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  • George S.
    Senior Member
    • Aug 2009
    • 10116

    Review of International Affairs
    Vol. LIII, No. 1108
    Some Remarks About the Legal Status
    of Macedonia in the United Nations

    by Dr. Igor Janev

    October - December, 2002

    click here to for a printable .pdf version


    Abstract

    The present article examines the legality of imposing additional conditions on Macedonia's admission to the United Nations as spelt out in UN Security Council (SC) resolution 817 (1993) and General Assembly (GA) resolution 47/225 (1993). These conditions include the applicant's acceptance of a provisional name and an obligation to negotiate with another country (Greece) over its final name. It is argued that the imposition of these conditions violates Article 4(1) and some other articles of the UN Charter. The consequences of the imposed conditions on the legal status of Macedonia as a UN member are also examined. The imposed conditions create a discriminatory status for the member state and this is in violation of Article 2(1) of the Charter. It is shown that these violations of Charter provisions create ultra vires act on the part of the United Nations.

    1. Introduction

    The admission of Macedonia to UN membership in April 1993 by the UN General Assembly resolution 47/225 (1993) 1, pursuant the Security Council resolution 817 (1993) 2 that recommends such admission, was associated with imposing on the applicant two additional conditions with respect to those explicitly provided in Article 4(1) of the UN Charter, namely: acceptance by the applicant state (i) of "being provisionally referred to for all purposes within United Nations as 'the former Yugoslav Republic of Macedonia' pending settlement of the difference that has arisen over the name of the state", 3 and (ii) of negotiating with a neighboring country (Greece) over its name. The condition (ii) is implied in the second part of above cited text, common to both GA Res. 47/225 (1993) and SC Res. 817 (1993), and more explicitly in the provision of the latter resolution by which Security Council "urges the parties to continue to cooperate with the Co-Chairmen of the Steering Committee of International Conference on Former Yugoslavia in order to arrive at a speedy settlement of the difference". 4 The reason for imposing these conditions was given in the preamble of SC Res. 817 (1993) in which the Security Council, after affirming that "the applicant fulfils the criteria for membership laid down in Article 4 of the Charter of the United Nations", observes that "a difference has arisen over the name of the State, which needs to be resolved in the interest of the maintenance of peaceful and good-neighbourly relations in the region". 5 This observation of the Security Council was apparently based on the Greek allegation that the name of the applicant "implies territorial claims" against Greece.6 In order to complete the picture, it should be mentioned that despite the strong objection of Macedonian government 7 to the formulation of SC Res. 817 (1993), and the adoption by the Macedonian Parliament of two amendments to the Constitution of Republic of Macedonia in 1992, 8 (affirming that Macedonia "has no territorial claims against any of neighboring states", and that its borders can be changed in accordance with the Constitution and "generally accepted international norms"), the text of the SC Res. 817 (1993) remained unchanged.

    The described situation regarding the admission of Macedonia to UN membership rises two major questions: (1) are the imposed conditions on Macedonia for its admission to UN membership in accordance with the provisions of UN Charter, and (2) what are the implications of imposed conditions for admission on the legal status of Macedonia in the UN Organization? A detailed analysis of the first question was given recently 9 on the basis of advisory opinion of International Court of Justice (ICJ) of 1948 10 (related to the admission of states to UN membership) and adopted by the General Assembly .11 The conclusion of that analysis, derived directly from the mentioned ICJ advisory opinion (stating that the conditions for admission of a state to UN membership laid down in Article 4(1) of the Charter are exhaustive, i.e. their fulfillment is necessary and sufficient for admission) and the character of conditions (i) and (ii) (which transcend in time the act of admission and are, therefore, obviously additional to those listed in Article 4(1) of the Charter), was that the resolutions GA Res. 47/225 (1993) and SC Res. 817 (1993) are in violation with Article 4 (1) of the Charter as a legal norm.

    In the present article we shall examine the implications of the imposed admission conditions on the legal status of Macedonia in the UN Organization. The subject draws its importance from the fact that even after nine years of negotiations, the "difference over the name" between Macedonia and Greece still remains, and there are no signs that a "speedy settlement of the difference" will be achieved any time soon, if at all. Meanwhile, Macedonia continues to be referred by a provisional name within the UN system. Since the imposed admission conditions on Macedonia and its peculiar legal status in the UN are related to its name, it is appropriate first to examine the question of the right of a state to free choice of its own name.

    2. Legal Freedom of a State in the Choice of its Own Name

    The inherent right of a state to have a name can be derived from the necessity that a juridical personality must have a legal identity. In absence of such an identity, the juridical person, such as a state, could to a large extent (or even completely) loose its capacity to interact with other such juridical persons (e.g. conclude agreements, etc.) and independently enter into and conduct its external relations. The name of a state is, thus, an essential element of its juridical personality and, consequently, of its statehood. The principles of sovereign equality of states 12 and the inviolability of their juridical personality 13, lead to the conclusion that the choice by a state of its own name is a basic, inherent right of the state. This right is not alienable, divisible or transferable, and is a part of the right to 'self-determination' (determination of one's own legal identity), i.e. it belongs to the domain of jus cogens norms. External interference with this basic right is inadmissible.

    It is also obvious that if such an external interference with the choice of the name of a state would be allowed, even through a negotiation process, it might easily become a legally endorsed mechanism for interference in the internal and external affairs of that state, i.e. a mechanism for degradation of its political independence. From these reasons, the choice by the state of its own name must be considered as an inherent right of the state that belongs stricto sensu to the domain of its domestic jurisdiction. In exercising this right, the states have, therefore, a complete legal freedom. This freedom may in practice be constrained only by considerations of avoidance the overlap of legal identities of two (or more) international juridical persons. (The province 'Macedonia' in Greece, however, is not an international juridical person.)

    Based on the principle of separability of domestic and international jurisdiction, the name of a state, which is subject of that state's domestic jurisdiction, does not create international legal rights for that state, nor does it impose legal obligations on other states. Clearly, the name per se does not have a direct impact on the territorial rights of states. Therefore, the earlier mentioned Greek allegation that the name of the applicant implies "territorial claims" has no legal significance. The Arbitration Commission of European Communities on former Yugoslavia also took this position and did not link the name of the country (Republic of Macedonia) to the Greek territorial rights.14 The same view is shared by prominent scholars of international law.15

    Interference with matters that are essentially within the domestic jurisdiction of a state, such as the choice of state's name, is also incompatible with the UN Charter.16 Article 2 (7) of the Charter explicitly extends the validity of this legal norm to the United Nations themselves.17 It appears, therefore, that neither the Greek opposition to the admission of Macedonia to UN membership under its constitutional name, nor the intervention of the UN Security Council in the matters related to the name of the country, are consistent with the Charter.

    3. Legal Status of a UN Member under Imposed Admission Conditions

    According to the interpretation of Article 4(1) of the Charter given in 1948 18 and accepted by the General Assembly, 19 the conditions laid down in that article are exhaustive (and "not merely stated by way of guidance or example" 20), they must be fulfilled before admission is effected, and, once they are recognized as having been fulfilled by the Security Council, the applicant state acquires an unconditional right to UN membership. This right is enshrined in Article 4 itself and comports with the universal character of the UN Organization. At the same time, and for the same reasons, the Organization has a duty to unconditionally admit such a state to UN membership. The Security Council in the preamble of its resolution 21 recognizes that the applicant state fulfils the required criteria for admission and yet, contrary to the accepted interpretation of Article 4(1) of the Charter, recommends that the applicant be admitted to membership with a temporary reference label (to be used for all purposes within the UN), and imposes an obligation on the future UN member to negotiate with a neighboring state about its own name. The fact that Security Council has ignored the strong objection 22 of Macedonian Government to such formulation of its resolution indicates that it considered the added conditions as necessary for giving the recommendation.

    A specific feature of the additional conditions imposed on Macedonia for its admission to UN membership is that their effect begins with the act of admission. Their nature is quite different than that of the conditions laid down in Article 4(1) of the Charter: they need to be fulfilled not before the admission, but after it. These additional conditions transcend their cause; their nature is obviously not legal, but rather political. According to the ICJ advisory opinion of 1948 23, no "political considerations" can be superimposed on, or added to, the conditions set forth in Article 4(1) that could prevent admission to membership. The broad nature of the prescribed admission criteria already provides space for appreciation of all political factors relevant for the judgement on the fulfillment of these criteria.

    With its imposed provisional name (for use within the UN), i. e. with its derogated legal personality, and its obligation to negotiate with a neighboring country over its name, Macedonia has a legal status within UN which is obviously different from that of other member-states. Membership to the UN Organization, as a legal status, contains a standard set of rights and duties that are equal for all members of the Organization ("sovereign equality of the Members" 24). The admission of Macedonia to UN membership with additional, non-standard conditions (that impose on the member certain membership obligations) may be interpreted as "conditional admission", and, consequently, the resulting membership status as 'conditional'. The Charter, however, does not provide for conditional membership in the Organization. Suppose that Macedonia decides at one point in time not to comply anymore with its membership obligation to negotiate with Greece over its name. What could be the possible UN sanctions for such non-compliance? Expulsion from UN membership would only prove that its present membership status is conditional. Other forms of sanctions would also indicate, in less evident way, the conditional character of the membership status.

    Obstruction of the "settlement of the difference" over the name during the negotiating process may be another form of non-compliance with the membership obligation. Such obstruction in the negotiating process may be, however, introduced also by the other negotiating party (from political, economic or other reasons). The fulfillment of the imposed admission obligation may, therefore, depend not only on the good will of the party carrying the obligation, but also on a factor outside of its control. In fulfilling its membership obligations, Macedonia is, thus, not independent, which is another difference of its membership status with respect to the other UN member-states. There is still another important feature of the legal status of Macedonia as a UN member. By imposing the additional condition for admission of using a provisional name for the state within the UN, the legal personality of the future member-state has been heavily derogated by the very act of admission. The derogated legal personality of Macedonia in the United Nations system is most clearly manifested in the area of representation. In all acts of representation within the UN system, and in the field of UN relations with other international subjects, the provisional, and not the constitutional, name of Macedonia is to be used. This is in violation with the right of states to non-discrimination in their representation in the organization of universal character, expressed in an unambiguous way in Article 83 of the Vienna Convention on representation of states.25 The right to equal representation of states in their relations with the organizations of universal character (such as the UN family of organizations) is only a logical derivative of the principles of sovereign equality of states within the UN Organization and inviolability of their juridical personality.

    4. Conclusions

    The imposed additional conditions on Macedonia for its admission to UN membership, in direct violation of several Charter's provisions, has created an unusual legal status of Macedonia in its UN membership. This status is characterized by a drastically derogated legal personality of the member (through an imposed legal identity), enlarged membership obligations (the fulfillment of which depend on factors outside of its control), and unequal rights in the area of representation compared with other member-states. Even the very nature of membership status is not quite clear, in view of the imposed sine qua non condition by the act of admission. It is uncontestable that the principle of 'sovereign equality of the members' of the Organization is severely violated in the case Macedonia as UN member.

    The absence of any progress in the negotiations with Greece over the name after nine years indicates that the problem is fundamental by its nature. In fact, the dispute over the name appears to be not between Macedonia and Greece, but rather, in an implicit form, between Macedonia and the UN. In this dispute Macedonia is defending its right to self-determination of its own legal identity. Macedonia obviously considers that right as being sovereign and alienable, and well grounded in the principles of law.

    Notes

    GA Res. 47/225, 8 April 1993 [hereafter: GA Res.47/225 (1993)].
    SC Res. 817, 7 April 1993 [hereafter: SC Res.817 (1993)].
    See Supra note 1.
    See Supra note 2.
    Ibid.
    See UN SCOR, 48th Sess., Supp. Apr., May, June, at 36, UN Doc. S/25543 (1993).
    See UN SCOR, 48th Sess., Supp. Apr., May, June, at 35, UN Doc. S/25541 (1993).
    See 11 Constitutions of the Countries of the World, and Supp. 98-6, (A.P.Blaustein and G.H.Flanz, eds., 1994, 1998)
    I. Janev, 'Legal aspects of the use of provisional name for Macedonia in the United Nations system', 93 AJIL 155 (1999).
    Admission of a State in the United Nations (Charter, Art. 4), ICJ Reports, 57 (1948).
    GA Res. 197 (III,A), 8 December 1948.
    UN Charter, Art. 2(1).
    Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, GA Res. 2625 (XXV), 24 October 1970.
    See 31 ILM 1507, 1511 (1992).
    L. Henkin, R.C. Pugh, O. Schachter and H. Smit, "International Law: Cases and Materials", p. 253 (3rd ed., 1993).
    See Supra note 13.
    UN Charter, Art. 2(7).
    See Supra note 10.
    See Supra note 11.
    See Supra note 10.
    See Supra note 2; Preamble.
    See Supra note 7.
    See Supra note 10.
    See Supra note 12.
    Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character, UN Doc. A/CONF. 67/16 (March 14, 1975). [See also 69 AJIL 730 (1975)].

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    "Ido not want an uprising of people that would leave me at the first failure, I want revolution with citizens able to bear all the temptations to a prolonged struggle, what, because of the fierce political conditions, will be our guide or cattle to the slaughterhouse"
    GOTSE DELCEV

    Comment

    • George S.
      Senior Member
      • Aug 2009
      • 10116

      Proposal for Resolving the Dispute Over the
      Name of the Republic of Macedonia

      Dr. Igor Janev

      July, 2003

      The Macedonian Government should request that the following Draft Res. be placed at the next Session of the UNGA:

      DRAFT RESOLUTION

      The General Assembly

      Considering Advisory Opinion of the International Court of Justice of 28 May, 1948, Considering the General Assembly Resolution 197/III of 8 December, 1948,

      Taking note that a difference in legal interpretation of the Charter of the United Nations has arisen between "the former Yugoslav Republic of Macedonia" and the United Nations over the legality of conditions for admission of that state to membership of the United Nations, and consequently over the legality of its current status in the Organization,

      Considering Article 96 of the Charter of the United Nations,

      For the purposes to determine whether additional requirements were imposed in the procedure of admitting "the former Yugoslav Republic of Macedonia" to the membership of the United Nations, out of the scope of the exhaustive conditions of Article 4(1) of the Charter of the United Nations and to determine further course of action,

      Decides to submit the following legal question to the International Court of Justice:

      Is the Resolution 47/225 (1993) of the General Assembly, in its part relating to denomination "the former Yugoslav Republic of Macedonia", with requirement for settlement of the "difference that has arisen over the name of the State" legally in accordance with the Charter of the United Nations? (Particularly, is the Resolution 817 (1993) of the Security Council, in its parts relating to denomination "the Former Yugoslav Republic of Macedonia", with requirement for settlement of the "difference that has arisen over the name of the State" legally in accordance with the Charter of the United Nations?).

