CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 4 mars 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          Application No. 28802/95                       by Gabriel TSAVACHIDIS                       against Greece             The European Commission of Human Rights (First Chamber) sitting in private on 4 March 1997, the following members being present:              Mrs.   J. LIDDY, President            MM.    M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs.   M. HION            Mr.    R. NICOLINI              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 20 September 1995 by Gabriel TSAVACHIDIS against Greece and registered on 2 October 1995 under file No. 28802/95;         Having regard to:   -      the reports provided for in Rule 47 of the Rules of Procedure of       the Commission;   -      the observations submitted by the respondent Government on       26 April 1996 and the observations in reply submitted by the       applicant on 2 September 1996;   -      the parties' oral submissions at the hearing on 4 March 1997;         Having deliberated;         Decides as follows:   THE FACTS         The applicant is a Greek citizen and a painter. He was born in 1942 in Greece and he is currently residing in Kilkis, Greece. In the proceedings before the Commission he is represented by Mr. Panayiotis Bitsaxis and Mr. Charalambos Charalambeas, both lawyers practising in Athens.         The facts of the case, as they have been submitted by the parties, may be summarised as follows:   A.     Particular circumstances of the case         The applicant is a Jehovah's Witness. In 1981, in order to conduct meetings of the Jehovah's Witnesses community, the applicant rented premises in Kilkis.         On 7 May 1993 the public prosecutor of Kilkis ordered a preliminary inquiry into complaints that a Jehovah's Witnesses church had been established in Kilkis without the necessary permit from the local ecclesiastical authority and the Ministry of National Education and Cults, as specified in Article 1 of the Royal Decree of 20 May/2 June 1939. The applicant was summoned to appear before a judge in the context of this inquiry. He failed to do so and on 10 August 1993 the judge ordered the police to bring the applicant before him by force on 25 August 1993. The applicant appeared before the judge on that date and was examined.         On 23 December 1993 the public prosecutor of Kilkis pressed charges against the applicant and another person for illegally operating a church and summoned them to appear before the first instance single-member criminal court (monomeles plimmeliodikio) of Kilkis on 9 December 1994.         One week before the trial, the defence became aware that a "top secret" information report dated 7 March 1993 had been included in the case-file. This report stated:         "In execution of the preceding order, we wish to report the       following:         As a result of an investigation that was made in the Record       Office of our Department it was not established that the       .... Millenialists have ever submitted any petitions       requesting permits to operate churches within the area       under our jurisdiction.         The number of Jehovah's Witnesses (Millenialists) amounts       to approximately 25 to 30 individuals in the city of       Kilkis.         In this city, at 16 Aristotelous Street, on the ground       floor of the building there is a hall, owned by       Athena Tsavachidou, which is used as a meeting place by the       Millenialists usually on Wednesday, Friday and Sunday every       week, as a rule in the evening hours. In this hall there       are chairs and a desk, laid out as in a classroom. In this       hall teaching is carried out, hymns are sung and the Gospel       is explained. It has not been established that there are       religious icons and utensils related to religious worship.       But according to information we have on hand, which has not       been verified however, weddings and baptism ceremonies are       held in the hall. Various individuals from Thessaloniki and       from local villages of the Kilkis Prefecture participate in       these meetings. The number of such individuals amounts to       approximately 50.         Similar Millenialists meetings have been taking place in       Kilkis for 30 years.         The 'leader' of the local Millenialists is       Gabriel Tsavachidis, son of Solon and Evdoxia, who was born       in 1942 in Kilkis, resides at 14 Solonos Street, and is a       painter by profession (and brother of the owner of the       hall).         The Millenialists, apart from the aforementioned hall, also       use the homes of their fellow-members as meeting places."         The report was not signed.         The charges against the applicant were not heard on 9 December 1994 because the prosecution requested an adjournment and the trial was postponed until 7 April 1995.         On 13 December 1994 the applicant's lawyer denounced on the radio the existence of an illegal network of surveillance of members of religious minorities in Kilkis and requested the competent ministers to investigate the matter. On 14 December 1994 the Minister of Justice stated that an investigation would be carried out. It is not known whether such an investigation has been carried out and, if so, what were its results.         On 7 April 1995, before the trial commenced, the applicant wrote to the Prosecutor's Office of Kilkis, and requested to be informed of the following: who delivered the "information report" to the Prosecutor's Office; who wrote it and under what capacity; in compliance with whose order it was written; who put his private life under surveillance, in which capacity that was done and on whose orders; which bureau was responsible for and issued the document.         