Preliminary objection rejected (ratione personae);Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of P1-1;Violation of Art. 6-1;No violation of Art. 9;No violation of Art. 11;No violation of Art. 13;No violation of Art. 14+6;No violation of Art. 14+9;No violation of Art. 14+11;No violation of Art. 14+P1-1;Pecuniary damage - reserved;Costs and expenses award - Convention proceedings

ORG The applicant monasteries , which were founded between DATE , accumulated a considerable amount of property , in particular through donations made before the creation of ORG in DATE , but a large part of this property was expropriated during DATE of the ORG ’s existence . The monasteries themselves also gave away whole tracts of land to the ORG or to individuals who had none . During the NORP and NORP empires the monasteries and religious institutions in general were almost the only institutions discharging important social , cultural and educational functions ; even in DATE after the creation of the modern GPE , they still discharged some of these functions .

The ORG never challenged their ownership , and the monasteries always relied on adverse possession as a subsidiary means of establishing it , particularly in cases where NORP or NORP title deeds were lacking or had been destroyed . On several occasions the ORG published decrees in ORG in which their ownership was acknowledged ( decrees of DATE , CARDINAL and DATE , DATE , CARDINAL and DATE , etc . ) .

Apart from property thus amassed over DATE , the monasteries acquired numerous plots of land and buildings more recently , either as gifts or legacies or through purchase .

ORG Under PERSON no . CARDINAL/CARDINAL , their land and buildings were classified as either " property to be realised " ( ekpiitea perioussia ) or " property to be retained " ( diatiritea perioussia ) .

The second category included property considered necessary for the needs of a given monastery , having regard , inter alia , to the number of its members and to its historic value as a place of pilgrimage , and they were listed in a decree adopted on a proposal by the Minister for Education and ORG . Responsibility for managing the property to be retained was vested in LOC and its exercise was governed by a decree of DATE . This provided , among other things , that the revenue arising from this management was to be applied to making good the monasteries’ deficit , repairing and maintaining buildings and furthering educational and charitable purposes .

Responsibility for managing the property to be realised was vested in ORG ( PERSON diikisis ekklisiastikis perioussias ) .

ORG LAW authorised the government to expropriate land for the benefit of destitute farmers and stockbreeders for DATE from its entry into force . In pursuance of this transitional provision ( Article ORG ) , ORG and the ORG concluded an agreement which was ratified by the ORG in a decree ( no . CARDINAL ) of DATE . Article CARDINAL para . CARDINAL of that decree stated in substance that the ORG would from then on waive its rights under LAW relating to expropriation or compulsory leasing of property of ORG .

By the agreement , which covered " the purchase by ORG land for the purposes of restoring it to destitute farmers and stockbreeders " , the ORG and the monasteries would transfer to the ORG CARDINAL of their agricultural land and CARDINAL of their pastures and would receive in return a third of the real value of that property . Annexed were lists giving the type , location and area of the land thus sold to the ORG and of that kept by the monasteries . Under LAW and pastures that were part of the " property to be retained " of the monasteries of PERSON and PERSON were not covered by the agreement .

ORG The Office for ORG ( " the ORG " ) , a public - law entity under the supervision of ORG , was set up by PERSON no . DATE and replaced ORG that had existed since DATE .

In section CARDINAL of the PERSON it was made responsible for the management of all the movable and immovable property belonging to the Holy Monasteries , but responsibility for the property to be retained was taken away from it after a time .

The ORG ’s function , as laid down in section CARDINAL , was ( CARDINAL ) to realise the monasteries’ property , ( CARDINAL ) to manage ecclesiastical property other than that belonging to the churches and ( CARDINAL ) to make use of the revenues .

ORG The ODEP was run by a board of governors , whose members originally included the Archbishop of GPE , CARDINAL senior Church dignitaries , a senior member of ORG , a legal adviser , the head of the ORG , a representative of ORG and a representative of a commercial bank . Decree no . CARDINAL/CARDINAL reduced the number of members to CARDINAL , CARDINAL of whom were laymen appointed by ORG . Under regulations issued in DATE , which are still in force , the number of lay members was increased to CARDINAL .

By Regulation CARDINAL , the ORG ’s revenue had to be applied to ORG purposes , in particular the financing of missionary and educational events and the remuneration of certain members of the clergy .

ORG The ties binding the NORP nation - and later the NORP State - to ORG go back DATE . The interdependence of ORG and ORG was already apparent in the administrative reorganisation of the ORG which followed the restructuring of ORG .

The ORG ’s historical role grew more important after the collapse of GPE . The ORG of GPE was recognised as millet basi - the spiritual leader , at the same time answerable to ORG , of the NORP community , which became integrated into the administrative machinery of GPE through the ORG .

ORG was proclaimed to be " autocephalous " in a royal decree of DATE and was at the same time given its first LAW , which was very noticeably imbued with the spirit of ORG control ; the ORG was independent of the ORG only in matters of doctrine .

LAW of DATE , in its references to LAW of DATE and LAW of DATE , on the one hand , and to ORG Synod of serving metropolitans " ) as the ORG authority , on the other , evidences the intention of breaking with the old tradition of ORG control . The proclaimed independence of the ORG is not , however , unlimited , as is shown by the fact that ORG is the church of the " dominant religion " and embodies the religion of the ORG itself .

The Law of CARDINAL DATE ( Law no . PERSON ) on LAW " also provides for interdependence of ORG and ORG .

Section CARDINAL(CARDINAL ) attributes to the ORG and a number of its institutions , including the monasteries , legal personality in public law " as regards their legal relations " .

Under LAW , the ORG is to co - operate with the ORG in fields of common interest , such as the NORP upbringing of young people , enhancing the status of the institution of marriage and of the family , caring for those in need of protection and safeguarding sacred relics and ecclesiastical monuments . The ORG ’s role in public life is reflected more markedly by the presence of the Minister for ORG and ORG at the sessions held to elect the Archbishop of GPE and by the participation of ORG authorities in all official ORG events .

The provisions on the ORG ’s finances and staffing testify even more eloquently to this interdependence . As to financing , the PERSON provides that the ORG is to contribute to the ORG ’s expenses ( section CARDINAL(CARDINAL ) ) , that the ORG ’s resources are to be managed in a manner determined by decision of ORG , approved by ORG ( section CARDINAL(CARDINAL ) ) , and that managerial acts are subject to the ORG ’s financial supervision ( section CARDINAL(CARDINAL ) ) . As to staffing , the provisions governing public servants are to apply by analogy to the staff of ORG public - law entities .

Section CARDINAL(CARDINAL ) of the PERSON describes the Holy Monasteries as ascetic religious institutions whose members live according to monastic principles , the sacred rules of asceticism and the traditions of ORG . The Holy Monasteries come under the spiritual supervision of the local archbishop ( section CARDINAL ) ) . The organisation and furtherance of spiritual life within the monasteries and the running of them are the responsibility of the monastic councils and conform to the holy rules and monastic traditions ( section CARDINAL(CARDINAL ) ) .

The Holy Monasteries are public - law entities ( section CARDINAL(CARDINAL ) ) . They may be founded , merged or dissolved by means of a presidential decree , adopted on a proposal by the Minister for Education and ORG after consultation of the local archbishop and with the approval of ORG ( section CARDINAL(CARDINAL ) ) .

The decisions of the monastery councils are preparatory in nature , taking effect only after they have been ratified by the higher ORG authority . Judicial review lies only against the decisions of the latter authority .

ORG , the supreme Church authority , has power to regulate the internal organisation and administration of the ORG and the monasteries ; it scrutinises the decisions of ORG , of the archbishops and of the other ORG legal entities including the monasteries ( section CARDINAL ) and ( g ) ) , over which the ORG exercises no authority . The ecclesiastical legal persons which make up ORG , in the broad sense , constitute an entity distinct from the public service and enjoy complete autonomy .

ORG The monastery of PERSON was founded on NORP in GPE in DATE . Its possessions include QUANTITY of forest surrounding the monastery buildings , olive groves , LOC and other agricultural land with appurtenant buildings and a house and flats in GPE . The monastery estimates the value of its real property at MONEY ( GRD ) .