      *Dr. Igor Janev,
      Former Special Advisor of the Minister of Foreign Affairs of the
      Republic of Macedonia
      "Ido not want an uprising of people that would leave me at the first failure, I want revolution with citizens able to bear all the temptations to a prolonged struggle, what, because of the fierce political conditions, will be our guide or cattle to the slaughterhouse"
      GOTSE DELCEV

      Comment

      • George S.
        Senior Member
        • Aug 2009
        • 10116

        Political Review 05/02

        On the Legal Status of Macedonia in the United Nations: A Case for Juridical Redress

        Igor Janev*

        Contents:

        On the Legal Status of Macedonia in the United Nations: A Case for Juridical Redress

        Introduction

        Admission of Macedonia to UN Membership: The Political Context

        Legal Freedom in the Choice of Legal Identity of a State

        Legal Status of a UN Member with Imposed Admission Conditions

        Redress of Macedonian Legal UN Membership Status by Juridical Means

        Conclusions

        Abstract

        These analyses explore the legality of a specific status of Macedonia in the UN as a result of imposing additional conditions (with respect to those prescribed in the Charter) in SC Res. 817 (1993) and GA Res. 47/225 (1993) relating to its admission to UN membership. These conditions include acceptance by the applicant of a provisional name and an obligation to negotiate with another country (Greece) over its name. It is shown that the imposition of these conditions violates Article 4(1) and some other articles of the Charter. The consequences of the imposed conditions on the legal status of Macedonia as a UN member are also examined. The imposed conditions define a discriminatory status of the member state in violation of Article 2(1) of the Charter. It is shown that these violations of Charter provisions represent ultra vires acts of the UN Organization and involve its legal personality. These breaches of the Charter provisions also violate some of the basic rights of the applicant (and later member) state and gravely derogate its legal personality. The advisory jurisdiction of the International Court of Justice is considered to provide appropriate mechanisms for the judicial redress of the effects of the above illegal acts of the UN Organization. It is shown, furthermore, that only the advisory jurisdiction of the International Court of Justice can be a way out in the Macedonian case.

        Introduction

        The admission of Macedonia to UN membership in April 1993 by the UN General Assembly resolution 47/225 (1993)[1], pursuant the Security Council resolution 817 (1993)[2]

        that recommends such admission, was associated with imposing on the applicant two additional conditions with respect to those explicitly provided in Article 4(1) of the UN Charter. Namely, the applicant state had to accept (i) of “being provisionally referred to for all purposes within United Nations as ‘the former Yugoslav Republic of Macedonia’ pending settlement of the difference that has arisen over the name of the state”,[3] and (ii) of negotiating with a neighboring country (Greece) over its name. The condition (ii) is implied in the second part of above cited text, common to both GA Res. 47/225 (1993) and SC Res. 817 (1993) resolutions. This requirement is more explicitly expressed in the provision of the latter resolution by which Security Council “urges the parties to continue to cooperate with the Co-Chairmen of the Steering Committee of International Conference on Former Yugoslavia in order to arrive at a speedy settlement of the difference”.[4] The reason for imposing these conditions was given in the preamble of SC Res. 817 (1993) in which the Security Council, after affirming that “the applicant fulfils the criteria for membership laid down in Article 4 of the Charter of the United Nations”, observes that “a difference has arisen over the name of the State, which needs to be resolved in the interest of the maintenance of peaceful and good-neighborly relations in the region”.[5] This observation of Security Council was apparently based on the Greek allegation that the name of the applicant “implies territorial claims” against Greece.[6] In order to complete the picture, it should be mentioned that despite the strong objection of Macedonian government[7] to such formulation of SC Res. 817 (1993), and the adoption by Macedonian Parliament of two amendments to the Constitution of Republic of Macedonia in 1992,[8] (affirming that Macedonia “has no territorial claims against any of neighboring states”, and that its borders can be changed only in accordance with the Constitution and “generally accepted international norms”), the text of the resolution SC Res. 817 (1993) remained unchanged. It should be noted that there is a logical inconsistency in SC Res.817 (1993): by affirming that the applicant fulfills the admission criteria laid down in Article 4 of the Charter, the Security Council recognizes that the applicant is a peace-loving state that accepts the obligations of the Charter and is able and willing to carry out these obligations.[9] The stated reasons for introducing the mentioned conditions on the future UN member are inconsistent with this assessment.

        The described situation regarding the admission of Macedonia to UN membership rises two major questions: (1) are the imposed conditions on Macedonia for its admission to UN membership in accordance with the provisions of UN Charter, and (2) what are the implications of imposed conditions for admission on the legal status of Macedonia in the UN Organization? A detailed analysis of the first question was given recently[10] on the basis of advisory opinion of International Court of Justice (ICJ) of 1948[11] (related to the admission of states to UN membership) and adopted by the General Assembly.[12] The conclusion of that analysis, derived directly from the noted ICJ advisory opinion (stating that the conditions for admission of a state to UN membership laid down in Article 4(1) of the Charter are exhaustive, i.e. their fulfillment is necessary and sufficient for admission) and the character of conditions (i) and (ii) (which transcend in time the act of admission and are, therefore, obviously additional to those listed in Article 4(1) of the Charter), was that the resolutions GA Res. 47/225 (1993) and SC Res. 817 (1993) are in violation with Article 4 (1) of the Charter as a legal norm.

        In the present article we shall examine the implications of the imposed admission conditions on the legal status of Macedonia in the UN Organization. The subject draws its importance from the fact that even after ten years of negotiations, the “difference over the name” between Macedonia and Greece still remains, and there are no signs that a speedy settlement of the difference” will be achieved any time soon, if at all. Meanwhile, Macedonia continues to be referred by a provisional name within the UN system. In this stalemate situation it appears logical to explore alternative approaches to the problem of “settlement of the difference” around the name of Macedonia in UN. In the present commentary we shall suggest such an approach based on the advisory jurisdiction of International Court of Justice.

        Admission of Macedonia to UN Membership: The Political Context

        In order to understand better the factors that have influenced the introduction of additional conditions to Macedonian admission to UN membership, it is useful to recall the political circumstances in which the admission process was taking place. After the dissolution of the former Socialist Federal Republic of Yugoslavia (SFRY) in 1992, the question of recognition of newborn Balkan states by other states has arisen. The member-states of European Community (EC) have taken the position of joint (collective) recognition of post-SFRY states and established a set of criteria (“guidelines”) for such recognition.[13] EC has also established an Arbitration Commission on former Yugoslavia to determine the fulfillment of these criteria by each of the countries seeking recognition, and advise such recognition. Greece, a member of EC, has advanced the allegation that the name “Republic of Macedonia”, already enshrined in the Constitution, implies “territorial claims” against Greece. This was reflected in the closing paragraph of the Declaration on Yugoslavia[14] as request that each of the former Yugoslav republics applying for EC recognition should commit itself “to adopt constitutional and political guarantees ensuring that it has no territorial claims towards a neighboring Community State, including a denomination which implies territorial claims”.[15] As noted by many scholars,[16] such a request in the “guidelines” for recognition drastically departs from the traditional criteria for state recognition (once a country satisfies the conditions for statehood), and is hand-tailored to meet the specific interest of an EC member. In order to satisfy this criterion, Macedonian Parliament has introduced two amendments in the Constitution affirming that the country does not have any territorial claims with respect to any of its neighbors, and that any potential change of its borders will be done in accordance with the Constitution and generally accepted international norms.[17] The EC Arbitration Commission, examining whether Macedonia fulfils the prescribed EC recognition criteria, has come to an affirmative conclusion.[18] Moreover, the Arbitration Commission in its Opinion stated that “the use of name ‘Macedonia’ cannot imply any territorial claims against another State”.[19] Despite of this legal qualification, the EC has declined the recognition of Macedonia, as result of the consensual decision making process. The extent to which the veto power in EC political decision making process has affected the position of EC on the question of its recognition of Macedonia under its constitutional name can be appreciated from its Lisbon Declaration of 27 June, 1992, in which it declares its willingness to recognize the state as a sovereign and independent within its existing borders but “under the name which does not include the term Macedonia”.[20] In the meantime, Macedonia has been recognized by several European non-EC countries, including Russia.

        In parallel to this process, Macedonia has submitted its application for membership to United Nations, and Greece again advanced its opposition to the admission of Macedonia to UN under its constitutional name by using the same allegation.[21] It was apparent that, as in the case of Macedonian recognition by EC, the Greek opposition was motivated by the concerns that the admission of Macedonia to UN under its constitutional name would trigger its recognition under that name by the majority of UN member states and would, thus, add to its strength in the political arena (with possible Macedonian claims to the Greek territory). It is quite possible that such, or similar interpretation of Greek opposition was adopted by the Security Council as well. However, the name itself does not have any legal bearing on such a hypothetical dispute, and, therefore, has no relevance to the qualifications that may be legally considered in connection with the admission of a state to UN membership. Nevertheless, this interpretation of Greek demands regarding the name of Macedonia has led to an implicit linkage of the conditions for Macedonian admission to UN with those for its recognition as a state. This assertion is reinforced by the fact that Greece has used the same arguments when opposing the admission of Macedonia to UN under its constitutional name, and when opposing its recognition by the EC.

        The question of juridical connection of the conditions for admission to UN and the conditions for recognition of a state was deliberated in the United Nations at the beginning of 1950’s. On request by the Security Council, the UN Secretariat prepared a “Memorandum on legal aspects of representation in the United Nations”[22] in which it was emphasized that the admission to UN membership and the recognition of a state are governed by different rules. Recognition is essentially a “political” decision of individual states, whereas admission to membership is a collective act of the General Assembly based on the right to membership of any state that fulfills the prescribed criteria. Therefore, there is no juridical (or any other) linkage between the conditions for recognition of a state by another state, and the conditions for admission to UN membership. On this basis, the Memorandum also emphasized that it is inadmissible to condition the admission on recognition, since admission does not imply recognition by any government.[23]

        Despite the juridical disjunction of the conditions for state recognition and state admission to UN membership, the effect of imposed provisional name on Macedonia by the UN resolution GA Res.47/225 (1993) (for use within the UN system) was such that most of the states have recognized Macedonia under that provisional name. The interpretation of this fact is somewhat unclear: is it an expression of certain automatism, or is it based on consistency reasons, or on a belief that the “difference” between Greece and Macedonia over the name of the latter can be “threat to the peace and stability in the region”?

        Legal Freedom in the Choice of Legal Identity of a State

        Since the imposed admission conditions on Macedonia and its peculiar legal status in the UN are related to its name, it is appropriate first to examine the question of the right of a state to free choice of its own name.

        The inherent right of a state to have a name can be derived from the necessity that a juridical personality must have a legal identity. In absence of such an identity, the juridical person, such as a state, could to a large extent (or even completely) loose its capacity to interact with other such juridical persons (e.g. conclude agreements, etc.) and independently enter into and conduct its external relations. The name of a state is, thus, an essential element of its juridical personality and, consequently, of its statehood. The principles of sovereign equality of states[24] and the inviolability of their juridical personality[25], lead to the conclusion that the choice by a state of its own name is a basic, inherent right of the state. This right is not alienable, divisible or transferable, and is a part of the right to ‘self-determination’ (determination of one’s own legal identity), i.e. it belongs to the domain of jus cogens norms. External interference with this basic right is inadmissible. It is also obvious that if such an external interference with the choice of the name of a state would be allowed, even through a negotiation process, it might easily become a legally endorsed mechanism for interference in the internal and external affairs of that state, i.e. a mechanism for degradation of its political independence. From these reasons, the choice by the state of its own name must be considered as an inherent right of the state that belongs stricto sensu to the domain of its domestic jurisdiction. In exercising this right, the states have, therefore, a complete legal freedom. This freedom may in practice be constrained only by considerations of avoidance the overlap of legal identities of two (or more) international juridical persons. (In this context it should be noted that the province ‘Macedonia’ in northern Greece does not represent an international juridical person.)

        Based on the principle of separability of domestic and international jurisdiction, the name of a state, which is subject of that state’s domestic jurisdiction, does not create international legal rights for that state, nor does it impose legal obligations on other states. Clearly, the name per se does not have a direct impact on the territorial rights of states. Therefore, the earlier mentioned Greek allegation that the name of the applicant implies “territorial claims” has no legal significance. As mentioned in Section II, the EC Arbitration Commission also took this position and did not link the name of the country (Republic of Macedonia) to the Greek territorial rights.[26] The same view is shared by prominent scholars of international law (asserting that “no country can have an exclusive right over a name”).[27]

        Interference with matters that are essentially within the domestic jurisdiction of a state, such as the choice of state’s name, is also incompatible with the UN Charter.[28] Article 2 (7) of the Charter explicitly extends the validity of this legal norm to the United Nations themselves.[29] It appears, therefore, that neither the Greek opposition to the admission of Macedonia to UN membership under its constitutional name, nor the intervention of the UN Security Council in the matters related to the name of the country, are consistent with the Charter[30].

