Commonwealth and International Law Document

HOLY MONASTERIES v GREECE

Greek Orthodox monasteries have a distinct legal personality in public law from the orthodox church, into which they are hierarchically integrated but unlike which they play no direct or active part in public administration. In 1930 they had been allowed to retain only the property (out of that accumulated over the previous centuries) which was considered necessary for their needs and the remainder was to be subject to expropriation (which had not generally occurred) and managed on their behalf by an office established for this purpose, with the revenue being applied to church purposes. Title to their property relied primarily on adverse possession as deeds were often lacking or had been destroyed. A law was adopted in 1987 under which the State could appoint most of the members of the office and which provided that the State would become the owner of all their property unless title was established within six months by a registered deed, statutory provision or court decision. The law was adopted because the property was allegedly being wasted, improperly exploited or abandoned to the detriment of the country's agriculture, stockbreeding and forestry. It was also asserted that most of the property belonged to the State and was being occupied without legal title. Where the monasteries established their title to agricultural land, forestry and quarries, it could be transferred to the State and 5% of the gross revenue from those allowed to use it would be assigned to the national education service. There was a power to grant land to monasteries which did not have sufficient for the purpose of cultivation by the monks themselves. The office was vested with the exclusive management and representation of all the monasteries' immovable property, including the ability to take or defend legal proceedings. The law did not apply to monasteries that came under the authority of foreign patriarchs. In the course of a challenge (which was successful on unrelated grounds) to certain appointments made by the State to the office, the supreme administrative court ruled that the 1987 law was constitutional and compatible with the ECHR. In 1988 an accord between the church and the State provided that monasteries would agree to transfer part of their property to the latter. Pursuant to this some monasteries concluded an agreement with the State (ratified by a law) transferring to it most of their agricultural and forest property. The State undertook to pay for 85 preachers and to spend 1% of the budgetary appropriation for the church in supporting the monasteries concerned. As yet no transfer operations under the 1987 law had been completed but circulars had been issued to local authorities about the State's ownership of the property and possible implementing measures to be taken. These authorities had subsequently prevented some work being carried out on certain properties and refused to approve development plans. Five monasteries which were not party to the 1988 agreement and three that were complained about the transfer of ownership. The Commission, having ordered the joinder of the two applications and considered them admissible, found no breach of Prot 1 Art 1 as regards either the transfer of ownership provided for in the 1987 law or the provisions of that law as amended by the 1988 law. It also found no breach of Arts 6(1), 9, 11 and 13 or of Art 14, taken with Arts 6, 9, and 11 and Prot 1 Art 1. In addition it found no breach of Art 6(1) as regards the right of access to a court in respect of either the three monasteries or (11-2) the five monasteries not party to the 1988 agreement. The government objected that the monasteries were not non-governmental organisations and that domestic remedies had not been exhausted as no court had given a ruling in a case concerning the alleged violation of their rights.