ORG Founded in the province of ORG in CARDINAL , the monastery of ORG was a major cultural centre during the NORP period . The monastery complex and its mosaics are regarded as important works of NORP article The monastery ’s immovable property includes a hotel in GPE , a farm and several tracts of farming land around the monastery . A ministerial decree of DATE contains a detailed list of these assets . The monastery estimates the value of the commercially exploitable real property at QUANTITY , excluding all the monastery ’s own buildings and treasures and the adjoining agricultural land .

ORG The monastery of PERSON , founded in the province of GPE in CARDINAL , was likewise a major cultural centre in the LOC . It was destroyed during the revolution of DATE and rebuilt in DATE . In addition to the monastery complex , its properties include a number of churches and appurtenant buildings and adjoining land , several tracts of farming land , a forest , an oil - processing plant and numerous flats , offices and shops in GPE and GPE . Their value is said to exceed GRD CARDINAL million , excluding the monastery complex and the churches .

ORG The monastery of PERSON was built in GPE in CARDINAL and enjoyed enormous prestige both on account of its location and as a centre for the arts . Its real property includes large areas of woodland , a farm , a flat and shops in GPE and GPE . A ministerial decree of DATE contains a list of the monastery ’s agricultural land . The monastery assesses the value of its property at QUANTITY .

ORG The monastery of PERSON was founded in CARDINAL . Its development was most marked in DATE . It owns a very substantial amount of property , consisting of several buildings in GPE , large areas of agricultural land and forest , tourism facilities and urban land , which it values at MONEY ; it also owns marble quarries on GPE . A ministerial decree of DATE lists the monastery ’s properties .

ORG The monastery of LANGUAGE was founded on the island of GPE in DATE and states that much of its landed property - in particular , uninhabited islands - was expropriated at DATE . Apart from the monastery complex itself , its immovable property includes agricultural land , olive groves , houses and flats on ORG , and various shops , offices and flats in GPE . It estimates its wealth at QUANTITY .

ORG The monastery of Phlamourion Volou stands on the western slopes of LOC in the province of LOC . Its property includes CARDINAL forests of an area of QUANTITY , agricultural land and blocks of flats in GPE .

ORG The monastery of PERSON in GPE was destroyed in CARDINAL and rebuilt in CARDINAL . Apart from the monastery complex and the surrounding woodland , its property includes several tracts of farming land , forests and offices in GPE ; their value is said to exceed GRD CARDINAL million .

Law no . DATE was published in ORG of CARDINAL DATE and changed the rules on the management and representation of monastery property within the charge of the ORG , most of whose members were now to be appointed by the ORG . It also provided that within DATE of its publication the ORG would become the owner of all monastery property unless the monasteries proved title ( kyriotita ) established either by a duly registered deed ( metegrammeno ) or by a statutory provision or by a final court decision against the ORG .

In this connection , it should be noted that only real - property transactions concluded since DATE have had to be registered ( section CARDINAL of the Law of DATE on the registration of immovable property and of rights in rem relating thereto ) ; similarly , LAW has required legacies and inheritances to be registered DATE . Except in the LOC , GPE does not have any official land survey .

The factors which prompted the ORG to enact new rules on ORG property are set out in the explanatory memorandum to the bill . The following passages should be noted :

" This bill deals with the question of the immovable property in the ORG ’s possession DATE , a question that since the beginning of the modern GPE has caused friction not only between ORG and ORG but also between the latter and ... the people ; under the present system , many national treasures remain unexploited ...

The ORG ’s current possessions are largely the remnants of a period in which the ORG ’s existence was dependent solely on its own property and even on its own labour . Since then , its operating conditions have radically changed . The ORG covers nearly all its needs . Concurrently with the provisions of this bill , provision is being made for the first time for subsidies from the ORG budget to ORG and the ORG in general , so that they may expand their spiritual mission , which is so necessary for the nation and for the NORP faith in GPE and abroad ...

A large part of this immovable property has been wasted in unlawful and disadvantageous transactions or usurped by skilful exploiters , while the rest has largely been abandoned or is being utilised detrimentally by third parties . This national heritage is continually shrinking and tending to disappear as a productive source of wealth for the country ’s agriculture , stockbreeding and forestry .

Furthermore , most of the lands now in the ORG ’s possession belong to the ORG . They are occupied without legal title and with the ORG ’s toleration . This national property is constantly being diminished by illegal sales and encroachments which lead to usurpations of land and uncontrolled development ; this is a situation which undermines the ORG ’s authority .

It should be remembered that since DATE the ORG has legislated to make the transfer of CARDINAL of the monasteries’ property to the ORG compulsory , for the benefit of those who do not have any land ( Decree no . DATE ) . This statutory obligation has not hitherto been enforced . "

ORG The following provisions are relevant :

" Section CARDINAL

As soon as this PERSON enters into force , the Office for ORG ( the ODEP ) shall automatically be vested with the exclusive management and representation of all the immovable property of ORG , in respect of which it shall henceforth have full power to take or defend legal proceedings , whether the property belongs , under the legislation in force , to the category of ‘ property to be retained’ or to that of ‘ property to be realised’ .

... [ T]he conditions and procedures governing the sale , leasing , grants of rights of user , and utilisation by the ODEP ... of movable and immovable monastery property , together with any other matter connected with the management of that property , shall be laid down in a presidential decree adopted on a proposal by the Minister for Education and ORG , the Minister for the Economy and the Minister of Agriculture . The same decree may authorise other administrative bodies to determine the details of its implementation in a regulatory decision . In the specific case of the sale of urban immovable property belonging to the monasteries or of the granting of any right in rem relating to it , the consent of the monastery concerned shall be required , failing which the contract shall be null and void .

LAW

A right of user over any immovable property of the monasteries which , on the entry into force of this PERSON , is in the ownership ( kyriotita ) or the possession ( katokhi ) [ of the ODEP ] or of the Holy Monasteries or of third parties may be granted by the ODEP ... , for the purposes of utilisation and development ... , preferably either to farmers already members of agricultural co - operatives or becoming members in virtue of the grant , or to agricultural co - operatives and public bodies . In exchange for such a grant , the ODEP shall pay the monastery concerned PERCENT of the gross revenue from the grant for the monasteries’ needs .

For the purposes of the present provision , the following shall be regarded as immovable property : agricultural land and land capable of agricultural use , forests and wooded areas in general , pastures , meadows ... and quarries , mines and fish farms .

Within DATE of the entry into force of this PERSON , the ODEP ... may , by contract to be signed by ORG as the representative of ORG and by the Minister for Education and ORG , the Minister for the Economy and the Minister of Agriculture as representatives of ORG , transfer to the ORG the ownership of the monasteries’ immovable property , together with such of the Holy Monasteries’ land as was included in the urban development plan after DATE . Such a transfer of ownership to the NORP State shall have no effect on the validity of any grant of a right of user made in accordance with the conditions set out in the preceding subsection , except for the required payment of a percentage of the revenue , which shall be paid to the entity provided for in section CARDINAL of this PERSON and shall be used for educational purposes . Until this entity is created , the percentage shall be paid to a special account at ORG in the name of the Minister for Education and ORG .

Immovable property belonging to LOC which is intended solely for cultivation by the monks themselves shall be exempt from the provisions of this section ; it shall be delimited for each monastery according to the number of resident monks and in the light of the requirements of environment protection . Land earmarked for children ’s holiday camps or to meet the needs of other ORG institutions shall likewise be exempt .

This property shall be designated by a decision of the Minister for Education and ORG , the Minister of Agriculture and the Minister of Public Works and the Environment , after consultation of the ODEP ... in respect of each holy monastery , each children ’s holiday camp and each ORG institution .

Section CARDINAL

If nothing has taken place at DATE period provided for in subsection ( CARDINAL ) of section CARDINAL , ownership of the monasteries’ property shall be regulated in accordance with the following provisions :

A. Immovable property in use ( nomi ) by or the possession ( katokhi ) of the Holy Monasteries when this PERSON comes into force shall be deemed to be the property of the NORP State irrespective of the manner in which it is managed or utilised unless a monastery ’s ownership ( a ) derives from a title deed that antedates DATE on which the PERSON was tabled and has already been registered or will be registered within a strict time - limit of DATE from the entry into force of this PERSON or ( b ) has been recognised in a statutory provision or in a final court decision against the ORG . The same shall apply to buildings which belong to the monasteries or are in their possession but are occupied by third parties .