The applicant announced that he intended to use that information to bring a criminal and civil action before the domestic courts and to appeal to the European Court of Human Rights in order to protect his rights and bring the perpetrators of his secret surveillance to justice.         When the hearing started the applicant objected to the validity of the indictment claiming that the "information report" could not be used as part of the indictment as it was not signed. The court rejected his objection considering that the applicant had had ample opportunity to prepare his defence. However, it decided not to take into account the report as evidence because it was anonymous.         Then, i.e. on the same day, the applicant filed a petition requesting the court, according to Article 38 of the Criminal Procedure, to compile and send a report to the competent Prosecutor so that those responsible for the "information report" be prosecuted for the offences provided for under Articles 134, 259, 239, 241, 334, 200 and 361A of the Criminal Code and Article 24 of Law 1489/1984. The court rejected the petition also on the same day, i.e. on 7 April 1995, on the ground that no facts had been disclosed which could come under the definition of the offences in Articles 134, 259, 231 (sic), 241, 334, 200 and A of the Criminal Code and Article 24 of Law 1489/1984.         On 7 April 1995 the criminal court of Kilkis acquitted the applicant of the charges.         On 9 May 1995, the assistant prosecutor of Kilkis replied to the applicant stating, inter alia, that the "information report" was sent anonymously by mail to the Prosecutor's Office and that the document was not drawn up by the Secret Service.   B.     Relevant domestic law and background information.   1.     The Criminal Code provides for the following offences:         Article 134 para. 2         "Any person which, by force or use of force or by abusing his       capacity of a State organ, attempts to abolish, or to alter or       to render inoperative permanently or temporarily the democratic       regime which is based on the sovereignty of the people or a       fundamental principle or institution of this regime ... is       punished with life imprisonment or by imprisonment of no less       than five years and no more than twenty years."         Article 134A         "The term fundamental principle or   institution of the regime in       the previous article refers to ... the general enjoyment and       protection of the fundamental rights provided for in the       Constitution."         Article 200 para. 1         "Any person which, maliciously, tries to disturb or disturbs a       religious gathering for worship or a religious ceremony which are       tolerated by the Constitution is punished with imprisonment of       no less than ten days and no more than two years."         Article 239 para. 1         "A punishment of imprisonment of no less than five years and no       more than ten years is inflicted on any civil servant responsible       for the prosecution of or investigation into criminal offences       who ..., knowingly, renders an innocent person liable to       prosecution or punishment or fails to prosecute a guilty person       or ensures that a guilty person is not punished."         Article 241         "Any civil servant who, using his official capacity, illegally       enters the house of another person against the latter's will is       punished with imprisonment of no less than three months and no       more than two years."         Article 259         "Any civil servant who maliciously fails to discharge his duties,       in order illegally to enrich himself or another person or to harm       the State or another person, is punished with imprisonment of no       less than ten days and no more than two years. This provision       applies only if the acts of the civil servant are not punishable       under another criminal provision."         Article 334 para. 1         "Any person which illegally enters the home of another person or       another person's   place of work or any enclosed premises held by       another person or remains in such a home, place or premises       against that person's will is punished with imprisonment of no       less than ten days and no more than a year or with a fine."         Article 361A         "Any person which has insulted another by a deed without being       provoked is punished with imprisonment of no less than three       months and no more than five years."   2.     Article 24 of Law 1419/1984 provides for the punishment of racial discrimination.   3.     Article 46 of the Code of Criminal Procedure, read in conjunction with Article 42 thereof, provides for the drawing up of a report when a criminal complaint is lodged with the public prosecutor by the victim of the alleged offence.         Article 40 of the Code of Criminal Procedure creates an obligation for every person to inform the public prosecutor of criminal offences which have come to its attention.         If the public prosecutor decides not to institute criminal proceedings, the only person which has the right under Article 48 of the Code of Criminal Procedure to appeal against the prosecutor's decision is the victim of the alleged offence, provided that it has lodged a criminal complaint under Article 46 of the Code.   4.     Article 38 of the Code of Criminal Procedure provides the following:         "When during a civil or criminal trial facts are disclosed which could qualify as criminal offenses, the judge, if by law he cannot immediately hold the trial himself, should draw up a report and forward it to the competent prosecutor's office together with all the relevant information and documents".         