        There is, however, an apparent ambivalence in the legal position of UN with respect to the choice of name of a state. The UN act as mediator in the negotiations of Macedonia and Greece over the name. During the ten years of negotiations, besides the obvious lack of success in the negotiation process, the UN have not exerted any stronger pressure on the parties for resolving more efficiently their “difference”, nor have they tried to impose their own solution to the problem. This can be interpreted a tacit admission by the UN that the question of determination of the name of a state is outside of the scope of their legal authority. Indeed, the name of a state (as an attribute of its legal personality) cannot be related only to the membership of that state to UN. The legal personality of a state is defined (and manifest itself) within a much broader frame of international relations, the relation to UN being only one of many. Entering into UN membership should not affect the legal identity of a state, since it is established (before and) by factors outside the relation with UN. In its mediating role in the negotiation process over the name of Macedonia, the UN apparently observes the principle of non-interference in matters that are in the domain of state’s internal jurisdiction, but, as mentioned , that was not the case during the admission procedure.

        Legal Status of a UN Member with Imposed Admission Conditions

        According to the interpretation of Article 4(1) of the Charter given by the International Court of Justice in 1948[31] and accepted by the General Assembly,[32] the conditions laid down in that article are exhaustive (and “not merely stated by way of guidance or example”[33]), they must be fulfilled before admission is effected, and, once they are recognized as having been fulfilled by the Security Council, the applicant state acquires an unconditional right to UN membership. This right is enshrined in Article 4 itself and comports with the universal character of the UN Organization. At the same time, and for the same reasons, the Organization has a duty to unconditionally admit such a state to UN membership. The Security Council in the preamble of its resolution[34] recognizes that the applicant state fulfils the required criteria for admission and yet, contrary to the accepted interpretation of Article 4(1) of the Charter, recommends that the applicant be admitted to membership with a temporary reference label (to be used for all purposes within the UN), and imposes an obligation on the future UN member to negotiate with a neighboring state about its own name. The fact that Security Council has ignored the strong objection[35] of Macedonian Government to such formulation of its resolution indicates that it considered the added conditions as necessary for giving the recommendation.

        A specific feature of the additional conditions imposed on Macedonia for its admission to UN membership is that their effect begins with the act of admission. Their nature is quite different than that of the conditions laid down in Article 4(1) of the Charter: they need to be fulfilled not before the admission, but after it. These additional conditions transcend their cause; their nature is obviously not legal, but rather political. According to the ICJ advisory opinion of 1948[36], no “political considerations” can be superimposed on, or added to, the conditions set forth in Article 4(1) that could prevent admission to membership. The broad nature of the prescribed admission criteria already provides space for appreciation of all political factors relevant for the judgment on the fulfillment of these criteria.

        With its imposed provisional name (for use within the UN), i. e. with its derogated legal personality, and its obligation to negotiate with a neighboring country over its name, Macedonia has a legal status within UN which is obviously different from that of other member-states. Membership to the UN Organization, as a legal status, contains a standard set of rights and duties that are equal for all members of the Organization (“sovereign equality of the Members”[37]). The admission of Macedonia to UN membership with additional, non-standard conditions (that impose on the member certain membership obligations) may be interpreted as “conditional admission”, and, consequently, the resulting membership status as ‘conditional’. The Charter, however, does not provide for conditional membership in the Organization. Suppose that Macedonia decides at one point in time not to comply anymore with its membership obligation to negotiate with Greece over its name. What could be the possible UN sanctions for such non-compliance? Expulsion from UN membership would only prove that its present membership status is conditional. Other forms of sanctions would also indicate, in less evident way, the conditional character of the membership status.

        Obstruction of the “settlement of the difference” over the name during the negotiating process may be another form of non-compliance with the membership obligation. Such obstruction in the negotiating process may be, however, introduced also by the other negotiating party (from political, economic or other reasons). The fulfillment of the imposed admission obligation may, therefore, depend not only on the good will of the party carrying the obligation, but also on a factor outside of its control. In fulfilling its membership obligations, Macedonia is, thus, not independent, which is another difference of its membership status with respect to the other UN member-states. There is still another important feature of the legal status of Macedonia as a UN member. By imposing the additional condition for admission of using a provisional name for the state within the UN, the legal personality of the future member-state has been heavily derogated by the very act of admission. The imposition of a provisional name on Macedonia (for use within the UN system) means that Macedonia was denied the basic (natural) right to free choice of its name (in internal and even external relations); moreover, legal identity of this applicant state was suspended by the act of admission, and replaced by a reference label (denomination). The admission act and resulting membership status are certainly not consistent with the principle of “sovereign equality of Members” enshrined in the Charter. The derogated legal personality of Macedonia in the United Nations system is perhaps most clearly manifested in the area of representation. In all acts of representation within the UN system, and in the field of UN relations with other international subjects, the provisional, and not the constitutional, name of Macedonia is to be used. This is in violation with the right of states to non-discrimination in their representation in the organization of universal character, expressed in an unambiguous way in Article 83 of the Vienna Convention on representation of states.[38] The right to equal representation of states in their relations with the organizations of universal character (such as the UN family of organizations) is (only) a derivative of the principles of sovereign equality of states within the UN Organization and inviolability of their juridical personality.

        In concluding this section we can summarize that the imposed additional conditions on Macedonia for its admission to UN membership, in direct violation of several Charter’s provisions, have created an unusual legal status of Macedonia in its UN membership. This status is characterized by a drastically derogated legal personality of the member (through an imposed legal identity), enlarged membership obligations (the fulfillment of which depend on factors outside of its control), and unequal rights in the area of representation compared with other member-states. Even the very nature of membership status is not quite clear, in view of the imposed sine qua non condition by the act of admission. It is uncontestable that the principle of ‘sovereign equality of the members’ of the Organization is severely violated in the case Macedonia as UN member. The absence of any progress in the negotiations with Greece over the name after ten years indicates that the problem is fundamental in nature. In fact, the dispute over the name appears to be not between Macedonia and Greece, but rather, in an implicit form, between Macedonia and the UN. In this dispute Macedonia is defending its right to (self-) determination of its own legal identity (which is obviously taken as synonym, or an essential part, of its national identity). Macedonia obviously considers that right as being sovereign and inalienable, and well grounded in the principles of existing international law.

        Redress of Macedonian Legal UN Membership Status by Juridical Means

        It is obvious that above described legal status of Macedonia in the United Nations cannot be continued indefinitely. For Macedonia, it is a matter of its dignity, derogated legal personality, and discriminatory membership position. For the United Nations, it is an open question on its agenda: a question that was supposed to be resolved relatively quickly still persists after ten years of negotiations, with no visible prospects for its solution. It is becoming evident that the adopted method for settlement of the difference over the name of Macedonia in the United Nation between Macedonia and Greece by negotiations, with the mediation of UN, is not producing desired results and new methods for solving this problem have to be sought. The appropriateness of the method for solving a problem depends, of course, on the character of the problem. In the UN resolutions SC Res.817 (1993) and GA Res.47/225 (1993), the Greek opposition to the admission of Macedonia to United Nations membership under its constitutional name was taken as sufficient to interpret the “difference” over the name in political terms (as it has been, in fact, presented by Greece), and, accordingly, to suggest a “political” method (negotiations) for its settlement. However, the positions of parties involved in the dispute are so fundamentally different, that no “political” solution of the dispute can be expected. The political negotiations in the present case represent a typical example of a “zero-sum” game with no solution acceptable for both parties.

        The whole problem of the legal status of Macedonia in the UN is generated by the imposed additional conditions (to accept the provisional denomination FYROM – for use within the UN, and to negotiate with Greece over its name) on the admission of Macedonia to UN membership in the resolutions SC Res.817(1993) and GA Res. 47/225 (1993). If one examines the legality of these resolutions in the light of the provisions of UN Charter, other UN legal documents, and in particular in the light of the interpretation of Article 4 of the Charter by the International Court of Justice[39] and GA Res.197(III,A) (1948)[40], adopting this interpretation, one arrives at the conclusion that the imposition of additional conditions on the admission of Macedonia to UN membership is an ultra vires act of the UN Organization. Indeed, according to the Court’s opinion, adopted by the General Assembly in 1948, the admission criteria laid down in Article 4 of the Charter have an exhaustive character: their fulfillment is necessary and sufficient for admission of a state to UN membership. In the opposite case, “it would lead to conferring upon the Members an indefinite and practically unlimited power of discretion in the imposition of new conditions”.[41] The Court specifically analyzed the question whether the political organs responsible for the admission have the power of superimposing “political considerations” to the conditions laid down in Article 4(1), and concluded that “the political character of an organ cannot release it from the observance of the treaty provisions established by the Charter when they constitute limitations on its powers or criteria for its judgment”[42]. Therefore, in Court’s opinion, Article 4(1) of the Charter is a legal norm that fixes the criteria for admission (and also the reasons for which the admission may be refused) in an exhaustive manner. By virtue of the “openness” of the UN Organization to membership (enshrined in Article 4 (1) as well) and universal character of the Organization, once it is recognized that the criteria set forth in Article 4(1) have been fulfilled by a state, that state acquires an unconditional right to UN membership, and the Organization a duty to admit such a state. As mentioned earlier, the preambles of resolutions SC Res.817 (1993) and GA Res,47/225 (1993) affirm that Macedonia fulfills the prescribed admission criteria, and yet these resolutions impose the above mentioned additional conditions on the admission and membership of Macedonia to UN. That the additionally imposed conditions on Macedonian admission to UN reflect certain “political considerations”, and do not have legal character, follows from the fact that they do not serve the purpose of admission (prior fulfillment), but are, rather, introduced by the act of admission and transcend in time that act. Their imposition is clearly inconsistent with the above described interpretation of Article 4(1) of the Charter and in contradiction with the General Assembly resolution GA Res.197 (III, A) (1948) that requires “that each member of the Security Council and of the General Assembly, in exercising its vote on the admission of new Members, should act in accordance with the foregoing opinion of the International Court of Justice”.[43] Therefore, the imposition of additional conditions on Macedonia for its admission to UN membership constitutes is a violation of Article 4(1) of the Charter as a legal norm. This circumstance opens a new possibility for resolving the problem of derogated legal status of Macedonia in the United Nations by juridical means and the problem of negotiations over the name.

        As a mechanism for juridical redress of legal consequences generated by the violation of Article 4(1) of the Charter in the UN resolutions SC Res.817 (1993) and GA Res.47/225 (1993), the advisory jurisdiction of the International Court of Justice appears the most appropriate. The question of legality of these resolutions, in their parts related to the imposition of additional conditions on Macedonia, i.e. their compatibility with the provisions of Article 4(1), can be put before the Court by the General Assembly on request by Macedonia (or jointly with a group of member states that have already recognized Macedonia under its constitutional name). Since this question is of purely legal nature, the General Assembly may request an advisory opinion for it from the Court (in accordance with Article 96(1) of the Charter)[44]. The General Assembly cannot obstruct such a request for an advisory opinion of being put before the Court, because the requested opinion is related to the legality of its own act. Such an obstruction would mean that the General Assembly, as a political organ, is imposing its own response to a question regarding the legality of its own act, or else, imposing its own judgment in a case in which it itself is a party. Such obstruction would also be incompatible with the mission and duty of the UN Organization regarding the respect of international law.[45] On the other hand, since the question regarding the legality of imposed additional conditions on Macedonia for its admission to UN membership (which could also be formulated in another, but equivalent in meaning and purpose form) is related to the interpretation of Article 4(1) of the Charter, there cannot be any uncertainty about the Court’s competence for its consideration. Moreover, since the question of additional conditions for admission to membership is only a special case of the more general question on the exhaustiveness of admission conditions laid down in Article 4(1), already considered by the Court in 1948,[46] the Court’s opinion in this case cannot be different from that previously given. Similarly, the position of the General Assembly with respect to the Court’s advisory opinion cannot be different than that taken in 1948.

        In the history of international organizations, and of the Court itself, this would not be the first case when the Court is requested to give its opinion on a question of breach of a constitutional document of the organization by the plenary organ of that organization. During the elections of new members of Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization (IMCO) in 1959 by the Assembly of IMCO, the election criteria prescribed in the IMCO Convention have not been strictly observed. Most of the voting members of the organization have taken as a basis for their vote additional criteria not expressly provided for in the corresponding article of the Convention. On request by two members of IMCO, who contended that in the course of elections their constitutional rights have been violated, the IMCO Assembly, upon authorization by the UN General Assembly, put before the Court the question on legality of the elections. The Court delivered its opinion in the negative. The analogy of Macedonian case with the described IMCO case is very close. The suggested method for resolving the question of the legal status of Macedonia in United Nations transposes the problem from the political into the legal arena. Although, the derogated legal membership status of Macedonia can be most clearly interpreted as violation of Article 2(1) of the Charter (“sovereign equality of members”), yet its juridical redress can be most easily effected by invoking the violation of Article 4(1) as most transparent.

        It seems advisable that RM requests that the following Draft Resolution be placed at the

        Session of the UN General Assembly:

        DRAFT RESOLUTION

        The General Assembly

        Considering Advisory Opinion of the International Court of Justice of 28 May, 1948,

        Considering the General Assembly Resolution 197/III of 8 December, 1948,

        Considering the General Convention on the Privileges and Immunities of the United Nations,

        Taking note that a difference in legal interpretation of the Charter of the United Nations has

        arisen between "the former Yugoslav Republic of Macedonia" and the United Nations over

        the legality of conditions for admission of that state to membership of the United Nations,

        and consequently over the legality of its current status in the Organization,

        Considering Article 96 of the Charter of the United Nations,

        For the purposes to determine whether additional requirements were imposed in the

        procedure of admitting "the former Yugoslav Republic of Macedonia" to the membership of

        the United Nations, out of the scope of the exhaustive conditions of Article 4(1) of the

        Charter of the United Nations and to determine further course of action,

        Decides to submit the following legal question to the International Court of Justice:

        Is the Resolution 47/225 (1993) of the General Assembly, in its part relating to denomination

        "The former Yugoslav Republic of Macedonia", with requirement for settlement of the

        "difference that has arisen over the name of the State" legally in accordance with the

        Charter of the United Nations? (Particularly, is the Resolution 817 (1993) of the Security

        Council, in its parts relating to denomination "the Former Yugoslav Republic of Macedonia",

        with requirement for settlement of the "difference that has arisen over the name of the State"

        legally in accordance with the Charter of the United Nations?).

