitrios Seltsas and Mr Stavros Sovislis, on 16 November 1994.
The Commission’s request referred to Articles 44 and 48 and to the declaration whereby Greece recognised the compulsory jurisdiction of the Court (Article 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 6, 9, 10, 11 and 14 of the Convention.
1101. In response to the enquiry made in accordance with Rule 33 § 3 (d) of Rules of Court A, the applicants stated that they wished to take part in the proceedings and designated the lawyers who would represent them (Rule 30). The lawyers were given leave by the President to use the Greek language at the hearing (Rule 27 § 3).
1102. The Chamber to be constituted included ex officio Mr N. Valticos, the elected judge of Greek nationality (Article 43 of the Convention), and Mr R. Bernhardt, the Vice-President of the Court (Rule 21 § 4 (b)). On 3 July 1997, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr B. Walsh, Mr C. Russo, Mr I. Foighel, Mr J.M. Morenilla, Mr L. Wildhaber, Mr U. Lōhmus and Mr V. Butkevych (Article 43 in fine of the Convention and Rule 21 § 5). Subsequently Mr D. Gotchev, substitute judge, replaced Mr Walsh, who had died (Rules 22 § 1 and 24 § 1).
1103. As President of the Chamber (Rule 21 § 6), Mr Bernhardt, acting through the Registrar, consulted the Agent of the Greek Government (“the Government”), the applicants’ lawyers and the Delegate of the Commission on the organisation of the proceedings (Rules 37 § 1 and 38). Pursuant to the order made in consequence, the Registrar received the Government’s memorial on 5 January 1998. The applicants stated that they wished to rely on their memorial before the Commission, and on 21 February 1998 they filed their claims under Article 50 of the Convention.
1104. On 27 February 1998 the Commission produced the file on the proceedings before it, as requested by the Registrar on the President’s instructions.
1105. In accordance with the President’s decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 24 March 1998. The Court had held a preparatory meeting beforehand.

There appeared before the Court:
(a) for the Government
Mr V. KONDOLAIMOS, Adviser,
State Legal Council, Delegate of the Agent,
Mr V. KYRIAZOPOULOS, Legal Assistant,
State Legal Council, Counsel;
(b) for the Commission
Mr L. LOUCAIDES, Delegate;
(c) for the applicants
Ms I. KOURTOVIK, of the Athens Bar,
Mr L. BALTZIOTIS, of the Athens Bar, Counsel.

The Court heard addresses by Mr Loucaides, Ms Kourtovik, Mr Kyriazopoulos and Mr Kondolaimos.
AS TO THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
1106. The applicants all live at Florina, in northern Greece, on the border of the Former Yugoslav Republic of Macedonia. Mr Sidiropoulos, an electrician, was born at Kastoria in 1949; Mr Dimtsis, a teacher, was born at Florina in 1957, Mr Anastassiadis, a farmer, was born at Florina in 1944; Mr Boules, a farmer, was born at Florina in 1941; Mr Sovislis, a farmer, was born at Florina in 1950; and Mr Seltsas, a dentist, was born at Florina in 1956.
1107. On 18 April 1990 the applicants, who claim to be of “Macedonian” ethnic origin and to have a “Macedonian national consciousness”, decided together with forty-nine other people to form a non-profit-making association (somatio) called “Home of Macedonian Civilisation” (Stegi Makedonikou Politismou). The association’s headquarters were to be at Florina. According to clause 2 of its memorandum of association, the association’s objects were “(a) the cultural, intellectual and artistic development of its members and of the inhabitants of Florina in general and the fostering of a spirit of cooperation, solidarity and love between them; (b) cultural decentralisation and the preservation of intellectual and artistic endeavours and traditions and of the civilisation’s monuments and, more generally, the promotion and development of [their] folk culture; and (c) the protection of the region’s natural and cultural environment”.
A. The proceedings in the Florina Court of First Instance
1108. On 12 June 1990 the applicants, who constituted the provisional management committee of the association, lodged an application under Article 79 of the Civil Code with the Florina Court of First Instance for registration of their association under the name of “Home of Macedonian Civilisation”.
1109. On 9 August 1990 the court, having heard the applicants, refused their application on the following grounds:
“It is apparent from the documents lodged by the applicants and from the information which the Court may take into consideration of its own motion … that recognition of the association under this same name has already been sought, in an application on 19 January 1990 which was dismissed by this Court on 19 March 1990… Now that the words [the defence of national independence] that constituted the ground on which the aforementioned application was dismissed as being contrary to law have been deleted, a fresh application has been made for recognition of the association in question. Some of the founder members of the association who are on the provisional management committee … have engaged in promoting the idea that there is a Macedonian minority in Greece (see, for example, the newspapers Makhitis, Ellinikos Voras, Nea and Stokhos of 28 June 1990, 24 June 1990, 18 June 1990 and 28 June 1990 respectively); these newspapers strengthen the Court all the more in its previous opinion as none of the applicants has so far cast any doubt on the matters set out in these newspapers …, namely that they travelled to Copenhagen on 9 June 1990 and took part in the Conference on Security and Co-operation in Europe (CSCE), where they maintained that there was a Macedonian minority in Greece and even congratulated Professor Ataov, a Turk, who read out a text containing provocative and unacceptable allegations against Greece. One of the members of the provisional management committee, Mr Constantinos Gotsis, refused, in the course of proceedings in the Florina Court of First Instance against the publisher of the newspaper Stokhos, to accept that he was Greek… Besides, sixteen founder members of the above-mentioned association reportedly contributed money so that Christos Sidiropoulos and Stavros Anastassiadis could go to Copenhagen to defend their ideas… On the basis of the foregoing circumstances, which have been proved, the Court considers that the true object of the aforementioned association is not the one indicated in clause 2 of the memorandum of association but the promotion of the idea that there is a Macedonian minority in Greece, which is contrary to the country’s national interest and consequently contrary to law.
