CEDH · CASELAW;REPORTS;ENG — 28 octobre 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 }                    EUROPEAN COMMISSION OF HUMAN RIGHTS                            FIRST CHAMBER                      Application No. 28802/95                         Gabriel Tsavachidis                               against                               Greece                      REPORT OF THE COMMISSION                    (adopted on 28 October 1997)                          TABLE OF CONTENTS                                                             Page   I.    INTRODUCTION      (paras. 1-16). . . . . . . . . . . . . . . . . . . . . .1        A.    The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 5-11) . . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 12-16). . . . . . . . . . . . . . . . . . .2   II.   ESTABLISHMENT OF THE FACTS      (paras. 17-33) . . . . . . . . . . . . . . . . . . . . .3        A.    The particular circumstances of the case           (paras. 17-28). . . . . . . . . . . . . . . . . . .3        B.    Relevant domestic law and background information           (paras. 29-33). . . . . . . . . . . . . . . . . . .5   III. OPINION OF THE COMMISSION      (paras. 34-69) . . . . . . . . . . . . . . . . . . . . .7        A.    Complaints declared admissible           (para. 34). . . . . . . . . . . . . . . . . . . . .7        B.    Points at issue           (para. 35). . . . . . . . . . . . . . . . . . . . .7        C.    As regards Article 8 of the Convention           (paras. 36-49). . . . . . . . . . . . . . . . . . .7             CONCLUSION           (para. 50). . . . . . . . . . . . . . . . . . . . 10        D.    As regards Article 9 of the Convention           (paras. 51-54). . . . . . . . . . . . . . . . . . 10             (a)   Opinion of Mr M.P. Pellonpää, Mr E. Busuttil,                Mr A. Weitzel, Mr B. Marxer, Mr N. Bratza                and Mr M. Vila Amigó                (para. 55) . . . . . . . . . . . . . . . . . 11             (b)   Opinion of Mr B. Conforti, Mr C. Bîrsan                and Mr K. Herndl                (para. 56) . . . . . . . . . . . . . . . . . 11             CONCLUSION           (para. 57). . . . . . . . . . . . . . . . . . . . 11                          TABLE OF CONTENTS                                                             Page        E.    As regards Article 11 of the Convention           (paras. 58-60). . . . . . . . . . . . . . . . . . 11             CONCLUSION           (para. 61). . . . . . . . . . . . . . . . . . . . 12        F.    As regards Article 14 of the Convention           taken in conjunction with Articles 8, 9 and 14           (paras. 62-64). . . . . . . . . . . . . . . . . . 12             CONCLUSION           (para. 65). . . . . . . . . . . . . . . . . . . . 12        G.    Recapitulation           (paras. 66-69). . . . . . . . . . . . . . . . . . 12   PARTLY CONCURRING, MOSTLY DISSENTING OPINION OF MM K. HERNDL, B. CONFORTI AND C. BÎRSAN   . . . . . . . . 13   PARTLY DISSENTING OPINION OF MR C.L. ROZAKIS. . . . . . . . 15   PARTLY DISSENTING OPINION OF MR L. LOUCAIDES, JOINED BY MRS J. LIDDY, MM G. RESS AND A. PERENIC, MRS M. HION AND MR R. NICOLINI. . . . . . . . . . . . . . . 16   PARTLY DISSENTING OPINION OF MR I. BÉKÉS. . . . . . . . . . 17   APPENDIX I   :   DECISION OF THE COMMISSION AS TO THE                ADMISSIBILITY OF THE APPLICATION . . . . . . 18   APPENDIX II :   ORIGINAL TEXT OF REPORT OF 7 MARCH 1993. . . 30   I.    INTRODUCTION   1.    The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.    The application   2.    The applicant is a Greek citizen, born in 1942 and resident in Kilkis. He was represented before the Commission by Mr P. Bitsaxis and Mr Ch. Charalambeas, both lawyers practising in Athens.   3.    The application is directed against Greece. The respondent Government were represented by their Agent, Mr L. Papidas, President of the Legal Advisory Council of the State (Nomiko Simvulio tu Kratus), Mr V. Kontolaimos, Senior Adviser (Paredros) of the Legal Advisory Council of the State, and Mr V. Kyriazopoulos, Legal Assistant (Dikastikos Antiprosopos) of the Legal Advisory Council of the State.   4.    The case concerns allegations of surveillance of a member of the Church of Jehovah's Witnesses by the National Intelligence Service. The applicant invokes Articles 8, 9, 11 and 14 of the Convention.   B.    The proceedings   5.    The application was introduced on 20 September 1995 and was registered on 2 October 1995.   6.    On 18 January 1996 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.   7.    The Government's observations were submitted on 26 April 1996, after an extension of the time-limit fixed for this purpose. The applicant replied on 2 September 1996, also after an extension of the time-limit.   8.    On 17 January 1997 the Commission decided to hold a hearing of the parties. The hearing was held on 4 March 1997. The Government were represented by Mr V. Kontolaimos and Mr V. Kyriazopoulos. The applicant was represented by Mr P. Bitsaxis and Mr Ch. Charalambeas, as well as Mr V. Dedotsis and Mr E. Kaparos, as advisers.   9.    On 4 March 1997 the Commission declared inadmissible the applicant's complaint under Article 5 of the Convention.   It declared admissible the remainder of the application.   10.   The text of the Commission's decision on admissibility was sent to the parties on 6 March 1997 and they were invited to submit such further information or observations on the merits as they wished. Such observations were submitted by the Government on 20 May 1997 and by the applicant on 29 May 1997.   