GREEK HELSINKI MONITOR (GHM)
Address: P.O. Box 60820, GR-15304 Glyka Nera
Telephone: (+30) 2103472259 Fax: (+30) 2106018760
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Communication on the execution of
Bekir-Ousta and others group of cases against Greece (Application No. 35151/05) and of
House of Macedonian Civilization and others against Greece (Application No. 1295/10)
5 November 2017
The Committee of Ministers (CM) is requested to note that the Greek Government did not comment on the 16 September 2017 Greek Helsinki Monitor (GHM) submission on these cases. It included the Single-Judge Appeals Court of Thrace Judgment 89/2014 (in Greek) by which the Cultural Association of Turkish Women in the Prefecture of Xanthi was refused registration, on appeal (an appeal for cassation is pending before the Supreme Court). That judgment is a violation of the general measures in Bekir-Ousta that the Greek Government is supposed to be implementing.
Today, GHM attaches the Small Claims Court of Florina Judgment 16/2017 (in Greek) by which the House of Macedonian Civilization was again refused recognition, despite the two ECtHR judgments finding Greece in violation of freedom of association. This is a violation of the Greek Government’s submission to the CM in 2000, after the first ECtHR judgment in 1998, alleging “the exceptional nature of the case,” committing that “the Greek courts will not fail to prevent the kind of judicial error that was at the origin of the violation found in this case” and concluding that “accordingly, the Government of Greece is of the opinion that it has complied with its obligations under Article 53 of the Convention.” The CM is already aware that, on the contrary, the Greek courts refused the registration of that association after the first ECtHR judgment which led to a second ECtHR judgment in 2015, for the execution of which the CM awaits an action plan/report, after an effectively “empty” submission to the CM in 2016. The Florina court based its judgment on the domestic case law, i.e. the two previous refusals of recognition of that association. The Florina court included lengthy quotes from these judgments arguing that there is no Macedonian nation, no Macedonian culture, no Macedonian language, and no Macedonian minority; hence, the aim of the association is contrary to public order and security, endangering the institutions of the Greek State. The Florina court argued that the ECtHR judgments do not penetrate the Greek legal order and hence cannot annul the domestic court judgments. It added that the previous domestic judgments were issued not only because the aims of the association were a threat to public order and security but also “to protect the rights and freedoms of others, protected by Article 8 ECHR,” which rights, the Florina court claimed, were not taken into consideration by the ECtHR. The Florina court finally stated that the situation concerns a sensitive issue of cultural identity and is thus similar to the ban to wear the burqua that the ECtHR upheld in S.A.S. v. France.
The CM is also requested to compare the texts of the amendments finally adopted by the Greek Parliament on 13 October 2017 as submitted on 23 October 2017 to the CM by the Greek Government with the amendments initially tabled before the Greek Parliament but withdrawn because of widespread opposition as submitted on 11 September 2017 to the CM by the Greek Government. In the initial amendments, the admissibility of an application of revocation or amendment following an ECtHR judgment was binding for the domestic courts, which then had to examine the merits of the application. In the finally adopted legislative provisions, the admissibility of an application of revocation or amendment following an ECtHR judgment to be issued in the future is no longer binding but is “subject to the terms and restrictions provided in the relevant provisions of ECHR concerning the protection of national security, public order, the prevention of crime, the protection of health or morals and the protection of rights and freedoms of others.” Additionally, for ECtHR judgments issued in the past, such application has to also satisfy “the restrictions of article 11 par. 2. of the ECHR and the other provisions of ECHR, as well as international conventions.” [sic – they mean international treaties (συνθήκες) and imply the Treaty of Lausanne]. During the parliamentary debate, it had become clear that, except for the senior government partner SYRIZA, no other party was willing to vote for the initially tabled amendments unless the restrictions mentioned above were added. Then all major non-extremist political parties voted in favour of the amendments with the notable and historical first ever dissent from the party lines by all four “Muslim” (i.e. Turkish) minority MPs who voted against the amendments because they considered them ostensible pretexts. The CM is aware that the restrictions introduced by the Greek legislator had been taken into consideration by the ECtHR when the latter issued the five judgments for the three Turkish and, twice, for the one Macedonian associations. The ECtHR had then rejected these restrictions which were included in the Greek Government’s observations. Now the Greek Government and the Greek Parliament introduced them in the legislation on the possible re-examination of these cases so that domestic courts, in addition to their persistent refusal to register Turkish and Macedonian minority associations, are empowered with a legal provision to consider inadmissible such applications for revocation.
The CM is therefore requested to reject the Greek Government’s conclusion: “Il s’agit d’une évolution importante de la législation interne qui répond aux demandes du Comité des Ministres (CM/Del/Dec(2017)1294/H46-12 et CM/Del/Dec(2017)1280/H46-13), dans la mesure où elle permet la réouverture devant les juridictions helléniques et l’examen à la lumière des constats de la CEDH des demandes d’enregistrement des associations des requérants.” The CM is urged to conclude that, on the contrary, this development of the legislation does not respond to the demands of the CM as it effectively does not allow the re-examination by the Greek courts of the applications for registration of the applicants’ associations. The CM is also requested to recall that the Greek Government has failed to execute for 20 years the House of Macedonian Civilization judgments and for 10 years the three Turkish associations judgments in the Bekir Ousta group of cases. The CM is also requested to recall that 2 years ago the ECtHR decided not to examine new applications by the three Turkish associations as long as the CM is examining the (non-)execution of the corresponding 2008 judgments. Finally, the CM should take into consideration that during that 20-year period, several UN Treaty Bodies and Council of Europe institutions like the Commissioner for Human Rights and Parliamentary Assembly of the Council of Europe have issued recommendations asking Greece to register these minority associations and/or recognize the corresponding ethnic Turkish and Macedonian minorities: Greece has opted to ignore all these recommendations.
The CM is requested to consider that the Greek Government may be in effect violating Article 18 ECHR, after the introduction in domestic legislation of restrictions included in Article 11 ECHR that the ECtHR has ruled that they cannot apply in the cases of the minority associations, with the sole purpose to prevent the execution of the judgments. The abusive introduction in domestic legislation of these restrictions for reasons of state or to safeguard ethnic majority political tendencies against ethic minority actors amounts to a destruction of the fundamental freedom of association. Since the CM does not have the competence to examine such claim and in view of the decades-long obstinacy of Greece not to execute these judgments, coupled only by its adamant refusal to recognize the existence of ethnic minorities in its territory, a unique case among Council of Europe member states, the CM is requested to serve formal notice on Greece of its intention, at a future meeting in 2018, to refer to the ECtHR, in accordance with Article 46§4 of the ECHR, the question whether Greece has failed to fulfil its obligation under Article 46§1 by non-registering the four minority associations successful before the ECtHR as well as a newly established Turkish minority association. The CM may also offer the Greek Government the option to change the procedure for registration of associations so as not to depend on judgments by domestic courts that appear reluctant to register ethnic Turkish and Macedonian associations.