CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 25 février 2025

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Marioli, President of the State Legal Council, their Agent’s delegates, Ms S. Trekli, Senior Adviser at the State Legal Council, Ms S. Charitaki, Legal Counsellor of the State and Ms A. Magrippi, Law Officer at the State Legal Council; the decision to give priority (Rule 41 of the Rules of Court) to application no.   52104/20; the observations submitted by the respondent Government and the observations in reply submitted by the applicants; the comments submitted by Alliance Defending Freedom International (“ADF International”) and the European Centre for Law and Justice (“ECLJ”), who were granted leave to intervene in application no. 52104/20 by the President of the Section; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1.     The cases concern the applicants’ complaints of the right of access to a court on account of the domestic courts’ failure to review on time their applications for annulment of the temporary prohibition of operation of churches and in-person schooling, measures adopted by the Greek Government to counter the spread of the coronavirus disease (“COVID ‑ 19”). It also concerns the applicant association’s complaint in application no.   52104/20 of a violation of freedom of religion. Background information 2.     As of 2020 a series of measures were adopted by the Greek government to counter COVID-19 following proposals of the “Committee to Tackle Emergency Public Health Hazards due to Infectious Diseases” and the “National Committee of Protection of Public Health against COVID-19” (hereinafter “the National Committee”). The measures were reviewed at regular intervals based on up-to-date epidemiological data. 3 .     By Article 1 §§ 1 and 2(f) of a Legislative Act issued on 25   February 2020 and ratified by Law no. 4682/2020, it was provided that measures of prevention, health monitoring and containment could include the “temporary prohibition of the operation of schools and any type of educational institutions ... [and of] places of religious worship ...”. 4 .     Ιt was also provided that the competent authorities should choose less restrictive measures, under the principle of proportionality. The measures were to be imposed by a decision of the Minister of Education and Religious Affairs and the Minister of Health following consultation with the National Committee. The ministerial decision should state the public health reason which justified the measure and its duration; extension was to be decided by a similar procedure (Article 1 § 4). Those affected by the individual measures could challenge it before the president of the competent administrative court (Article 1 § 5). Application no. 52104/20 5.     The applicant is an association which promotes Orthodox Christianity. 6.     On 12 March 2020 the European Centre for Disease Prevention and Control stated in the sixth update of rapid risk assessment that events and locations which involved social interaction or institutional contact had been linked to the development of COVID-19 clusters, including religious events. On 15 March 2020 the representative of the Greek Minister of Public Health announced that there were in total 331 patients, out of those 51 were hospitalised, eight were intubated and four had died. 7 .     By Ministerial Decision no. 2867/Y1 published on 16 March 2020, and while a lockdown was imposed, religious events and services of any religion in any place of worship were prohibited from 16 March to 30 March 2020, except those which were broadcast only with the necessary staff present. Τhe measure was introduced following a proposal by the National Committee “for reasons of precaution relating to the protection of public health”. Visiting places of worship to pray alone or with a limited number of persons for a short time and with a limited number of persons and social distancing, as well as funeral services with very close relatives, were allowed. Ministerial Decision no. 21285 published on 29 March 2020 extended the application of Decision no. 2867/Y1 until 11 April 2020 upon a proposal of the National Committee based on the latest data and while 90 countries were in lockdown. 8 .     On 30 March 2020 the applicant association, together with other litigants, lodged before the Supreme Administrative Court (“SAC”) an application for annulment of Ministerial Decisions nos.   2867/Y1 and 21285 and of any relevant decision which extended their validity. It argued that the impugned measures, which were extended, prohibited religious services and excluded the participation of believers. They did not comply with the principle of proportionality and were not based on reliable scientific data. They claimed that the decisions did not specify why collective worship was considered to increase the transmission of the virus; they suggested that the attendance of services could be allowed with some precautionary measures. As regards its locus standi , it stated that this resulted from the aims of the association provided in its statute, i.e. “to spiritually uplift its members and shape them into Christians...” and “to respond... to all types of antichristian events and bring the Orthodox Church and way of personal, family and social life to the fore...”