…”
B. The proceedings in the Salonika Court of Appeal
1110. On 7 September 1990 the applicants appealed against that judgment to the Salonika Court of Appeal. After hearing the applicants, that court dismissed their appeal on the following grounds:
“…
III. In view of the strong public interest at stake, the court, when examining the grounds of an application being heard under the special procedure, as in the present case, may and indeed must take into consideration, of its own motion, matters over and above the evidence submitted to the court by the parties – in particular, real events and situations reported in publications (books, magazines, newspapers, etc.) accessible to any interested person – and this notwithstanding the ordinary rules on the burden of proof. On the basis of the well-known facts set out below, whose validity the Court does not doubt, the Court accepts the following in relation to the case. Ancient (classical) Macedonia is delimited to the south by the Aegean Sea and the Kamvounia, Pieria and Olympus mountains; to the north by Lake Ohrid, the Prespa lakes, and the Babuna-Skomion (Rila Planina) and Rhodope mountains; to the east by the river Nestos; and to the west by Mount Grammos and the Pindus range (see: Makedonia, Ekdotiki Athinon, pp. 10 et seq.; A. Vakalopoulos, Synchrona Valkanika Ethnologika Provlimata, p. II; G. Mintsis, Istoria tou Makedonikou Zetematos, p. 29). Its inhabitants (the Macedonians) were one of the most ancient Greek tribes, closely related to the Thessalians, who were also of Aeolian origin, and especially to the Magnesians. Their language was one of the oldest Greek dialects, akin to Aeolian and Arcado-Cyprian and also to the Mycenean dialect. Their religion was that common to the Greeks and their myths and traditions were similar to those elsewhere in the Greek world (see H.G. Wells, The Outline of History, trans. K. Yeroyannis as Pankosmios Istoria, Pergaminai, Chapter B 1, p. 439, and Chapter I, p. 367; Will Durant, Pankosmios Istoria tou Politismou, ed. A. Daskalakis, 1965, p. 483V; Pandit Jawaharlal Nehru, Maties stin Pankosmia Istoria, trans. P. Drakou, Faros, 1954, p. 25; A. Vakalopoulos, op. cit., pp. 14 et seq.; M. Sakellariou, I taftotita ton Makedonon, communication to the Academy of Athens on 8 November 1988; K. Vavouskos, correction of the draft article on Macedonia for the new Australian encyclopedia Australian People, speech to the special meeting of the Academy of Athens on 7 March 1989; N. Andriotis, The Language and the Greek Origin of the Ancient Macedonians, Salonika, 1978). The Macedonian kings Philip II and Alexander the Great acted not just as Greeks but as pan-Hellenists, in the sense that they incarnated the old idea of the creation of a unified Greek State by bringing together the smaller Greek territories; they were bearers, and the latter was a disseminator, not of an incomplete Macedonian civilisation but of Greek civilisation (see Johann Gustav Droysen, Istoria tou Megalou Alexandrou, trans. with commentary etc. by Renos Apostolidis, 1988, pp. 1–9 and 28 et seq.; Istoria tou Ellinikou Ethnous, Ekdotiki Athinon, vol. D, pp. 10 et seq.). And in later years, especially after the appearance in the Balkans of the Bulgars and Slavs (6th–7th cent. A.D.), the Macedonian region as defined above was a stronghold and bastion of Hellenism just as it had been in ancient times. Polybius describes Macedonia as a ‘shield’ and praises the Macedonians because they fought the barbarians (non-Greeks) to ensure the safety of the (other) Greeks (Polybius, Historiae, Leipzig edition, 1898, vol. 3, book 9, p. 35). For the Byzantine period the same is affirmed by the French historian Paul Lemerle in his classic work Philippe et la Macédoine orientale, Paris, 1945, pp. 516–17. In addition, a guide to Salonika written by German historians and archaeologists during the last world war states that ‘the waves of migrating peoples which frequently swamped the Balkan peninsula broke on this most powerful bastion of Hellenism’ (see A. Vakalopoulos, op. cit., pp. 17 et seq.). Nowhere in either the recent or the distant past are Macedonia and the Macedonians mentioned in any official document as a specific ethnic group. The Treaty of Berlin, and the Treaty of San Stefano which it replaced, make no reference to such a notion. In the official Turkish census of 1905 there is mention of Greeks and Bulgarians, or inhabitants whose identity was partly Bulgarian, in the vilayets of Salonika and Monastir, where there were Greek ethnic majorities; but no mention of Macedonians, since nobody declared such descent (A. Vakalopoulos, op. cit., pp. 84 et seq.; G. Roussos, Neoteri Istoria tou Ellinikou Ethnous, vol. 5, pp. 83 et seq., which includes a reproduction of the census tables). In his work Voyage dans la Macédoine (Paris, 1831) E.M. Cousinery, the French Consul in Salonika, says that the Bulgarians (as all speakers of Slavic were then called) never penetrated the forests beyond Vermion, where the population remained Greek (see vol. 1, pp. 67–68, and vol. 2, p. 140). With reference to the same area, the German geographer Leonard D. Schultze observes that in their language, traditions, cultural affinities, ethnic preferences and religion, its inhabitants are as legitimately and authentically Greek as their brothers further to the south (Macedonien Landschafts- und Kulturbilder, Jena, 1927, p. 106). He reiterates the words of Lord Salisbury, Great Britain’s representative at the Congress of Berlin, on 19 June 1878, when he said that ‘Macedonia and Thrace are just as Greek as Crete’ (K. Vavouskos, op. cit., p. 84). The fact that a small part of this region’s population also speaks a language which is basically a form of Bulgarian with admixtures of Slavic, Greek, Vlach and Albanian words, does not prove that this minority is of Slavic or Bulgarian origin; in isolation this criterion is of no value whatsoever, as is borne out by the experience in the recent past of the forced migration from Asia Minor to Greece of populations which were indisputably Greek but totally ignorant of the Greek language. It is indicative that among the fighters of the Macedonian campaign (1904–08) there were men who spoke the Bulgarian-Slav dialect but who had a purely Greek national consciousness; for example Kotas, Dalipis, Kyrou, Gonos and others. In his Short History of the Bulgarian, Serb and Romanian Orthodox Churches (Moscow 1871), the Russian historian E. Golubinstii wrote of these non-Greek-speaking Greeks that they had an implacable hatred of and scorn for all Slavs and Bulgarians (see K. Vavouskos, op. cit., pp. 85 et seq.). After the Balkan Wars of 1912–13, 51.57% of the region corresponding to ancient Macedonia was under Greek domination, 38.32% under Yugoslav domination, and 10.11% under Bulgarian domination (see Makedonia, Ekdotiki Athinon, p. 504, which includes a map). In this way a territorial status came into being. There were exchanges of population, either voluntary or following bilateral agreements such as the Kafantari-Molov agreement between Greece and Bulgaria in 1926; and Greeks from Turkey populated the Greek part of Macedonia, so that only Greeks remained in this part of Macedonia, even if some of them were bilingual. Greek Macedonia thus became a completely homogeneous part of Greek territory (see K. Vavouskos, op. cit., p. 92; and A. Vakalopoulos, op. cit., p. 31, who refers to the work of the German Stephan Ronart, Griechenland von heute). This was especially true in the period immediately