The Court held: (1) that the monasteries were non-governmental organisations within Art 25 as their objectives could not be classed as governmental and they were completely independent of the State; (2) that, as the statements by the supreme administrative court as to the 1987 law's compatibility with the constitution and the ECHR had substantially limited the prospects of success of any other appeal the applicant monasteries might bring and as the other possibilities invoked either related to provisions that had ceased to be material or were not otherwise relevant, the second preliminary objection should be dismissed; (3) that, although no practical measures had been taken to apply the laws to the monasteries, they had had consequences for their property because of the special nature of some of the provisions, the adoption of ministerial circulars and the taking of administrative decisions; (4) that, although it could not determine which of the disputed tracts of land actually belonged to the State, the monasteries had completed the period of possession required to rely on adverse possession before the 1987 law came into force; (5) that the deeming provision was not a procedural rule relating to the burden of proof but one transferring full ownership of the land in question to the State; (6) that the fact that no eviction order had been issued to the monasteries not party to the 1988 agreement was no guarantee that none would be issued and there was, therefore, a deprivation of their possessions; (7) that any doubts as to the reasons for the measures were insufficient to deprive the 1987 law of its legitimacy as being in the public interest; (8) that there was a violation of Prot 1 Art 1 since the absence of compensation imposed a considerable burden on the five monasteries and there was not, therefore, a fair balance between the various interests involved; (9) that it was not possible to conclude that the three monasteries who signed the 1988 agreement had done so under duress and there was, therefore, no interference with their property; (10) that, as the monasteries not party to the 1988 agreement had been deprived of the possibility of bringing before the courts any complaint against the State, third parties or the church itself in relation to their rights of property, their right to a court had been impaired and there was a violation of Art 6(1); (11) that, in view of the previous finding and that about the absence of compensation, it was unnecessary to consider further the complaint about being unable to ask a court to determine any dispute over the fixing of compensation for the expropriation; (12) that, as the provisions held contrary to Prot 1 Art 1 did not concern objects intended for the celebration of divine worship and did not, therefore, interfere with the exercise of the right to freedom of religion, there was no violation of Art 9; (13) that the complaint about the interference with their freedom of association seemed hypothetical and there was, therefore, no violation of Art 11; (14) that, as it was unnecessary to have a means of impugning a law as contrary to the ECHR, there was no violation of Art 13; (15) that, as the distinction made in the 1987 law between the applicant monasteries and those coming under other patriarchates or other denominations and religions did not lack an objective and reasonable justification, there was no violation of Art 14 taken with Arts 6, 9 and 11 and Prot 1 Art 1; (16) that it was unnecessary in view of holdings (8), (10), (12) and (13) to rule on the complaint that the distinction made in the 1988 law between the monasteries which did sign the 1988 agreement and those that did not was a violation of Art 14 taken with Arts 6, 9 and 11 and Prot 1 Art 1; (17) that the question of pecuniary damage should be reserved; and (18) that the applicant monasteries should be awarded GRD8,400,000 in respect of lawyers' fees and expenses.

Comment: The facts of this case are probably more complex than the legal issues involved (and the judgment is remarkable for merging the explanation of many of the material circumstances with the exposition of the legislative provisions involved). Although the 1987 law had not been implemented, the Court understandably did not regard this as an abstract challenge to it; apart from the deeming provision, administrative action was affecting the monasteries' ability to deal with their property. Although there would have been no deprivation of property if it had actually belonged to the State and the Court was not in a position to resolve disputes about particular tracts, it was reasonable to rely on the principle of adverse possession given the long history of occupation by the monasteries, the absence of a Greek land survey and the inapplicability of registration to most of the land concerned. The Court did not preclude the use of procedural rules governing the burden of proof in title disputes but, apart from the automatic right to use and possess the property concerned, the history already referred to meant that the only conclusion that could be reached in this case was that a transfer was taking place. Moreover, although possession had not been taken up, the law had effected a sufficient interference with the monasteries' possessions to constitute a deprivation of them. The Court did not pursue doubts about the motives behind the law which were encouraged by its own provisions; the proposed transfer of the land involved to farmers was optional and some of it would go to public bodies. This was probably appropriate in the absence of clearer evidence but there is no reason why an ostensibly legitimate public interest should not be condemned as a sham where the position is more certain. However, as the Court's previous case law has made clear, the justification for an expropriation is unlikely to be acceptable without compensation of some kind, whatever the public interest at stake (see Lithgow v United Kingdom, Ser A No 102). In deciding that it was needed in this case, the Court took account of the fact that it was paid in previous measures directed against monasteries and did not consider the 5% of revenue paid into the education fund or the possibility of granting back land for monks to cultivate as in any way lessening the substantial loss being incurred. Duress would obviously vitiate an apparently voluntary transfer but, in holding that it was not present in the case of the three monasteries party to the 1988 agreement, the Court saw their signature as voluntary and did not consider that this was against the threat which the 1987 law posed to all their property. The finding that the five monasteries had been denied a right of access to the court followed established case law (see Philis v Greece, (1991) 6 Interights Bulletin 48). However, their religious character could not automatically lead to the conclusion that freedom of religion was affected; a direct impact on the ability to worship would be required for this purpose. The complaint about the effect on the monasteries' freedom of association was entirely speculative. Their formal links with the State could not stop them from being non-governmental organisations for the purposes of Art 25; the crucial concern will be whether such bodies have genuine independence and are not actually exercising governmental powers. The rejection of the suggestion that domestic remedies had not been exhausted was consistent with well-established case law.