11.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.    The present Report   12.   The present Report has been drawn up by the Commission (First Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, 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   13.   The text of this Report was adopted on 28 October 1997 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   14.   The purpose of the Report, pursuant to Article 31 of the Convention, is:        (i)   to establish the facts, and        (ii) to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   15.   The Commission's decision on the admissibility of the application is annexed hereto.   16.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.   ESTABLISHMENT OF THE FACTS   A.    The particular circumstances of the case   17.   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.   18.   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.   19.   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.   20.   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.   21.   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.   22.   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.   23.   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.   24.   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.   25.   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.   26.   Then, i.e. on the same day, the applicant filed a petition requesting the court, according to Article 38 of the Code of 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 on the same day, i.e. also 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.   27.   On 7 April 1995 the criminal court of Kilkis acquitted the applicant of the charges.   28.   On 9 May 1995, the assistant prosecutor of Kilkis replied to the applicant stating, inter alia, that the "information report" had been sent anonymously by mail to the Prosecutor's Office and that the document had not been drawn up by the Secret Service.   B.    Relevant domestic law and background information   29.   Article 1 of the Royal Decree of 20 May/2 June 1939 provides as follows:        "1.   In order to obtain an authorisation for the      construction or operation of temples not subject to the      legislation on temples and priests of parishes belonging to      the Greek Orthodox Church, within the meaning of section 1      of the Law (1672/1939), the following steps must be      completed:        (a) An application shall be submitted by at least      fifty families, from more or less the same neighbourhood      and living in an area at a great distance from a temple of      the same denomination, it being assumed that the distance      makes it difficult for them to observe their religious      duties. The requirement of fifty families shall not apply      to suburbs or villages.        (b) The application shall be addressed to the local      ecclesiastical authorities and must be signed by the heads      of the families, who shall indicate their addresses. The      authenticity of their signatures shall be certified by the      local police authority, which following an inquiry on the      ground shall attest that the conditions referred to in the      preceding sub-paragraph are satisfied ...        (c) The local police authority shall issue a reasoned      opinion on the application. It shall then transmit the      application, with its opinion, to the Ministry of Education      and Religious Affairs, which may accept or reject the      application according to whether it considers that the      construction or use of a new temple is justified or whether      the provisions of the present decree have been complied      with.        2.    ...        3.    The provisions of paragraph 1 (a)-(b) above shall not      apply to the issue of an authorisation for the construction      or operation of a place of worship. It shall be for the      Minister of Education and Religious Affairs to determine      whether there are essential reasons warranting such      authorisation. In this connection the persons concerned      shall address to the Ministry of Education and Religious      Affairs through their priest a signed application, the      authenticity of the signatures being certified by the mayor      or the chairman of the district council. The application      shall also indicate the addresses of the persons concerned      ...".   30.   Law 1654/1986 on the National Intelligence Service provides that the competence of this Service is, first, to collect, process and distribute information concerning national security, secondly, to deal with the spying activities of foreign intelligence services against Greece, thirdly, to co-ordinate the activities of other services collecting relevant information and, fourthly, to discharge any other relevant functions assigned to it by the Council of National Security or the Prime Minister. This law does not contain any specific separate provisions concerning safeguards   against abuses.   31.   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.   32.   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.   33.   On 4 August 1993, Eleftherotypia 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 fifteen 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.   III. OPINION OF THE COMMISSION   A.    Complaints declared admissible   34.   The Commission has declared admissible the applicant's complaints that he was subjected to surveillance by the National Intelligence Service, because of his religious beliefs.   B.    