following the Second World War (1945–49), when almost all the bilingual inhabitants of this region who did not have a Greek national consciousness emigrated to neighbouring countries (see E. Kofos, Nationalism and Communism in Macedonia, Salonika, 1964, pp. 185 et seq.). There they experienced a mutation of their partly Greek or partly Bulgarian nationality into a ‘Macedonian’, i.e. a Slav-Macedonian, nationality (see E. Kofos in Yugoslavia Today, Athens, 1990, p. 50; Kentron Apodimu Ellinismou, Makedonia, Istoria kai Politismos, Ekdotiki Athinon, 1989, pp. 29 et seq.). This situation was preceded by a number of violent incidents, such as the Ilinden revolt, in which the Bulgarians claim to have revolted against the Turks on 2 August 1903 at Krusevo, a town near Monastir whose ethnic composition was overwhelmingly Greek. In fact they turned against the town’s Greek inhabitants, whom they tried to wipe out with the cooperation of the Turks and without causing the rest of the population any significant harm (see K. Vavouskos, op. cit., p. 89; Douglas Dakin, The Greek Struggle in Macedonia 1897–1913, Salonika, 1966, pp. 92 et seq.; Douglas Dakin, E.K. Mazarakis-Ainianos, E. Kofou and I. Diamantourou, O Makedonikos Agonas, Athens, 1985, pp. 30 et seq.; G. Mintsis, op. cit., pp. 53 et seq.). Until 1914 ‘Macedonia’ as a Slavic State and ‘the Macedonian nation’ as a specific nation were unheard of. The part of Macedonia which fell under Yugoslav domination, like that which fell to Bulgaria, is a narrow strip of land along the Greek border and represents only a small part of Serbia. Skopje, which today is the capital of the misleadingly named Socialist Republic of Macedonia of the Federal Yugoslav State, is far away from Macedonia. The S.R.M. was founded under the German occupation (see E. Kofos, The Impact of the Macedonian Question on Civil Conflict in Greece 1943–1948, Athens, 1989). Its foundation was part of a deliberate strategy according to which, when the regions of Skopje and Tetovo (which belonged to ancient Dardania, a non-Macedonian country) were ceded, a Serb population could be said to exist in the sparsely populated part of Macedonia that lay beyond the Greek borders and contained Serbs, Greeks, Greek Vlachs, Muslims with a partly Turkish identity, and Bulgarians; a Slav-speaking population with a specific dialect and an unstable national consciousness (see A. Vakalopoulos, op. cit., pp. 12 et seq.; N. Andriotis, The Confederate State of Skopje and its Language, Athens, 1957, with relevant bibliography). The long-term purpose of founding the S.R.M. was to re-establish a Slav Macedonian State with access to the Aegean. One of the means to this end is to enlist in various ways bilingual Greeks from Greek Macedonia. Setting up an association called ‘Home of Macedonian Civilisation’ at Florina is part of this effort and applies a directive issued by Slav organisations abroad. The aim is to create a Macedonian Question with international ramifications (see statements by Serb politicians to the Borba newspaper, 8 November 1990 and to Nin magazine, 1 February 1991). The parties applying for recognition of the above association are the enablers in this operation. Among them are Christos Sidiropoulos and Stavros Anastassiadis, who appeared at an international conference to dispute the Greek identity of (Greek) Macedonia, the former in particular by distinguishing between Macedonians and Greeks (see the Makedonikos Voras newspaper of 17 March 1991, which includes photographs of the above persons among sixteen members of the ‘Macedonian’ delegation at the CSCE in Copenhagen; and the Ethnos newspaper of 5 February 1991, p. 10). This, in combination with the name of the proposed association and with the whole content of its memorandum of association, renders at least dubious the association’s aims, which according to the founder members’ seemingly lawful statement in clause 2 of the memorandum of association, consist in the cultural, intellectual and artistic advancement of its members, cultural decentralisation, etc. This assessment is supported by the content of clause 3, paragraph 2, of the same memorandum of association, which states that all youths in the Florina area will be enrolled in the proposed association’s youth section. It is clear from this that there is a danger that the immaturity of young people will be exploited and that youths will be trapped by suitable propaganda in an ethnologically non-existent and historically evacuated Slav-Macedonian minority. Clause 4 of the same memorandum of association lays down the condition that enrolment in the association is subject to written acceptance of the association’s principles. Nowhere in the association’s memorandum of association, however, are these principles defined. Thus the memorandum of association does not provide a clear idea of who will enrol, since a clear definition of the principles governing the proposed association is deliberately omitted. Lastly, the very name of the association may be a source of confusion, because at first sight it creates the impression that it refers to Macedonia’s Greek civilisation, whereas in reality it envisages a specifically Slavic civilisation which does not exist in the region in question. Altogether, this Court has good reasons in the light of the foregoing to believe that the purpose of using the term ‘Macedonian’ is to dispute the Greek identity of Macedonia and its inhabitants by indirect and therefore underhand means, and discerns an intention on the part of the founders to undermine Greece’s territorial integrity. The impugned refusal of the application in question was therefore justified, notwithstanding that it was based on shorter and partly different reasoning; and the arguments to the contrary put forward in the present appeal must fail.
…”
C. The proceedings in the Court of Cassation
1111. On 20 June 1991 the applicants appealed on points of law to the Court of Cassation, relying, in particular, on Articles 2, 4, 5 and 12 of the Greek Constitution and the corresponding provisions of the Convention. They maintained that, contrary to law, the Court of Appeal had (a) not confined itself to reviewing the lawfulness of the establishment of their association – namely whether the requirements of Articles 78 to 80 of the Civil Code had been satisfied – but had reviewed its desirability, relying on the presumed intentions of the founder members, which (assuming them to have any reality) could not, however, be the subject of judicial review at the stage of granting the association legal recognition; (b) taken into consideration information (in particular, irresponsible and unfounded press articles concerning some of the founder members) that had not been produced by the parties; (c) accepted as true certain matters that were of decisive importance for the outcome of the proceedings without ordering evidence to be taken to establish whether they were in fact true; (d) distorted the content of the association’s memorandum of association; and (e) not given sufficient reasons in its judgment.
In a pleading filed on 25 February 1994 the applicants essentially reiterated the complaints they had set out in their appeal on points of law and stated that the refusal to authorise the founding of their association was based on assessments and assumptions as to their personalities and ideological and historical convictions which in turn rested not on the association’s memorandum of association but on suspect anonymous publications.