. 9 .     The applicant association requested suspension of the aforementioned ministerial decisions for the duration of the annulment procedure. This included a request for a provisional order until the delivery of a decision on suspension, since the measures’ “moral damage was manifest and irreparable as ... the essence of the right to freedom of religion was impaired”. 10 .     On 6 April 2020, upon proposals of the National Committee, by Ministerial Decision no. 23093 further prohibition of services was imposed from 12 April until 28 April and then until 3 May 2020. Then, by Ministerial Decision no . 27807 of 2 May 2020, a similar prohibition was imposed until 16   May 2020. 11 .     Religious services were finally allowed under precautionary measures such as the maximum number of persons allowed, the use of sanitizers and masks, by Ministerial Decision no. 29519 of 12 May 2020, from 17 May to 5   June 2020. 12.     On 30 March, 2 April and 7 April 2020 the Holy Synod of the Church of Greece issued circulars acknowledging the gravity of the situation and encouraging Christians to rigorously comply with the health measures while it also made specific arrangements for the Easter period (Easter Sunday of 19   April 2020). 13 .     From 12 March to 27 April 2020 the operation of courts was suspended. They could examine, among others, requests to issue provisional orders and very urgent requests for suspension. From 28 April to 1 June 2020 the SAC could hear cases by written procedure without the presence of the parties. The courts resumed operation on 1 June 2020. 14 .     On 7 April 2020 the Section President of the SAC appointed a rapporteur for the case and scheduled it for a hearing on 26 May 2020. He also ordered the communication of the request for suspension to the administrative authorities requesting them to submit their observations within a shortened time-limit of five days from the communication, instead of the ordinary time-limit of twenty days (Article 52 § 3 in conjunction with Article   21 § 1 of Presidential Decree no. 18/1989). On 8 April 2020 the applicant association notified the authorities of the request for suspension. On 11   April 2020 Ministerial Decision no. 21285, which had prolonged the validity of decision no.   2867/Y1, expired. 15 .     On 6 May 2020 the applicant association by its additional grounds to the application for annulment also requested the annulment of Ministerial Decision no. 27807 (see paragraph 10 above) together with the two initially impugned ones. On 14 May 2020 it requested that, in accordance with Article   32 § 2 of Presidential Decree no. 18/1989, the examination be continued in respect of all impugned ministerial decisions (nos. 2867/Y1, 21285, 27807) which had in the meantime expired or would expire before the hearing of the case as it had “special legitimate interest” for that. This consisted of the moral damage due to isolation from the collective worship which could be remedied only by the decisions’ formal annulment and not by any compensation. The short period of validity of the decisions impaired the essence of the constitutional right to freedom of religion. It also requested the continuation of the examination of the challenge as regards Ministerial Decision no. 29519 which was still in force arguing that it was substantially the same as those which had expired. 16 .     On 26 May the SAC held a hearing and deliberated on 3   June 2020. On 23 June 2020 it delivered judgment no.   1294/2020 which was made available to the parties on 1 July 2020. 17 .     The SAC noted that, in accordance with Article 32 § 2 of Presidential Decree no. 18/1989, the proceedings for annulment were to be discontinued since by the first hearing of the case the contested decision was no longer valid, and the applicant failed to establish a “special legitimate interest” which could justify their continuation. The SAC held that the provision was in compliance with Article 6 § 1 of the Convention which guaranteed effective judicial protection and not resolution of legal questions for consultative purposes; preventing of future administrative acts with the same content, which could be independently contested before the competent courts, could not be considered a special legitimate interest. Pecuniary or non-pecuniary damages could also not be considered to constitute special interest as they could be sought separately before the competent courts, which would rule incidentally on the lawfulness of the act that had allegedly caused the damage. It considered that the contested decisions were regulatory acts ( κανονιστικές πράξεις ) not entailing moral condemnation ( ηθική απαξία ) of the litigants, any alleged moral damage could be compensated by a relevant action and concluded that the trial should be discontinued because the impugned acts were no longer valid. As regards Ministerial Decision no.   29519, it held that it was substantially different from the previous ones as it allowed the operation of religious places under certain conditions. 