Council of Europe – Commitee of Ministers’ Decision: Supervision of the execution of Bekir-Ousta and Others group v. Greece

COECM

1331st meeting, 4-6 December 2018 (DH)

 

H46-12 Bekir-Ousta and Others group v. Greece (Application No. 35151/05)

Supervision of the execution of the European Court’s judgments

Reference document

CM/Notes/1331/H46-12

 

Decisions

The Deputies

  1. recalling that these cases concern violations of the right to freedom of association due to the domestic courts’ refusal to register associations and decision leading to the dissolution of an association;

As regards individual measures

  1. deplored that, despite the efforts made by the authorities, notably the 2017 amendment of the Code of Civil Procedure, ten years after the European Court’s judgments two of the present associations remain unregistered and one dissolved;
  2. recalling that a Contracting State’s obligation under Article 46 of the Convention to fully and effectively comply with the Court’s judgments extends to the interpretation by domestic courts of domestic legislation, noted with concern the recent judgment of the Thrace Court of Appeal rejecting on procedural grounds the request for re-examination of the order dissolving one of the applicant associations; noted, however, that an appeal against this judgment has been lodged and is currently pending before the Court of Cassation;
  3. invited the authorities to rapidly take all necessary measures so that the applicants’ cases are examined by the domestic courts in full and effective compliance with Article 11 of the Convention and the European Court’s judgments, and to keep the Committee informed of all relevant developments;
  4. called upon the authorities to provide regular information about further developments in all the ongoing proceedings relating to this group of cases;

As regards general measures

  1. noted with deep regret that the registration of another association in the Thrace region was rejected in 2017 by a final judgment of the Court of Cassation on grounds already criticised by the European Court in its 2008 judgments concerning the present cases;
  2. exhorted, therefore, the authorities to take additional measures, such as wide dissemination of the Court’s case-law and systematic training of domestic judges at all levels, to ensure that the domestic courts make decisions concerning the registration or dissolution of associations which are fully and effectively aligned with the Court’s case-law, and to keep the Committee informed of further developments;
  3. decided to resume the examination of this group of cases at the first meeting following the delivery of the Court of Cassation’s judgment in response to the above-mentioned appeal lodged by one of the applicant associations, or at their 1354th meeting (September 2019) (DH) at the latest.

 

1331st meeting, 4-6 December 2018 (DH)

Human rights

 

H46-12 Bekir-Ousta and Others group v. Greece (Application No. 35151/05)

Supervision of the execution of the European Court’s judgments

Reference documents

CM/ResDH(2014)84, DH-DD(2018)996, CM/Del/Dec(2017)1302/H46-10

 

Application Case Judgment of Final on Indicator for the classification
35151/05 BEKIR-OUSTA AND OTHERS 11/10/2007 11/01/2008 Complex problem
34144/05 EMIN AND OTHERS 27/03/2008 01/12/2008
26698/05 TOURKIKI ENOSI XANTHIS AND OTHERS 27/03/2008 29/09/2008

Case description

These cases concern violations of the right to freedom of association (Article 11) due to the domestic courts’ refusal to register associations (Bekir-Ousta and Others and Emin and Others; final domestic decisions in 2006 and 2005 respectively) and decision leading to the dissolution of an association (Tourkiki Enosi Xanthis and others; final domestic decision in 2005) on the ground that their aim was to promote the idea that an ethnic minority existed in Greece as opposed to the religious minority recognised by the 1923 Treaty of Lausanne.

Concerning BekirOusta and Others and Emin and Others, the European Court noted that “the contested measure relied on a mere suspicion about the true intentions of the founders of the association and the actions that it might have led to once it had started functioning”. Moreover, the Court considered that “even assuming that the true aim of the association was to promote the idea that an ethnic minority existed in Greece, this cannot be in itself considered as a threat to a democratic society”. The Court noted in this respect that “nothing in the association’s statute suggested that its members were advocating the use of violence or of anti-democratic or anti-constitutional means”. The Court recalled that Greek legislation (Article 12 of the Constitution and Article 81 of the Civil Code) did not set up a system of preventive control for the establishment of non-profit associations. The Court also noted that the domestic courts could order the dissolution of any of the associations if it subsequently pursued an aim different to that stated in its statute, or if its functioning proved to be contrary to public order. Consequently the Court concluded that the impugned measure was disproportionate to the aim pursued.