1112. In a judgment of 16 May 1994 the Court of Cassation upheld the Court of Appeal’s judgment. It considered that the grounds of appeal were vague and unfounded. It pointed out that under the special procedure for granting recognition to associations, the inquisitorial system allowed the court to take into account, of its own motion, matters which had not been mentioned by the parties and that the court was not bound by the parties’ evidence and assertions. As to the “matters that were of decisive importance for the outcome of the proceedings”, the parties had not specified the matters in question in their appeal. The Court of Appeal had accepted the truth of certain circumstances in reliance on the content of the association’s memorandum of association and on matters that were common knowledge and supported by documents such as the press articles; and there had not, moreover, been any distortion of the content of the memorandum of association. The Court of Cassation also held that sufficient reasons had been given in the Court of Appeal’s judgment. It further noted that the assertion that Articles 2, 4, 5 and 12 of the Constitution, together with the Rome Convention, had been infringed referred not to the Court of Appeal’s judgment but to the judgment of the Florina Court of First Instance; even
supposing that the applicants had put forward a ground of appeal based on Article 559 § 1 of the Code of Civil Procedure, it would have had to be dismissed as vague since they had not stated in what way the Court of Appeal had made a mistake in interpreting or applying those provisions.
II. EXTRACTS FROM THE PRESS ARTICLES ON WHICH THE GREEK COURTS RELIED
1113. Article in the 5 February 1991 issue of the Ethnos newspaper:
“Skopje: Skopje has made use of three Greeks – one of them a public employee – who made allegations of repression against the Greek Government to a representative of the American embassy visiting villages in Florina.
The three testified against Greece at a meeting of the Conference on Security and Co-operation in Europe which was held in Denmark on 15 June 1990. According to the American Macedonian Association, the men in question are Christos Stergiou Sidiropoulos, Constantinos Gotsis, and Stavros Anastassiadis.
Sidiropoulos is a forestry official employed by the Greek State. These and other Greeks belonging to an association called ‘Home of Macedonian Civilisation’ are controlled by Vasil Tuvorkovsky, a member of the central committee of Yugoslavia’s Presidential Council and a frequent visitor to Greece, where he stays in a mobile home in Halkidiki.”
1114. Article in the 17 March 1991 issue of the Ellinikos Voras newspaper:
“First headline: Skopje’s Trojan horse in Salonika’s Court of Appeal tomorrow – Expulsion of ringleader S. Todorovski – Decisive documents.
Second headline: Leader of secret organisation is a public servant – Spectre of ‘Aegean Macedonians’ – How the international plot against Greece was set up; who will be promoting it tomorrow – Tomorrow’s appeal hearing in Salonika carries out a directive issued in 1989. Radin, Popov, Skopje and ‘Consul’ Todorovski control the local leader – Application is a trap designed to vilify Greece in the International Court.
As dramatic developments in a rapidly disintegrating Yugoslavia and the broader Balkan region begin to resemble a thriller, with the emergence of a ‘new order’ in the Balkans whose targets include Greek Macedonia and Thrace, the leader of a secret organisation called ‘Macedonians of the Aegean’, Christos Sidiropoulos, also a full-time employee of the Greek State, will be trying in Salonika tomorrow to embroil Greece in a satanic plot organised abroad by Skopje and the independence movements it runs in Australia. This accounts for the announcement that the Yugoslav consul in Salonika, Sasko Todorovski, is to be expelled just 72 hours before tomorrow’s hearing. Todorovski’s cover was blown when Ellinikos Voras revealed on 17 February that he was the leader of a triangle opposed to Greek Macedonia and including the American vice-consul, Colonel Donald Miller, and the educational adviser of the American embassy in Athens, John Kiesling.
It is also known that Donald Miller left Salonika ‘overnight’ for the United States when Ellinikos Voras exposed his dark ‘triangular’ role in the State Department’s contemptible report. Todorovski is a tool of the Yugoslav secret service and used agents to lead an international destabilisation operation in Greek Macedonia.
One stage of this destabilisation operation unfolds tomorrow in Salonika. The city’s Court of Appeal will consider the application by seventeen inhabitants of the prefecture of Florina for approval of their memorandum of association for establishing an association called ‘Home of Macedonian Civilisation’. The memorandum of association is drafted with expert care so as to provide full international legal cover for a well-planned destabilisation of the country – the legal wrapping of a Trojan horse on Greece’s borders. The application in question was refused by the lower court at Florina, where an earlier, less veiled version drawn up by the same persons had also been refused. The new application in the Salonika Court of Appeal tomorrow will be heard as ‘a straightforward everyday case’.
However, evidence and information from Slavic sources reveals the following.
(a) The leaders of the seventeen, most of whom were ensnared by what seemed an innocent ‘cultural’ project, are Christos Sidiropoulos from Amindaio, a forester with the Ministry of Agriculture, and Stavros Anastassiadis, a wealthy businessman from Meliti in the prefecture of Florina, both of whom are signatories of the application. The two also appeared last June at a meeting of the Conference on Security and Co-operation in Europe (CSCE) held in Copenhagen on the subject of human rights, declaring that they were Greek citizens but Macedonian nationals, and denounced the Greek State for ‘oppressing’ the ‘Macedonians’ of ‘Aegean Macedonia’ and ‘depriving’ them of all human rights. In fact, according to the newspaper run by the émigré independence movement in Australia, Australian Macedonian (1/8/1990), the two men carried letters containing similar allegations from Petros Dimtsis of Kato Klines, a village in the prefecture of Florina, who lodged a complaint in Strasbourg in May 1989, and from Stefos Skenderis, a teacher in the Greek State education service who lives at Florina.
(b) As disclosed by the ‘Australian-Macedonian Committee for Human Rights’ on 1 August 1990, Christos Sidiropoulos is the invisible leader of a secret phantom organisation of ‘Aegean Macedonians’, the ‘Central organising committee for the Macedonian human rights of the Macedonians of Aegean Macedonia’. In 1984 this organisation distributed by post a manifesto containing the ‘demands of the Macedonians of Aegean Macedonia’ which caused the Greek people profound unease and distress at the activities of invisible agents belonging to an independence movement within Greek Macedonia. This secret phantom movement remains unknown; however, it claims to be based in Salonika and it is certain that it is directed from abroad and imports all its printed propaganda against Greek Macedonia from foreign countries.
(c) The application to be heard tomorrow in the Salonika Court of Appeal for registration of the ‘Home of Macedonian Civilisation’ will in fact set in motion a provocation of the Greek system of justice which was planned abroad as far back as 1989. The aim is to trap Greece into a series of legal refusals which will then be used against Greece by Skopje in the European Court of Human Rights and the Committee of Ministers at the Council of Europe in Strasbourg. The plot is satanic because if the Greek courts accept the application by the leader of the ‘Aegean Macedonians’, Greece will be legalising a Trojan horse sent by Skopje to trap unwitting bilingual Greek Macedonians and deliver them into the claws of foreigners and of propaganda inspired from abroad.