Points at issue   35.   The issues to be determined in the present case are:   -     whether there has been a violation of Article 8 (Art. 8) of the Convention   -     whether there has been a violation of Article 9 (Art. 9) of the Convention   -     whether there has been a violation of Article 11 (Art. 11) of the      Convention and   -     whether there has been a violation of Article 14 of the      Convention taken in conjunction with the above-mentioned      provisions (Art. 14+8, 14+9, 14+11) .   C.    As regards Article 8 (Art. 8) of the Convention   36.   Article 8 (Art. 8) of the Convention provides as follows:        "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."   37.   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 and the style 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.   38.   The applicant also submits that the report discloses an interference with his right to respect for his private life, because the information contained therein could have been obtained only through secret surveillance. In any event, the applicant argues that there would be an interference even if the information contained in the report related to elements of the applicant's personal life which were not meant to be kept secret. The recording of even every-day activities conducted in public amounts to such an interference if it is not done for a lawful purpose and in accordance with rules which provide protection against abuses. The surveillance to which the applicant was subjected was illegal. Moreover, the law on the National Intelligence Service contains no safeguards against abuses. As a result, Article 8 (Art. 8) was violated.   39.   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. 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.   40.   The Government also submit that the author of the report dated 19 January 1993, which appeared in the Greek press on 4 August 1993, had acted on his own initiative and had not followed any orders. The administrative unit in which he used to serve at the time was disbanded because his superiors had not noticed that he was drafting a report on religious organisations which caused a lot of embarrassment to the National Intelligence Service. In any event, the information contained in the report of 19 January 1993 was of a general academic nature and not the product of secret surveillance. The origins of the second undated report, published in the Greek press on 4 August 1993, are not known. In any event, no mention is made therein of the activities of Jehovah's Witnesses in Kilkis.   41.   The Government accept that there would have been a violation of the Convention if the National Intelligence Service had subjected the applicant to unjustified close surveillance because of his religious beliefs. However, the Government submit that the information contained in the report of 7 March 1993, in which the applicant was mentioned, was accessible to everybody. 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.   42.   The Commission recalls that, according to the Court's case-law, the storing of information concerning a person's private life in a secret register kept by a State authority amounts to an interference with the right to respect for private life as guaranteed by Article 8 para. 1 (Art. 8-1) of the Convention (Eur. Court HR, Leander v. Sweden judgment of 26 March 1987, Series A no. 116, p. 22, para. 48).   43.   The Commission must, therefore, determine, first, whether a State authority was responsible for the "top secret" information report dated 7 March 1993 which was included in the file of the criminal proceedings against the applicant and, secondly, whether the above-mentioned report contained data concerning the applicant's private life.   44.   As regards the first issue, the Commission recalls that, according to the Court, in cases, as the present one, where applicants complain about specific measures of surveillance falling outside the law, it must be established that there is a reasonable likelihood that such measures were applied to them (Eur. Court HR, Halford v. the United Kingdom judgment of 25 June 1997, to be published in Reports of Judgments and Decisions 1997, para. 57).   45.   The Commission has in this connection had regard to the two reports published in the Greek press on 4 August 1993 and to the statement issued by the Prime Minister on 11 August 1993, from which it transpires that a branch of the National Intelligence Service was compiling information about a number of minority religious groups, such as that of the Jehovah's Witnesses. It has also taken into consideration the form - e.g. type of typewriter used   and style - and the content - e.g. reference to the "execution of an order" and to the "record office of a department" - of the report of 7 March 1993, in which the applicant is specifically mentioned. Moreover, it notes that, although the Government claim not to know its author, this report was initially relied on by the public prosecutor to institute criminal proceedings against the applicant. In these circumstances, the Commission is satisfied that the report of 7 March 1993 was compiled by a State authority and, in any event, there is at least a "reasonable likelihood" that this was so.   46.   As regards the second of the two issues identified above, namely, whether the report of 7 March 1993 contained information about the applicant's private life, the Commission recalls that, according to the Court, it would be too restrictive to limit the notion of private life in Article 8 para. 1 (Art. 8-1) of the Convention to an "inner circle" in which the individual may live his own personal life as he chooses and to exclude therefrom entirely the outside world not encompassed within that circle (Eur. Court HR, Niemietz v. Germany judgment of 16 December 1992, Series A no. 251, p. 33, para. 29).   