In Tourkiki Enosi Xanthis and Others, the European Court underlined the radical nature of the measure at issue, namely the dissolution of the association, and noted in particular that, prior to its dissolution, the relevant association had continued its activities for about half a century without hindrance and without any indication that its members had ever used violence or rejected democratic principles.

Tourkiki Enosi Xanthis and Othersalso concerns a violation of Article 6 § 1 due to the excessive length of the civil proceedings related to the dissolution of the association.

 

Status of execution

Individual measures: Re-examination of the applicants’ requests for revocation of the judicial decisions refusing registration and ordering dissolution of associations

Following the European Court’s judgments, at the recommendation of the authorities (DH-DD(2012)1022), the applicants attempted to have their applications for registration of the associations re-examined using the means available under  Greek law. More specifically:

Tourkiki Enosi Xanthis and Others (concerning the “Turkish Union of Xanthi”): On 14 November 2008 the applicants applied to the Court of Appeal of Thrace requesting, under Article 758 of the Code of Civil Procedure, the revocation of judgment No. 31/2002 by which the same court had held that the dissolution of the applicant association was in accordance with Greek law. The application was rejected by  judgment No 353/2012 of the Court of Cassation (24 February 2012), which held that the 2008 judgment of the European Court finding violations of the Convention did not constitute “new factual evidence” or a ”change of circumstances”, which were prerequisites to revocation under Article 758 of the Code of Civil Procedure.

Emin and Others (concerning the “Cultural Association of Turkish Women of Rodopi”): on 3 August 2009 the applicants lodged an application with the First Instance Court of Rodopi requesting, on the basis of the Court’s judgment, the revocation of the Rodopi court’s judgment refusing the association’s registration. The application was rejected by final judgment No 1003/2013 of the Court of Cassation (24 March 2013) on the ground that, according to Article 758 of the Code of Civil Procedure, revocation of a domestic court judgment was possible only when the initial request for registration had been granted.

Lastly, Bekir Ousta and Others (concerning the “Association of Minority Youth of the Evros Prefecture”): on 5 January 2009 the applicants lodged with the First Instance Court of Orestiada a new application for registration of their association. The application was rejected by final judgment No. 1471/2013 of the Court of Cassation (5 July 2013) as inadmissible on the grounds that it was contrary to the principle of res iudicata.

At their 1186th meeting (December 2013) (DH), the Deputies, after noting that the applications for revocation and new registration lodged by the applicants had definitively been rejected, urged the authorities to provide, in due time for examination at their meeting of June 2014, concrete information on the measures that they were exploring to implement the individual measures in these cases.

At its 1201st meeting (June 2014) (DH), the Committee adopted Interim Resolution CM/ResDH(2014)84, by which the authorities were called upon to provide to the Committee, without delay, tangible information on the measures taken or envisaged, accompanied by an indicative calendar for their adoption, to achieve the implementation of the judgments in this group of cases.

On 18 October 2014, the European Court communicated to the government three new applications lodged by the applicants alleging that the judgments of the domestic courts on their applications for revocation and new registration constituted new facts which violated Articles 46 and 11 of the Convention.

By its decision of 17 November 2015, the European Court rejected the applications lodged by the applicants in Xanthi Turkish Union and Others (Tourkiki Enosi Xanthis and Others) and Ayse Galip and Others (applications Nos. 55557/12 and 73646/13) as inadmissible on the ground that their cases were pending before the Committee of Ministers and that the applications for revocation of the domestic courts’ judgments did not constitute new facts. A new application lodged with the Court by the applicants in Bekir Ousta and Others (No. 7050/14) was also rejected by a decision of 13 December 2016 as inadmissible on the ground that the case was pending before the Committee of Ministers and that the rejection of the new application for registration by the domestic courts as contrary to the principle of res iudicata did not constitute new facts.

On 11 September 2017 the authorities informed the Committee that a draft law had been sent to Parliament, which aimed at enabling the applicants to have their applications for registration of their associations, or for the reversal of the judgments ordering their associations’ dissolution, re-examined in the light of the European Court’s judgments. The draft law, which modified paragraph 1 of Article 758 of the Code of Civil Procedure, was adopted on 10 October 2017.

 

The amendment allows the reopening of proceedings in cases in which the European Court has found a violation of the right to a fair trial or a substantive right under the Convention originating in a domestic court judgment issued in a non-contentious procedure. The admissibility of a request for reopening of proceedings shall be assessed on the basis of the restrictions permitted under the Convention in the exercise of substantive rights (such as the protection of national security, public order etc.).