        Conclusions

        The presented analysis of the legal status of Macedonia in the United Nations has revealed its non-standard form, different than that of all other UN members, and characterized by a severe derogation of its membership rights. This derogation extrapolates also to the entire legal personality of this UN member, and its effects extend beyond the UN system. This peculiar legal status is obviously generated by the additional admission conditions on Macedonia, for which we argued that represent a breach of Charter provisions. The issue of legal status of Macedonia in the UN cannot be, apparently, resolved by political means; the negotiations between Macedonia and Greece over the name seem to be a zero-sum game: Macedonia associates this name with its national identity, whereas Greece with its history. To avoid the absurd of potential endless negotiations and a UN member-state with a continuing provisional name, a practical approach to this problem would be to resort to the legal means for its solution. If the existing legal interpretation of Article 4(1) is applied to the UN resolutions related to Macedonian admission to UN, then the additional admission conditions imposed on Macedonia constitute violation of this article. The mode of redress via the advisory jurisdiction of International Court of Justice would then be the most promising approach to the problem.


        * Dr. Igor Janev,

        Fr. Visiting Scholar in Residence,

        Department of Government and Foreign Affairs,

        University of Virginia,

        USA


        [1] GA Res. 47/225, 8 April 1993 [hereafter: GA Res.47/225 (1993)].

        [2] SC Res. 817, 7 April 1993 [hereafter: SC Res.817 (1993)].

        [3] See Supra note 1.

        [4] See Supra note 2.

        [5] Ibid.

        [6] See UN SCOR, 48th Sess., Supp. Apr., May, June, at 36, UN Doc. S/25543 (1993).

        [7] See UN SCOR, 48th Sess., Supp. Apr., May, June, at 35, UN Doc. S/25541 (1993).

        [8] See 11 Constitutions of the Countries of the World, and Supp. 98-6, (A.P.Blaustein and G.H.Flanz, eds., 1994, 1998).

        [9] I. Janev, ‘Legal aspects of the use of provisional name for Macedonia in the United Nations system’, 93 AJIL 155 (1999).

        [10] UN Charter, Art.4(1).

        [11] Admission of a State in the United Nations (Charter, Art. 4), ICJ Reports, 57 (1948).

        [12] GA Res. 197 (III,A), 8 December 1948.

        [13] EC Declaration on Yugoslavia –Annex 2, Bruxelles, 16 Dec., 1991; See also: 31 ILM 1485 (1992).

        [14] Ibid.

        [15] Ibid.

        [16] R. Rich, ‘Recognition of states: The collapse of Yugoslavia and Soviet Union’, 4 EJIL 36 (1993).

        [17] See Supra note 8.

        [18] See 31 ILM 1507, 1511 (1992).

        [19] Ibid.

        [20] EC Declaration on Former Yugoslavia, Lisbon, 27 June, 1992.

        [21] See Supra note 6.

        [22] ‘Memorandum on legal aspects of the problem of representation in the United Nations’, UN Doc. S/1466 (1950).

        [23] Ibid.

        [24] UN Charter, Art. 2(1).

        [25] Declaration on Principles of International Law concerning Friendly Relations and Co- operation among States in Accordance with the Charter of the United Nations, GA Res. 2625 (XXV), 24 October 1970.

        [26] See Supra note 18.

        [27] L. Henkin, R.C. Pugh, O. Schachter and H. Smit, “International Law: Cases and Materials”, p. 253 (3rd ed., 1993).

        [28] See Supra note 25.

        [29] UN Charter, Art. 2(7).

        [30] Judge Krylov, in his individual opinion in the ICJ Admission case, (cf. Supra Note 11) expressed the view that a “Member of the United Nations is not justified in basing its opposition to the admission [to UN] of a particular State on arguments which relate to matters falling essentially within the domestic jurisdiction of applicant State”.

        [31] See Supra note 11.

        [32] See Supra note 12.

        [33] See Supra note 11.

        [34] See Supra note 2, preamble.

        [35] See Supra note 7.

        [36] See Supra note 11.

        [37] See Supra note24.

        [38] Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character, UN Doc. A/CONF. 67/16 (March 14, 1975). [See also 69 AJIL 730 (1975)].

        [39] See Supra note 11.

        [40] See Supra note 12.

        [41] See Supra note 11, at 63.

        [42] See Supra note 11, at 64.

        [43] See Supra note 12.

        [44] UN Charter, Art. 96(1).

        [45] UN Charter, preamble.

        [46] See Supra note 11.
        "Ido not want an uprising of people that would leave me at the first failure, I want revolution with citizens able to bear all the temptations to a prolonged struggle, what, because of the fierce political conditions, will be our guide or cattle to the slaughterhouse"
        GOTSE DELCEV

        Comment

        • George S.
          Senior Member
          • Aug 2009
          • 10116

          A View from the Other Side

          Part 1 - The Journey of a Greek

          by Katerina

          [email protected]

          December 2005


          Today it is with a bittersweet feeling of reflection, that I cast my mind back to one year ago. Exactly this time last year, my family and I were in hospital filled with anguish and in shock. My father, a fit and healthy man of 72, had suddenly had a stroke. In the ward we were tending to him, hugging him, and talking to him, wondering just how much of what we were saying to him he could actually understand.

          As he stared with vacant eyes at my son, who talked to him in English, it was evident he could not understand him. He could no longer understand his former second language. My son, named after him and terribly close to him all his life, looked at me in grief.

          I stroked my father's forehead, kissed it, and told him in his native Greek tongue "everything will be ok".

          His eyes briefly lit up and even though he could not speak at that moment I knew he understood me.

          The next few days were filled with anxiety and uncertainty as to what his progress would be. He could not talk but seemed to understand Greek. I noticed that his eyes would especially shine whenever I hugged him and kissed him. I did a lot of that.

          As the days progressed I began to notice other patients in the beds around us. They always looked at us, my family, with a smile on their face.

          We spoke with them and I discovered that almost everybody in my father's ward was Macedonian. We were the only Greeks there. All of their visiting families would come right up to us and just shake our hands every time we saw them and would tell us what a lovely and loving family my father was blessed with. I was so surprised at the warmth these people showed. They seemed more interested in news of my own father's progress than talking about themselves.

          My family, especially myself, found their friendliness, concern and warmth very supportive and comforting. In return, by speaking with these patients and their relatives, I made a point of finding out each person's ailment and predicament.

          Those were extremely trying weeks for all of us but the day came when we took my father home. He could speak a little and although he was not the man he once was, I was very happy to have my beloved 'baba' (daddy in Greek) back.

          It was an emotional day for all of us when we checked my father out of the hospital, saying good-bye to all those lovely people who still remained in the ward.

          After wishing them the very best and shaking dozens of hands, a lady, a worker in the hospital, I had not seen before came and approached us. She said "you are really nice people; I hope you don't have a problem with us being Macedonian? You know politics."

          As I heard the words I looked at her with puzzlement as my family shook our heads signifying "No". She narrowed her eyes in disbelief as she watched us depart. I saw fleetingly a look as though she wanted to believe us, followed by an incredibly haunted look of pain. I was stunned, absolutely unable to comprehend the experience.

          As the days passed, my baba steadily improved and is much better now a year later. But I simply could not get that woman's look out of my mind. What was she talking about? What politics?

          I knew that there was a dispute between Greeks and Macedonians about a name but I thought it was all nonsense. Why would Macedonians be anything other than Macedonian? I thought only a small number of very ignorant people thought differently.

          I knew in my own life I was the child of migrants to Australia whose heritage originated in Asia Minor. My own ancestors were migrants from former Constantinople who migrated to Athens in the 1920's. This was the case of both my mother and my father's families. I knew that my mother had been raised by her grandmother, who was a Christian, yet whose native language was Turkish.

          My mother raised us on her grandmother's food. She always called it Turkish food as she cooked from her grandmother's recipes. The rest of the time she cooked Greek meals. I was raised to consider myself an Australian born Greek. I was comfortable with that but not quite satisfied. I needed to know more especially about this "politics" bit.

          That is when my serious questioning began. What was it about Macedonian politics? What could it possibly have to do with me? I, myself, already knew I was a mixture of at least one other ethnicity even though I called myself Greek: still that was how I was raised to be a Greek.

          If my own ethnicity had been determined more by its association to religion and less by 'blood' why would other ethnicities also not live in Greece?

          My ancestors fled former Constantinople, which was under Ottoman occupation because their choices were to either convert to Islam or die. They wanted to remain Christian and for that they were forced to move to Greece who accepted them for their religion, if not for their language. Even though they were Christians the only language they spoke was Turkish.

          Life was harsh for them in Greece until they adopted new Greek names and learned to speak Greek. They still spoke Turkish but in confidence and never in public.

          I was always aware of my background and often kidded with my Turkish girlfriends; that had my relatives chosen Islam, their religion, I too would have been as Turkish as they are and never have known any different.

          This was my perception of myself being 'Greek'.

          Accepting who I was and the way I know myself, I made my decision to learn more about my background and about this "Macedonian politics".

          As I recalled the words "I hope you don't have a problem with us being Macedonian?" it still haunted me. I needed to know why this question was asked. Why would anybody mind? The Balkans consisted of so many ethnicities. What was I missing in my understanding?

          I had studied Greek mythology and I knew about the Ancient Greek philosophers.

          I loved "Euripides' Medea", "Homer's Iliad" and "Plato's Republic". Ancient Greeks sure had contributed a lot to modern civilization.

          I was taught to read and write in Greek. This was my nationality. Yet I needed to know how my Turkish ethnic heritage related to me being Greek.

          I went to many Greek sites on the internet in search of answers and found many things like Ancient Greek gods, Greek mythology and feats of ancient Greek accomplishments telling me how great and how Greek I was, but nothing about my Turkish background.

          I thought it interesting, the way one considers a fairytale interesting, but could find nothing to inform me of ethnic people called Macedonian, other than "Greek Macedonian" and definitely no information about Turkish speaking Greeks. Yet this was my own "Greek" background. In my life I had known Vlachs who called themselves Greek too, however, nobody in my family could understand them when they spoke. This too had puzzled me.

          I knew of the great Byzantine era and this too was my heritage. I had read, however, that in this era Byzantium was under Roman occupation. Unfortunately I could find no mention of Romans or any other ethnicities referred to, in any form of worth, prior to Ottoman occupation. In fact everybody and everything worth mentioning from the Byzantine era seemed to be ethnically Greek in origin. Just as everything else I was reading seemed to indicate, right up to the present day, Greek origin.

          To me none of this was making any logical sense! By now I was very puzzled and annoyed. This is when I decided to look at alternate web sites and found Macedonians.

          Macedonians had a different view not only of themselves but also of all the ethnicities in the Balkans and surrounding region. That's when I started to find things that I had not been able to find anywhere in those other sites or books!

          The difference in perception of this "representation of reality" was light-years ahead in thinking realistically.

          I had grown up in Australia, a multi-ethnic, multicultural society and always thought this was the natural order of things everywhere in the world. Yet to my surprise I was told that "only one predominant, all Greek race, existed in Greece since ancient times, since 4000 years ago"!

          Nationally speaking, yes I was Greek, but ethnically speaking it seemed to be the case only for a very short time.

          On Macedonian sites, by reading references about people called Macedonian, Vlachs, etc., but most importantly prosfigi (people who migrated to Greece and raised their families Greek but were not otherwise native to Greece), I found what I was looking for.

          Eureka! I had finally found people with my background and ethnic heritage!

          It was a revelation to find that the Balkan community outside of Greece is such an incredibly rich multi-ethnic mixture of people but so disillusioning to find that the community that resides inside Greece is all Greek and only speaks Greek, since ancient times.

          My own life experience had already shown me different.

          By looking at the Macedonians I had found others like myself, people who were non-Greek in ethnic origin yet were being uniformly described as Greek. People with no other past, no other language, and no other culture who made up this Greek definition, yet somehow once inside this narrow term, disappeared from view in all other ways.

          This was just the beginning of my journey and what I was about to learn was so much more than I had ever imagined.

          The veil of innocence had been lifted from my light-hearted venture. Underlying the words I was reading and putting the pieces together, the human reality I started to see unfolding before my eyes filled me with the most profound sense of horror.

          Finally I began to understand that haunted look of pain in the eyes of the woman I had once met, one long year ago.

          To be continued.

          You can contact the author at her e-mail [email protected]
          "Ido not want an uprising of people that would leave me at the first failure, I want revolution with citizens able to bear all the temptations to a prolonged struggle, what, because of the fierce political conditions, will be our guide or cattle to the slaughterhouse"
          GOTSE DELCEV

          Comment

          • George S.
            Senior Member
            • Aug 2009
            • 10116

            Press release issued by the Registrar

            GRAND CHAMBER JUDGMENT (ARTICLE 41) IN THE CASE OF

            THE FORMER KING OF GREECE & OTHERS v. GREECE

            Click Here to Read the Complete Judgement

            The European Court of Human Rights has today delivered judgment at a public hearing in the case of the Former King of Greece & Others v. Greece (application no. 25701/94) concerning just satisfaction under Article 41 of the European Convention on Human Rights.

            The Court decided, unanimously, to award, for pecuniary damage:

            12,000,000 euros (EUR) to former King Constantine of Greece;
            EUR 900,000 to Princess Irene; and,
            EUR 300,000 to Princess Ekaterini,
            The Court also awarded EUR 500,000 jointly to the three applicants for costs and expenses.