B. The Holy Monasteries’ and third parties’ use and possession of immovable property deemed to belong to the ORG in accordance with the preceding subsection and ownership of which has not passed to the ORG under LAW shall be terminated and be transferred automatically to ORG . All forms of management or utilisation of these buildings shall cease , irrespective of the category to which the property belongs under the current legislation . From that date the ORG shall exercise the rights associated with the ownership , use and possession of the property vis - à - vis third parties , the Holy Monasteries and bodies responsible for managing those monasteries’ property . The Minister of Agriculture shall henceforth manage this property in accordance with the provisions of the legislation already in force and of this PERSON . This change shall not affect the validity of any grant of a right of user made under subsection ( CARDINAL ) of LAW , except for the requirement relating to the percentage of revenue to be paid to the entity provided for in LAW CARDINAL , which will now be assigned to the national education service ...

For the purposes of this section , the following shall be deemed to be immovable property : agricultural land and land capable of agricultural use , forests and wooded areas in general , pastures , meadows ... and quarries , mines and fish farms . Building land shall also be deemed to be immovable property even if it is entered in the urban development plan , on condition that the entry was made after DATE .

The Holy Monasteries which do not own sufficient immovable property may be granted , without consideration , land already in their possession in virtue of subsection ( CARDINAL ) of this section , but solely for the purposes of cultivation by the monks themselves . Such land shall be delimited according to the number of resident monks and in the light of the requirements of environment protection . Such grants shall be made within a strict time - limit of DATE from the deadline provided for in subsection ( CARDINAL ) of this section , by means of a contract between the ORG ... on the one hand and the legal person responsible ... for managing the monasteries’ property on the other . "

Section CARDINAL provides that within DATE of the expiry of the DATE period referred to in section CARDINAL(CARDINAL)(A ) any legal or natural person in possession of CARDINAL of the buildings " deemed to belong to the ORG " must transfer it to the head of the appropriate agriculture or forestry department , failing which the latter will make an administrative eviction order , enforceable within DATE of its being served . The evicted person may apply for judicial review of such an order , but this will not have any suspensive effect ( subsection ( CARDINAL ) ) ; furthermore , it is open to such a person , if he asserts rights in rem over the building , to apply to the civil courts under Articles CARDINAL of LAW ( subsection ( CARDINAL ) ) .

ORG The arrangements for implementing sections CARDINAL and DATE are to be specified in a presidential decree , to be adopted on a proposal by the Minister for Education and ORG , the Minister for the Economy and the Minister of Agriculture . To the ORG ’s knowledge , this has still not been issued .

Section CARDINAL provides that the ORG ’s governing body shall be composed of a chairman and a vice - chairman , appointed by the ORG on a proposal by the Minister for ORG and ORG , and CARDINAL other members and their substitutes , CARDINAL of whom are to be appointed by ORG and half by the Minister for Education and ORG .

Section CARDINAL provides for the creation , on a proposal by the Minister for Education and ORG and the Minister for the Economy , of a private - law entity to be responsible for implementing educational programmes to be established by ORG .

Section CARDINAL provides for the inclusion in the ORG budget of an appropriation to support and maintain the monasteries and strengthen the ORG ’s cultural work . The Minister for ORG and ORG is to allocate the available funds with a view to implementing a special programme that he will draw up DATE on a recommendation by ORG .

Law no . DATE provides that it is not to apply to property of FAC which come under the Ecumenical Patriarchate of GPE or the patriarchates of GPE , GPE and GPE , or under the Holy Sepulchre or FAC of GPE .

ORG The chairman and the other members of the ORG ’s governing body were appointed by the Minister for Education and ORG on DATE ( pursuant to section CARDINAL of PERSON no . DATE ) .

On DATE ORG challenged the lawfulness of their appointment in ORG ( Symvoulio tis Epikratias ) by means of an application for judicial review coupled with an application for a stay of execution . On DATE ORG committee for hearing applications for stays of execution held that any attempt by the ORG ’s new governing body to exercise the powers conferred on it by PERSON no . DATE would be likely to compromise relations between ORG and ORG ; it consequently allowed the application and stayed the decisions until ORG had ruled on the merits .

On DATE some of the monasteries , including CARDINAL of the applicant monasteries and their archimandrites , also appealed against the decisions , alleging , among other things , that PERSON no . DATE infringed GPE ( Articles CARDINAL para . CARDINAL , CARDINAL para . CARDINAL and CARDINAL ) and LAW .

ORG gave its ruling on DATE ( judgment no . DATE ) , stating :

The provisions of LAW para . CARDINAL of the LAW safeguard the holy canons and traditions of ORG . However , this constitutional protection ... can not be regarded as extending to the canons and traditions relating to purely administrative matters . Such matters , which are affected by the passing of time and the advent of new ideas , necessarily lend themselves to changes designed to promote the common interests of ORG and ORG . The ordinary legislature regulates them according to society ’s needs , in accordance with LAW para . CARDINAL of LAW . It can not , however , ... by means of the ORG ’s LAW or other statutory provisions , undertake a radical reform of the basic administrative institutions , which have long been solidly established in ORG ... Furthermore , the same provisions also guarantee the ORG ’s autonomy , which includes the power to determine its own affairs through its own organs composed as provided for by law and to be governed by ORG constituted in accordance with the law and the provisions of LAW of DATE and LAW of DATE concerning the composition of these bodies .

In the view of the majority of this ORG , the provisions of PERSON no . DATE , which vests the management and representation of the Holy Monasteries’ property in the ORG , a public - law entity integrated into the administrative framework of the ORG and a majority of whose board of governors’ members are appointed by the ORG , are not incompatible with the ORG ’s autonomy - guaranteed by the LAW - or with freedom of religion or with LAW and CARDINAL of LAW ... or with LAW ... or with LAW of GPE ... , as these matters , unconnected with doctrine or worship , are purely administrative and unrelated to the ORG ’s basic administrative institutions ; consequently , they must be freely regulated by the ordinary legislature ... Furthermore , the provisions of PERSON no . CARDINAL/CARDINAL do not materially affect those institutions as the management of monastery and ORG had always been vested in the ORG , whose board of governors - as constituted under PERSON no . CARDINAL - was composed , for the greater part , of lay members appointed by the ORG ... The grounds of nullity are accordingly ill - founded and must be rejected .

However , CARDINAL of the senior members of the ORG has expressed the following opinion , in which he is joined by CARDINAL of the junior members ( paredri ) . LAW , which provides that ORG is to be governed by ‘ the ORG of serving ORG safeguards not only the ORG ’s autonomy in the sense that it is governed by metropolitans elected by it but also the right to manage and dispose of , at its discretion ... , the movable and immovable property of every kind belonging to it in order to achieve its non - profit - making aims , namely the establishment and promotion of the NORP faith of its members . Monastic life in monastic communities , which are vital parts of that ORG ... and which , despite their status as public - law entities , derive , like the ORG itself , from an area lying outside the jurisdiction of the ORG , has always constituted a fundamental mode of the worship of God . To deprive all the monasteries of the management and representation of all their existing and future ... property and to assign those powers to the ODEP without their consent ... is consequently an unacceptable restriction of their autonomy and of that of the ORG ... These provisions entail , in the first place , a breach of the aforementioned LAW , which does not allow the ORG ’s administrative institutions to be altered to the point of removing its autonomy , and , secondly , seriously hamper the practice of worship through monastic life , since they prevent the ‘ unrestricted’ practice of monastic worship , as secured in LAW para . CARDINAL of the LAW . Lastly , it must be pointed out that from DATE the ORG was run by a board of governors a majority of whose members were appointed by ORG and which was chaired by ORG of GPE ... ; the precedents to the contrary cited by the majority relate to isolated special cases and not to the monasteries’ property as a whole . The minority consequently consider the grounds of nullity to be well - founded .

The applicants also maintained that the provisions of Law no . DATE , which vested the management and representation of the monasteries’ property in the ODEP - an entity separate from the ORG and not controlled by it - and authorised the transfer of that property to the ORG without any compensation , were contrary to LAW and CARDINAL para . CARDINAL ( a ) of the LAW as they made mandatory provision for an unacceptable transfer of that property , deprived the Holy Monasteries of their ownership and introduced unconstitutional restrictions on property rights .