A transitional provision was also adopted which was intended to allow the reopening of proceedings in cases, such as the present ones, where the European Court had found violations before the coming into force of the above legislative amendment. In such cases, the admissibility of a request for reopening of proceedings shall be assessed taking into account: 1) the restrictions set out in paragraph 2 of Article 11 of the Convention, as well as similar restrictions enshrined in the other substantive rights in the Convention; and 2) obligations under international treaties to which Greece is a party. The deadline to request the reopening of proceedings falling under the transitional provision is one year from the date of publication of the law (13 October 2018).

At its 1302nd meeting (December 2017) (DH), the Committee, bearing in mind that the applicants might request the reopening of proceedings following the adoption of the above law, invited the authorities to take the necessary measures to ensure that the European Court’s judgments in these cases, as well as the decision of the Committee, were disseminated to competent courts at all levels, in line with the Committee of Ministers’ Recommendation Rec(2002)13 (on the publication and dissemination in the member States of the text of the European Convention on Human Rights and of the case-law of the European Court of Human Rights). No information has been received in this respect.

The Committee also invited the authorities to keep it regularly informed either of the decisions taken by the domestic courts in the context of reopened proceedings in these cases or of the fact that no reopening request had been filed by the applicants within the time-limit set by the new legislation.

On 4 December 2017 the applicants in Tourkiki Enosi Xanthis and Others applied to the Court of Appeal of Thrace requesting, under amended Article 758 of the Code of Civil Procedure, the revocation of judgment No. 31/2002 by which that same court had held that the dissolution of the applicant association was in accordance with Greek law. On 8 March 2018 the Committee was informed by the NGO Greek Helsinki Monitor that the lawyer who represented the Region of Eastern Macedonia and Thrace in the above proceedings pleaded for the rejection of the application on the basis of arguments criticised by the Court in the judgments under examination.

On 22 June 2018, by judgment No. 96/2018, the Thrace Court of Appeal rejected the application on the following grounds: the application infringed the ne bis in idem principle, because the applicants had already requested in 2008, under Article 758 of the Code of Civil Procedure, as it then stood, the revocation of the judgment validating the dissolution of their association; furthermore the transitional provision of the law amending Article 758 of Civil Procedure did not cover the case – a specific provision should have been included to cover those who had already requested reopening on the basis of Article 758 of the Code of Civil Procedure, as it stood before amendment.

By their communication of 9 October 2018 the authorities informed the Committee that, as at 3 October 2018, the applicants had not filed an appeal in cassation against the above judgment, whilst the other two associations had also filed applications before the Thrace Court of Appeal requesting the revocation of the judgments refusing their registration, with hearings in both cases set for 7 December 2018.

By its communication received on 9 November 2018, the ‘Federation of Western Thrace Turks in Europe’ informed the Committee that on 30 October 2018 the applicants in Tourkiki Enosi Xanthis and Others lodged an appeal in cassation with the Court of Cassation against judgment No. 96/2018 delivered by the Thrace Court of Appeal.

General measures

1) Violation of Article 6 § 1 in Tourkiki Enosi Xanthis and Others: The issue of excessive length of civil proceedings was examined in the context of the pilot judgment in the Glykantzi / Konti Arvaniti group of cases (53401/99) and closed by Final Resolution CM/ResDH(2015)231.

2) Violations of Article 11: The Committee has noted the measures consisting in the provision of information and awareness-raising among domestic courts in accordance with Article 46 of the Convention (see the Notes of the 1172nd meeting (June 2013) (CM/Del/Dec(2013)1172)).

At its 1144th meeting (June 2012) (DH), the Committee noted with interest judgment No. 24/2012 of the Court of Cassation, delivered in South Evros Cultural and Educational Association of Western Thrace Minority, which was brought to its attention by the Greek authorities. The Committee noted, in particular, that by overturning a decision of the Court of Appeal of Thrace refusing the registration of the applicant association, the Court of Cassation directly applied Article 11 of the Convention, as interpreted by the Court.

The Committee furthermore noted the authorities’ position that this judgment could have an impact on the registration of associations in the framework of proceedings fully complying with the Court’s case-law. The Committee invited the authorities to keep it informed about the impact of this judgment in the Greek legal order.