            In its principal judgment (delivered on 23 November 2000) the Court found that the applicants owned the properties in question - the Tatoi, the Polydendri and the Mon Repos estates - as private individuals rather than in their capacity as members of the royal family. The expropriation of these properties would have been legitimate, however, had the Greek State paid the applicants compensation. The Court held, by 15 votes to two, that there had been a violation of Article 1 of Protocol No. 1 (protection of property) to the European Convention on Human Rights and, unanimously, that it was not necessary to examine the applicants’ complaint under Article 14 (prohibition of discrimination) taken together with Article 1 of Protocol No. 1.

            1. Principal facts

            The applicants are: the former King of Greece, his sister, the Princess Irene, and his aunt, the Princess Ekaterini. The first applicant lives in London, the second in Madrid and the third in Buckinghamshire.

            The case concerns the ownership status of the Greek Royal property. The applicants’ complaints arise out of Law No. 2215/1994, which was passed by the Greek State on 16 April 1994 and came into force on 11 May 1994. By virtue of Article 2 of this Law, the Greek State became the owner of the applicants’ moveable and immovable property. There is no provision for compensation in this Law. On 25 June 1997 the Supreme Special Court held that Law No. 2215/1994 is constitutional, which renders ineffective any further attempt by the applicants to seek judicial protection of their property rights.

            Before the European Court of Human Rights, the applicants complained that their right to the peaceful enjoyment of their possessions and their right not to be subjected to discrimination, guaranteed under Article 1 of Protocol No. 1 and Article 14, had been violated.

            2. Procedure and composition of the Court

            The application was lodged with the European Commission of Human Rights on 21 October 1994. Having declared the application partly admissible, the Commission adopted a report on 21 October 1999 in which it expressed the unanimous opinion that there had been a violation of Article 1 of Protocol No. 1 and that that it was not necessary to examine whether there had been a violation of Article 14 of the Convention taken together with Article 1 of Protocol No. 1. It referred the case to the Court on 30 October 1999 and on 6 December 1999 the panel of the Grand Chamber determined that the case should be decided by the Grand Chamber.

            Judgment was given by a Grand Chamber of 17 judges, composed as follows:

            Luzius Wildhaber (Swiss), President,
            Jean-Paul Costa (French),
            Luigi Ferrari Bravo (Italien),
            Gaukur Jörundsson (Icelandic),
            Elisabeth Palm (Swedish),
            Lucius Caflisch (Swiss),
            Ireneu Cabral Barreto (Portuguese),
            Willi Fuhrmann (Austrian),
            Boštjan Zupančič (Slovenian),
            Nina Vajić (Croatian),
            John Hedigan (Irish),
            Wilhelmina Thomassen (Dutch),
            Matti Pellonpää (Finnish),
            Margarita Tsatsa-Nikolovska (FYROMacedonia),
            Egils Levits (Latvian),
            Kristaq Traja (Albanian), judges,
            Georgios Koumantos (Greek), ad hoc Judge,

            and also Paul Mahoney, Registrar.

            3. Decision of the Court

            The Court observed that the compensation to be fixed did not need to reflect the idea of wiping out all the consequences of the interference in question. As the lack of any compensation, rather than the inherent illegality of the taking, was the basis of the violation found, the compensation did not need necessarily to reflect the full value of the properties.

            The Court also considered that less than full compensation might be called for where the taking of property was resorted to with a view to completing fundamental changes to a country’s constitutional system such as the transition from a monarchy to a republic.

            In conclusion, the Court deemed it appropriate to fix a lump sum based, as far as possible, on an amount "reasonably related" to the value of the property taken, i.e. an amount which the Court would have found acceptable under Article 1 of Protocol No. 1, had the Greek State compensated the applicants. In determining the amount the Court took into account the claims of each applicant, the question of the movable property, the valuations submitted by the parties and the possible options for calculating the pecuniary damage, as well as the lapse of time between the dispossession and the present judgment.

            ***

            The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).

            Registry of the European Court of Human Rights
            F – 67075 Strasbourg Cedex
            Contacts: Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)
            Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15)
            Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54)
            Fax: +00 33 (0)3 88 41 27 91

            The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court.
            "Ido not want an uprising of people that would leave me at the first failure, I want revolution with citizens able to bear all the temptations to a prolonged struggle, what, because of the fierce political conditions, will be our guide or cattle to the slaughterhouse"
            GOTSE DELCEV

            Comment

            • George S.
              Senior Member
              • Aug 2009
              • 10116

              EUROPEAN COURT OF HUMAN RIGHTS



              CASE OF THE FORMER KING OF GREECE & OTHERS

              v. GREECE


              (Application no. 25701/94)


              JUDGMENT

              (Just satisfaction)




              STRASBOURG


              28 November 2002




              This judgment is final but may be subject to editorial revision.


              In the case of the Former King of Greece & Others v. Greece,

              The European Court of Human Rights, sitting as a Grand Chamber composed of the following judges:

              Mr L. Wildhaber, President,

              Mr J.-P. Costa,

              Mr L. Ferrari Bravo,

              Mr Gaukur Jörundsson,

              Mrs E. Palm,

              Mr L. Caflisch,

              Mr I. Cabral Barreto,

              Mr W. Fuhrmann,

              Mr B. Zupancic,

              Mrs N. Vajic,

              Mr J. Hedigan,

              Mrs W. Thomassen,

              Mr M. Pellonpää,

              Mrs M. Tsatsa-Nikolovska,

              Mr E. Levits,

              Mr K. Traja,

              Mr G. Koumantos, ad hoc judge,

              and also of Mr P. Mahoney, Registrar,

              Having deliberated in private on 26 June and 6 November 2002,

              Delivers the following judgment, which was adopted on the last-mentioned date:



              PROCEDURE

              1. The case originated in an application (no. 25701/94) against the Hellenic Republic lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the former King of Greece and eight members of his family, on 21 October 1994. The applicants alleged that Law no. 2215/1994 which was passed by the Greek Parliament on 16 April 1994 and became law with effect from 11 May 1994 violated their Convention rights. The applicants were represented by Messrs. Nathene & Co., Solicitors in London. The Greek Government (“the Government”) were represented by the delegate of their Agent, Mr M. Apessos, Senior Adviser of the State Legal Council. The Commission declared the application partly admissible on 21 April 1998 in so far as it concerned the former King of Greece (“the first applicant”), his sister, Princess Irene (“the second applicant”), and his aunt, Princess Ekaterini (“the third applicant”). It referred the case to the Court, in accordance with the provisions applicable prior to the entry into force of Protocol No. 11 to the Convention, on 30 October 1999 (Article 5 § 4 of Protocol No. 11 and former Articles 47 and 48 of the Convention).

              2. In a judgment delivered on 23 November 2000 (“the principal judgment”), the Court (Grand Chamber) held that there had been a violation of Article 1 of Protocol No. 1 (by fifteen votes to two) and that it was not necessary to examine the applicants' complaint under Article 14 of the Convention taken together with Article 1 of Protocol No. 1 (unanimously). More specifically, as regards Article 1 of Protocol No. 1, the Court held that the lack of any compensation for the deprivation of the applicants' property upset, to the detriment of the applicants, the fair balance between the protection of property and the requirements of public interest (The former King of Greece and Others v. Greece [GC], no. 25701/94, § 99, ECHR 2000–XII).

              3. Under Article 41 of the Convention the applicants sought just satisfaction of GRD 165,562,391,740 for their immovable property, plus £ 3,416,330 for their personal movable property (i.e. furniture, paintings, books, etc). They further claimed £ 100,000 for non-pecuniary damage, but on the basis that this sum was to be given to the victims of the earthquake which struck Athens in September 1999. Lastly, they claimed £ 644,502.42 in respect of costs and expenses in the national courts and before the Convention institutions until the date of the hearing on the merits of the case before the Court, namely 14 June 2000.

              4. Since the question of the application of Article 41 of the Convention was not ready for decision, the Court reserved it and invited the Government and the applicants to submit, within six months, their written observations on that issue and, in particular, to notify the Court of any agreement they might reach (ibid., § 107, and point 3 of the operative provisions).

              5. The applicants and the Government each filed three sets of observations within the extended time-limits allowed to them. No basis was found on which a friendly settlement could be secured.




              THE LAW

              6. Article 41 of the Convention provides:

              “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”



              A. Damage

              1. Submissions by the applicants in their observations dated 21 May 2001, 28 November 2001 and 15 April 2002

              7. The applicants primarily invited the Court to state that the annulment of Law no. 2215/1994 and the return of the property to them (together with compensation for non-pecuniary damage and costs and expenses incurred in vindicating their rights) would constitute restitutio in integrum. In the event of the estates not being returned, they affirmed that they found no reason why the amount of compensation should be less than full compensation. In that connection they stressed that the taking of their property had not been part of any national economic or social programme and that even if it had been part of such a programme, Article 17 of the Greek Constitution provided for full compensation to be paid.

              8. As for the date for valuing the property, the applicants submitted that the amount of compensation should be based on the current value of the property. Further, they sought interest on the amount of compensation in so far as necessary.

              (a) Pecuniary damage

              (i) The claims of each applicant

              9. For the purposes of assessing the pecuniary damage suffered, the applicants asked the Court to have regard to the position of each individual applicant, which could be summarised as follows. The claim in respect of Tatoi was made by the first applicant alone; the claim in respect of Polydendri was made by the three applicants in proportion to their respective ownership rights (101,5/288 for the first applicant, 101,5/288 for the second applicant and 36/288 for the third applicant); the claim in respect of Mon Repos was made by the first applicant alone; lastly, the claim in respect of the movable property was made by the first applicant alone.

              As regards in particular the claim in respect of the Tatoi estate

              10. The applicants emphasised that the whole of Tatoi should be taken into account for the assessment of just satisfaction. In particular, they contested the Government's argument (see paragraph 46 below) that the claim for just satisfaction in relation to Tatoi should be limited to that part of Tatoi which remained with the first applicant in 1992 after a donation of an area of 37,426,000 square metres to the National Forest of Tatoi Foundation (see paragraphs 37-39 of the principal judgment).



              11. The applicants admitted that in their memorial dated 13 April 2000 they had stated that they were not making any claim to the property of the Foundation. However, this was on the express basis that they did not accept the Government's contention that the 1992 arrangement was invalidated by Law no. 2215/1994. Indeed, their claim was that the 1994 law was not valid. However, in its principal judgment the Court found that Law no. 2215/1994 was valid and that the land which had been donated to the Foundation in 1992 remained with the first applicant when the 1994 law was passed (see paragraphs 71-72 of the principal judgment). As a result of that judgment, the applicants considered that they should be compensated for the loss of that land as well as for the remainder of the Tatoi property. The applicants pointed out that the market valuation of the Government's own valuers, Lambert Smith Hampton (see paragraphs 17 and 48 below), also referred to the whole of Tatoi.

              12. As for the Government's argument (see paragraph 47 below) that in assessing just satisfaction the Court should take into account the fact that part of the Tatoi property (namely the Bafi area) had been a donation to King George I (the first applicant's great-grandfather), the applicants stated that the Bafi forest had not been donated to King George I, but had been purchased by him. The sum fixed and paid had been GRD 60,000, which was the value of the property at the time, and by no means a symbolic sum. In any event, even if the Bafi area had been a donation to King George I, this would not in any way have affected the first applicant's ownership of the land, or his right to compensation for its taking.

              (ii) Valuation

              13. As regards the method of valuation that should be used to determine an appropriate amount of compensation if the relevant immovable property was not returned to them, the applicants made the following submissions.

              (a) The “objective” value

              14. The applicants first made reference to the so-called “objective”, or tax value, which is arrived at by the application of a statutory formula for valuation. They stressed that this value represented the minimum value which under Greek law the State would have to pay by way of compensation for a lawful expropriation. It was open to the person whose property had been expropriated to insist that compensation should instead be based on market value, if he considered that the “objective” value was lower than what could fairly be obtained in the market.

              15. In that connection, the applicants pointed out that on 13 April 2000 they had submitted to the Court a report by Moore Stephens SA dated 27 March 2000 calculating the “objective” value as GRD 165,562,391,740.

              That report had been criticised by the Government who had asserted that it contained errors of calculation. The applicants contended that the Government's criticism was based on changes in the relevant Greek law concerning the basis for calculation of the “objective” value which took place shortly after the submission of the report. It was thus conceivable that these changes were specifically intended to lower the values applicable to their properties; nonetheless, the applicants had asked Moore Stephens SA to prepare a new report “in the light of the subsequent and ex post facto changes in the law”. This second report dated 16 November 2001 calculated the “objective” value as GRD 92,762,992,030. This amount was broken down as follows: Tatoi: GRD 67,555,055,225; Polydendri: GRD 19,237,144,050; Mon Repos: GRD 5,970,792,755.

              16. However, the applicants submitted that it would be wrong for the Court to base its assessment of compensation on that value; they repeated that the statutory formula had been altered at the Government's instigation in the course of the proceedings, and that this change had had the effect of reducing the “objective” value of the properties to an amount very significantly below their true market value.

              (b) The market value

              17. The applicants stated that they were prepared to accept the market value stated in the valuation report prepared by Lambert Smith Hampton on behalf of the Government on 29 May 2000. This report expressly noted that Lambert Smith Hampton had been “instructed...to inspect and assess the current open market capital value of the...properties”. According to the report, the value of all the relevant properties was estimated at GRD 187,592,000,000. The applicants further pointed out that it was stated on the last page of the report that “a special user [might] well pay a higher price in order to acquire one or more of the above major properties”. They also stressed that the figures supplied by the report were May 2000 figures and that in Greece prices had risen very considerably in recent months.

              18. However, the applicants observed that the Government had not clarified their position as to whether they accepted this valuation. In fact, the Government had stated that they had commissioned Lambert Smith Hampton to prepare a report so that they could assess the magnitude of the so called “tax exemptions” (see paragraph 48 below). The applicants argued that, whatever the Government's primary purpose in obtaining the report, the fact remained that it provided a relevant and reliable yardstick of market valuation.