18.     Relying on Article 6 § 1 of the Convention, the applicant association complained that the SAC failed to examine on time its application for annulment, and discontinued the proceedings; it did not also adjudicate on its requests for suspension and for a provisional order. It further complained under Articles 9, 13 and 15 of the Convention of a lack of an effective remedy for the protection of collective worship. Application no. 51020/22 19.     The applicants are parents of nursery and primary school students. 20 .     By different ministerial decisions in-person schooling was suspended and the measure was prolonged several times. In particular, the operation of schools was first suspended from 11 until 24 March 2020 and then until 1   June 2020 when schools reopened. On 7 November in-person education was again suspended until 30 November 2020. The suspension was extended until 7 December, 14 December and then until 7 January 2021. During the suspension a system of distance learning was introduced. Schools operated again from 11 January until 10 February 2021. In-person education was suspended again and following several extensions the measure remained in force until 12 April 2021. 21 .     Οn 16 April 2021 Ministerial Decision no. 24489 introduced “Urgent measures for the protection of public health from the risk of further spread of COVID-19 throughout the territory from Monday 19 April 2021 at 6:00 a.m. until Monday 26 April 2021 at 6:00 a.m.”. It suspended in-person schooling at primary and secondary schools and at all educational structures. 22 .     On 21 April 2021 the applicants lodged, in their own names and on behalf of their children, an application before the SAC for annulment of the ministerial decision, in so far as it suspended in-person education at primary and secondary schools, claiming its negative impact on their children’s physical and mental health. They argued that it was contrary to the Constitution, to Article 8 of the Convention, Article 2 of Protocol No. 1 to the Convention and other provisions. They further argued that the decision lacked reasoning as it failed to substantiate the necessity of the measures and the impossibility to adopt less stringent ones. 23.     On the same date they filed a request for the acceleration of proceedings. They argued that the impugned decision was of limited duration, issued in view of the urgent character of the pandemic, and if their application for annulment was not examined as priority, judicial protection would be ineffective. 24 .     On 10 May 2021 in-person education at schools was allowed under sanitary measures such as self-tests and the use of masks. 25 .     The case was heard on 15 June 2021 when the applicants submitted that, despite the fact that the impugned decision had expired, they had a special legitimate interest which justified the continuation of proceedings. By their additional observations submitted on 22 June 2021 after the hearing, they argued that even if the decision was not renewed, their special legitimate interest consisted in preventing the adverse future effects of it and the issuance of another decision with the same content in the near future. They claimed that owning to the issuance of decisions of limited duration introducing measures against the spread of the pandemic, if they lodged another application for annulment the trial would probably be discontinued. The right of timely and effective judicial protection was therefore hindered. They also claimed that the health of their children was threatened and this could not be subject to judicial control through a request for suspension of the measures. According to them, relevant procedural rules should be adopted which would allow timely judicial review of the measures. They also noted that the nature of the impugned decision called for the speedy examination of their application for annulment invoking the judgment Frezadou v.   Greece (no.   2683/12, § 45, 8 November 2018). 26 .     