In response to the Committee’s invitation, the authorities provided on 4 January 2017 a list of 51 associations whose registration had been permitted by domestic courts in the Thrace region. The authorities noted that the words “Muslim minority” or ”minority” appeared in the title of many associations, such as: “Cultural and educational association of the Minority of Western Thrace”, registered in 2007 and “Cultural and Sports association SOLIDARITY-DEVELOPMENT of Greek Muslim citizens whose mother tongue is Turkish”, registered in 2015.

At its 1302nd meeting, the Committee noted with regret that the Court of Appeal in Thrace, by its judgment No 89/2014, had refused the registration of an association called “Cultural Association of Turkish Women in the Prefecture of Xanthi’’ on similar grounds as gave rise to the violations in the present group of cases and invited the authorities to provide information on the outcome of the proceedings before the Court of Cassation. On 20 March 2018 the Greek Helsinki Monitor informed the Committee that in September 2017 the Court of Cassation, by judgment No 1614/2017, rejected the appeal of the above association. According to the Court of Cassation’s reasoning, the association’s name might be misleading as to whether its members were Turkish citizens or persons belonging to an ethnic Turkish minority in the Prefecture of Xanthi.

Analysis by the Secretariat

As regards individual measures

From 2008 onwards the Greek authorities have encouraged the applicants to apply to have their cases re-examined on the basis of Article 758 of the Code of Civil Procedure or lodge new applications on the basis of Article 778 of the same Code (DH-DD(2012)1022, DH-DD(2013)452). According to the authorities
(DH-DD(2013)452), Articles 758 and 778 of the Code of Civil Procedure introduced exceptions to the principle of res judicata since a) judgments issued in non-contentious proceedings would now be susceptible to review when new actual facts or a change in the conditions under which the decision was issued took place, and b) filing of a new application would now be possible when it was based on new facts.

 

Since the new law did not have retroactive effect, a transitional provision was added, with the intention of enabling the applicants in the present cases to request reopening.

The Thrace Court of Appeal, by making reference to the principle of ne bis in idem, found that the transitional provision did not apply to allow the reopening of the application brought by the applicants in the Tourkiki Enosi Xanthis and Others case (the first of the applicants in this group of cases to attempt to make use of the new law), given that the transitional provision did not expressly refer to applicants who had already requested reopening on the basis of the unamended Article 758.

 

The decision and reasoning of the Thrace Court of Appeal are deeply concerning and appear to frustrate the purpose of the transitional provisions.

The Committee might wish to stress that the obligation to fully and effectively comply with the judgments of the European Court under Article 46 of the Convention extends to the interpretation by domestic courts of domestic legislation, including possible restrictions of rights, when requests to reopen proceedings are made. As the Grand Chamber of the European Court highlighted in the case of Verein Gegen Tierfabriken Schweiz (VgT) v. Switzerland (No. 2 § 90), “the reopening procedure must […] afford the authorities of the respondent State the opportunity to abide by the conclusions and the spirit of the Court judgment being executed, while complying with the procedural safeguards in the Convention”.

Furthermore, the Committee might wish to invite the authorities rapidly to take all the measures necessary, so that the cases of all applicants are examined in full and effective compliance with the requirements of Article 11 of the Convention. In addition, the Committee might wish to call upon the authorities to provide information about further developments in all of the ongoing domestic proceedings, that is, the possible appeal in cassation of judgment No 96/2018 of the Thrace Court of Appeal, as well as the outcome of the re-opening proceedings in the cases of Emin and Others and Bekir Ousta and Others.

As regards general measures

The Court of Cassation’s judgment No 1614/2017 by which it refused to register the association “Cultural Association of Turkish Women in the Prefecture of Xanthi” on grounds similar to those criticised by the European Court raises grave concerns, because it illustrates that the Court of Cassation did not take into account the requirements of Article 11 of the Convention and the Court’s findings in this group of cases.

Similar concerns are raised by the judgment of the Thrace Court of Appeal referred to above, which is currently pending before the Court of Cassation. Consequently it appears necessary for the authorities to take additional measures to ensure that the domestic courts at all levels fully and effectively comply with the European Court’s judgments and to keep the Committee informed of all relevant developments.

The Committee might wish to resume examination of these cases in September 2019, in view of the reopening proceedings pending before the Thrace Court of Appeal concerning the cases of Bekir Ousta and Others and Emin and Others and before the Court of Cassation concerning the application by the Tourkiki Enosi Xanthis and Others association.

Financing assured: YES

3 thoughts on “Council of Europe – Commitee of Ministers’ Decision: Supervision of the execution of Bekir-Ousta and Others group v. Greece

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