ПОСТАНОВЛЕНИЕ Европейского суда по правам человека от 26.09.1996"МАНУССАКИС (manoussakis) И ДРУГИЕ ПРОТИВ ГРЕЦИИ" [рус.(извлечение), англ.]

Convention (art. 9), which do not in any way prohibit investigations of this type; the purpose of such investigations is moreover merely to ensure that the statutory conditions necessary to grant authorisation are met; if these conditions are met, the Minister is obliged to grant the requested authorisation."
18. According to the dissenting opinion of one of its members, the Court of Cassation ought to have quashed the impugned judgment since the applicants could not be accused of a punishable offence as section 1 of the Law was contrary to Article 13 of the 1975 Constitution.
19. On 20 September 1993 the Heraklion police placed seals on the front door of the room rented by the applicants.
II. Relevant domestic law
A. The Constitution
20. The relevant Articles of the 1975 Constitution read as follows:
Article 3
"1. The dominant religion in Greece is that of the Christian Eastern Orthodox Church. The Greek Orthodox Church, which recognises as its head Our Lord Jesus Christ, is indissolubly united, doctrinally, with the Great Church of Constantinople and with any other Christian Church in communion with it (omodoxi), immutably observing, like the other Churches, the holy apostolic and synodical canons and the holy traditions. It is autocephalous and is administered by the Holy Synod, composed of all the bishops in office, and by the standing Holy Synod, which is an emanation of it constituted as laid down in the Charter of the Church and in accordance with the provisions of the Patriarchal Tome of 29 June 1850 and the Synodical Act of 4 September 1928.
2. The ecclesiastical regime in certain regions of the State shall not be deemed contrary to the provisions of the foregoing paragraph.
3. The text of the Holy Scriptures is unalterable. No official translation into any other form of language may be made without the prior consent of the autocephalous Greek Church and the Great Christian Church at Constantinople."
Article 13
"1. Freedom of conscience in religious matters is inviolable. The enjoyment of personal and political rights shall not depend on an individual"s religious beliefs.
2. There shall be freedom to practise any known religion; individuals shall be free to perform their rites of worship without hindrance and under the protection of the law. The performance of rites of worship must not prejudice public order or public morals. Proselytism is prohibited.
3. The ministers of all known religions shall be subject to the same supervision by the State and to the same obligations to it as those of the dominant religion.
4. No one may be exempted from discharging his obligations to the State or refuse to comply with the law by reason of his religious convictions.
5. No oath may be required other than under a law which also determines the form of it."
B. Law no. 1363/1938
21. Section 1 of Law no. 1363/1938 (as amended by Law no. 1672/1939) provides:
"The construction and operation of temples of any denomination whatsoever shall be subject to authorisation by the recognized ecclesiastical authority and the Ministry of Education and Religious Affairs. This authorisation shall be granted on the terms and conditions specified by royal decree to be adopted on a proposal by the Minister of Education and Religious Affairs.
As of publication of the royal decree referred to in the preceding paragraph, temples or other places of worship which are set up or operated without complying with the decree ... shall be closed and placed under seal by the police and use thereof shall be prohibited; persons who have set up or operated such places of worship shall be fined 50,000 drachmas and sentenced to a non-convertible term of between two and six months" imprisonment.
...
The term "temple" as referred to in this Law ... shall mean any type of building open to the public for the purpose of divine worship (parish or otherwise, chapels and altars)."
22. The Court of Cassation has held that the expression "place of worship" within the meaning of these provisions refers to a "temple of a relatively small size, established in a private building and intended to be used for divine worship by a limited circle of persons as opposed to a building open to the public for the worship of God by everyone without distinction. By operation of a temple or a place of worship under the same provisions is meant the actions by which the temple or place of worship are made accessible to others for the purpose of worshipping God" (judgment no. 1107/1985, Pinika Khronika, vol. 56, 1986).
C. The royal decree of 20 May/2 June 1939
23. Section 1 (3) of the royal decree of 20 May/2 June 1939 provides that it is for the Minister of Education and Religious Affairs to verify whether there are "essential reasons" warranting the authorisation to build or operate a place of worship. To this end the persons concerned must submit through their priest an application giving their addresses and bearing their signatures certified by the mayor or the chairman of the district council of their place of residence. More specifically, section 1 of the decree 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 ..."
D. Case-law
24. The Government communicated to the Court a series of judgments by the Supreme Administrative Court concerning the authorisation to construct or operate temples or places of worship.
It appears from these judgments that the Supreme Administrative Court has on several occasions quashed decisions of the Minister of Education and Religious Affairs refusing such authorisation on the ground that Jehovah"s Witnesses in general engaged in proselytism (judgment no. 2484/1980); or that some of those seeking the authorisation had been prosecuted for proselytism (judgment no. 4260/1985); or again because there was an Orthodox church close to the proposed place of worship (4km in the same town) (judgment no. 4636/1977) and the limited number of Jehovah"s Witnesses (8) compared to the total population (938) (judgment no. 381/1980).
25. The Supreme Administrative Court has also held that the requirement that the signatures be certified by the relevant municipal authority (royal decree of 20 May/2 June 1939 - see paragraph 23 above) does not constitute a restriction on the right to freedom of religion guaranteed under the Greek Constitution and the European Convention (judgment no. 4305/1986). On the other hand, failure to comply with that requirement justifies a refusal to grant the authorisation (judgment no. 1211/1986). Finally the silence of the Minister of Education and Religious Affairs for more than three months following the lodging of an application constitutes failure on the part of the authorities to give a decision as required by law and amounts to an implied rejection, which may be challenged by an application for judicial review (judgment no. 3456/1985).