Article CARDINAL para . CARDINAL ( a ) of the LAW prohibits any general confiscation . LAW provides that ownership is under the protection of the ORG but that rights deriving from it can not be exercised to the detriment of the public interest ... No one may be deprived of his property unless in the public interest , duly made out , in the eventualities and according to the procedure laid down by law and in every case subject to full prior compensation ... This latter provision of the LAW prohibits any deprivation of property that does not satisfy the foregoing conditions ; nothing , however , prevents the legislature from restricting the right of ownership on the basis of objective criteria and in the public interest , on condition that such restrictions do not nullify the right and make it ineffective ...

In the view of the majority of the ORG , the provisions of PERSON no . DATE , ... which provide for the transfer to ORG of the ownership of the monasteries’ agricultural land and of other immovable property owned by LOC without any title deed , are not contrary to LAW as they do not deprive the Holy Monasteries of their ownership ( idioktissia ) ; the PERSON in fact means that this immovable property does not belong to them . Moreover , the provisions of the PERSON concerning the sale of the Holy Monasteries’ urban immovable property or the granting of rights in rem relating to it by decision of the ODEP ... do not infringe the Holy Monasteries’ right of ownership inasmuch as their implementation is subject to the agreement of ORG which owns the immovable property , failing which the contract is void . Lastly , the provisions relating to the ... utilisation by the ODEP of urban immovable property and mines , quarries and fish farms belonging to the Holy Monasteries or any other ORG institution and those relating to the management and representation of ... agricultural property ... and the present or future utilisation of urban immovable property do not entail any deprivation of ownership since the ownership as such remains in the hands of the Holy Monasteries , and in any case the revenue from the ORG ’s management of this property is used for ecclesiastical purposes ... ; the provisions lay down constitutional restrictions on ownership which are designed to serve at one and the same time the monasteries’ interest and the public interest . In consequence , this ground of nullity , together with the complaints relating to LAW paras . CARDINAL and DATE and LAW para . CARDINAL of the LAW and LAW ( PCARDINAL - CARDINAL ) ... , are ill - founded and must be rejected ...

CARDINAL senior members of the ORG , joined by CARDINAL of the junior members , have expressed the following opinion . Transferring the management and representation of the whole of the monasteries’ property to the ODEP on the aforementioned terms , even ‘ as an amendment to the legal provisions in force’ ( section CARDINAL(CARDINAL ) of PERSON no . DATE ) , does not amount to a restriction of ownership , which is allowed by LAW , but interferes unacceptably and without full compensation with the very essence of the right of ownership . This is all the more evident as the only possibility left open to the monasteries is either to consent or to object to the sale of their urban property or the granting of a right in rem relating to it by the ODEP , without being able to decide the matter for themselves : such a decision belongs exclusively to the ORG , which has unfettered discretion to determine , without even consulting the monasteries , the sale of agricultural land and ‘ the present and future utilisation’ of their immovable property such as is provided for in section CARDINAL of PERSON no . DATE . As to the monasteries’ movable property , some of which is extremely valuable ( icons in monastery museums , precious relics , shares , etc . ) , they are managed by the ODEP without any restrictions whatever . Furthermore , it should be noted that PERSON no . DATE does not specify how the income from monastic property is to be applied ; on the other hand , it appears from sections ORG ) , ORG ) and CARDINAL of Law no . DATE that the ORG ’s revenue from the ‘ utilisation or granting of the use of monastic and Church property’ is to be transferred to a private - law entity set up under LAW which does not have any ecclesiastical objectives . The provisions of PERSON no . DATE are thus wholly contrary not only to LAW but also ... to the provisions of LAW ( Article CARDINAL of the LAW ) and the treaty establishing ORG , and they engage the NORP State ’s international responsibility . Consequently , the minority consider this ground of nullity to be well - founded .

As to the submission that the provisions of LAW no . CARDINAL/CARDINAL infringe LAW para . CARDINAL of the LAW because they establish discrimination between ORG and the monasteries coming under the ORG , the ORG itself , the patriarchates of GPE , GPE , ORG and FAC of GPE and the monasteries of other denominations or religions , the complaint is ill - founded since ORG , as an instrument and expression of the dominant religion according to the terms of Article CARDINAL para . CARDINAL of the LAW , does not occupy the same position as the other NORP churches and other denominations or religions , such that the statutory provisions in issue do not offend the constitutional principle of equal treatment of comparable legal situations .

Moreover , it is alleged that the provisions of Law no . DATE infringe LAW para . CARDINAL of the LAW in that NORP citizens who wish to support the monasteries financially are impeded in their self - fulfilment since , contrary to their wishes , the management of donations would vest not in the monasteries but in the ORG .

Furthermore , it is submitted that these provisions infringe the individual freedom of religion of the members of monastic communities and of those who would like to found a monastery by dedicating their assets to that end . The first limb of the ground is ill - founded since the individual right of free self - fulfilment , secured in DATE . CARDINAL of the LAW , is not an absolute right ; it is subject to the restrictions laid down in the LAW and in law . In the instant case the restrictions deriving from the aforementioned provisions of LAW no . CARDINAL/CARDINAL ... do not infringe LAW para . CARDINAL of the LAW . The ground is also ill - founded in its second limb , since it refers vaguely to possible damage sustained by the applicants in the future .

ORG nevertheless quashed the Minister for Education and Religious Affairs’ decision of DATE ( see paragraph CARDINAL above ) , on the ground that the composition of the ORG ’s governing body did not satisfy the requirements of LAW no . DATE .

ORG The passing of PERSON no . DATE had produced a sharp reaction from ORG . With a view to calming the situation , the ORG and ORG held a series of meetings and concluded a preliminary accord under which the monasteries would , by means of a further agreement , transfer part of their property to the ORG . An essential condition of the preliminary accord was that ORG would have to seek from each monastery council full powers to sign the further agreement .

ORG On CARDINAL DATE the Standing Holy Synod duly concluded a further agreement with the ORG , whereby CARDINAL monasteries , including the applicant monasteries of PERSON , ORG and Phlamourion Volou , transferred their agricultural and forest property to the ORG ; CARDINAL monasteries declared that they were not affected by the agreement since they did not have any substantial property of that kind . ORG ratified the agreement in LAW no . DATE , section CARDINAL(CARDINAL ) of which provided : " On publication of this PERSON , the management of the urban property of LOC that are not parties to the agreement shall revert to ORG of ORG . The provisions of PERSON no . CARDINAL/CARDINAL shall apply to the remainder of these monasteries’ property . "

Section CARDINAL(CARDINAL ) provided that monasteries which were not parties to the agreement could join it within a renewable period of DATE from the commencement of the PERSON ; the operation of PERSON no . DATE was not , however , suspended during that period .

ORG Under clause CARDINAL of the agreement , the monasteries parties to it are to cede to the ORG all their agricultural and forest property except for the land surrounding them within a radius of QUANTITY ; a monastery ’s opinion must be sought before any leisure facilities , restaurants or business are established in its vicinity and operated . Furthermore , the monasteries are authorised to retain a proportion of their original real property - provided that the total area of land retained does not exceed QUANTITY . m of forest or QUANTITY . m of agricultural land - and PERCENT of land " usable for tourism purposes " ; ORG is allotted PERCENT of land included in the town development plan after DATE . Lastly , land in the monasteries’ possession by virtue of a title deed or which has passed to them under a will or a deed of gift is exempt from transfer .

A special committee set up in each prefecture by a decision of the ORG is to determine which land is to be transferred to the ORG and which is to be kept by each monastery .

In exchange for the transfer of ownership , the ORG undertakes to pay a stipend to CARDINAL preachers and to spend PERCENT of the budgetary appropriations earmarked for the ORG on financially supporting the monasteries that are parties to the agreement ( clause CARDINAL ) .

ORG Under clause CARDINAL of the agreement , the ORG was destined to be wound up once the operations had been concluded ; in fact the ODEP was dissolved after ORG ’s ratification of the agreement and the members of its staff were assigned to other ORG bodies in accordance with section CARDINAL of Law no . DATE . The management of the urban property and part of the agricultural and forest property remaining in the ownership of the monasteries parties to the agreement is to be their responsibility , while ORG , having taken over the rights and obligations of the ORG and having exclusive authority to act , is to be responsible for the property to be realised . ORG is to lay down in canonical decisions published in ORG the manner in which ORG transferred to ORG on the abolition of the ORG is to be managed and utilised . Lastly , the monasteries parties to the agreement have capacity to take legal proceedings in any dispute relating to the property they retain under it ( clause CARDINAL ) .