According to the case-law of the Court of Cassation, a decision by the court to the effect that Article 38 cannot be applied does not bind the public prosecutor who may nevertheless institute criminal proceedings (Court of Cassation decision No. 348/1962).   5.     On 4 August 1993, Eleftherotypia, a national newspaper, revealed the existence of a strictly confidential report compiled by the National Intelligence Service dated 19 January 1993, containing derogatory allegations concerning Greek citizens not members of the Greek Orthodox Church. The report described them as "non-genuine", "impure" and "corruptible" Greeks with "diminished national conscience", "due to their obedience to foreign international centres of leadership". It further considered that these para-religious organizations endeavour to undermine and subvert the Greek conscience and tradition. The report recommended taking a series of suppressive and preventive measures namely measures so that radio and television channels which are under the control of religious heretics should not be permitted to operate, the religious purification of the theological schools, making it more difficult to obtain a permission to operate meeting halls for worship and, finally, deporting all aliens who are actively engaged in all such organizations.         The Prime Minister issued a statement on 11 August 1993, claiming that the report was produced by a low ranking civil servant and that it had been rescinded immediately. The civil servant in question was moved and "the service was disbanded". The report did not in any way express the position of the Government.         On 4 August 1993, the Eleftherotypia newspaper also published another confidential report made by the National Intelligence Service. This report, the date of which was not clear, stated, inter alia, that the para-religious organization of "Jehovah's Witnesses" (Millenialists) was active in (a) the Messolongi area with approximately 24 adherents whose activities were limited, their leader being the glassware dealer Mr. R. and in (b) the Agrinio area where they had a lot of money; for 15 years their members received remittances coming from the U.S.A. and from Germany through the local branch of the Bank of Greece; one of their leaders Mr. M. had acquired a large personal fortune. The report went on to describe the existence and activities of other religious minorities in other areas of Greece.     COMPLAINTS   1.     The applicant complains that his right to respect for his private life and home, guaranteed by Article 8 of the Convention, has been violated by the surveillance he was placed under. He further complains that he was placed under surveillance due to his religious beliefs and that this constitutes a violation contrary to Article 9 of the Convention. The applicant also complains that the surveillance and the collecting of information concerning the gatherings of Jehovah's Witnesses violates his right of freedom of peaceful assembly contrary to Article 11 of the Convention.   2.     Moreover, the applicant complains that he is a victim of religious discrimination contrary to Article 14 of the Convention in conjunction with Articles 8 and 9 since persons of Greek Orthodox faith are not placed under surveillance.   3.     Finally, the applicant complains that the policy of the National Intelligence Service of placing him under surveillance violates his right to security contrary to Article 5 para. 1 (a) of the Convention.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 20 September 1995 and registered on 2 October 1995.         On 18 January 1996 the Commission (First Chamber) decided to communicate the application.         The Government's written observations were submitted on 26 April 1996, after an extension of the time-limit fixed for that purpose. The applicant replied on 2 September 1996, also after an extension of the time-limit.         On 17 January 1997 the Commission (First Chamber) decided to invite the parties to submit oral observations on the admissibility and merits of the application at a hearing.         The hearing took place on 4 March 1997.         At the hearing the parties were represented as follows:   For the Government:   Mr. Vassilios Kontolaimos, Agent, Senior Adviser (Paredros), Legal Advisory Council of the State   Mr. Vassilios Kyriazopoulos, Counsel, Legal Assistant (Dikastikos Antiprosopos), Legal Advisory Council of the State     For the Applicant:   Mr. Panayiotis Bitsaxis, Representative, Lawyer   Mr. Charalambos Charalambeas, Representative, Lawyer   Mr. Vassilios Dedotsis, Adviser   Mr. Evangelos Kaparos, Adviser     THE LAW   1.     The applicant complains under Articles 5 para. 1, 8, 9 and 11 (Art. 5-1, 8, 9, 11) of the Convention that he was placed under secret surveillance by a public authority. He also complains of discrimination in the enjoyment of his rights under the Convention on grounds of religion contrary to Article 14 (Art. 14) thereof.         The Commission recalls that the provisions invoked by the applicant read as follows:         Article 5 para. 1 (Art. 5-1) of the Convention              "Everyone has the right to liberty and security of person.       