House of Macedonian civilization and others v. Greece (Committee of Ministers Decision and Notes)

MINISTERS’ DEPUTIES Decisions CM/Del/Dec(2019)1362/H46-9 5 December 2019
https://search.coe.int/cm/Pages/result_details.aspx?ObjectId=090000168098f8b9
1362nd meeting, 3-5 December 2019 (DH)

H46-9 House of Macedonian civilization and others v. Greece (Application No. 1295/10)

Supervision of the execution of the European Court’s judgments

Reference document

CM/Notes/1362/H46-9

Decisions

The Deputies

  1. recalled that this case concerns a violation of the right to freedom of association due to the refusal of national courts to register an association on grounds of public order, which the Court considered disproportionate compared to the legitimate aims pursued by the national courts;
  2. recalled the obligation of a Contracting State, under Article 46 of the Convention, to comply promptly, fully and effectively with the judgments of the Court and that this obligation extends to the interpretation of national legislation by the courts;
  3. took note of the dissemination of the Court’s judgment in this case by the authorities in order to ensure that the case-law of national courts concerning the registration of associations is fully aligned with that of the European Court, and of the authorities’ commitment to examine ways in which they could further enhance the systematic dissemination of the Court’s judgments;
  4. noted that the applicant association has not so far obtained any fresh consideration by the Greek courts of the merits of its request for registration, taking due account of the findings of the Court;
  5. noted, in this respect, the authorities’ position that the question of individual measures should be closed, as the applicant association did not request, within the time-limit set, the reopening of its case under Article 758 of the Code of Civil Procedure, which was amended in 2017 in order to allow such reopening;
  6. noting, however, that some issues pertaining in particular to the interpretation of Article 758 of the Code of Civil Procedure are currently pending before the Court of Cassation, invited the authorities to keep the Committee informed of any developments in Greek case-law of relevance to the present case, in particular as regards the above-mentioned provision;
  7. decided to resume examination of this case at one of their forthcoming DH meetings.

 

MINISTERS’ DEPUTIES Notes on the Agenda CM/Notes/1362/H46-9 5 December 2019
https://search.coe.int/cm/Pages/result_details.aspx?ObjectID=090000168098cffa
1362nd meeting, 3-5 December 2019 (DH)

Human rights

H46-9 House of Macedonian civilization and others v. Greece (Application No. 1295/10)

Supervision of the execution of the European Court’s judgments

Reference document

DH-DD(2019)1114

 

Application Case Judgment of Final on Indicator for the classification
1295/10 HOUSE OF MACEDONIAN CIVILIZATION AND OTHERS 09/07/2015 09/10/2015 Complex problem

Case description

The case concerns the refusal of the Greek courts to register the association of the “House of Macedonian Civilization” on the grounds that the use of the term “Macedonian” by the applicant association and the purpose set out in its statutes was contrary to public order and jeopardized the harmonious coexistence of the population of the Florina region and public peace in Greece (§ 11) (violation of Article 11).

The European Court noted that the domestic courts rejected the applicant association’s application for registration on the basis of more or less the same line of reasoning as that adopted by them in the Sidiropoulos and Others case (§38), concerning the same association. The European Court also noted that “in order to assess the purposes and potential activity of the first applicant, the domestic courts relied on the fact that Articles 9-11 of the Convention included the concept of public order among the legitimate purposes likely to justify a restriction of the rights guaranteed… . However, in that case, they should also have taken into account the relevant case-law of the Court, which favours the registration of an association and not the prior review of its legality, when national law provides for clauses allowing for the monitoring of its activity a posteriori” (§ 42).

State of execution

On 4 October 2019, the authorities presented an action report. The main relevant information can be summarised as follows:

Individual measures

Law No. 4491/2017 was adopted on 10 October 2017, amending article 758, paragraph 1, of the Code of Civil Procedure. It provides for the reopening of non-contentious proceedings in cases where the European Court has found a violation of the right to a fair trial or any other substantive right enshrined in the Convention. A transitional provision has also been adopted allowing applicants, in cases such as this one, where the European Court’ s judgment predates the entry into force of the amendment, to request reopening within one year of the s publication of the law (i.e. before 13 October 2018).

The authorities have indicated that, to their knowledge, the applicants have not made use of this procedure. The authorities therefore consider that no further individual measure is necessary.

General measures

The judgment was published on the website of the State Legal Council (SLC). On 26 February 2016, the President of SLC, who is also the Government Agent, sent a letter to the Minister of Justice in which he highlighted the violation found by the Court and the need to execute the judgment. According to the authorities, these measures seem to have yielded positive results: more than 500 associations whose name includes a derivative of the adjective “Macedonian” are currently registered. It transpires from this that some of them conduct activities that are relevant to the preservation of the cultural heritage of their members.

The authorities indicated that domestic courts promote the registration of associations, in line with the judgment of the European Court, and do not engage in any preventive control of their aims.