47.   In the view of the Commission, it follows that the fact that an activity of an individual occurs in a public place or is not intended to be kept secret does not necessarily make such an activity a matter outside the notion of private life in Article 8 para. 1 (Art. 8-1) of the Convention (see, mutatis mutandis, Friedl v. Austria, Comm. Report 19.5.94, paras. 50 and 51, Eur. Court HR, Series A no. 305, p. 21). Whether such an activity falls within the concept of private life or not must be judged on the basis of the nature of the activity itself. Thus, while Article 8 para. 1 (Art. 8-1) of the Convention might not protect public appearances of well-known figures which are intended to attract attention, the right to respect for private life would be interfered with if State agents were to follow the personal activities which an individual conducts in the open, record them and/or keep all relevant information.   48.   The Commission notes that the report of 7 March 1993 contained a collection of information about the applicant's personal life, such as his religious beliefs, his position within a religious movement, premises over which he exercised control and the activities therein. The Commission considers that there can be no doubt that the collection of this information was the result of an organised operation of surveillance - "watching" - of the applicant's life mounted by a State authority. It follows that there was an interference with the applicant's right to respect for his private life.   49.   According to the Convention, such an interference is contrary to Article 8 (Art. 8-2) unless it is "in accordance with the law", directed at one or more of the legitimate aims set out in paragraph 2 and is "necessary in a democratic society" for achieving them. However, the Government accept that it is not within the competence of the National Intelligence Service to subject persons to surveillance because of their religious beliefs. Moreover, although the report contained information about the meeting place of a religious community and although operating a place of worship without a permit from the competent Minister is a criminal offence under domestic law, it has not been alleged that this report was compiled by the police force in the exercise of their crime investigation powers. It follows that the interference was not "in accordance with the law" and, as a result, it cannot be justified under the second paragraph of Article 8 (Art. 8) of the Convention.        CONCLUSION   50.   The Commission concludes, by 13 votes to 4, that in the present case there has been a violation of Article 8 (Art. 8) of the Convention.   D.    As regards Article 9 (Art. 9) of the Convention   51.   Article 9 (Art. 9) of the Convention provides as follows:        "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."   52.   The applicant submits that he was subjected to surveillance because of his religious beliefs. This amounts to harassment and an interference with the right to hold and manifest these beliefs. Moreover, the report of 7 March 1993 was used to institute criminal proceedings against him and domestic law on surveillance does not provide any safeguards against abuses.   53.   The Government reiterate the submissions they have made under Article 8 (Art. 8) of the Convention.   54.   The Commission has reached the conclusion that there has been no violation of Article 9 (Art. 9) of the Convention. It expresses this opinion by nine votes to eight. However, the majority of nine members is divided as to the reasoning.        (a)   Opinion of Mr M.P. Pellonpää, Mr E. Busuttil,           Mr A. Weitzel, Mr B. Marxer, Mr N. Bratza and           Mr M. Vila Amigó   55.    These members note that the Commission has found that the collection and retention of the information contained in the report of 7 March 1993 amounts to a violation of Article 8 (Art. 8) of the Convention. They also note that underlying the Commission's position concerning the applicant's complaints under Article 8 (Art. 8) is the view that the right to respect for private life includes the right to hold and practise religious beliefs (see para. 48). As a result, these members consider that no separate issue arises under Article 9 (Art. 9) of the Convention.        (b)   Opinion of Mr B. Conforti, Mr C. Bîrsan and Mr K. Herndl   56.   These members consider that, as Article 8 (Art. 8) of the Convention in their view has not been violated, a fortiori there has been no violation of Article 9 (Art. 9) of the Convention either.        CONCLUSION   57.   The Commission concludes, by 9 votes to 8, that in the present case there has been no violation of Article 9 (Art. 9) of the Convention.   E.    As regards Article 11 (Art. 11) of the Convention   58.   Article 11 (Art. 11) of the Convention provides as follows:        "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."   59.   The applicant submits that the authorities, by subjecting to surveillance the gatherings of the members of the church of Jehovah's Witnesses and the premises which he had rented for these purposes, violated his right to freedom of association. Moreover, the use of the information contained in the report of 7 March 1993 to institute criminal proceedings against him also amounts to a violation of Article 11 (Art. 11) of the Convention. The Government reiterate the submissions they have made under Article 8 (Art. 8) of the Convention.   