              19. The applicants further contended that they had themselves obtained a report on the market value of the properties by the international valuers FPD Savills. This report, dated 7 April 2001, estimated the total value of the

              properties at GRD 161,100,000,000. This calculation was conservative as compared with the higher value given in the Lambert Smith Hampton report submitted by the Government, although both reports adopted the same careful methodology.

              20. The applicants submitted that there could be no justification for the Court adopting a value which was below the lower of the two estimates that had been placed before it by the parties. However, the Government had submitted that the market valuation of the properties was not an appropriate method on which to base the Court's assessment of just satisfaction (see paragraphs 49-51 below). The applicants considered that the reasons put forward by the Government for this view were disingenuous.

              21. More specifically, as to the Government's assertion that the present case was unique in the history of the Court in terms of the value of the properties in question, the applicants contended that it was surprising that the Government should seek to rely on the extent of its own violation of the Convention as a reason for reducing the amount of compensation to be awarded to the victims of that violation. The fact that the property in question was large and valuable provided no justification, as a matter of legal principle and logic, for reducing the amount of compensation. Moreover, this argument was contradicted by the report of the Government's own valuers, Lambert Smith Hampton, who had taken into account comparable transactions, and who had felt able, on the strength of such comparative and other evidence, to express a view as to the fair market value of the properties. The same applied to FPD Savills, who had likewise been able to estimate the market value of the properties on the basis of comparative and other evidence.

              22. The applicants further contended that the fact that a large part of the relevant land was forest land had no bearing on the appropriateness of using market value as a basis for the assessment of just satisfaction. Both Lambert Smith Hampton and FPD Savills had taken into account the particular features of the relevant properties, including the fact that much of the land enjoyed a protected status as forest land, when arriving at their estimates of market value.

              23. In the circumstances, the applicants submitted that the Government had put forward no credible argument as to why the market value method of valuation was inappropriate in this case and that they had failed to give any cogent reason why the market value report prepared by their own valuers, Lambert Smith Hampton, should not be used as a basis for the Court's assessment of just satisfaction. Alternatively, at the very least, the award of just satisfaction should reflect the valuation contained in the applicants' market value report prepared by FPD Savills.



              24. The applicants therefore invited the Court to base its decision on the two market valuations that it had before it and award them an amount of at least GRD 161,100,000,000 in respect of the immovable property, if that property was not returned to them.

              (iii) Movable property

              25. The first applicant submitted that his main concern was to have his movable property in Greece (i.e. furniture, cutlery, books, paintings, etc.) returned to him. These chattels were personal belongings with sentimental and family associations “just as any family has”. The first applicant argued that to the best of his knowledge, confiscation or even expropriation of personal movable items had no precedent in Greece or in any other country.

              26. However, should the Government fail to restore these chattels to him, the first applicant sought an award of compensation representing their market value. He referred to a valuation made by Christie, Manson & Woods Ltd. (“Christie's”), which estimated the current value of the chattels at £ 3,723,800.

              27. The first applicant noted, however, that the Christie's valuation only covered part of his movable property still in Greece. It did not include any of the 826 items of movable property loaned by him in 1977 for the use of the Presidency of the Republic. Nor did it include all the items belonging to him that remained at Tatoi.

              28. Moreover, the first applicant argued that the Government were wholly wrong to submit that he was making a claim in respect of chattels which were already in his possession. He confirmed that the National Gallery of Greece had granted him official permission for the export of certain works of art belonging him; however, it was apparent from a comparison of the number of items referred to in the permission (271) with the number of items listed in the Christie's valuation (912), that the permission to export dealt only with part of his chattels in Greece. None of the chattels referred to in the Christie's valuation had been exported from Greece.

              29. In particular, as to the works of art referred to in the official permission, the first applicant submitted that he had made arrangements for their export, but before all the relevant chattels could be exported, a ministerial decision was taken which had the effect of countermanding the permission. This meant that only part of the items for which permission had originally been granted were in fact exported. The export of those items had taken place with the official approval of the authorities and their stamp. As for the very substantial number of chattels that were listed in the permission but had remained in Greece, the first applicant could not be certain that some of them had not been misappropriated by third parties in Greece.



              30. The first applicant further submitted that he had recently received notification of a decision by the Minister of Finance in Greece that a committee should be formed to compile an inventory and evaluation of the movable property which remained at Tatoi. He had accepted this proposal through his representative in Greece. He emphasised, however, that the proposed exercise of producing an inventory and evaluation of the relevant chattels should not be permitted to delay the Court's determination of the issue of just satisfaction so far as the remainder of the case was concerned. He submitted that there was no good reason why the Court should not reach a speedy decision so far as the properties of Tatoi, Polydendri and Mon Repos were concerned and, if need be, postpone the determination of just satisfaction in relation to the chattels until after completion of the proposed inventory and evaluation.

              (iv) Past privileges and tax exemptions

              31. The applicants stressed that, as a matter of legal principle and logic, any privileges or tax exemptions that were available to members of the royal family in the past had no bearing whatever on the amount of just satisfaction that should be awarded.

              32. In fact, the concept of just satisfaction required the owner to be fairly compensated for what he had lost by being deprived of his property, regardless of any benefits or privileges which might have been received by him or his predecessors prior to the taking of the property. The issue of just satisfaction had to be examined in relation to the interference with the relevant ownership rights as they were at the time of the taking, and it was the value of those ownership rights which had to be considered.

              33. Moreover, there was no precedent in the jurisprudence of the Court for such matters to be taken into account when assessing compensation for the loss of property: on the contrary, the Court's case-law made it clear that the respondent Government were under an obligation to make reparation for the consequences of the breach of the Convention in such a way as to restore as far as possible the situation existing before the breach. This involved returning of the relevant property to the applicants, or payment of compensation reflecting its current value. It would in any event be quite illogical for the Court to take any past privileges or tax exemptions into account in determining the question of just satisfaction, given its ruling that these matters could not be relevant in relation to the issue of proportionality (see paragraph 98 of the principal judgment).

              34. More specifically, the applicants argued that to refer to any tax exemptions enjoyed by the royal family in the past was somewhat misleading unless reference was made to the special obligations of the royal family. The latter had in fact many obligations to the State which were specified by law, including an obligation for the King to pay for all the outgoings of his household, down to the last drachma. The greatest part of the Civil List went to pay for expenses relating to the exercise of the King's functions, exactly as the Greek State today paid all the expenses of the President of the Republic.

              35. In other words, the tax exemptions which the royal family historically enjoyed, were provided by law in recognition of the very large expenses which the royal family were legally obliged to meet as part of their official duties. It would be tantamount to the retrospective imposition of tax for the value of any such exemptions now to be taken into account in reduction of the amount of compensation that would otherwise be awarded to them. The applicants referred to an expert report by Professor Georgiades which stated that this would not be permissible as a matter of Greek law, including the Greek Constitution. The same applied, as a matter of principle, under the Convention.

              36. Further, the applicants contended that any payments for essential repairs and renovation of the properties were provided by the State some fifty years ago, in recognition of the damage which had been caused to them during the period of civil unrest when they were in the possession of the State and were neglected.

              37. Moreover, the applicants stated that they had paid all amounts of tax owed by them, and that no amounts of tax had been written off pursuant to Article 5 of Law no. 2215/19941. In any event, such a repayment could not possibly be equated with payment of compensation.

              38. The applicants also argued that if it were relevant for the Court to take into account any benefits or privileges that might have been available to the royal family in the past, it would also need to consider any benefits provided by the royal family to the Greek State. The applicants referred, for example, to the donation to the Greek Heritage and Olympic Committee by King George I of an extremely valuable piece of land in the centre of Athens for the building of the Olympic Stadium. This was land that King George I had bought from Ziller, a well known German architect who designed most of the famous buildings in 19th century Athens. Ziller had bought the area where the marble stadium stood today in order to make archaeological excavations to find the old stadium. He had then gone bankrupt and in 1869 King George I had bought the land from him. Its current value ran into billions of drachmas.



              39. In view of the above, the applicants argued that any past privileges and tax exemptions that might have been available to them or to their predecessors were of no relevance to the question of just satisfaction. In any event, they submitted that the calculations and figures put forward by the two reports prepared in this respect for the Government by Deloitte & Touche (see paragraphs 61–63 below) were both misconceived and incorrect. To support this allegation, the applicants referred to a report by Moore Stephens SA dated 16 November 2001, which considered in detail the above-mentioned reports and in which it was stated that “Deloitte & Touche [had] made a number of very serious errors” and that the figure put forward by them as the present monetary value of the hypothetical tax burden (i.e. GRD 197,500,000,000 - see paragraph 61 below) was “grossly exaggerated”. Moore Stephens SA calculated that figure as GRD 11,332,678,976. This amount was broken down as follows: Tatoi: GRD 10,317,035,084; Polydendri: GRD 308,285,634; Mon Repos: GRD 707,358,258.

              (b) Non-pecuniary damage

              40. The applicants stressed that they had been deeply hurt and humiliated by the fact and manner of the taking of their property, by the deprivation of property of great sentimental value, and by their continuing exclusion from access to the family graves at Tatoi (see paragraph 41 below). There was nothing political about their claims and they presented no threat to the Greek Republic, which the first applicant had several times acknowledged; yet they had been singled out for adverse and punitive treatment, which would not have been accorded to other Greek nationals. They argued that they should be compensated for such feelings of distress and public humiliation to the same extent as any other applicant whose Convention rights had been violated.

              The royal graves

              41. The applicants stressed in particular that their ancestors' graves, including those of the first and second applicants' parents, were at Tatoi. Their Greek Orthodox religion imposed on them “the obligation and privilege of honouring the dead by laying flowers on their graves and above all by holding annual religious [commemorations]”. The applicants were deeply religious and it was particularly distressing for them to have been prevented from visiting their ancestors' graves and observing this tradition and obligation. As a matter of Greek law, they were entitled to have access to the graves. They also produced photographs of the area to show that the graves did not remotely resemble a national monument, but were the simple graves of a “family buried together”.

              2. Submissions by the Government in their observations dated 21 May 2001, 30 November 2001 and 16 April 2002

              42. The Government submitted that “the finding of a violation by the Court or, alternatively, the award of a symbolic sum” could reasonably be considered just satisfaction for the applicants. In their view, the nature of the violation found by the Court in the present case was of paramount importance. In fact, the transfer of the properties at stake was closely linked with the change of the regime in Greece and the establishment of the Republic. It could not therefore be equated with an arbitrary infringement of property rights or a trivial interference with the peaceful enjoyment of an individual's possessions.

              43. In view of the above, the Government first submitted that the claim for the return of the contested properties to the applicants was unsubstantiated. Nor could the applicants claim full compensation for the taking of their properties.

              44. In that connection, the Government wished to remind the Court of the known European precedents in this field during the 20th century, that is regime changes from monarchies to the republican form of parliamentary government, namely in Portugal (1910), in Germany and Austria (1919), in Greece (1924), in Spain (1931) and in Italy (1946). Although there had been differences between these changes of regime, there was nevertheless a common feature that characterised the fate of the possessions of the members of the former royal families: with the exception of the private property of King Manuel II of Portugal, the private possessions of all former European monarchs or emperors had in one way or another been expropriated without compensation or without full compensation. Such long established practice, justified not by reasons of political expediency but in view of the privileges afforded in the past to the former royal families and the necessity to ensure the enforcement of radical constitutional changes (the abolition of monarchies), should be taken into account in the award of just satisfaction. The Court should not deny the right of the Greek State “to resolve an issue which it considered to be prejudicial for its status as a republic” (see paragraph 88 of the principal judgment), through the award of excessive compensation, the payment of which was likely to have very serious financial implications for the Hellenic Republic.

              45. Should the Court consider, however, that compensation was owed for the damage allegedly suffered by the applicants, the Government made the following submissions.



              (a) Pecuniary damage

              (i) The scope of the applicants' claim as regards the Tatoi estate

              46. The Government contended that the applicants' claim for just satisfaction in relation to the Tatoi estate should exclude that part of the property which the first applicant had donated to the National Forest of Tatoi Foundation in 1992 (see paragraphs 37-39 of the principal judgment). More specifically, they argued that in their observations dated 13 April 2000 the applicants had stated that they made “no claim to the property of the National Forest of Tatoi Foundation”. Therefore, the applicants' claim for just satisfaction was limited to 3,962,710 square metres, namely to that part of Tatoi that was neither sold nor donated by the first applicant under the 1992 agreement; as a result, a claim for the whole of Tatoi would be outside the scope of the application (ultra petita).

              47. Further, the Government argued that it should be taken into account when assessing just satisfaction that a substantial part of the Tatoi property, namely the Bafi area, was not purchased by King George I but was conceded to him for a symbolic sum. The same applied to the Mon Repos estate, 97% of which had been donated to King George I by the Provincial Council of the island of Corfu in 1864.

              (ii) Valuation

              48. The Government emphasised from the outset that the only purpose of the preparation of the Lambert Smith Hampton report was to make possible the calculation of the hypothetical tax burdens on the properties at a time when the system of the objective value did not exist. In other words, the Government's intention had been to evaluate the precise amount of the tax exemptions enjoyed by the applicants throughout the reign of their family and, in particular, the inheritance tax that the applicants and their ancestors would have been called upon to pay if they had been treated as ordinary citizens, a status that the applicants claimed for themselves “whenever it [suited] them”. In order to do so, the Government had first to assess the value of the contested estates at the relevant dates. The Lambert Smith Hampton report was in no way meant to be used for the purpose of the application of Article 41.

              (a) Market value

              49. The Government argued that a market valuation of the properties was not an appropriate method on which to base the Court's assessment of just satisfaction, for the following reasons.

