Monastery against monk heirs. Violation of the right to the property of the heirs
JUDGMENT
Lamberi and others v. Greece 08.10.2020 (app. no. 18312/12)
SUMMARY
Monk inheritance and right to property. The applicants sold to third-party buyers a property they inherited from their ancestor, who was a monk. He himself had left the monastery, but this was not confirmed by a certificate of exemption from monastic duties issued by the monastery. Following the sale, the monk’s monastery, which had no previous contact with the applicants, sued the buyers, seeking recognition as the owner of the property in question. The action was upheld and the applicants were obliged to reimburse the purchase amount to the buyers.
Strasbourg considered that the applicants’ obligation to repay the sale of their property arose from a decision taken by the Greek courts that the interested parties were not the owners of the property in question due to its “illegal” departure. monk from the monastery, constitutes a “special and excessive burden” which cannot be justified by the existence of a legitimate general interest pursued by the authorities.
The ECtHR found a violation of the right to property (Article 1 of the First Additional Protocol) and awarded EUR 150,000 in damages and non-pecuniary damage.
PROVISION
Article 1 of the First Additional Protocol
PRINCIPAL FACTS
The applicants, Grigorios, Kariaki and Panayiota Liamberi, are Greek nationals who were born in
1952, 1966 and 1953 respectively and live in Athens. All three are descendants of Ioannis V., who
acquired a plot of land in Piraeus in 1934 and built a house there.
The case concerned proceedings for recovery of possession instituted in the Greek civil courts
against the applicants in 2002 by the Megisti Lavra monastery of St Athanasius on Mount Athos, the
largest monastic establishment in Greece.
In 2001 the applicants sold the property to C.T. and A.S. for the sum of 352,164 euros. The
purchasers demolished the existing house to build their own home.
Following the sale, the monastery, which had had no previous contact with the applicants and had
not registered its claims over the property, brought an action against the purchasers C.T. and A.S.,
seeking to be recognised as the owner of the property in question.
The monastery alleged that Ioannis V., under a different name, had belonged to its community of
monks before 1921, and that in accordance with Greek law – which provided that any property
acquired by a monk after his monastic tonsure was to belong to the monastery as long as it had not
dismissed the monk from religious orders – it was the rightful owner of the property.
At final instance, the monastery’s action for recovery of possession was successful. The domestic
courts found that the property in question could never have been bequeathed by Ioannis V. to his
heirs, because he had been a monk at the Megisti Lavra monastery on Mount Athos at some point
during his lifetime. Furthermore, Greek law provided, since a 1926 decree, that monasteries’
property rights were not subject to any limitation period.
The purchasers C.T. and A.S., for their part, instituted proceedings in 2003 for the seizure of the
applicants’ assets for the purposes of repayment, and the applicants were required to refund the
sale price to the purchasers.
Relying in particular on Article 1 of Protocol No. 1 (protection of property), the applicants
complained of an interference with their rights over the property of their ancestor Ioannis V.
THE DECISION OF THE COURT…
The Court noted that the intervention in question was “required by law”, as required by Article 1 of the First Additional Protocol to the Convention, in this case Article 101 of the Charter of Mount Athos and Article 21 of the Decree of 22 April / 16. May 1926. The intervention also pursued a legitimate aim, namely the protection of the immovable property of the monasteries from attempts at usurpation by third parties.
However, it is for the Court to consider, in the light of the general rule laid down in Article 1 of the First Protocol, whether a fair balance has been struck between the requirements of the general interest and the rights of the persons concerned. The Court recalled in this connection that the concern to ensure a “fair balance” between the requirements of the general interest of the community and the requirements of the protection of the fundamental rights of the individual is reflected in the structure of Article 1 of the First Protocol. for a reasonable proportionality relationship between the means used and the objective pursued (see, inter alia, Vistiņš and Perepjolkins v. Latvia [GC], no. Verifying the existence of such a balance requires a comprehensive examination of the various interests concerned.
The concern for ensuring such a balance is reflected in the structure of Article 1 of the First Additional Protocol as a whole. In particular, there must be a reasonable proportionality between the means used and the purpose pursued by any measure taken by the State, including measures to deprive an individual of his property (Pressos Compania Naviera SA and Others v. Belgium, 20.11.1995, § 38). In any case concerning the alleged breach of this provision, the Court had to determine whether, on account of the action or inaction of the State, the person concerned had to bear a disproportionate and excessive burden (Kanaginis v. Greece No 27662/09, § 41, 27.10.2016).