ORG Some of the monasteries - including Phlamourion Volou - which had authorised ORG to negotiate and sign the agreement with the ORG applied to the courts , alleging that the agreement was null and void .

They argued , inter alia , that ( CARDINAL ) the agreement had been concluded by ORG , a purely administrative body of ORG with no legal personality of its own or any legal capacity ; ( CARDINAL ) the archbishops and metropolitans who had taken part in the drawing up of the agreement were not the Standing Holy Synod ’s statutory representatives ; ( CARDINAL ) the tracts of land which the monasteries had undertaken to transfer were not precisely delimited and the agreement made no mention of their location , area or boundaries ; ( CARDINAL ) ORG had not acted through its statutory representative ; ( CARDINAL ) at the time that the agreement was concluded , the ORG was responsible for the management and representation of the monasteries’ property and ownership of that property had already been transferred to the ORG under LAW no . CARDINAL ; ( CARDINAL ) the authorisations issued by the monasteries to ORG had not been in the form of notarial documents as required by law ; and ( CARDINAL ) the conditions that were stipulated by the monasteries for concluding the agreement and which appeared in the authorisations to act were not reproduced in the actual text of the agreement .

ORG On DATE ORG gave judgment against the monastery of FAC .

ORG On DATE ORG dismissed an appeal by the monastery against that judgment . It noted , in particular , like the court below but in more detail , that by LAW no . CARDINAL/CARDINAL the legislature had expressed the intention of ratifying the agreement in its entirety even if it contained formal or substantive defects which might have rendered it null and void under enactments in force at the time it was concluded .

Complaint no . CARDINAL was rejected by ORG on the ground that the monastery of ORG had no locus standi , since at the time the agreement was concluded it had ceased to be the owner of the land in question . As for complaints FAC . CARDINAL and DATE , the court held that because of the large number of monasteries involved , the agreement could only distinguish in a general way between the land to be transferred and the land to be retained and it assigned the task of laying down the precise boundaries to a committee to be set up in each prefecture .

Furthermore , the wording of clause CARDINAL of the agreement did not suffice on its own to show that the full powers granted to ORG had been exceeded or that there had been any misuse of powers on the part of the archbishops who had signed the agreement ; if that had been the case and if land not covered by the authority to act had been transferred to the ORG , it would have amounted to a deprivation of property incompatible with LAW , a defect that could not have been cured by the ratification . It was , however , impossible to determine whether the full powers had been exceeded as the appellant had not stated whether the relevant committee had already carried out its task .

Lastly , the disputed agreement was an agreement for value , as the ORG undertook to support the monasteries that were parties to it by transferring to them PERCENT of the budgetary appropriations earmarked for the ORG and to meet the cost of remunerating CARDINAL preachers .

ORG In a circular of CARDINAL DATE ORG requested prefectures to set up the committees provided for in clause CARDINAL of the agreement of CARDINAL DATE ( see paragraph CARDINAL above ) . No action has yet been taken to this end .

Another circular , of DATE , drew the authorities’ attention to the fact that ownership of the immovable property belonging to the monasteries not parties to the agreement had been transferred to the ORG under PERSON no . DATE . The circular also reminded the authorities of the possibility of transferring some of this property to agricultural co - operatives and of using the eviction procedure provided for in LAW no . DATE ( see paragraph CARDINAL above ) .

ORG In practice , the transfer operations - and in particular the determination of which property is to pass to the ORG under PERSON no . CARDINAL/CARDINAL and PERSON no . CARDINAL/CARDINAL - have not been completed .

ORG In the proceedings before the Commission and the ORG the applicant monasteries relied on several judgments whereby proceedings brought against the ORG by non - applicant monasteries had been stayed ( judgments no . PERSON of ORG and no . CARDINAL of ORG ) and an appeal by another monastery had been declared inadmissible ( judgment no . CARDINAL/CARDINAL of ORG ) on the ground that the monasteries concerned had ceased to have locus standi once PERSON no . DATE had come into force . In particular , proceedings were declared inadmissible in an action brought by a non - applicant monastery for a declaration of ownership arising , according to the monastery , from short adverse possession ; ORG ( in judgment no . CARDINAL/CARDINAL ) also held that the ownership , possession and use of the disputed land had automatically passed to the ORG under section PERSON ) and ( B ) of PERSON no . DATE and pointed out that the monastery in question was not CARDINAL of those that had signed the agreement of CARDINAL DATE .

ORG In a letter of CARDINAL DATE ORG replied as follows to a request from the Agent of the Government for information about the implementation of LAW . CARDINAL/CARDINAL and DATE :

" ... Laws nos . DATE and DATE , which regulate questions of ORG , have not been implemented as the procedures laid down in them for transferring to the ORG the land falling to it and for distinguishing that land from the land to be retained by the monasteries have not yet been carried out ... A problem has arisen with the management of the monasteries’ forest land ... , because the proceedings whereby the ORG is to take possession of the land have not been set in motion ... and also because of disagreements between the ORG and the Holy Monasteries concerning the interpretation of the Laws in question ... [ I]t appears from document no . CARDINAL/CARDINAL.CARDINAL.CARDINAL of ORG of our Ministry ... and from the fact that ORG has set up a team to study the problem of ORG property that the ORG intends to re - examine the issue in order to resolve it . "

ORG Counsel for the applicant monasteries stated at the hearing before the ORG that , to date , none of the land in dispute had been transferred to agricultural co - operatives or the ORG . He maintained , however , that since the entry into force of PERSON no . DATE the administrative authorities had refused to grant the authorisations necessary for carrying out certain day - to - DATE operations .

In this connection he relied on and produced correspondence between the Kalambaka forestry authority , on the one hand , and the co - operative at PERSON and the monastery of PERSON , on the other ; the forestry authority had prevented the co - operative from cutting down trees in forests belonging to the monastery by virtue of Decree no . CARDINAL of DATE ( see paragraph CARDINAL above ) , although the co - operative had already , in DATE , paid the monastery for the felling .

Similarly , the forestry authority of GPE in GPE had declined to approve the DATE plan for exploiting a forest belonging to the monastery of PERSON , on the ground that there was uncertainty about the ownership of the forest .


Violation of Art. 8;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE . At the time of the introduction of his application , the applicant was serving a prison sentence in the GPE .

On or around DATE suspicions arose that the applicant , who at that time was serving a prison sentence in the LOC penitentiary in GPE , had been involved in giving a false tip - off by telephone to the GPE police to the effect that CARDINAL named detainees were planning to escape from prison by taking hostages . Thereafter , and in order to secure order , peace and safety in the penitentiary , the applicant ’s telephone conversations were tapped and recorded on tape . These taped conversations were kept so as to allow the authorities to establish – if such a situation were to arise again – whether the applicant had been involved in giving any further false telephone tip - offs .

On DATE , as a result of the detonation of an explosive device placed in her car , PERSON – the applicant ’s former partner – suffered slight injuries . Her son , Mr Y , suffered serious injuries necessitating the amputation of the lower part of his left leg .

At the time of the explosion , the applicant was still in prison . As it was suspected that he was involved in the bomb attack , the national public prosecutor ( landelijk officier van justitie ) ordered that the applicant ’s recorded telephone conversations be made available to the criminal investigation into the bomb attack .

On DATE the applicant was summoned to appear before ORG ( arrondissementsrechtbank ) to stand trial on charges of , inter alia , ( attempted ) premeditated grievous bodily harm , causing an explosion endangering property and life , making a threat to kill and various counts of fraud .

NORP On DATE ORG convicted the applicant of making a threat to kill and CARDINAL count of fraud , acquitted him on the remaining charges and sentenced him to CARDINAL years’ imprisonment . Both the applicant and the public prosecutor filed an appeal with ORG ( gerechtshof ) .

