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

compatible with the protected right referred to in Article 9 (art. 9) of the European Convention on Human Rights within the framework of paragraph 2 of this Article (art. 9-2) - in abstracto in the case under consideration - and further the penalisation provided for by law and applied in this instance of the violations of these provisions through mild sanctions is commensurate with the purposes pursued within the framework of such paragraph (art. 9-2)".
AS TO THE LAW
I. The government"s preliminary objection
31. The Government contended primarily, as they had done before the Commission, that the applicants had failed to exhaust the domestic remedies inasmuch as they had twice neglected to challenge in the Supreme Administrative Court - under sections 45 paras. 1 and 4 and 46 para. 1 of Decree no. 18/1989 (see paragraph-27 above) - the implied refusal by the Minister of Education and Religious Affairs to grant them the authorisation sought. After three months the Minister"s silence constituted an implied rejection in respect of which an appeal lay to the Supreme Administrative Court for abuse of power. The time-limit and starting-point for lodging such an appeal were clearly defined in the relevant provisions and were therefore perfectly well known to the applicants. If they had applied to the Supreme Administrative Court, they would undoubtedly have obtained the authorisation and no court would then have convicted them. Yet they had deliberately neglected to do so because their real aim had been to challenge the relevant national legislation before the Convention institutions.
32. The applicants maintained that even if they had lodged an appeal on the ground of abuse of power, the procedure concerning the establishment of a place of worship would not have reached a conclusion.
33. The Court notes in the first place that in their appeal on points of law the applicants relied exclusively on the incompatibility of section 1 of Law no. 1363/1938, which had served as the basis for their conviction, with Article 9 of the Convention (art. 9) and Article 13 of the Greek Constitution. The Court of Cassation dismissed that complaint, finding that the Heraklion Criminal Court sitting on appeal had correctly construed and applied the above-mentioned provision (art. 9) (see paragraph 17 above). There can therefore be no doubt that the applicants exhausted the domestic remedies in respect of their conviction in the criminal proceedings.
In addition, at no time, either in the national courts or before the Commission, did the applicants complain about the authorities" failure to take a decision granting or rejecting their applications of 28 June and 18 October 1983 (see paragraph 9 above). The Minister of Education and Religious Affairs had replied to them in writing on five separate occasions, informing them that he was in the process of examining their file (see paragraph 11 above). The Court observes that there was neither an express decision, nor silence, from the authorities such as would have caused the period prescribed in section 46 para. 1 of Decree no. 18/1989 to commence and the applicants were left in a state of uncertainty from 18 October 1983 onwards.
The Court recalls that the only remedies that Article 26 of the Convention (art. 26) requires to be exhausted are those that are available and sufficient and relate to the breaches alleged (see the judgments of Ciulla v. Italy of 22 February 1989, Series A no. 148, p. 15, para. 31, and Pine Valley Developments Ltd and Others v. Ireland of 29 November 1991, Series A no. 222, p. 22, para. 48). Moreover, an applicant who has availed himself of a remedy capable of redressing the situation giving rise to the alleged violation, directly and not merely indirectly, is not bound to have recourse to other remedies which would have been available to him but the effectiveness of which is questionable.
The Court observes that the applicants could have been in some doubt as to the starting-point of the periods prescribed in sections 45 para. 4 and 46 para. 1 of Decree no. 18/1989 (see paragraph 27 above). After their second application of 18 October 1983 the Minister of Education and Religious Affairs replied to them on 25 November 1983, and therefore before the expiry of the three-month period from the lodging of the application (section 45 para. 4 of the above-mentioned decree). The authorities did not therefore remain silent in a way that amounted to an implied refusal to grant the authorisation requested.
The Court considers further that, even supposing that the Supreme Administrative Court had allowed their application, there is nothing to indicate that they would have obtained the authorisation sought, as the authorities did not in practice always comply with the decisions of the Supreme Administrative Court. The example cited by the applicants in their memorial, concerning the judgment of 29 October 1985 (no. 4260/1985) of the Supreme Administrative Court, is telling in this respect. The Supreme Administrative Court had quashed a decision of the Minister of Education and Religious Affairs refusing to grant Jehovah"s Witnesses an authorisation to operate a place of worship and had referred the case back to the authorities for them to consider whether the statutory conditions for granting such an authorisation were satisfied. On 7 January 1986 the persons concerned submitted a new request to the Minister together with a copy of the

"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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