In the present case, the Court noted from the outset that under Greek law, as applicable in the present case under Article 101 § 2 of the Rules of Mount Athos, all property acquired by a monk after his ordination belongs to the monastery, regardless of the place of death of the monk, as long as the latter has not been relieved of his duties. The monk can transfer his inheritance to his family or to persons of his choice only when he has left the monastery in a “legal” way, which is certified through a certificate of exemption from monastic duties issued by the monastery. In that case, the three bodies which examined the applicants’ case applied Rule 101 (2) of those Rules. The Court of Appeal ruled that this provision, contrary to the possibility of a monk who had left the monastery in a way that did not comply with the internal regulations and final orders of the monastery to transfer his property to which he wished, was contrary to Articles 5 § 1 and 17 of the Constitution, as well as Article 8 of the Convention and Article 1 of the First Protocol. The Court of Appeal clarified that this did not exist when the monk who had left the monastery, not in a way that did not comply with the internal regulations, but with the approval of the latter: in this case, the monk was considered to continue living according to the monastic rules and that he had not left the monastery permanently, even if he never returned there, and his inheritance had to be returned to the monastery pursuant to Article 101 § 2 of that Regulation.
The Court noted that the existence of such a permit / authorization from the Monastery does not emerge from any evidence in the file. The Court noted that the Government did not in fact deny the applicants’ claim that the monastery had refused to grant access to the “register of monks”, which would have prevented any verification of the existence of such authority.
The Court could not agree with the Government’s argument that it was up to third parties claiming rights over the inheritance of a deceased monk to prove that the latter had been issued a certificate of leave by the monastery or that he had left the monastery arbitrarily. If the monastery did not comply with the substantive and formal conditions laid down in Article 96 of the legal map of Mount Athos, it would be too much to require the monks’ descendants, such as the applicants, to prove, several decades later, how their grandfather had leave the monastery.
In addition, in the absence of evidence of the existence of a temporary exit permit or leave certificate issued by the monastery, the Court considered that it had to take into account the wishes of John B., which is reflected in the behavior he adopted after leaving the monastery: the ancestor of the applicants settled in Piraeus and acquired from his sister, the disputed property, which he owned until his death and which he transferred to his other sister. In the opinion of the Court, these facts clearly show that John B. had voluntarily chosen to leave monastic life and never return to the monastery and decided not to transfer the inheritance he acquired after leaving the monastery to the latter. These moves therefore imply an exit from the monastery which does not comply with internal regulations.
In addition to the above circumstances, the Court notes that the fact that the inheritance acquired by a monk after his ordination must be returned to the monastery, if he has not been released, is not surrounded by any guarantee either for the person concerned and his beneficiaries, nor for third parties. More specifically, if article 94 of the Statutory Charter of Mount Athos obliges the monastery to keep a “register of monks” containing all the useful personal information related to their monastic life, it seems that this register, as evidenced by its facts case, is not accessible to the interested parties themselves, but also to the court that will be called upon to rule on a dispute concerning the status of a monk. The continuation, temporary cessation or disappearance of the monk’s status does not even appear in the monk’s civil status register, so that if there is a subsequent transfer of good faith to a third party, the latter may, as in the present case, be deprived of that property without having received any guarantee, either at the time of acquisition of the property or later.
In that regard, too, the Court noted that, in order to establish that the monastery was the owner of the property in question, the domestic courts automatically applied Article 21 of the Decree of 22 April / 16. May 1926, which resulted in the extension of the favorable treatment of the Monastery that was initially granted to the state for areas that belong to it. Furthermore, although the national court pointed out that the applicants did not raise the question of the acquis precisely, it did consider that question on the merits. However, such an automatic and absolute application is tantamount to granting monasteries a privilege of virtual possession and exemption from an ongoing legal process of consideration of many elements taking into account the interests between the protection of the individual interest and the protection of the general interest. In this case, these figures consisted of numerous acts of occupation carried out by the applicants’ ancestors over several decades (including the payment of property and local taxes and inheritance taxes), his claims on the disputed property, and on the condition that the land had been initially assigned by the then Ministry of Welfare to one of John B.’s sisters, and which was then passed down from generation to generation within the same family.
The combination of these two privileges, that is, on the one hand, the fact that the inheritance acquired by a monk after his ordination must be returned to the monastery and, on the other hand, the inability of the person concerned to make use of the acquired property, if justified, as well as and the absence of a guarantee for the benefit of the monk and his beneficiaries, resulted in the imposition of a disproportionate burden on them. However, those factors were not taken into account by the Court of Appeal and the Supreme Court, which examined the applicants’ case.
In the light of the foregoing, the Court held that the applicants’ obligation to repay the sale price of their property to the buyers, arising from the decision taken by the Greek courts that the interested parties were not the owners of the property in question, constitutes a “special and excessive burden” which cannot be justified by the existence of a legitimate general interest pursued by the authorities.
Consequently, the Government’s objections were rejected and the ECtHR found a violation of the right to property (Article 1 of the First Additional Protocol).
In the light of that conclusion, the Court considers that no separate issue has arisen under Article 14 of the Convention. Therefore, it was not necessary to consider this complaint
Just satisfaction: EUR 150,000 (pecuniary and non-pecuniary damage) and EUR 8,967.22 (costs and
expenses)