              – Substantial portions of the properties were forest lands, namely lands which had always been strictly protected under the Greek Constitution and, as such, could not be exploited for urban development or other real estate purposes. More specifically, 90% of the Tatoi estate and 100% of the Polydendri estate were excluded from any commercial exploitation, since they had always been designated as forests. Moreover, the agricultural portions of Tatoi exceeded 250,000 square metres; therefore, according to the existing legislation (Law no. 2148/1952), they could not be freely transferred without the authorities' permission. Lastly, the Mon Repos estate was strictly protected as an archaeological area and the residence on it had been completely refurbished by the State and now accommodated a museum.

              – The estates were so huge that it was impossible to find transactions of a comparable value in Greece, if not in Europe, which could be used as an appropriate reference for the purpose of calculating market value. In that connection, the Government submitted an appraisal report by American Appraisal (Hellas) Ltd., according to which the “open market value” of the contested estates amounted to the rounded sum of EUR 346,426,578, a considerably lower sum than the values suggested in the other experts' reports.

              50. The Government further submitted that the inherent fluidity and uncertainty of market criteria was obviously the reason why the applicants themselves had made, over the years, profoundly diverging assessments of the estates' real value.

              51. The Government concluded that, in view of the particular nature of the properties, the market value system of assessment was inappropriate to serve as a basis for the purposes of applying Article 41. Instead of elusive market criteria, more objective standards should be used as the starting point for the award of just satisfaction in the present case.

              (b) Objective value

              52. The Government argued that the system of “objective” values was far the more appropriate, provided that it was applied correctly. They pointed out that this system had first been introduced in Greece in 1982. Under the “objective” value system, taxable values for the purpose of transfers, donations and inheritances were calculated on the basis of a unit price; this price, which was fixed by the State upon proposals by independent experts' committees, was readjusted every two years at the latest to reflect the market value of estates and was also subject to judicial review. In 1990 the system of “objective” values had been extended to cover expropriations also; as from 1998 it also applied to properties located outside the existing town plans. The Government stressed that the State was bound by that system even when the method of calculation conflicted with its own interests.

              53. The Government further observed that the applicants, although they now endorsed the market-value method, had initially stated in their memorial dated 13 April 2000: “The Court may consider that it is convenient to use these values as the basis for assessing compensation so as to avoid the need for complex and lengthy proceedings in relation to the Article 41 claim for just satisfaction”. They had accordingly submitted a first report by Moore Stephens SA estimating the “objective” value of their estates at GRD 165,562,391,740. However, that assessment contained miscalculations and factual errors for each one of the properties.

              54. In particular, the Government estimated the objective value of the estates as follows: Tatoi: GRD 7,429,746,426; Polydendri: GRD 10,683,544,050; Mon Repos: GRD 5,970,792,755.

              55. They therefore contended that the calculation of the “objective” value of the estates contained in the second report by Moore Stephens SA produced by the applicants (i.e. GRD 92,762,992,030 – see paragraph 15 above) was closer to the accurate objective value of the estates; they observed however that the applicants persisted in taking into account the whole of the Tatoi property. In that connection the Government reiterated their argument that the Court could not admit this belated claim since it was bound by the requirement to avoid adjudicating ultra petita.

              56. In sum, the Government submitted that, according to the “objective value” system of calculation, the aggregate value of the properties was GRD 24,084,083,231.

              (iii) Past privileges and tax exemptions

              57. The Government submitted that the pecuniary damage allegedly suffered by the applicants should be adjusted downwards in view of the privileges and other benefits awarded to the contested estates throughout the reign of the applicants' family in Greece. These privileges and tax exemptions afforded in the past to the royal family should be taken into account in order to make an accurate assessment of the applicants' claims for just satisfaction (see paragraph 98 of the principal judgment).

              58. In particular, the Government observed that in the instant case the Court ruled that, prior to the 1994 law, the properties at stake were private properties owned by the applicants (see paragraphs 72, 73 and 77 of the principal judgment). However, under all legal systems, private properties were subject to taxation. More specifically, whenever a succession from generation to generation or a transfer from person to person occurred, private properties were subject to inheritance tax or transfer tax respectively, which were calculated in relation to the properties' size and value.

              59. Therefore, the Government submitted that for the assessment of pecuniary damage, the Court could not ignore the fact that during the reign of the applicants' family their properties were fully exempted from inheritance tax. That was the case in each of the four successions to the Greek crown which had occurred since the death of the founder of the dynasty, King George I, in 1913. The Government emphasised that two of these successions had not been successions from father to son, but from son to father (in 1920) and from brother to brother (in 1947). These successions would normally have been subject to substantially higher tax rates under Greek law.

              60. The Government observed that prior to the hearing on the merits of the case of 14 June 2000, they had produced a preliminary report by Deloitte & Touche containing an estimation of the hypothetical burden relating to inheritance and property transfer tax pertaining to each one of the three estates. Calculated on the basis of the historical market value of the properties (which was assessed by Lambert Smith Hampton) and of the tax provisions in force at the time of each transfer, the report concluded with two alternative estimates.

              61. According to the first estimate, the above-mentioned hypothetical burden amounted to GRD 197,500,000,000 on 31 December 1999. Deloitte & Touche had arrived at that conclusion by taking as the starting point the amount of the aggregate inheritance and transfer tax (i.e. the tax burden associated with the successive transfers of the properties from 1872 to 1964) that the applicants would have been asked to pay in the year of the last transfer, namely 1964, had they been treated as ordinary Greek citizens (i.e. GRD 251,000,000). Further, Deloitte & Touche's calculation had been based on annual compound interest and referred to the prevailing interest rate that was in force in Greece during the period 1964-1999 (namely the interest burden in a given year, computed on the amount of capital and interest accumulated as of the end of the previous year).

              62. The Government noted that the applicants' experts, Moore Stephens SA, contested the method used by Deloitte & Touche for the calculation of these figures and estimated the amount of the hypothetical tax burden at GRD 11,300,000,000 approximately (see paragraph 39 above). However, as observed by Deloitte & Touche, the method used by the applicants' experts was not a proper method for calculating the applicants' hypothetical burden in real terms, because instead of taking into consideration the annual compound interest, they referred to the income that a normal bank account would yield.

              63. For their second estimate, Deloitte & Touche had produced, instead of the aggregate amount of the applicants' hypothetical tax burden, the portion of the contested estates that the applicants would have had to sell in order to pay the corresponding taxes at the date of each transfer, if they had not been exempted from the payment of inheritance and property taxes. According to that method of calculation (which was confirmed by a final report prepared by Deloitte & Touche), the area of the three estates would have been reduced as follows: Tatoi: 73.15%; Mon Repos: 73.08%; Polydendri: 45.96%.

              64. The Government noted that the applicants, though contesting the above figures, appeared to endorse the method used for their calculation. According to the applicants' experts (see page 3 of the Moore Stephens SA report of 16 November 2001), Tatoi would hypothetically have been reduced by 55.10%, Mon Repos by 66.74% and Polydendri by 33.66%. The Government observed that the applicants' most important deviation from their percentages concerned the estate of Tatoi. That deviation, however, was due to the fact that the applicants had erroneously based their calculation on the entire estate (see paragraphs 46 and 55 above).

              65. For the other substantial privileges connected with the status of the properties during the reign of the applicants' family, including income tax exemptions, payment of maintenance and security costs and the like, the Government referred to their previous submissions to the Commission and the Court.

              (iv) Movable property

              66. The Government stated that in 1991 they had allowed the first applicant to remove from the Tatoi and Mon Repos residences the chattels stored therein. The first applicant had removed only a certain number of items in February 1991. The Greek State could not therefore be held responsible for any chattels that the first applicant did not want and did not remove although he was free to do so.

              67. Moreover, the Government had compared the list of the chattels allegedly found by Christie's in Tatoi and Mon Repos in 1991 with the official permission granted by the National Gallery of Greece for the export of the applicants' paintings. From this comparison it appeared that numerous items actually claimed by the applicants had in fact been removed by them from Greece long ago.

              68. Lastly, the Government submitted that, for the most part, these chattels did not constitute personal belongings but gifts offered to the first applicant and his ancestors in their capacity as Heads of State. They could not, therefore, be considered “possessions” within the meaning of Article 1 of Protocol No. 1.

              (b) Non-pecuniary damage

              69. The Government considered that the gravity of the prejudice caused to the applicants under the circumstances of the case was an important criterion for the award of just satisfaction, especially as regards the non-pecuniary damage allegedly suffered by them. They noted that the applicants' allegations that they were the victims of political persecution had been rejected by the Commission, which had also found that there had been no violation of the applicants' rights under Articles 3, 6 and 8 of the Convention (see the Commission's decision as to the admissibility of the application of 21 April 1998, unpublished), observing, on that point: “the applicants' claims to the opposite appear most unfortunate taking into consideration the unconstitutional role played by the first applicant in the politics of Greece prior to his departure from the country in 1967: by appointing the colonels' government after the military coup of 21 April 1967, the former king undermined...the very foundations of parliamentary democracy and of the rule of law, that is the pillars of democratic government, whose protection constitutes the raison d'être of the Council of Europe”.

              70. In view of the above, the Government submitted that “not a single Greek drachma could possibly be granted by the Hellenic Republic to the former monarch”, in view of the “highly political character of the applicants' claims”.

              The royal graves

              71. As regards in particular the problem of access to the royal graves, the Government considered it inappropriate to enter into a discussion with the applicants on the legal nature of the graves. Both under Greek and European law, royal graves were considered historical monuments, and as such they belonged to the State. In any event, the applicants were not prevented from visiting the graves of their ancestors whenever they wished. They should, however, comply with Law no. 2215/1994, whose provisions2, “pertaining to the award of travel documents to the applicants as well as to the recognition of their citizenship by the Hellenic Republic”, had been found by the Commission to be in conformity with the Convention (see the Commission's decision as to the admissibility of the application, op. cit.).

              3. The Court's assessment

              (a) Pecuniary damage

              72. The Court reiterates that a judgment in which it finds a breach imposes on the respondent State a legal obligation to put an end to the breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 32, ECHR 2000-XI).

              73. The Contracting States that are parties to a case are in principle free to choose the means whereby they will comply with a judgment in which the Court has found a breach. This discretion as to the manner of execution of a judgment reflects the freedom of choice attaching to the primary obligation of the Contracting States under the Convention to secure the rights and freedoms guaranteed (Article 1). If the nature of the breach allows of restitutio in integrum, it is for the respondent State to effect it, the Court having neither the power nor the practical possibility of doing so itself. If, on the other hand, national law does not allow - or allows only partial - reparation to be made for the consequences of the breach, Article 41 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate (see Brumarescu v. Romania (just satisfaction) [GC], no. 28342/95, § 20, ECHR 2001-I).

              74. In the principal judgment the Court held that the interference in question satisfied the requirement of lawfulness and was not arbitrary (see paragraphs 82, 88 and 90 of the principal judgment). The act of the Greek Government which the Court held to be contrary to the Convention was an expropriation that would have been legitimate but for the failure to pay any compensation (see paragraph 99 of the principal judgment).

              75. The lawfulness of such a dispossession inevitably affects the criteria to be used for determining the reparation owed by the respondent State, since the pecuniary consequences of a lawful taking cannot be assimilated to those of an unlawful dispossession. In this connection, international case-law, of courts or arbitration tribunals, gives the Court valuable guidance; although that case-law concerns more particularly the expropriation of industrial and commercial undertakings, the principles identified in that field are valid for situations such as the one in the instant case. In the Amoco International Finance Corporation case the Iran-United States Claims Tribunal stated, referring to the judgment of the Permanent Court of International Justice in the Case Concerning the Factory at Chorzów3, that:

              “a clear distinction must be made between lawful and unlawful expropriations, since the rules applicable to the compensation to be paid by the expropriating State differ according to the legal characterisation of the taking.” (Amoco International Finance Corporation v. Iran, Interlocutory Award of 14 July 1987, Iran–U.S. Claims Tribunal Reports (1987–II), § 192)

              76. A very similar stand was taken by the Court in the case of Papamichalopoulos and Others v. Greece. In that case the Court found a violation on the basis of an irregular de facto expropriation (occupation of land by the Greek Navy since 1967) which had lasted more than twenty-five years by the date of the principal judgment of 24 June 1993. In its judgment on just satisfaction, the Court held:

              “...the unlawfulness of such a dispossession inevitably affects the criteria to be used for determining the reparation owed by the respondent State, since the pecuniary consequences of a lawful expropriation cannot be assimilated to those of an unlawful dispossession.”

              Consequently, the Court ordered the Greek State to pay the applicants “for damage and loss of enjoyment since the authorities took the possession of the land in 1967, the current value of the land, increased by the appreciation brought about by the existence” of certain buildings which had been erected on the land since the occupation, as well as the construction costs of those buildings (Papamichalopoulos and Others v. Greece (Article 50), judgment of 31 October 1995, Series A no. 330-B, p. 59, §§ 36 and 39).

              77. In view of the above, the Court is of the opinion that in the present case the nature of the breach found in the principal judgment does not allow the Court to proceed on the basis of the principle of restitutio in integrum (see, a contrario, the Papamichalopoulos and Others v. Greece (Article 50) judgment, op. cit.). That said, the Government are of course free to decide on their own initiative to return all or part of the properties to the applicants.

              78. However, in case of non-restitution, the compensation to be fixed in the present case need not, unlike in the above-mentioned cases concerning per se illegal dispossessions, reflect the idea of wiping out all the consequences of the interference in question. As the lack of any compensation, rather than the inherent illegality of the taking, was the basis of the violation found, the compensation need not necessarily reflect the full value of the properties. In its search for appropriate compensation the Court must seek guidance in the general standards expressed in its case-law on Article 1 of Protocol No. 1, according to which a taking of property without payment of an amount reasonably related to its value would normally constitute a disproportionate interference which could not be considered justifiable under Article 1 of Protocol No. 1 (see the James and Others v. the United Kingdom judgment of 21 February 1986, Series A no. 98, p. 36, § 54). However, while it is true that even in many cases of lawful expropriation, such as a distinct taking of land for road construction or other public purposes, only full compensation may be regarded as reasonably related to the value of the property, this rule is not without exceptions. As stated in the James v. the United Kingdom case cited above, legitimate objectives of “public interest”, such as pursued in measures of economic reform or measures designed to achieve greater social justice, may call for less than reimbursement of the full market value (ibid.). The Court considers that less than full compensation may be equally, if not a fortiori, called for where the taking of property is resorted to with a view to completing “such fundamental changes of a country's constitutional system as the transition from monarchy to republic” (see paragraph 87 of the principal judgment).