In its judgment of DATE , following hearings held on CARDINAL May and DATE , ORG quashed the judgment of CARDINAL DATE , convicted the applicant of complicity in ( attempted ) premeditated grievous bodily harm , causing an explosion endangering property and life , and making a threat to kill or , in any event , to inflict grievous bodily harm . He was also convicted of several counts of fraud . The applicant was sentenced to DATE imprisonment . As regards the determination of the applicant ’s sentence , ORG held , inter alia , that the applicant , over a period of DATE , had continuously threatened PERSON by telephone and had eventually carried out his threats by organising DATE from his place of detention DATE the placing of a bomb under her car . The detonation of this bomb had caused injuries to Ms X and Mr Y , necessitating the amputation of the lower part of the latter ’s leg . The court noted that it was only as a result of the administration of rapid and adequate first aid that Mr Y had not bled to death . In addition , the explosion had caused collateral damage to another car as well as to windows of nearby houses and there had been a real danger that the explosion could also have ( fatally ) injured bystanders . The court further noted that the applicant had already been convicted in the past of having deliberately shot PERSON in the leg .

The Court of Appeal based the applicant ’s conviction on , inter alia , statements given by the applicant , a co - detainee , Mr Y , PERSON and her neighbours , several telephone conversations between the applicant and Ms X that had been tape - recorded by the latter , and one of the applicant ’s telephone conversations that had been tapped and recorded prior to QUANTITY October DATE by the authorities of the penitentiary where the applicant was detained , namely a conversation between the applicant and his sister in which he warned his sister never to approach or get into PERSON car .

ORG rejected the defence ’s argument that the telephone conversations which had been tapped and recorded by the prison authorities before DATE should be disregarded as unlawfully obtained evidence . Noting the reasons for which the prison authorities had decided to tap and record the applicant ’s telephone conversations , the court held that the impugned measures served a lawful purpose , namely the preservation of order , peace and security within the penitentiary . Furthermore , the measures also complied with the requirements of proportionality . It further held that , although the internal penitentiary regulations prescribed the immediate erasure of recorded telephone conversations , a reasonable interpretation of the applicable rules in relation to the aims pursued implied that the recorded conversations could be kept , since there were concrete indications of an ongoing escape plan . When fresh suspicion arose that the applicant was involved in another criminal offence , the information lawfully obtained on the basis of internal prison rules could be made available to the police for the purposes of the criminal investigation into that offence . ORG referred in this connection to the general obligation contained in LAW ) to report , inter alia , criminal offences involving a danger to life , and to the very serious nature of the offence at issue .

The applicant ’s subsequent appeal in cassation was rejected by ORG ( PERSON ) on DATE .

As regards the applicant ’s complaint that his telephone conversations had been unlawfully tapped , recorded and kept by the penitentiary authorities , ORG held :

“ CARDINAL . The complaint has to be considered in the following framework of legal rules . LAW ( PERSON ) ... Article CARDINAL [ of the Convention ] ... Article PERSON of the ... applicable [ DATE ] Prison Rules ( PERSON ) ... Article CARDINAL § CARDINAL of the [ DATE ] Prison Rules ... [ the ] circular no . CARDINAL of the Deputy Minister of Justice ( Staatssecretaris van Justitie ) of DATE ... [ and ] an internal regulation issued by the Governor of the LOC penitentiary under LAW [ DATE ] Prison Act ( Beginselenwet Gevangeniswezen ) ...

Under the heading ‘ The lawfulness of the evidence obtained’ ... ORG found that the recording of the applicant ’s telephone conversations conducted in the LOC penitentiary served a lawful purpose , namely maintaining order , peace and security in the penitentiary , and further complied with the requirements of proportionality . This finding does not reveal any incorrect interpretation of the law . In the first place , this finding recognises that the recording can be justified in view of the aims set out in LAW of [ LAW ] , in particular the prevention of disorder . In the second place , it recognises that ORG has also examined whether in a democratic society the interference at issue with the right set out in LAW of [ the LAW ] was necessary for attaining the stated aim . In so far as that finding further established that the tape recording pursued this aim and that the interference was also necessary , these matters are factual and are readily understandable .

NORP This recording is further provided for by law as required by LAW of [ LAW ] . Indeed , the system of legal rules set out under CARDINAL complies with the requirements of accessibility and foreseeability . The system comprises regulations of which the most important features have been published in generally accessible sources or have been deposited in places accessible to detainees . They provide a sufficiently clear indication to detainees about the fact that telephone conversations can be tapped and recorded and the reasons for this .

NORP The above considerations lead to the conclusion that the finding of ORG as to the lawfulness of the tape recording can be upheld . Questions still remain about the finding of ORG as regards the keeping of the recordings and the failure to erase them immediately , the ... making available to the criminal investigation authorities of these tape recordings , ... their being listened to by the latter for the purposes of the investigation into ... [ the car bomb attack ] and the subsequent use in evidence of a document containing a transcript of CARDINAL of the recorded telephone conversations ( evidence item CARDINAL ) . It must first be noted that the cassation complaint apparently only seeks to challenge the finding of ORG as to the use in evidence of the formal record ( proces - verbaal ) containing the transcript of a telephone conversation between the [ applicant ] and his sister ( evidence item CARDINAL ) .

The internal regulation set out under CARDINAL provides that tape recordings are not to be kept and will be immediately erased . Against the background of a reasonable interpretation , it is difficult to explain that provision otherwise than to mean that the tape recordings must no longer be kept and the tapes must be erased as soon as the danger giving rise to the recording has ceased to exist . Under the heading ‘ The lawfulness of the evidence PERSON ... ORG found that the telephone conversation used in evidence had been recorded , inter alia , after suspicions had arisen that the [ applicant ] was involved in giving a false telephone tip - off about an intended hostage - taking and that this tape recording had been kept in order to be able to establish – if such a situation were to arise – whether the [ applicant ] was again involved in giving false telephone tip - offs affecting the order , peace and security of the penitentiary . It follows from this that , according to ORG and quite apart from the existence of any concrete indication about an escape plan ... – the keeping of and failure to erase the recordings occurred against the background of the danger which gave rise to the decision to tap the conversations . ORG thus found that there was no violation of the relevant internal regulation . Without stating further reasons , this finding can be readily understood .

Taking into account the above considerations , the handing over of the tapes to the national public prosecutor for the purpose of the criminal investigation was not unlawful . Suspicions against the [ applicant ] had arisen that from his place of detention he was involved in a bomb attack . When this official had become aware of the existence of those tapes , it was not unlawful to hand them over , bearing in mind the provisions of LAW and the fact that , failing a voluntary surrender [ of the tapes ] , the judicial authorities could have had recourse to seizure ( inbeslagname ) .

The complaint has therefore no merit . ”

Article CARDINAL § CARDINAL of the LAW ( PERSON ) provides :

“ A person who has been lawfully deprived of his liberty may be restricted in the exercise of fundamental rights in so far as the exercise of such rights is not compatible with the deprivation of liberty . ”

Article CARDINALa of the [ DATE ] Prison Rules ( PERSON ) , in so far as relevant , provides :

“ The Governor may permit detainees to speak by telephone to persons outside the penitentiary . ”

Article CARDINAL § CARDINAL of the [ DATE ] Prison Rules reads :

“ The Governor is responsible for the proper running of the penitentiary . In the exercise of his duties he is bound by the restrictions imposed on him by Our Minister , whether laid down in LAW ( huishoudelijk reglement ) or otherwise . ”

Circular no . CARDINAL of the Deputy Minister of Justice ( ORG ) of DATE provides :

“ Every closed institution must have telephone rules , which must be tailored to the penitentiary ’s regime and to its staff capacity and facilities and must be submitted to me for approval . These rules should include the following : ...

- the way in which the content of the calls is monitored ( it must be possible to listen to the calls by way of retrospective check ) ; the rules must specify whether all calls are monitored on the Governor ’s instructions ; ... ”

An internal regulation issued by the governor of the LOC penitentiary under LAW [ DATE ] Prison Act ( ORG ) provides :

“ It is possible that an instruction may be given by the Governor or on his behalf , by way of a spot check and/or if there are grounds for doing so , to record your telephone conversation . Partly to protect your privacy , only the head of security or his deputy will listen to such tape recordings . They are responsible for ensuring that the tapes are not retained and that they are erased immediately . ”

On DATE , on the basis of LAW , the Minister of ORG issued ORG ( Huishoudelijk Reglement voor de gevangenissen ) . These regulations entered into force on DATE .