Rule 9 submission

On 8 October 2019, the applicant association’ s representative – Greek Helsinki Monitor (GHM)[1] – indicated that the refusal to register the applicant association on the grounds of public order and national security had already been criticised  by the Court in the Sidiropoulos case in 1998, that the Greek courts had nevertheless not aligned their case law with that of the Court as was expected by the government (see Final Resolution DH(2000)99), and that thus the new registration procedure initiated in 2005 had again been rejected by the Court of Cassation in 2009 on the grounds of public order and national security already criticised, leading to the present Court judgment. The GHM also pointed out that the third attempt to obtain registration on the basis of the Court’s new judgment was rejected on 27 July 2017 by the Florina Court of Peace on the same grounds and with an explicit reference to the 2009 Court of Cassation judgment[2]. The  the new reopening Law No. 4491/2017 entered into force in October 2017  involving public order or national security issues. In view of this situation, the applicant association refrained from lodging both an appeal in cassation and an application for reopening as none of the remedies could be effective in its case.

To support this position, the GHM referred to a very recent judgment delivered in September 2019 by the Court of First Instance of Serres, which ordered the dissolution of the association “Brotherhood of the Serres Natives: Cyril and Methodius”, registered in 2017, following a request from the Prosecutor of Serres.[3] The court held that the aim of the association to preserve the “mother tongue” did not refer to Greek but to “Macedonian”, whereas, according to the court, the mother tongue of the “Serres natives” is Greek. Thus, the aim pursued by the association was neither defined nor clear and created confusion that could not guarantee the preservation of the peaceful coexistence of the population of the region and was therefore contrary to public order

Analysis by the Secretariat

Individual measures

First of all, it should be noted that this is the second judgment, following that of Sidiropoulos and Others in 1998, concerning the same association in which the European Court found a violation of Article 11. In 2000, when the supervision of execution of Sidiropoulos and Others was closed by the Committee by Final Resolution DH(2000)99, the Greek Government submitted that “considering the direct effect today given to judgments of the European Court of Human Rights in Greek law (see notably the case of Papageorgiou against Greece, Resolution DH(99)714), 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”. However, all subsequent efforts by the applicant association to achieve registration have been unsuccessful, the last one in 2017, when the domestic court declared the new application for registration inadmissible because it ran counter to the force of res judicata of the 243/2003 judgment of the Florina Court of First Instance (which was the judgment criticised by the European Court in the present case). Moreover, public order and national security-related considerations, which were regarded as unconvincing by the Court, were once again reiterated by the domestic court.

As Greek law currently stands, the examination of the registration of the applicant association depends on the consideration of the relevant case law of the Court by the national courts. It should be noted in this respect that the Convention, by virtue of Article 28 § 1 of the Greek Constitution, is an integral part of Greek domestic law and prevailsover any contrary provision of the law.

In this situation, the Committee may wish to reiterate that the obligation to comply fully and effectively with the judgments of the European Court under Article 46 of the Convention extends to the interpretation by national courts of national legislation. As the Grand Chamber of the Court stated in the case of Verein GegenTierfabriken Schweiz (VgT) v. Switzerland (No. 2) (§ 90), “it is for the Contracting States to organise their courts in such a way as to enable them to meet the requirements of the Convention[…] This principle also applies to the execution of the Court’s judgments” (§ 97).

The government’s request to close the examination of individual measures on the basis of the absence of a request for reopening under the new Law 4491/2017 seems premature.

Indeed, the new law itself does not guarantee that the Court’s considerations will be taken into account (questions of public order and national security are even explicitly included as preventing re-examination following a Court’s judgment) and there are as yet no positive indications from the case law of the Court of Cassation. In such a situation, it seems difficult to propose to the Committee that the absence of a request for reopening be considered as a fact in itself justifying the closure of the examination of individual measures. A possible closure can only be considered once the effectiveness of the new remedy has been proven.

Moreover, the path of reopening does not seem to be indispensable in this case. The applicant association may lodge a new application for registration. However, under the current conditions of the Greek case law described above, it seems unlikely to succeed. It seems reasonable to assume that this can only succeed once the Greek court’s case-law will have been brought into line with the Convention as interpreted by the Court.

In view of these various considerations, it seems premature to conclude the monitoring of the individual measures before confirming that the applicant association has a realistic and substantiated right to obtain, without further delay, a review of its application for registration in a procedure which meets the requirements of the Convention as they emerge from the relevant case law of the Court.

General measures

The information provided by the authorities on the dissemination of the Court’s judgment can be noted.

However, the lack of progress in adapting the case law of Greek courts to the requirements of the Convention, recently confirmed also by the dissolution by a national court in September 2019 of another association in Serres as detailed above, raises serious concerns.

On this note, the Committee could refer to the mission carried out in September 2019 by members of the Execution Department to Greece, and take note of the authorities commitment to examine ways in which they could further enhance the systematic dissemination of the Court’s judgments, in particular through existing websites used by legal professionals, and to improve judges’ training on the Convention.

Furthermore, it is recalled that some issues pertaining in particular to the interpretation of Article 758 of the Code of Civil Procedure are currently pending before the Court of Cassation; the Committee might therefore wish to invite the authorities to keep them informed of any developments in Greek case-law of relevance to the present case, in particular as regards the abovementioned provision.

 The Committee might wish to resume consideration of this case at one of their forthcoming DH meetings.

Financing assured: YES

[1] DH-DD(2019)1152.

[2] Judgment No. 16/2017, of 11 September 2017.

[3] Judgment No. 185/2019, of 10 September 2019.

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