The Slavic plot which is to be submitted tomorrow in Salonika to unsuspecting appeal court judges is part of a directive released by independence activists in Australia two years ago, in 1989, following their first appearance on the international stage at the Council of Europe in Strasbourg. At the time ‘Macedonian’ professors Michael Radin and Chris Popov, who are Australian citizens, released a plan of action entitled ‘The road to Macedonian human rights’ on behalf of the Salonika ‘section’. The report was written in English and printed abroad and its title mentions that it is a publication of Christos Sidiropoulos’s secret phantom organisation in Salonika. It contains 55 pages; page 38 contains the following revelations:
‘The following scenario is a convincing way of lawfully challenging the denial of Macedonians’ rights by the Greek State. Macedonians from Aegean Macedonia could, for instance, set up an association for popular dances with the name “Macedonian Folklore Association”. The association will undoubtedly be forbidden by the laws mentioned above, which prohibit establishing groups on the ground of nationality. Provided that all appeals to the lower courts are turned down, the case will go through the Greek judicial system until it reaches the country’s highest court, the Court of Cassation. The refusal of an appeal at that level will mean that all domestic legal remedies have been exhausted. One of the conditions for submission of a case to the Convention for the Protection of Human Rights will thus have been fulfilled. Within six months of the Supreme Court’s decision an application can be submitted on the ground that the right to freedom of peaceful assembly and association has been violated, with the result that the Court of Human Rights, or the Committee of Ministers of the Council of Europe, will deliver a decision against Greece.’
This foreign directive will be carried out to the letter tomorrow when the Salonika Court of Appeal considers the application to establish the ‘Home of Macedonian Civilisation’.
Christos Sidiropoulos and Stavros Anastassiadis are acting under the control of independence activists Radin and Popov who drew up the above report or directive. With them as leaders, along with two others from Skopje and about ten other representatives of ‘Macedonian’ independence movements from the United States, Canada and Europe, Sidiropoulos and Anastassiadis appeared in Copenhagen at a meeting of the Conference on Security and Co-operation in Europe to accuse Greece at a press conference organised by Yugoslavia’s official diplomatic delegation to the CSCE. At the conference Sidiropoulos was seated beside the secretary of the Yugoslav embassy, who directed the discussion with the foreign journalists.
On 15 July 1990 Macedonia, a newspaper in the service of Slav independence activists fighting in the United States and Canada for the separation of Greek Macedonia and its incorporation into Skopje, published a revealing photograph in which Sidiropoulos and Anastassiadis appear beside their instructors Radin and Popov and their leaders from Skopje in the midst of the group of agents presented by the Yugoslavian diplomatic mission at the CSCE. In this newspaper, which is run by Slav independence activists, the photograph and report appear under the headline ‘Yugoslavia protecting minority rights’.”
III. RELEVANT DOMESTIC LAW
A. Constitution
1115. Article 4 § 1 of the Constitution provides:
“All Greeks shall be equal before the law.”
1116. Article 12 § 1 of the Constitution provides:
“All Greeks shall be entitled to form non-profit-making unions and associations, in accordance with the law, which may not, however, make the exercise of this right subject to prior authorisation.”
B. Civil Code
1117. The Civil Code contains the following provisions concerning non-profit-making associations:
Article 78
Associations
“A union of persons pursuing a non-profit-making aim shall acquire legal personality as soon as it has been entered in a special public register (of associations) held at the Court of First Instance for the place where it has its headquarters. At least twenty persons shall be necessary to form an association.”
Article 79
Application for the registration of an association
“In order to have an association registered, its founders or its management committee must lodge an application with the Court of First Instance. The application must be accompanied by the document establishing the association, a list of the names of the members of the management committee and the memorandum of association dated and signed by the committee’s members.”
Article 80
Memorandum of association
“To be valid, the memorandum of association must specify (a) the object, name and headquarters of the association; (b) the conditions of admission, withdrawal and expulsion of its members, together with their rights and obligations; …”
Article 81
Decision to register an association
“The Court of First Instance shall allow the application if it is satisfied that all the legal requirements have been complied with…”
Article 105
Dissolution of an association
“The Court of First Instance shall order the dissolution of an association … (c) if the association pursues aims different from those laid down in its memorandum of association or if its object or its functioning prove to be contrary to law, morality or public order.”
C. Code of Civil Procedure
1118. The non-contentious procedure (ekoussia dikeodossia) followed by the courts when they examine, among other things, applications to register an association is governed by the following provisions:
Article 744
“The court may of its own motion order any measure which might lead to the establishment of relevant facts, even if these are not mentioned in the parties’ submissions…”
Article 759 §§ 2 and 3
“2. Where the court directs that evidence is to be taken, such evidence shall be brought by one of the parties.
3. The court may of its own motion order any measure that it considers necessary for establishing the facts, even if in so doing it departs from the provisions governing the taking of evidence.”
Furthermore, Article 336 § 1 provides:
“The court may, of its own motion and without directing that evidence is to be taken, have regard to matters which are so widely known that their truth cannot reasonably be put in doubt.”
Lastly, Article 345 allows a party who does not have to discharge the burden of proof to adduce refuting evidence.
PROCEEDINGS BEFORE THE COMMISSION
1119. The applicants applied to the Commission on 16 November 1994. They alleged violations of Articles 6, 9, 10, 11 and 14 of the Convention.
1120. On 24 June 1994 the Commission declared the application (no. 26695/95) admissible in respect of six of the seven applicants, the seventh, Mr Constantinos Gotsis, having died in the meantime. In its report of 11 April 1997 (Article 31), it expressed the unanimous opinion that there had been a violation of Article 11 of the Convention, that it was unnecessary to consider whether there had been violations of Articles 6 and 14 and that no separate issue arose under Articles 9 and 10. The full text of the Commission’s opinion is reproduced as an annex to this judgment .
FINAL SUBMISSIONS TO THE COURT
1121. In their memorial the applicants asked the Court to allow their application in its entirety and to order the Greek Government to pay compensation and legal expenses.
1122. The Government submitted that the application should be dismissed as inadmissible for failure to exhaust domestic remedies or as being manifestly unfounded or as being unfounded on the merits as to all the complaints.