60.    The Commission has found that the collection and retention of the information contained in the report of 7 March 1993 amounts to a violation of Article 8 (Art. 8) of the Convention. As a result, it considers that no separate issue arises under Article 11 (Art. 11) of the Convention.        CONCLUSION   61.   The Commission concludes, by 14 votes to 3, that in the present case no separate issue arises under Article 11 (Art. 11) of the Convention.   F.    As regards Article 14 of the Convention taken in conjunction with      Articles 8, 9 and 11 (Art. 14+8, 14+9, 14+11)   62.   Article 14 (Art. 14) of the Convention provides as follows:        "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."   63.   The applicant submits that he was singled out for surveillance because of his religious beliefs. The Government reiterate the submissions they have made under Article 8 (Art. 8) of the Convention.   64.    The Commission has found that the collection and retention of the information contained in the report of 7 March 1993 amounts to a violation of Article 8 (Art. 8) of the Convention. As a result, it considers that it is not necessary also to examine wether there has been a violation of Article 14 of the Convention taken in conjunction with this provision or Article 9 or Article 11 (Art. 14+8, 14+9, 14+11).        CONCLUSION   65.   The Commission concludes, unanimously, that in the present case it is not necessary also to examine whether there has been a violation of Article 14 of the Convention taken in conjunction with Articles 8, 9 and 11 (Art. 14+8, 14+9, 14+11).   G.    Recapitulation   66.   The Commission concludes, by 13 votes to 4, that in the present case there has been a violation of Article 8 (Art. 8) of the Convention (para. 50).   67.   The Commission concludes, by 9 votes to 8, that in the present case there has been no violation of Article 9 (Art. 9) of the Convention (para. 57).   68.   The Commission concludes, by 14 votes to 3, that in the present case no separate issue arises under Article 11 (Art. 11) of the Convention (para. 61).   69.   The Commission concludes, unanimously, that in the present case it is not necessary to examine whether there has been a violation of Article 14 of the Convention taken in conjunction with Articles 8, 9 and 11 (Art. 14+8, 14+9, 14+11) (para. 65).        M.F. BUQUICCHIO                          J. LIDDY         Secretary                             President    to the First Chamber                  of the First Chamber                                                    (Or. English)            PARTLY CONCURRING, MOSTLY DISSENTING OPINION           OF MM K. HERNDL, B. CONFORTI AND C. BÎRSAN        We regret that we cannot concur with the opinion of the majority to the effect that in the present case there has been a violation of Article 8 and that no separate issue arises under Article 11 of the Convention. Our legal assessment of the situation, following our reading of the facts, leads to the conclusion that neither of these provisions has been violated.        The following is a comprehensive presentation of how we look at the case as a whole.   1.    No violation of Article 8        The point of departure must be - and this is common ground - that whenever it is alleged that measures of surveillance are actually applied (by State authorities), in particular when such measures fall outside the law, the Convention organs must be satisfied that there is a reasonable likelihood that such measures were indeed applied (Eur. Court HR, Halford v. the United Kingdom judgment of 25 June 1997, para. 57).        The majority consider themselves "satisfied that the report of 7 March 1993" (hereinafter called the "report", ie. the sheet which was found in the court file concerning the applicant) "was compiled by a State authority".   The majority however soften their position subsequently by adding "and in any event there is at least 'a reasonable likelihood' that this was so" (para. 43).        The majority further consider "that there can be no doubt that the collection of this information was the result of an organised operation of surveillance - 'watching' - of the applicant's life mounted by a State authority" (para. 46).        These statements have to be contrasted with the repeated insistence of the defendant government in their observations that the applicant was never subjected to surveillance by the National Intelligence Service.   The Head of that service formally declared that such had never been the case and so informed the Court of Kilkis.        The origin of the "report", unsigned and unmarked as it was, remaining entirely unclear, we are not convinced that there are sufficient, or even appropriate, elements to conclude that there was indeed any State involvement in the "report's" compilation and drafting. There is even less reason to speak of an "organised operation of surveillance".   In this connection one ought not to lose sight of the fact that most, if not all, of the details mentioned in the "report" were more or less public knowledge.   Would any "organised operation of surveillance of the applicant's life" lead to nothing else but a meagre compilation of publicly known facts?        But even assuming that the "report" had been drafted by some public authority, we believe that there could have been no violation of the applicant's right to respect for his private l