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Entities to which International Guarantees Apply

Canea Catholic Church v Greece, 16 December 1997 [ECtHR]


Case no 25528/94


32.  The applicant church said that the refusal of the Canea Court of First Instance sitting as an appellate court and of the Court of Cassation to recognise it as a legal person with capacity to bring or defend legal proceedings breached Articles 6 and 9 of the Convention and Article 1 of Protocol No. 1, each taken either alone or in combination with Article 14 of the Convention.

33.  Unlike the Commission, the Court considers that the applicant church’s complaints mainly concern a restriction on the exercise of its right of access to a court. Accordingly, it will consider first the issues relating to Article 6 of the Convention.

(...) 38.  In the Golder v. the United Kingdom judgment of 21 February 1975 and the Ashingdane v. the United Kingdom judgment of 28 May 1985 (Series A no. 18, p. 18, § 36, and no. 93, pp. 24–25, § 57) the Court held that Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal; in this way the Article embodies the “right to a court”, of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect.
The right is not, however, an absolute one; since, by its very nature, it calls for regulation by the State, it may be subject to limitations, although these must not restrict or reduce access in such a way or to such an extent that the very essence of the right is impaired.

39.  It is apparent from the evidence before the Court that the legal personality of the Greek Catholic Church and of the various parish churches has never been called in question since the creation of the Greek State either by the administrative authorities or by the courts. Those churches – including the applicant church – have in their own name acquired, used and freely transferred movable and immovable property, concluded contracts and taken part in, among others, notarial transactions, whose validity has always been recognised. As regards taxation, they have also enjoyed the exemptions provided in Greek legislation on charitable foundations and non-profit-making associations (see paragraphs 21 and 24 above).

40.  The Court cannot accept the Government’s argument that the applicant church should have carried out the formalities necessary for acquiring one or other form of legal personality provided for in the Civil Code as there was nothing to suggest that it would one day be deprived of access to a court in order to defend its civil rights. Settled case-law and administrative practice had, over the course of the years, created legal certainty, both in property matters and as regards the representation of the various Catholic parish churches in legal proceedings, and the applicant church could reasonably rely on that. In this connection, the Court notes that in the instant case the Canea District Court gave no consideration to the question of legal personality (see paragraph 9 above) and the reporting judge of the Court of Cassation – relying on the well-established case-law – had invited that court to quash the judgment of the Court of First Instance sitting as an appellate court (see paragraph 12 above).
As to the possibility – which the Government maintained still existed – of the applicant church’s acquiring such a personality or constituting itself as a union of persons in order to be able to bring or defend legal proceedings in the future, in accordance with Article 62 of the Code of Civil Procedure, the Court shares the reservations expressed by counsel for the applicant church. Quite apart from the difficulties of adapting a church to that kind of structure and the procedural problems which might arise in the event of litigation, such late compliance with the relevant rules of domestic law might be interpreted as an admission that countless acts of the applicant church in the past were not valid. Furthermore, the Court of Cassation’s judgment would make it problematical to transfer the applicant church’s property to a new legal entity which would take the place of the church, hitherto the owner of its property.

41.  In holding that the applicant church had no capacity to take legal proceedings, the Court of Cassation did not only penalise the failure to comply with a simple formality necessary for the protection of public order, as the Government maintained. It also imposed a real restriction on the applicant church preventing it on this particular occasion and for the future from having any dispute relating to its property rights determined by the courts; in this connection, the Court notes that on 31 May 1995 the Crete Court of Appeal, relying on the Court of Cassation’s judgment, dismissed two actions brought by the applicant church against the lessees of a business it owned, on the ground that it did not have legal personality (see paragraph 21 above). 

42.  Such a limitation impairs the very substance of the applicant church’s “right to a court” and therefore constitutes a breach of Article 6 § 1 of the Convention.

(...) 48.  The applicant church complained of a breach of its right to freedom of religion and of its right to the peaceful enjoyment of its possessions. It relied on Article 9 of the Convention and Article 1 of Protocol No. 1 respectively, each taken either alone or together with Article 14 of the Convention. (...)
Under Article 9 of the Convention and Article 1 of Protocol No. 1 taken alone, the applicant church maintained that the refusal to acknowledge that it had legal personality so that it could take legal proceedings to protect its property, even if such property was not directly used for religious purposes, infringed its freedom of religion and deprived it of any possibility of applying to the courts in the event of arbitrary dispossession of its property or expropriation. Under Article 14 of the Convention taken together with the foregoing Articles, it argued that it had suffered discrimination on the ground of religion.

(...) 50.  Having regard to its conclusions in paragraphs 42 and 47 above, the Court holds that it is not necessary to rule on the complaints based on these Articles.

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