AS TO THE LAW
I. THE GOVERNMENT’S PRELIMINARY OBJECTIONS
A. Failure to exhaust domestic remedies
1123. The Government submitted that the applicants had not exhausted domestic remedies as they had failed to raise Articles 6, 9, 10 and 14 of the Convention in the national courts; in the Court of Cassation they had relied only on Article 2 (State’s obligation to respect and protect the inviolability of the person), Article 4 (equality before the law), Article 5 (free development of personality) and Article 12 (freedom of association) of the Greek Constitution and the corresponding provisions of the Convention.
1124. The applicants maintained that it had not been possible to mention explicitly the complaints relating to Articles 9, 10 and 14 of the Convention, particularly in the Court of Cassation, regard being had to the prevailing atmosphere at the time; the Greek courts and especially the Court of Cassation would have taken offence and rejected such allegations unceremoniously inasmuch as all the judiciary subscribed to the idea that there was no Macedonian minority in Greece and that the very mention of Macedonian consciousness amounted to treason.
1125. In its decision on admissibility the Commission considered that the applicants had raised in substance in the Court of Cassation the complaints they had brought before the Convention institutions.
1126. In its judgment in the Young, James and Webster v. the United Kingdom case (13 August 1981, Series A no. 44) the Court held that Article 11, notwithstanding its autonomous role and particular sphere of application, could also be considered in the light of Articles 9 and 10. The protection of personal opinion afforded by those Articles in the shape of freedom of conscience and freedom of expression was also one of the purposes of freedom of association as guaranteed by Article 11 (ibid., p. 23, § 57).
The Court notes that in refusing to register the applicants’ association, the Florina Court of First Instance and the Salonika Court of Appeal relied partly on the fact that the applicants had publicly claimed to be of “Macedonian” ethnic origin and to have a “Macedonian national consciousness” and at the Conference on Security and Co-operation in Europe (“the CSCE”) in Copenhagen had disputed the Greek identity of Greek Macedonia (see paragraphs 10 and 11 above).
In the circumstances of the case the Court considers that the applicants’ complaints under Articles 9, 10 and 14 of the Convention also go to the very substance of Article 11, so that in the national courts the applicants did rely on grounds of equivalent effect within the meaning of the Court’s case-law.
As to the complaints under Article 6 § 1, inasmuch as they concern the way in which the national courts used certain evidence to refuse the application to register the association, they are identical with those raised by the applicants under Article 11.
This objection must therefore be dismissed.
B. Abuse of the right of individual petition
1127. Before the Commission the Government raised a plea of inadmissibility on the ground of abuse of the right of individual petition, alleging, among other things, that the applicants were trying to bring before the Convention institutions the dispute between Greece and the Former Yugoslav Republic of Macedonia (“the FYROM”) over the latter’s name. The Commission had not allowed the objection, taking the view, on the one hand, that it went to the merits of the case and, on the other, that “it would be failing in its duty under Article 19 of the Convention … if it were to refuse to examine the application on the basis of the possible impact, if any, that it might have on the dialogue between Greece and ‘the Former Yugoslav Republic of Macedonia’”.
Before the Court the Government again raised that objection, this time combining it with Article 17 of the Convention and maintaining that the objectives being pursued by the applicants through the instant case were contrary to the agreement concluded between Greece and the FYROM on 13 September 1995.
1128. The Court does not accept the Government’s argument and does not consider that Article 17 can apply as there is nothing in the relevant association’s memorandum of association (see paragraph 8 above) to warrant the conclusion that the association relied on the Convention to engage in activity or perform acts aimed at the destruction of any of the rights and freedoms set forth in it (see, mutatis mutandis, the United Communist Party of Turkey and Others v. Turkey judgment of 30 January 1998, Reports of Judgments and Decisions 1998-I, p. 35, § 60).
II. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
1129. The applicants alleged that the national courts’ refusal of their application to register their association had infringed their right to freedom of association, as guaranteed by Article 11 of the Convention, which provides:
“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.”
A. Whether there was an interference
1130. The Court considers, as the applicants and the Commission did, that the Greek courts’ refusal to register the applicants’ association amounts to an interference by the authorities with the applicants’ exercise of their right to freedom of association; the refusal deprived the applicants of any possibility of jointly or individually pursuing the aims they had laid down in the association’s memorandum of association and of thus exercising the right in question. This interference was not denied by the Government.
B. Justification for the interference
1131. Such an interference will contravene Article 11 unless it was “prescribed by law”, pursued one or more of the legitimate aims under paragraph 2 and was “necessary in a democratic society” for achieving them.
1. “Prescribed by law”
1132. In the applicants’ submission, the interference in question was not “prescribed by law” since, by Article 12 of the Constitution, freedom of association could not be made subject to a system of prior authorisation; that was why the legislature had made the registration of associations subject to purely formal requirements, as appeared from Articles 78 to 81 of the Civil Code (see paragraph 18 above). Under those provisions, the courts were obliged to grant recognition to an association if those requirements were satisfied.
1133. The Government maintained that the national courts had correctly interpreted and applied domestic law, in particular Article 81 of the Civil Code, according to which “the Court of First Instance shall allow the [registration] application if it is satisfied that all the legal requirements have been complied with…”; the inquisitorial nature of the non-contentious procedure which applied to the registration of associations (Articles 741, 744 and 759 § 3 of the Code of Civil Procedure) allowed the courts to obtain evidence of their own motion and to establish the facts decisive for the outcome of the proceedings.
1134. The Commission did not consider it necessary to determine this issue as it concluded that the interference in question was incompatible with Article 11 in other respects.
1135. The Court considers that the interference was “prescribed by law”, as Articles 79 to 81 of the Civil Code allowed the courts to refuse an application to register an association where they found that the validity of its memorandum of association was open to question. More especially, the Court notes like the Government that an association’s aim, as set out in its memorandum of association, must be the one really pursued by it and not be contrary to law, morality or public order; Article 105 of the Civil Code, moreover, provides for the dissolution of an association already constituted where it proves to be pursuing an aim different from the one laid down in its memorandum of association (see paragraph 18 above).
2. Legitimate aim
1136. The Government submitted that the interference in question pursued several aims: the maintenance of national security, the prevention of disorder and the upholding of Greece’s cultural traditions and historical and cultural symbols.
1137. The Court is not persuaded that the last of those aims may constitute one of the legitimate aims set out in Article 11 § 2. Exceptions to freedom of association must be narrowly interpreted, such that the enumeration of them is strictly exhaustive and the definition of them necessarily restrictive.