According to LAW , detainees have the right – for TIME and at least once per week , at times fixed by the governor – to speak by telephone to persons outside the penitentiary . In accordance with LAW , the governor may restrict – where this is found necessary for the maintenance of order in the penitentiary , for the prevention or investigation of crimes , or for thwarting escape plans DATE a particular detainee ’s right to have visits , to correspond or to have telephone conversations . Pursuant to LAW , DATE and CARDINAL of the DATE Prison Rules , a reasoned decision to this effect must be communicated within TIME to the detainee , who may challenge it before the penitentiary ’s ORG ( GPE PERSON ) . A further appeal lies to ORG for ORG ( Beroepscommissie van de Centrale Raad voor Strafrechttoepassing ) .

Although LAW contain specific provisions concerning the monitoring of GPE visits and correspondence , they make no specific provision for monitoring GPE telephone conversations with persons in the outside world .

On DATE the DATE Prison Rules ( PERSON ) were replaced by new Prison Rules ( Penitentiaire Maatregel ) . The new Prison Rules make no specific provision for the right of detainees to have contacts with the outside world .

On DATE , FAC ( PERSON gevangeniswezen ) was replaced by a new GPE ( Penitentiaire Beginselenwet ) . Article CARDINAL of the new Prison Act , in so far as relevant , reads :

“ CARDINAL . The detainee shall have the right , with the exception of the restrictions provided for in paragraphs CARDINAL inclusive , to conduct – at least once per week , at a time and place determined in the internal regulations and by means of a designated telephone , and for TIME one or more telephone conversations with persons outside the penitentiary . Unless the Governor provides otherwise , the costs thereof shall be borne by the detainee .

The Governor may order that telephone conversations of a detainee be monitored where this is necessary to determine the identity of the person with whom a detainee is having a conversation or in the light of an interest referred to in LAW [ of LAW ] . This monitoring can comprise listening to or recording telephone conversations . The person concerned shall be informed beforehand of the nature of and the reason for monitoring . ”

Article CARDINAL § CARDINAL of the new Prison Act provides :

“ The Governor may refuse to send or deliver certain letters or other items sent by mail if this is necessary in the light of CARDINAL of the following interests :

a. the maintenance of order or security in the institution ;

b. the prevention or investigation of criminal offences ;

c. the protection of victims of crimes or persons otherwise involved in crimes . ”

Article CARDINAL § CARDINAL of LAW , in so far as relevant , reads as follows :

“ Any person who has knowledge of CARDINAL of the offences defined in GPE DATE of LAW , in Book II , Title VII of the Criminal Code , in so far as this has caused a danger to life ... is obliged to report this matter immediately to an investigating officer . ”

Article CARDINAL § CARDINAL of the Code of Criminal Procedure , in so far as relevant , provides :

“ They [ public bodies and officials ] shall upon request provide the public prosecutor ... with all information which has come to their attention in the course of their duties about criminal offences the investigation of which has not been entrusted to them . ”


Ganna Yudkivska;Isabelle Berro-Lefèvre;Julia Laffranque;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant was born in DATE and lived in LOC .

NORP In TIME on DATE , responding to PERSON 's complaint about having been robbed , the police arrived in a bar and arrested the applicant , a minor at the material time , and PERSON , his acquaintance , and took them to the police station for questioning . The applicant explained that he knew nothing about the robbery and left the police station . It is unclear whether he was officially released .

At TIME on DATE the applicant was arrested when walking down a street . According to the applicant , he was seized by force by CARDINAL policemen dressed in civilian clothes , without any explanations . According to the police officers , they invited him for questioning concerning PERSON 's robbery and he swore at them and attempted to escape , making it necessary to arrest him by force .

On DATE the applicant was charged with refusal to comply with the lawful demands of the police officers , presented before FAC without his parents being informed or a lawyer being appointed , and sentenced to DATE administrative detention .

On DATE the police formally initiated criminal proceedings concerning PERSON 's robbery .

On DATE the ORG reviewed the applicant 's sentence after an objection from ORG , reduced it to DATE detention and ordered the applicant 's release . Subsequently ( on DATE ) the President of the NORP ORG of Appeal quashed the decisions of CARDINAL and DATE by way of supervisory review , having found that the applicant should not have been subjected to administrative detention as he was a minor . He did find , however , that the applicant 's malicious insubordination rendered him liable to a fine of CARDINAL hryvnias ( ORG ) .

NORP Before his release on DATE , the applicant was questioned concerning PERSON 's robbery , in the presence of his mother and a lawyer appointed by the police , and confessed to having participated in the robbery .

Following his release , the applicant hired a new lawyer and retracted his confessions . He alleged that he had neither participated in , nor witnessed PERSON 's alleged robbery and that his previous confessions had been made under duress . He further explained that on DATE he had confirmed his confession in presence of his mother and the advocate because the police had threatened that otherwise he would not be released from detention .

NORP In DATE the applicant was committed for trial on charges of robbery . On DATE the ORG remitted his case for additional investigation . The parties did not provide any further information concerning the outcome of the criminal proceedings .

According to the applicant , while he was serving his administrative detention sentence he was severely ill - treated by police officers , who tried to make him confess to participating in ORG 's robbery . In particular , he was handcuffed to a radiator and beaten on the head and body with a plastic water bottle . On several occasions the applicant lost consciousness . As a result of the ill - treatment , on CARDINAL and DATE the applicant , who had not been given access to either a lawyer or his parents , wrote self - incriminating statements , dictated by the police . By way of evidence that he was so questioned , the applicant presented copies of his confession statements dated CARDINAL and DATE . These documents contained his and the law - enforcement officers ' signatures only ( no signatures of an advocate or a minor 's legal representative ) and a seal of ORG .

According to the Government , no investigative actions in the applicant 's respect took place during his administrative detention .

According to the applicant , on DATE he complained to PERSON and ORG that he had been ill - treated by the police , but he was denied referral to a forensic expert to assess his injuries .

On DATE ORG of ORG agreed to provide the applicant with the necessary referral . On DATE the applicant underwent a forensic examination and was found to have minor bodily injuries . In particular , the expert found that the applicant suffered from abrasions and bruises on different parts of his body , a haematoma , situational neurosis , cephalalgia and a possible kidney contusion , which could have been sustained on DATE .

DATE and DATE the applicant received in - patient treatment for his injuries and stress in the GPE ORG . Subsequently ( in DATE ) the applicant also underwent medical treatment for depression and chronic pyelonephritis , conditions which , according to him , were caused by head and kidney injuries sustained at the hands of the police and related stress .

On various dates DATE and DATE the applicant 's mother complained about his ill - treatment to various authorities , including the ombudsman and the President of GPE , in various informal ways . However , it appears that no formal action followed .

On DATE the applicant lodged an official request with the Bilgorod - Dnistrovsky ORG to institute criminal proceedings in respect of his ill - treatment .

On DATE the prosecutor 's office refused to initiate the criminal proceedings , having found that there was no evidence of illtreatment . It noted , in particular , that on the morning of CARDINAL DATE the applicant had left the police station without authorisation and that at TIME on DATE he had refused to follow the police officers who invited him to report for questioning , had sworn at them , pushed them and attempted to escape . His arrest and the bringing of insubordination charges had therefore been justified . Moreover , during his detention the applicant had never requested medical assistance and upon his release he had signed a document stating that he had no claims against the police . No investigative measures in the applicant 's respect had been taken during the period of his detention .

On DATE the Deputy Head of ORG of ORG conducted an internal investigation and concluded that there was no ill - treatment case to answer . In particular , the only force applied to the applicant had been during his arrest and in response to his attempt to escape . He further noted that during the applicant 's detention no investigative action had been taken in his respect . On DATE and DATE CARDINAL other internal investigations were carried out and similar conclusions were reached .

On DATE the Bilgorod - Dnistrovsky Prosecutor 's Office took a fresh decision refusing to initiate criminal proceedings concerning the applicant 's ill - treatment complaint . It noted that the applicant had fallen to the ground on several occasions while trying to escape . It made no conclusions , however , as to whether or not these falls were the cause of the applicant 's injuries . On the same date that decision was quashed by ORG and the case was remitted for additional investigation .