Authorisation by the local Metropolitan is required only for the construction or operation of temples and not for other places of worship.
26. In its judgment (no. 721/1969) of 4 February 1969 the Supreme Administrative Court sitting in plenary session stated that Article 13 of the Constitution did not preclude prior verification by the administrative authorities that the conditions laid down by that Article for the practice of a faith were satisfied. However, that verification is of a purely declaratory nature. The grant of the authorisation may not be withheld where those conditions are satisfied and the authorities have no discretionary power in this respect. The prior authorisation of the local Metropolitan for the construction of a temple (see paragraph 25 above) is not an "enforceable administrative decision", but a "preliminary finding" by a representative of the dominant religion who is familiar with the true position regarding religious practice in the locality. The decision rests with the Minister of Education and Religious Affairs who may decide to disregard the Metropolitan"s assessment if he considers that it is not supported by reasons in conformity with the law.
The Supreme Administrative Court subsequently confirmed this case-law holding, inter alia, that the "authorisation" of the local Metropolitan was a mere opinion which did not bind the Minister of Education and Religious Affairs (judgment no. 1444/1991 of 28 January 1991).
E. Application for judicial review in the
Supreme Administrative Court
27. Sections 45, 46 and 50 of Presidential Decree no. 18/1989 codifying the legislative provisions on the Supreme Administrative Court of 30 December/9 January 1989 govern applications for judicial review of acts or omissions by the administrative authorities:
Section 45
Acts which may be challenged
"1. An application for judicial review alleging ultra vires or unlawful action is available only in respect of enforceable decisions of the administrative authorities and public-law legal persons and against which no appeal lies to another court.
...
4. Where the law requires an authority to settle a specific question by issuing an enforceable decision subject to the provisions of paragraph 1, an application for judicial review is admissible even in respect of the said authority"s failure to issue such decision.
The authority shall be presumed to refuse the measure either when any specific time-limit prescribed by the law expires or after three months have elapsed from the lodging of the application with the authority, which is required to issue an acknowledgment of receipt ... indicating the date of receipt. Applications for judicial review lodged before the above time-limits shall be inadmissible.
An application for judicial review validly lodged against an implied refusal [on the part of the authorities] is deemed also to contest any negative decision that may subsequently be taken by the authorities. Such decision may however be challenged separately.
..."
Section 46
Time-limit
"1. Except as otherwise provided, an application for judicial review must be made within sixty days of the day following the date of notification of the impugned decision or the date of publication ..., or, otherwise, of the day following the day on which the applicant acquired knowledge of the decision. In the cases provided for in paragraphs 2, 3 and 4 of section 45, time begins to run when the time-limits prescribed in those provisions have expired.
..."
Section 50
Consequences of the decision
"1. The decision allowing an application for judicial review shall declare the impugned measure void, which entails its general nullity, whether it is a general or individual measure.
2. The rejection of an application does not preclude the lodging of a new application against the same measure by another person with locus standi.
3. In the case of failure to take action, where the Supreme Administrative Court allows the application, it shall refer the case back to the relevant authority so that it can take the action incumbent on it."
PROCEEDINGS BEFORE THE COMMISSION
28. The applicants applied to the Commission on 7 August 1991. They complained of violations of Articles 3 and 5, Article 6 taken together with Article 14 (art. 3, art. 5, art. 14 + 6), and Articles 8, 9, 10 and 11 of the Convention and of Article 1 of Protocol No. 1 (art. 8, art. 9, art. 10, art. 11, P1-1).
29. On 10 October 1994 the Commission declared the application (no. 18748/91) admissible as regards the complaint based on Article 9 (art. 9), but inadmissible for the rest. In its report of 25 May 1995 (Article 31) (art. 31), it expressed the unanimous opinion that there had been a breach of that Article (art. 9). The full text of the Commission"s opinion is reproduced as an annex to this judgment <1>.
--------------------------------
Note by the Registrar
<1> For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1996-IV), but a copy of the Commission"s report is obtainable from the registry.
FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT
30. In their memorial the Government requested the Court
"to dismiss the application, mainly as being inadmissible due to non-exhaustion on the part of the applicants of the domestic remedies provided for by domestic law, which are entirely effective, as it has always been proven in practice, - and as legally invalid and unfounded in so far as its merits are concerned, since, as it was proven, the rulings of section 1 of the Law of Necessity no. 1363/1938 and its respective executive decree agree to and are

"СОГЛАШЕНИЕ ОБ УСЛОВИЯХ ПРЕБЫВАНИЯ СЕКРЕТАРИАТА МЕЖГОСУДАРСТВЕННОГО СОВЕТА РУКОВОДИТЕЛЕЙ МИНИСТЕРСТВ И ВЕДОМСТВ ПО СОТРУДНИЧЕСТВУ В ОБЛАСТИ МАШИНОСТРОЕНИЯ НА ТЕРРИТОРИИ РОССИЙСКОЙ ФЕДЕРАЦИИ"(Заключено в г. Москве 24.09.1996)  »
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