On 24 June 2021 the SAC deliberated. On 9 November 2021 judgment no.   1904/2021 was delivered and on 29 June 2022 the applicants could receive an official copy of it. The SAC held that Article 32 § 2 of Presidential Decree no. 18/1989 (see paragraph 17 above), which applied also in case of regulatory acts, aimed at avoiding unnecessary trials. The proceedings could have continued if the litigant had invoked and substantiated that there were adverse administrative effects created during the time of the validity of the act and continuing after it stopped being valid and sought to have these effects removed through the annulment of the act. Provided that no moral condemnation was attributed to the litigants, pecuniary or non-pecuniary damage could not be considered to constitute an adverse administrative effect as this could be sought before the competent courts, which would rule incidentally on the lawfulness of the act which allegedly had caused the damage. Preventing the issuance in the future of administrative acts with the same content, which could in any event be contested before the courts, could not be considered a special legitimate interest. 27 .     The SAC discontinued the proceedings holding that the application for annulment was devoid of purpose as by the time of the hearing the impugned act was no longer in force and Ministerial Decision no.   28503 (7   May 2021) reinstated in-person schooling from 10 May 2021 until the end of the school year. Lastly, it rejected the applicants’ arguments relating to the damage of their children’s physical and mental health due to the implementation of the impugned act and of previous similar acts, as well as the alleged restriction of the right to judicial protection owning to the limited duration of the impugned act. On that point it held that these arguments could not establish a special legitimate interest for the continuation of the trial as they did not concern adverse administrative effects of the impugned regulatory act and its implementation. 28.     Relying on Article 6 § 1 of the Convention, the applicants complained that the SAC failed to examine on the merits their application for annulment during the time of validity of the contested decision despite their request and of the lack of an effective remedy. They further complained that the court showed excessive formalism in holding that they lacked special legitimate interest in pursuing their application. THE COURT’S ASSESSMENT 29.     Having regard to the same subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision. 30.     The Government raised a non-exhaustion objection in both applications. In application no. 52104/20 it further submitted that the applicant association was not a “victim” of the alleged violations and that the results of the proceedings had not been directly decisive for its rights under Article   9 of the Convention. The applicants contested these objections. The Court does not consider it necessary to examine them as the applications are in any event inadmissible for the reasons stated below. Alleged violation of Article 6 § 1 31.     The relevant general principles on access to a court were summarised in Zubac v. Croatia ([GC], no. 40160/12, §§ 76-79 and 96-99, 5 April 2018). 32.     The relevant principles on the protection afforded by Article 6 § 1 of the Convention in case of a delay in examining an application with the result that the proceedings are terminated on the grounds that the contested decision had expired and there is no “special legitimate interest” in pursuing the application, have been summarised in Frezadou v. Greece (no. 2683/12, §§   44 ‑ 47, 8 November 2018). The unjustified absence of a decision by the trial court for a particularly prolonged period may inevitably amount to a denial of justice; the remedy exercised by the person concerned may be deprived of all its effectiveness when the court concerned fails to settle the dispute in due time, as required by the circumstances and the issue of each particular case (see Vassilios Athanasiou and Others v. Greece , no. 50973/08, §   52, 21 December 2010). 33.     The Court reiterates that its task is not to review the relevant law and practice   in abstracto , but to determine whether or not the manner in which they were applied to, or affected the applicant, gave rise to a violation of the Convention (see, among other authorities, Roman Zakharov v. Russia [GC], no.   47143/06, § 164, ECHR 2015). 34 .     The restriction to the applicants’ right of access to court in the present case resulted from the SAC’s discontinuation of the proceedings on the grounds that the contested decisions were no longer valid, and its findings that the applicants failed to establish a special legitimate interest for their continuation. The restriction was lawful and pursued the legitimate aim of proper administration of justice. 35.     As regards proportionality, the measures of prohibition of religious services and in-person schooling were imposed and prolonged by different ministerial decisions (see in detail paragraphs 7, 10 and 20, 21 above). The Court cannot but note as well that the relevant measures had to be taken for the protection of public health at regular intervals based on an assessment of the up-to-date data. They were issued under a legal framework which required a proposal of the National Committee and proportionality assessments (see paragraph   4 above). These measures were taken within a very specific context of a public health emergency surrounding a global pandemic (compare Fenech v.   