In the meantime , having been notified of the decision of DATE in DATE , the applicant appealed against it before ORG . He noted , in particular , that the prosecutor 's office had not questioned him , his relatives or any witnesses to his arrest concerning the events in question . It also failed to respond to his allegation that there was no legal basis for the demand to appear for questioning and his ensuing arrest at TIME on DATE . If the police officers had wanted to question him about P. 's robbery , according to the applicable law they should have issued a summons and informed his parents . This procedure had not been complied with ; the police had unlawfully demanded that he follow them , so he should not have been convicted of insubordination . Further , the prosecutor 's office had not reacted to the fact that the applicant 's administrative detention had been unlawful as he had been a minor at the material time . In addition , the authorities had wrongly stated that no investigative action involving the applicant had been taken during his detention . In particular , on CARDINAL and DATE he had made self - incriminating statements .

On DATE the Bilgorod - Dnistrovsky City Court annulled the decision of DATE . It stated , in particular , that the investigation had been perfunctory and that the prosecution had failed to establish the cause of the applicant 's injuries . It further noted that the allegation that the applicant had not been questioned concerning PERSON 's robbery during his detention contradicted the factual evidence contained in the case - file materials .

On DATE and DATE the ORG again refused to institute criminal proceedings into the applicant 's ill - treatment allegations , relying on essentially the same arguments as above .

On DATE and DATE respectively those decisions were set aside by ORG and ORG , and the case was remitted for further investigation . ORG noted , in particular , that the investigation had not determined what legal basis there had been for the police officers ' initial demand of DATE that the applicant report for questioning , or whether the applicant 's reaction vis - à - vis the police necessitated his arrest and the use of force against him . Further , the authorities had not questioned the applicant or the medical expert who had examined his injuries and had not verified the police officers ' version that the applicant had fallen several times while trying to escape .

On DATE ORG also addressed a letter to the Bilgorod - Dnistrovsky Prosecutor , alerting him that the investigation was perfunctory and CARDINAL - sided . In particular , it was largely based on the explanations given by the police officers , without any other measures being taken to establish the real facts . It further invited LOC to facilitate “ a proper and professional investigation ” .

On DATE the ORG took a fresh decision not to institute criminal proceedings , which was set aside by ORG on DATE and followed by a new refusal on DATE .

On DATE the NORP Regional Forensic Experts Bureau re - assessed the applicant 's injuries as being of ' intermediate gravity ' . In particular , it concluded that his depressive disorders and pyelonephritis could be connected to a traumatic experience in DATE . It further concluded that , in view of their number and location , the injuries concerned could not have been sustained as a result of DATE . It was likely that the injuries at issue had been caused by multiple impacts with blunt objects , such as a fist , a foot or the like .

Following this assessment , on DATE the GPE ORG set aside the decision of DATE refusing to initiate criminal proceedings ( which had already been annulled by ORG on DATE ) and ordered further investigation .

On DATE the Bilgorod - Dnistrovsky Prosecutor 's ORG refused to comply with the court 's instructions , finding that further to the annulment of the decision of DATE by ORG , it had already carried out additional investigations , and its last decision of DATE was valid .

On DATE the Odessa Regional Prosecutor 's Office annulled that decision and ordered further investigation .

On DATE the Bilgorod - Dnistrovsky Prosecutor 's Office took a fresh decision not to institute criminal proceedings , relying essentially on the same arguments as in its previous refusals .

The relevant domestic law can be found in the judgment in the case of PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) .


Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award

Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria

The applicant was born in DATE and lives in PERSON .

On DATE the applicant , suspected of theft , was allegedly subjected to a beating by police officers in police station no . CARDINAL in PERSON . Later he was taken to ORG , where several police officers allegedly handcuffed him , put a gas mask over his face and beat him with batons and a metal chair for TIME .

In TIME of CARDINAL November CARDINAL he was locked in a cell , where he spent DATE . During DATE he lost consciousness several times and asked for medical assistance . At TIME the applicant was taken to a hospital where he was diagnosed with multiple bruises on his face , a fracture of the left shin and a head trauma with concussion .

On DATE the applicant was taken to a forensic medical institution for examination . He was diagnosed with multiple bruises on his face , chest , legs and buttocks , a fracture of the left shin and a head trauma with concussion . The medical report stated that :

“ The [ applicant ’s ] injuries were inflicted by blows with blunt objects with a limited surface area ( au fost cauzate în rezultatul acţiunii traumatice de un corp contondent cu suprafaţa limitată de interacţiune ) ...

It can not be excluded that the fracture [ of the left shin ] ... was caused as a result of [ the applicant ’s ] fall from a height . ”

On DATE the applicant complained to ORG about the ill - treatment to which he had been subjected and requested that the police officers who had ill - treated him be prosecuted .

On DATE ORG dismissed the applicant ’s complaint as manifestly ill - founded . The prosecutor had questioned the applicant , who had reiterated his complaints . He had also questioned CARDINAL police officers accused of ill - treatment , who had declared that on DATE the applicant had attempted to escape from the police station by jumping from the window of a toilet on the second floor . The prosecutor concluded that all of the injuries on the applicant ’s body resulted from his fall .

The applicant challenged the prosecutor ’s decision before ORG and argued , inter alia , that he had never jumped from the window of the toilet of the police station and that there was no window in that toilet . Moreover , the forensic medical report concluded that only the fracture of his shin could have been caused by a fall .

NORP On DATE ORG upheld his appeal . The court relied on the forensic medical report , which found that most of the applicant ’s injuries could only have been caused by blows , and on the applicant ’s submission that there was no window in the toilet of the police station .

On DATE Prosecutor PERSON from ORG again dismissed the applicant ’s complaint about ill - treatment . The prosecutor again questioned the police officers accused of ill - treatment , who repeated their account of the applicant ’s jump from the window . This time the police officers added that after jumping from the window and breaking his shin , the applicant had attempted to escape and resisted arrest and that they had been forced to apply force and special techniques , thus causing the other injuries on his body . The prosecutor also questioned a third party , who worked in an office in the police station and who confirmed the accounts of the police officers . The third party also added that he had heard the applicant shout that he would mutilate himself in order to accuse the police later of ill - treatment . Finally , the prosecutor stated that he had checked the toilet of the police station on the second floor and had found that it had a large window .

The applicant challenged the prosecutor ’s decision before ORG and the investigation was reopened . A further forensic report dated DATE was obtained , which excluded the possibility that all the injuries on the applicant ’s body could have been sustained as a result of a jump from the height of the second floor or DATE from the applicant ’s own height .

On DATE the ORG indicted the CARDINAL police officers accused of ill - treating the applicant and DATE referred the case to a court .

On DATE the ORG found the accused police officers guilty of acts of torture in respect of the applicant . The court relied on the forensic reports which contradicted the police ORG version of events concerning the origin of the applicant ’s injuries and relied on the testimony of a witness who had heard sounds of ill - treatment and shouts from the office where the applicant was questioned and who had seen the applicant lying on the floor when the door opened . The police officers were given a suspended sentence of DATE imprisonment and banned from working at ORG for DATE .

On DATE the ORG dismissed the appeals lodged by ORG , the applicant and the accused police officers and upheld the judgment of ORG .

On DATE ORG upheld the appeal on points of law lodged by ORG and ordered the reopening of the proceedings before ORG . It found , inter alia , that the sanction imposed on the accused police officers was too lenient .

On DATE ORG re - examined the appeal against the judgment of DATE and acquitted the accused police officers . The ORG has not been provided with a copy of the judgment of ORG . ORG appealed against that judgment and on an unspecified date ORG quashed the judgment of DATE and ordered a fresh examination by ORG of the appeal against the judgment of DATE . The proceedings are still pending before ORG .

The relevant provisions of LAW read as follows :

“ ( CARDINAL ) The act of forcing someone to confess to a criminal offence or to make statements during questioning , by means of threats or by other illegal means on the part of the person carrying out a criminal investigation ... shall be punishable by imprisonment of DATE ...

( CARDINAL ) The same act accompanied by :

( a ) NORP violence ;

( b ) cruel , inhuman or degrading treatment ;

Shall be punishable by imprisonment of DATE ... ”

“ ( CARDINAL ) Intentionally causing intense physical or mental pain or suffering , especially with a view to obtaining information or testimonies ... shall be punishable by imprisonment of DATE . ...

( CARDINAL ) The actions referred to in paragraph CARDINAL ... , carried out :

( c ) by CARDINAL or more persons ;

( e ) with the use of special instruments of torture or other objects adapted for that purpose ;

( f ) by an official ,

shall be punishable by imprisonment of DATE ... ”