No one shall be deprived of his liberty save in the following       cases and in accordance with a procedure prescribed by law:              a.     the lawful detention of a person after conviction by       a competent court;              b.     the lawful arrest or detention of a person for       non-compliance with the lawful order of a court or in order to       secure the fulfilment of any obligation prescribed by law;              c.     the lawful arrest or detention of a person effected       for the purpose of bringing him before the competent legal       authority on reasonable suspicion of having committed an offence       or when it is reasonably considered necessary to prevent his       committing an offence or fleeing after having done so;              d.     the detention of a minor by lawful order for the       purpose of educational supervision or his lawful detention for       the purpose of bringing him before the competent legal authority;              e.     the lawful detention of persons for the prevention of       the spreading of infectious diseases, of persons of unsound mind,       alcoholics or drug addicts or vagrants;              f.     the lawful arrest or detention of a person to prevent       his effecting an unauthorised entry into the country or of a       person against whom action is being taken with a view to       deportation or extradition."         Article 8 (Art. 8) of the Convention         "1.   Everyone has the right to respect for his private and       family life, his home and his correspondence.         2.    There shall be no interference by a public authority with       the exercise of this right except such as is in accordance with       the law and is necessary in a democratic society in the interests       of national security, public safety or the economic well-being       of the country, 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 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 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.   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."         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."         The Government submit that the applicant has not exhausted domestic remedies because he did not lodge a criminal complaint with the public prosecutor against the perpetrators of the alleged violations, nor did he institute civil proceedings claiming damages under Article 57 of the Civil Code or Article 105 of the law introducing the Civil Code. Moreover, the Government point out that the applicant has not alleged that there existed any special circumstances which would have dispensed him from the obligation to exhaust domestic remedies under Article 26 (Art. 26) of the Convention. Finally, the Government submit that, if the Commission were to accept the applicant's contention that there were no effective remedies to exhaust, the application should be declared inadmissible as having been lodged out of time. Although the applicant became aware of the existence of the alleged surveillance before 9 December 1994, the application was introduced on 20 September 1995.         The applicant argues that, in the absence of an official inquiry ordered ex officio into his allegations, he could not have any effective remedies in Greece, given the nature of the violations involved. Before attempting to institute any proceedings the applicant needed to know who the perpetrators of the violations were and he could not have known that without the cooperation of the competent authorities. However, the criminal court refused to bring the perpetrators to justice by exercising its powers under Article 38 of the Code of Criminal Procedure and there was no appeal against this decision.         The applicant further argues that his letter of 7 April 1995 to the public prosecutor was in essence a criminal complaint. In any event, if he had formally lodged a complaint against persons unknown, the case would have been left pending. In other words, the prosecutor would have taken no decision refusing to institute proceedings and, as a result, there would be no act against which to appeal to the prosecutor of the court of appeal under Article 48 of the Code of Criminal Procedure.         Moreover, the applicant argues that he did not have a realistic possibility of instituting civil proceedings. The courts would have dismissed as unsubstantiated a civil action against the State if the perpetrators of the act had not been named and if it could not be shown that they were acting in an official capacity. Finally, the applicant argues that the six-months period should be calculated from 9 May 1995, when the assistant prosecutor of Kilkis replied to his request for information.         The Commission recalls that, according to its case-law, the obligation to exhaust domestic remedies requires only that an applicant make normal use of remedies which are effective, sufficient and accessible. To be effective, a remedy must be capable of remedying directly the impugned state of affairs (No. 12742/87, Dec. 3.5.89, D.R. 61 p. 206).         In the particular circumstances of the case, the Commission, in examining whether the applicant has complied with the obligation to exhaust domestic remedies, cannot lose sight of the nature of his complaints and of the fact that the report which led him to believe that he had been subjected to surveillance was unsigned.         In this connection, the Commission notes that the applicant, when he became aware of the existence of the report, took two steps. First, he requested information from the Prosecutor's Office of Kilkis, which has used the report to institute criminal proceedings against him, as to the origins of the report, specifying that he needed this information in order, inter alia, to institute criminal or civil proceedings before the domestic courts. Secondly, he filed a petition to the criminal court, before which the report had been produced by the prosecution, under Article 38 of the Code of Criminal Procedure with a view to having criminal proceedings instituted against the authors of the report.         