1138. The Court notes nevertheless that the Salonika Court of Appeal based its decision on the conviction that the applicants intended to dispute the Greek identity of Macedonia and its inhabitants and undermine Greece’s territorial integrity. Having regard to the situation prevailing in the Balkans at the time and to the political friction between Greece and the FYROM (see paragraph 42 below), the Court accepts that the interference in issue was intended to protect national security and prevent disorder.
3. “Necessary in a democratic society”
1139. The Court points out that the right to form an association is an inherent part of the right set forth in Article 11, even if that Article only makes express reference to the right to form trade unions. That citizens should be able to form a legal entity in order to act collectively in a field of mutual interest is one of the most important aspects of the right to freedom of association, without which that right would be deprived of any meaning. The way in which national legislation enshrines this freedom and its practical application by the authorities reveal the state of democracy in the country concerned. Certainly States have a right to satisfy themselves that an association’s aim and activities are in conformity with the rules laid down in legislation, but they must do so in a manner compatible with their obligations under the Convention and subject to review by the Convention institutions.
Consequently, the exceptions set out in Article 11 are to be construed strictly; only convincing and compelling reasons can justify restrictions on freedom of association. In determining whether a necessity within the meaning of Article 11 § 2 exists, the States have only a limited margin of appreciation, which goes hand in hand with rigorous European supervision embracing both the law and the decisions applying it, including those given by independent courts.
When the Court carries out its scrutiny, its task is not to substitute its own view for that of the relevant national authorities but rather to review under Article 11 the decisions they delivered in the exercise of their discretion. This does not mean that it has to confine itself to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; it must look at the interference complained of in the light of the case as a whole and determine whether it was “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 11 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see, the United Communist Party of Turkey and Others judgment cited above, p. 22, §§ 46 and 47).
1140. In the applicants’ submission, all the arguments put forward by the national courts and the Government against the association’s founders were baseless, vague and unproved and did not correspond to the concept of “pressing social need”.
There was nothing in the case file to suggest that any of the applicants had wished to undermine Greece’s territorial integrity, national security or public order. Mention of the consciousness of belonging to a minority and the preservation and development of a minority’s culture could not be said to constitute a threat to “democratic society”. Similarly, the presence of some of the founders at the CSCE in Copenhagen could not be interpreted as an attack on national security, since the Greek Government themselves had, by signing all the relevant CSCE documents, recognised that citizens could take part in such proceedings. Nor had Mr Sidiropoulos in any way challenged the Greek identity of the Greek province of Macedonia; he had merely claimed that the Macedonian minority there was oppressed.
Furthermore, the allegation that the association’s founders were plotting against Greece was unfounded. The press article that referred to a “directive” from Slav organisations abroad was manifestly untrue and a complete fabrication; that was apparent from the very use of the word “directive”, which was not a current term in the latter part of the twentieth century, and from the fact that the Greek Government had not to date confirmed the existence of such a directive. The irresponsible publications of a newspaper could not be used as evidence by a court, or indeed by the government of a State which respected the rule of law.
Territorial integrity, national security and public order were not threatened by the activities of an association whose aim was to promote a region’s culture, even supposing that it also aimed partly to promote the culture of a minority; the existence of minorities and different cultures in a country was a historical fact that a “democratic society” had to tolerate and even protect and support according to the principles of international law.
1141. The Government maintained that the national authorities had been right to refuse to register the applicants’ association. More specifically, the Florina Court of First Instance and the Salonika Court of Appeal had made an acceptable assessment of the circumstances of the case and had reached the reasonable conclusion that the association’s real aim was quite different from the one referred to in its memorandum of association. In order to reach that view, the judges of those courts had, of their own motion, taken into consideration as evidence – as Articles 741, 744 and 759 § 3 of the Code of Civil Procedure entitled them to do in such proceedings – certain press articles and matters of common knowledge such as the threat to Greece that the FYROM’s propaganda against it represented at the time, the attempted “Slavicisation” of the term “Macedonia” by that State, certain provisions of that State’s Constitution and the systematic campaign to promote the idea of a “United Macedonia”.
Furthermore, the courts had noted that clause 4 of the association’s memorandum of association provided that acceptance of its principles was an essential prerequisite for becoming a member, without however stating those principles, such that potential members ran the risk of being “trapped” as soon as they had joined. The association’s name was also likely to cause confusion, since the applicants had sought to conceal the type of culture to which they referred; it was only before the Commission that the applicants had revealed for the first time which ethnic group they really believed they belonged to. The deceptive name “Home of Macedonian Civilisation” was part of a propaganda exercise whose objective was to create a favourable climate for disputing the Greek identity of Macedonia and sustain irredentist aspirations.
Relying on the Court’s case-law, the Government emphasised that the authorities were better placed than the international court to assess whether an interference was “necessary in a democratic society”. They submitted that some respect should be paid to the authorities’ judgment when they weighed conflicting public and individual interests in view of their special knowledge of the country and their general responsibility under national law. Given the breadth of their margin of appreciation, in particular where matters affecting national security were concerned, the Greek courts had in the instant case satisfied the criterion of proportionality.
1142. The Commission, having examined the evidence produced to the domestic courts, considered that it had not been established that the applicants had harboured separatist intentions. Admittedly, the national courts could reasonably have concluded that the association’s true aim was to promote the idea that there was a “Macedonian” minority in Greece and that the rights of that minority’s members were not fully respected. However, in the Commission’s opinion, that would not in itself have justified restricting the applicants’ right to freedom of association; although the applicants had indeed stated that they had a “Macedonian” national consciousness, there was nothing to indicate that they had advocated the use of violence or of undemocratic or unconstitutional means. The Commission concluded that the reasons adduced by the domestic authorities to justify the interference had not been “relevant and sufficient” and that the interference had not been “proportionate to the legitimate aim pursued”.
1143. The Court notes, in the first place, that the aims of the association called “Home of Macedonian Civilisation”, as set out in its memorandum of association, were exclusively to preserve and develop the traditions and folk culture of the Florina region (see paragraph 8 above). Such aims appear to the Court to be perfectly clear and legitimate; the inhabitants of a region in a country are entitled to form associations in order to promote the region’s special characteristics, for historical as well as economic reasons. Even supposing that the founders of an association like the one in the instant case assert a minority consciousness, the Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE (Section IV) of 29 June 1990 and the Charter of Paris for a New Europe of 21 November 1990 – which Greece has signed – allow them to form associations to protect their cultural and spiritual heritage.
In the second place, in justifying its refusal of the application for registration, the Salonika Court of Appeal decided that it had “good reasons … to believe that the purpose of using the term ‘Macedonian’ [was] to dispute the Greek identity of Macedonia and its inhabitants by indirect and therefore underhand means, and discern[ed] in it an intention on the part of the founders to undermine Greece’s territorial integrity”.