Malta (dec.) no. 19090/20, § 96, 23 March 2021). Their purpose was to isolate the entire population in response to what the competent national authorities had judged to be a serious and urgent public health situation capable of having very serious consequences not just for health but for society, the economy, the functioning of the State and life in general (see Terheş v.   Romania (dec.), no. 49933/20, §§ 39-40, 13 April 2021). 36.     The applicants introduced their applications for annulment and additional grounds against certain ministerial decisions, mere days before their expiration. That meant that in practice the SAC had a very limited number of working days during which it could have heard the cases while the contested decisions were still valid: in application no. 52104/20, nine (30   March-11   April 2020) and seven (6-16 May 2020) respectively (see paragraphs 7-8 and 10, 15 above), and three (21-26 April 2021) in application no. 51020/22 (see paragraphs 21-22 above). 37.     The SAC initiated the necessary procedural steps without delay, namely appointed the rapporteur in one week (see paragraph 14 above) and scheduled hearings within less than two months after the applications for annulment were lodged (see paragraphs 8, 14 and 22, 25 above). No   adjournments ever took place and the cases were heard on the dates foreseen (see paragraphs 16 and 25 above). The Court takes note of the applicants’ arguments relating to the need for the acceleration of proceedings in view of the limited duration of the contested acts. However, there was no delay in the examination of the applications and, in any event, it seemed unlikely that the necessary procedural steps could be completed and the cases heard by the SAC before the impugned decisions expired. Moreover, the religious services and in-person schooling were reinstated shortly after the lodging of the applications, even if under preventive sanitary measures (see paragraphs   11 and 24 above). 38.     The applicants argued before the SAC that they had a special legitimate interest in the continuation of the proceedings despite the fact that the contested decisions had expired. In application no. 52104/20 they relied on the alleged moral damage which could be remedied only by the annulment of the decisions and in application no. 51020/22 on the need to prevent the issuance of similar decisions in the future. In both applications they raised arguments about the need to ensure judicial protection in relation to the short period of validity of the decisions (see paragraphs 15 and 25 above). 39.     The SAC considered the applicants’ arguments and held with extensive reasoning based on its standard case-law that they did not have any special legitimate interest under Article 32 § 2 of Presidential Decree no.   18/1989 in pursuing their application after the expiry of the impugned acts (see paragraphs 17, 26 and 27 above). As it results from the SAC’s judgments, the proceedings could have continued if there were continuous adverse effects and in order to have these effects removed through annulment, which the applicants failed to establish. As for the damage suffered, as this was described by the applicants, it was open to them to seek compensation before the competent courts. These findings were not arbitrary or manifestly unreasonable and did not restrict the right of access in such a way that the very essence of the right was impaired. Nor it can be said that they amounted to excessive formalism involving an unreasonable or particularly strict application of procedural rules. 40.     Having regard to the foregoing and in particular: (i) the need to introduce measures valid for short periods of time for the protection of public health and based on up-to-date assessments of epidemiological data, (ii) the very limited number of working days that the SAC had to adjudicate while the contested decisions remained valid, combined with the absence of any factors which would indicate that there where periods of inactivity on the part of the authorities, and (iii) the reasoning of the SAC supporting that the applicants failed to establish a special legitimate interest for the continuation of the trial, the Court cannot find that the SAC evaded its obligation to provide an answer concerning the legality of the contested acts and unduly restricted the applicants’ right of access to a court as guaranteed under Article 6 § 1 of the Convention (see Sailing Club of Chalkidiki “I Kelyfos” v. Greece , nos.   6978/18 and 8547/18, §§ 65-72, 21 November 2019; compare and contrast with Frezadou , cited above, § 49). 41.     