However, he did not obtain redress. Thus, on 7 April 1995 the criminal court rejected his petition on the ground that no facts had been disclosed which could give rise to a criminal prosecution. Moreover, on 9 May 1995, the assistant prosecutor of Kilkis rejected the applicant's request for information. In these circumstances, the Commission considers that the applicant took sufficient steps in order to raise his grievances with the national authorities. Article 26 (Art. 26) of the Convention does not require that he should have, in addition, lodged a criminal complaint against persons unknown or a civil action against the State without specifying which of its organs were responsible for the alleged surveillance.         Moreover, the Commission notes that the application was lodged on 20 September 1995, i.e. less than six months after 9 May 1995, when the assistant prosecutor of Kilkis rejected his request for information, or even 7 April 1995, when the criminal court rejected the petition he had lodged under Article 38 of the Code of Criminal Procedure.         It follows that the applicant has complied with the requirements of Article 26 (Art. 26) of the Convention concerning exhaustion of domestic remedies and the time-limit for the introduction of complaints before the Commission.   2.     As regards the substance of the applicant's complaints, the Government submit that there is no indication that the applicant was subjected to surveillance by the National Intelligence Service. There is no indication that the report of 7 March 1993 which was included in the applicant's case-file had been compiled by a public authority. It is not unusual for the public prosecutor's office of Kilkis to receive anonymous letters informing it that Jehovah's Witnesses churches function illegally in Kilkis. The information contained in the report was accessible to everybody. So was the information contained in the two reports published in the Greek press on 4 August 1993. It is not within the competence of the National Intelligence Service to subject persons to surveillance because of their religious beliefs. Moreover, the National Intelligence Service denies that it has ever subjected the applicant to surveillance. It also denies that it is the author of the report of 7 March 1993.         In any event, the Government argue that the activities of the National Intelligence Service are regulated in a sufficiently circumscribed manner by a law which is adequately accessible to everybody. The law also specifies the circumstances in which an investigation, including surveillance, can be ordered in connection with a criminal offence. Moreover, there exist adequate guarantees against abuse or misuse of power by the executive branch of the Government.         The applicant submits that there are various indications that the report of 7 March 1993 has been compiled by the National Intelligence Service. The language used is that of the Service. There is expert evidence to the effect that the report of 7 March 1993 and another document drafted by the Kilkis police have been typed using the same type of typewriter. It has not been possible to establish whether they have been written with the same typewriter because the public prosecutor's office of Kilkis has refused to provide the applicant with the original report of 7 March 1993. The very content of the report, especially when seen against the background of the reports published in the press on 4 August 1993, indicates that its author is the National Intelligence Service. On 11 August 1993 the Government accepted that the National Intelligence Service subjected non-Orthodox Greeks to surveillance.         The applicant also submits that the report discloses an interference with the rights guaranteed by the provisions invoked, because the information contained therein could have been obtained only through secret surveillance. This surveillance was illegal. Moreover, the law on the National Intelligence Service contains no safeguards against abuses.         The Commission will first examine the applicant's complaint that Article 5 para. 1 (Art. 5-1) of the Convention has been violated. The Commission does not consider it necessary to examine whether the facts complained of engage the responsibility of the respondent Government in this connection. Even assuming that this is so, the particular complaint of the applicant is manifestly ill-founded.         In this connection, the Commission recalls that, in accordance with its case-law, the term "liberty and security of person" in Article 5 para. 1 (Art. 5-1) of the Convention must be read as a whole and, in view of its context, as referring only to physical liberty and security. "Liberty of person" thus means freedom from arrest and detention and "security of a person" the protection against arbitrary interference with this liberty (Nos. 5573/72 and 5670/72, Dec. 16.7.76, Yearbook 20, p. 102). The applicant has not been deprived of his liberty. As a result, no appearance of a violation of Article 5 para. 1 (Art. 5-1) is disclosed.         It follows that this part of the application is manifestly ill- founded under Article 27 para. 2 (Art. 27-2) of the Convention.   3.     As regards the remainder of the applicant's complaints under Article 8, 9, 11 and 14 (Art. 8, 9, 11, 14) of the Convention, the Commission, in the light of the parties' observations, considers that they raise serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. This part of 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,         DECLARES THE APPLICATION INADMISSIBLE as regards the complaint       concerning the alleged violation of the applicant's right to       liberty and security of person,         and, by a majority,         DECLARES THE REMAINDER OF THE APPLICATION ADMISSIBLE, without       prejudging the merits of the case.     M.F. BUQUICCHIO                                   J. LIDDY      Secretary                                     President to the First Chamber                         of the First Chamber