In reaching that decision, the Court of Appeal, of its own motion, took into consideration as evidence material which the applicants maintained they had not been able to challenge during the proceedings as it had not been placed in the case file.
1144. The Court reiterates that the taking of evidence is governed primarily by the rules of domestic law and that it is in principle for the national courts to assess the evidence before them (see, among many other authorities, the Saïdi v. France judgment of 20 September 1993, Series A no. 261-C, p. 56, § 43).
However, careful study of the press articles in question (see paragraphs 14 and 15 above), which had a decisive influence on the outcome of the proceedings, shows that they reported matters some of which were unconnected with the applicants and drew inferences derived from a subjective assessment by the authors of the articles. Relying on those articles and having regard to the political dispute that then dominated relations between Greece and the FYROM (the latter of which had not yet even proclaimed its independence at the material time), the national courts held that the applicants and the association they wished to found represented a danger to Greece’s territorial integrity.
That statement, however, was based on a mere suspicion as to the true intentions of the association’s founders and the activities it might have engaged in once it had begun to function.
The Court also takes into account in this context the fact that Greek law does not lay down a system of preventive review for setting up non-profit-making associations. Article 12 of the Constitution provides that the forming of associations cannot be made subject to prior authorisation (see paragraph 17 above); Article 81 of the Civil Code allows the courts merely to review lawfulness and not to review desirability (see paragraph 18 above).
1145. In the United Communist Party of Turkey and Others judgment cited above (p. 35, § 58) the Court held that it could not rule out that a political party’s programme might conceal objectives and intentions different from the ones it proclaimed. To verify that it did not, the content of the programme had to be compared with the party’s actions and the positions it defended.
Similarly, in the instant case the Court does not rule out that, once founded, the association might, under cover of the aims mentioned in its memorandum of association, have engaged in activities incompatible with those aims. Such a possibility, which the national courts saw as a certainty, could hardly have been belied by any practical action as, having never existed, the association did not have time to take any action. If the possibility had become a reality, the authorities would not have been powerless; under Article 105 of the Civil Code, the Court of First Instance could order that the association should be dissolved if it subsequently pursued an aim different from the one laid down in its memorandum of association or if its functioning proved to be contrary to law, morality or public order (see paragraph 18 above).
1146. In the light of the foregoing, the Court concludes that the refusal to register the applicants’ association was disproportionate to the objectives pursued. That being so, there has been a violation of Article 11.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
1147. The applicants also alleged a violation of Article 6 § 1 of the Convention, which provides:
“In the determination of his civil rights and obligations …, everyone is entitled to a fair … hearing … by an … impartial tribunal…”
According to them, the Greek courts had lacked objectivity and impartiality in using in their decisions expressions and terms degrading to the applicants’ person, language and origin. Furthermore, they had relied of their own motion on evidence that was not in the case file and had not ordered any supplementary investigative measures as they were required to do by the Code of Civil Procedure; they had thus infringed not only the relevant provisions of domestic law but also the right to a fair trial guaranteed in Article 6 § 1.
1148. The Commission, having held that Article 11 of the Convention had been contravened on the ground, among others, that the domestic courts should not have reached their conclusions without ordering further evidence to be taken, considered it unnecessary to ascertain whether there had also been a violation of Article 6 § 1.
1149. The Court notes that the applicants’ complaints under Article 6 § 1 are largely the same as those raised under Article 11. Having regard to its decision in relation to that Article, the Court does not consider it necessary to examine them.
IV. ALLEGED VIOLATIONS OF ARTICLES 9, 10 AND 14 OF THE CONVENTION
1150. Lastly, the applicants asserted that the reason why the establishment of their association had been prohibited lay in the origin and consciousness of some of its founders and also in the fact that they had publicly expressed the opinion that they belonged to a minority. They relied on Articles 9, 10 and 14 of the Convention, which provide:
Article 9
“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or in private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
Article 10
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
Article 14
“The enjoyment of the rights and freedoms set forth in [the] 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.”
1151. The Court notes, as the Commission did, that this complaint relates to the same facts as the ones based on Article 11. Having regard to the conclusion in paragraph 47 above, it does not consider that it must deal with it.
V. APPLICATION OF ARTICLE 50 OF THE CONVENTION
1152. Article 50 of the Convention provides:
“If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the … Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Non-pecuniary damage
1153. The applicants pleaded non-pecuniary damage that they said did not arise only from the sadness caused them by the refusal of their application to register the association. The damage had social and political dimensions, since the refusal was accompanied by insulting and degrading expressions which had been a slur on the applicants’ person, had influenced their relations with a section of Florina society and had had repercussions on their private and professional lives. They sought 15,000,000 drachmas (GRD) each, that is to say a total of GRD 90,000,000.
1154. The Government conceded that there had been damage but maintained that as the association was a non-profit-making one, it could not claim financial compensation.
1155. The Delegate of the Commission did not express a view.
1156. The Court accepts that the applicants sustained non-pecuniary damage. It considers it sufficiently compensated, however, by the finding of a violation of Article 11.
B. Costs and expenses
1157. For costs and expenses the applicants sought GRD 9,295,000, GRD 1,085,000 of which were for the proceedings in the domestic courts and GRD 8,210,000 of which were for those before the Convention institutions.
1158. The Government said they were prepared to reimburse any costs that had been necessarily incurred, were reasonable as to quantum and could be vouched for.
1159. The Delegate of the Commission did not put forward any opinion.
1160. The Court considers the costs incurred in the domestic courts to be reasonable. On the other hand, there was no hearing before the Commission and the applicants did not file a memorial in the proceedings before the Court. Making its assessment on an equitable basis, the Court awards them the sum of GRD 4,000,000.
C. Default interest
1161. According to the information available to the Court, the statutory rate of interest applicable in Greece at the date of adoption of the present judgment is 6% per annum.
for these reasons, the court unanimously
1. Dismisses the Government’s preliminary objections;

2. Holds that there has been a violation of Article 11 of the Convention;

3. Holds that it is unnecessary to rule on the complaints under Articles 6 § 1, 9, 10 and 14 of the Convention;

4. Holds that the present judgment constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicants;

5. Holds
(a) that the respondent State is to pay the applicants, within three months, 4,000,000 (four million) drachmas for costs and expenses;
(b) that simple interest at an annual rate of 6% shall be payable from the expiry of the above-mentioned three months until settlement;

6. Dismisses the remainder of the claim for just satisfaction.
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 10 July 1998.
Signed: Rudolf BERNHARDT
President
Signed: Herbert PETZOLD
Registrar