The same holds true in respect of the applicants’ request for interim measures in application no. 52104/20. The SAC failed to reply to it and the impugned decision expired on 11 April 2020 (see paragraphs 7-9 above). The Court notes however that the Section President did not remain inactive (see paragraph 14 above), that the SAC had only nine working days to hear the request and that during that period, although the courts could examine requests for interim measures, their operation was generally suspended and they functioned in the peculiar context of the early stages of the pandemic (see paragraph 13 above). Assessing the proceedings as a whole, and the SAC’s decision on the relevant application for annulment, it cannot be said that the applicant was denied access to court. 42.     The complaint is therefore manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. Alleged violation of Article 9 (application no. 52104/20) 43.     Relying on Articles 9, 13 and 15 of the Convention, the applicant association complained of the lack of an effective remedy for the protection of freedom of collective worship during the period of urgent measures without a declaration of a state of emergency, owning to the failure of the domestic courts to examine on time its application to annul the contested measures. 44.     Being the master of characterisation to be given in law to the facts of the case (see   Radomilja and others v. Croatia   [GC], nos. 37685/10 and 22768/12, § 126, 20   March 2018), the Court finds it appropriate to examine the applicant association’s complaint under Article 9 of the Convention, 45.     The third-party interveners focused their comments on the requirement of proportionality of the restrictions on the right to manifest religion in community. ADF International underlined the need for strict scrutiny by the Court in the proportionality assessment and on whether less restrictive measures were available. ECLJ submitted that freedom to manifest one’s religion can be subject to limitations if those are not general and absolute and in accordance with the principle of proportionality. They must be limited in time, based on scientific data and the specific circumstances of the case, while the necessity of the measures should be constantly assessed. 46.     In addition to the primarily negative undertaking by the State to abstain from any interference with the rights guaranteed by the Convention, there “may be positive obligations inherent” in such rights. While the boundaries between the State’s positive and negative obligations under the Convention do not lend themselves to precise definition, the applicable principles are nonetheless similar. In the present case the Court considers that it is not necessary to examine whether Article 9 also imposed positive obligations on the Greek authorities (see   İzzettin Doğan and Others v.   Turkey [GC], no. 62649/10, §§ 96-97, 26   April 2016). 47.     The non-examination by the SAC of the substance of the applicant association’s application to annul the measures of prohibition of religious services can be construed as a restriction of the right to manifest one’s religion in community with others under Article 9 of the Convention. The interference in question was prescribed by law and pursued a legitimate aim (see paragraph 34 above).   For the reasons   stated above in respect of Article   6   §   1 it was not disproportionate to the legitimate aim pursued. In view of all the circumstances of the case, it did not constitute an unjustified interference with the applicant association’s right to practice religion. 48.     The complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. For these reasons, the Court, unanimously, Decides to join the applications; Declares the applications inadmissible. Done in English and notified in writing on 20 March 2025.     Olga Chernishova   Peeter Roosma   Deputy Registrar   President   Appendix List of cases: No. Application no. Case name Lodged on Applicant Year of Birth Place of Residence Nationality Represented by 1. 52104/20 Association of orthodox ecclesiastical obedience v. Greece 17/11/2020 ENOTIS ORTHODOXOU EKKLISIASTIKIS YPAKOIS Athènes Greek Marina BALTATZI 2. 51020/22 Loli and Others v. Greece 27/10/2022 Marina LOLI 1985 Gerakas Attikis Greek Lamprini DEMOU 1980 Athens Greek Anna GLYMIDAKI 1977 Cholargos Greek Eleni KARACHALIOU 1978 Chalandri Greek Konstantinos KRONTIRIS 1976 Chalandri Greek   Vasilios KRONTIRIS 2014 Chalandri Greek Vagia Maria KYRZIDI 2014 Chalandri Greek Michail KYRZIDIS 1977 Chalandri Greek Evaggelia LEMPESI 1983 Chalandri Greek Christos LIAPATIS 1976 Gerakas Greek Odysseas LIAPATIS 2015 Gerakas Greek Ioanna MAKRAKI 1978 Chalandri Greek Charis MITROPOULOS 2014 Cholargos Greek Vasilios MITROPOULOS 1977 Cholargos Greek Lygia MITROPOULOU 2017 Cholargos Greek Frideriki PANA 2011 Acharnai Greek Aristidis PANAS 2009 Acharnai Greek Doukas PANAS 1978 Acharnai Greek Ismini PANTZALI 2014 Chalandri Greek Zoi PANTZALI 2016 Chalandri Greek Symeon PANTZALIS 1981 Chalandri Greek Athanasios THIRIOS 1980 Athens Greek Alkyoni Christina THIRIOU 2016 Athens Greek Stavroula Petrina THIRIOU 2014 Athens Greek Christina TSAROUCHI 1976 Athens Greek Spyridon TSAROUCHIS 2015 Athens Greek Panagiota TZIVELOU 1977 Acharnai Greek Fotios PALAMIOTIS