              79. In conclusion, unless the Government decide on their own initiative to return the properties to the applicants, the Court deems it appropriate to fix a lump sum based, as far as possible, on an amount “reasonably related” to the value of the property taken, i.e. an amount which the Court would have found acceptable under Article 1 of Protocol No. 1, had the Greek State compensated the applicants. In determining this amount the Court will take into account the claims of each applicant, the question of the movable property, the valuations submitted by the parties and the possible options for calculating the pecuniary damage, as well as the lapse of time between the dispossession and the present judgment. The Court considers that in the unique circumstances of the present case resort to equitable considerations is particularly called for.

              (i) The claims of each applicant

              80. For the purposes of assessing the pecuniary damage suffered, the applicants asked the Court to have regard to the position of each individual applicant. The Court has taken note of the applicants' situation. It is clear that the compensation for the pecuniary damage suffered mainly concerns the first applicant. Although it would be possible to fix an overall sum which the applicants would have to share among themselves on the basis of their respective ownership rights, the Court considers that it is preferable, given the circumstances of the case, to fix separate awards for each applicant.

              As regards in particular the claim in respect of the Tatoi estate

              81. The Court accepts the applicants' submission that the whole of Tatoi should be taken into account for the assessment of just satisfaction. In its principal judgment it found that Law no. 2215/1994 was valid and that the land which had been donated to the Foundation in 1992 remained with the first applicant when the 1994 law was passed (see paragraphs 71-72 of the principal judgment). It would therefore be inconsistent to suggest that, although the 1992 agreement was repealed by a later law, its legal consequences were still valid and should be taken into account for the assessment of just satisfaction. The Court will therefore take into account the whole of the Tatoi estate.

              As regards the ways in which Tatoi and Mon Repos were acquired

              82. The Court notes the Government's submission that it should bear in mind when assessing just satisfaction that a substantial part of the Tatoi property, namely the Bafi area, was not purchased by King George I but was conceded to him for a token sum and that the same should apply to the Mon Repos estate, 97% of which had been donated to King George I by the Provincial Council of the island of Corfu in 1864.

              83. In the principal judgment, the Court held that, notwithstanding the manner of acquisition of the lands in question, the Tatoi and Mon Repos estates belonged to the first applicant before the entry into force of Law no. 2215/1994 (see paragraphs 70, 76, 77 and 78 of the principal judgment). Therefore, it considers that the manner of acquisition of the properties cannot deprive the first applicant of his right to compensation; it may, though, be taken into account for the determination of the level of compensation.

              (ii) The movable property

              84. The Court notes that the parties are in disagreement as regards both the nature of the chattels and the number of items which remain at Tatoi. As a matter of principle, the Court considers that the first applicant should be compensated for his personal belongings that are still in Greece. However, it is not its task to make an itemised assessment of their value. The Court notes in this respect that it is intended that a special committee will be formed to perform that work. Nonetheless, the Court does not consider it necessary to postpone the determination of just satisfaction in relation to the chattels until after completion of the proposed exercise. The lump sum to be fixed to compensate on an equitable basis the pecuniary damage sustained will also cover the question of the chattels.

              (iii) The possible options for calculating the pecuniary damage

              85. In calculating the pecuniary damage, the Court considers that two basic questions must be posed: (a) Which method to choose? and (b) Should the amounts arrived at be adjusted downwards in view of the privileges and other benefits afforded in the past to the royal family?

              (a) The method for calculating the pecuniary damage

              86. To start with, the Court must choose its method of calculation, namely whether it will base its assessment on the market or the “objective” value of the properties. In the Court's view, the valuation method to be chosen must be one that, had it been applied by the Greek State when the 1994 law was enacted, would have produced compensation that met the standards identified by the Court.

              87. It is useful to recall at this point the various amounts arrived at by the parties when using the above methods of calculation.

              The market value

              88. The Court notes that the experts' reports as regards the market value of the estates arrive at the following amounts.


              Lambert Smith Hampton (submitted on behalf of the Government):

              GRD 187,592,000,000

              EUR 550,526,779.16

              FPD Savills (submitted on behalf of the applicants):

              GRD 161,100,000,000

              EUR 472,780,630.96

              American Appraisal Hellas Ltd. (submitted on behalf of the Government)



              EUR 346,426,578



              89. The Court is unable to accept this method of valuation. To start with, it notes the wide gaps between the parties' calculations and even between the estimates of the Government's own valuers. In fact, the Court has become aware of the difficulties in calculating the market value of the properties; for example, a degree of artificiality would be involved in the assumption that there would be a willing buyer for the estates concerned (see the Lithgow and Others v. the United Kingdom judgment of 8 July 1986, Series A no. 102, p. 54, § 129). The Court is persuaded that the three properties, and in particular Tatoi and Mon Repos, are wholly unsuitable for any commercial exploitation.

              90. Moreover, the Court recalls that full compensation is not the standard applicable in the circumstances of the present case (see paragraphs 78 and 79 above). Further, the Court cannot make an award which would exceed the amount that would have been acceptable in terms of Article 1 of Protocol No. 1, had the Greek State compensated the applicants.

              The “objective” value

              91. The Court notes that the parties' estimates as regards the “objective” value of the estates may be recapitulated as follows.


              Government:

              GRD 24,084,083,231

              EUR 70,679,627.97

              Applicants:

              GRD 92,762,992,030

              EUR 272,231,818.14





              92. These amounts are broken down as follows.



              Tatoi


              Government:

              GRD 7,429,746,426

              EUR 21,804,098.10

              Applicants:

              GRD 67,555,055,225

              EUR 198,254,013.87




              Polydendri


              Government:

              GRD 10,683,544,050

              EUR 31,353,027.99

              Applicants:

              GRD 19,237,144,050

              EUR 56,455,301.69




              Mon Repos


              Government:

              GRD 5,970,792,755

              EUR 17,522,502.58

              Applicants:

              GRD 5,970,792,755

              EUR 17,522,502.58



              93. Though at first view there is a great disparity in the parties' estimates as regards the “objective” value also, the Court observes that these differences are mainly due to the fact that the Government took into account only 3,962,710 square metres of the Tatoi estate whereas the applicants calculated on the basis of the whole of Tatoi (which is approximately 41,000,000 square metres – see paragraphs 68-72 of the principal judgment). Had the Government calculated on the basis of the whole of Tatoi, they would have arrived at an amount very close to that proposed by the applicants. There is also a difference of GRD 8,553,600,000 (EUR 25,102,274.39) as regards the Polydendri estate, which the applicants' valuers, Moore Stephens SA, sought to justify in extensive submissions. Lastly, the Court notes that the parties agree on the value of Mon Repos.

              94. In view of the above considerations, and also of the fact that this system is based on more objective standards and that the parties seem to endorse similar methods of calculation, the Court proposes to take as the starting point the parties' estimates as to the “objective” value of the estates.

              (b) Downwards adjustment of the amounts arrived at in view of the privileges and other benefits afforded in the past to the royal family

              95. The Court recalls that in paragraph 98 of its principal judgment it held:

              “...as regards the Government's argument that the issue of compensation was indirectly covered, the Court notes first that compensation provided for by Legislative Decree No. 225/1973 is irrelevant to the instant case, Law No. 2215/1994 being the sole legal basis of the interference of which the applicants complain. Nor can the circumstances to which the Government refer be regarded as payment of compensation. In this respect the Court agrees with the applicants when they argue that in the context of the expropriation in question there are no reciprocal or mutual debts to be set off against each other. The privileges afforded in the past to the royal

              family or the tax exemptions and the writing-off of all the debited taxes owed by the former royal family, have no direct relevance to the issue of proportionality, but could possibly be taken into account in order to make an accurate assessment of the applicants' claims for just satisfaction under Article 41 of the Convention”.

              96. In view of that ruling, the Court agrees with the Government when they argue that the pecuniary damage allegedly suffered by the applicants should be adjusted downwards in view of the privileges and other benefits awarded in the past to the properties in question.

              97. However, the Court considers that the pecuniary loss cannot be calculated as merely the arithmetical difference between the “objective” value of the properties and the present monetary value of the hypothetical tax burden, since that would be tantamount to the retrospective imposition of taxes on the former royal family by the Court.

              98. In particular, it is true that in order to make an accurate assessment of the applicants' claims for just satisfaction, the Court cannot ignore the special circumstances surrounding the abolition of the monarchy; however, the “hypothetical tax burden” and the privileges afforded in the past to the applicants' family can only serve as indications for the reduction of the amounts awarded. It is useful to recall the parties' submissions on that issue.


              Government:

              GRD 197,500,000,000

              EUR 579,603,815.11

              Applicants:

              GRD 11,332,678,976

              EUR 33,258,045.42



              99. It is clear that at this point there is a great disparity in the parties' estimates. The Court agrees with the applicants' valuers when they argue that the figures put forward by the Government are “grossly exaggerated”. To accept these figures would mean that the applicants owe the Greek State a sum (GRD 197,500,000,000 – EUR 579,603,815.11) which is even higher than the market value of the properties (GRD 187,592,000,000 – EUR 550,526,779.16) as calculated by the Government's own valuers, Lambert Smith Hampton. The Court is not prepared to accept that conclusion.

              100. In view of all the above considerations, the Court awards the applicants on an equitable basis, as required by Article 41 of the Convention, the following amounts in compensation for the pecuniary damage sustained: to the first applicant EUR 12,000,000; to the second applicant EUR 900,000; to the third applicant EUR 300,000.



              (b) Non-pecuniary damage

              101. The Court wishes to emphasise that it is not its task to examine either the role played by the first applicant in the politics of Greece prior to his departure from the country in 1967 or the reasons that led up to the abolition of the monarchy in 1974. Although the Court cannot ignore the political features of the case, and has not done so, it is certainly not its role to enter into a discussion with the parties as to who is to be blamed for the dispute between them.

              102. That said, the Court considers that, having regard to what is at stake in the case and all its special features, no special issue arises in relation to non-pecuniary damage, including the question of access to the royal graves.



              B. Costs and expenses

              103. The applicants claimed GBP 983,851.47 for the costs and expenses incurred by them in vindicating their Convention rights. They submitted detailed schedules setting out the costs and expenses incurred in the proceedings before the Commission and the Court.

              104. The Government submitted that the amounts claimed were exorbitant and insufficiently substantiated; in any event, the fees were much higher than those normally necessary for the handling of a case before the Convention institutions.

              105. According to the Court's established case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually incurred, were necessarily incurred and were also reasonable as to quantum (see Iatridis v. Greece (just satisfaction), op. cit., § 54). Furthermore, legal costs are only recoverable in so far as they relate to the violation found (see Beyeler v. Italy (just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002).

              106. The Court does not doubt that the fees claimed were actually incurred. However, it agrees with the Government that the total costs claimed under that head appear excessive. Moreover, the Court notes that the Commission dismissed an important part of the applicants' complaints.

              107. The Court therefore considers that the costs incurred by the applicants before the Convention institutions should be reimbursed to them only in part. Having regard to the circumstances of the case, the rates applied in the United Kingdom and the special complexity of the question of the application of Article 41, the Court considers it reasonable to award the applicants jointly EUR 500,000, including value added tax.



              C. Default interest

              108. The Court considers that the default interest should be fixed at an annual rate equal to the marginal lending rate of the European Central Bank plus three percentage points.



              FOR THESE REASONS, THE COURT UNANIMOUSLY

              1. Holds

              (a) that the respondent State is to pay the applicants, within three months, the following amounts:

              (i) to the first applicant EUR 12,000,000 (twelve million euros) in respect of pecuniary damage;

              (ii) to the second applicant EUR 900,000 (nine hundred thousand euros) in respect of pecuniary damage;

              (iii) to the third applicant EUR 300,000 (three hundred thousand euros) in respect of pecuniary damage;

              (iv) to the three applicants jointly EUR 500,000 (five hundred thousand euros) in respect of costs and expenses, including value added tax;

              (b) that simple interest at an annual rate equal to the marginal lending rate of the European Central Bank plus three percentage points shall be payable from the expiry of the above-mentioned three months until settlement;


              2. Dismisses the remainder of the applicants' claim for just satisfaction.


              Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 28 November 2002.


              Luzius Wildhaber

              President

              Paul Mahoney

              Registrar



              NOTES



              1. Article 5 § 1 of Law no. 2215/1994 provided that taxes already assessed were written off. All legal proceedings pending before the administrative courts or the Supreme Administrative Court in respect of inheritance and other taxes, surcharges and penalties were discontinued. Amounts paid by the former King and other members of the royal family in respect of tax might be claimed back from the Greek State, but the State might oppose any set-off of such a claim against any claim of the State against the royal family.

              2. Law no. 2215/1994 imposed preconditions for the continued recognition of the Greek nationality of the former King and the royal family, and for the retention of their Greek passports:

              - A declaration had to be submitted to the Registrar of Births, Marriages and Deaths of Athens to the effect that the former King and the royal family unreservedly respected the 1975 Constitution and accepted and recognised the Greek Republic.

              - A further declaration had to be submitted to the Registrar to the effect that the former King and the royal family unreservedly waived any claim relating to the past holding of any office or possession of any official title.

              - The former King and the members of the royal family had to register in the Municipal Register of Citizens under a name and a surname.



              3. In that case, the Permanent Court of International Justice held that “...reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed. Restitution in kind, or, if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear; the award, if need be, of damages for loss sustained which would not be covered by restitution in kind or payment in place of it – such are the principles which should serve to determine the amount of compensation due for an act contrary to international law.” (judgment of 13 September 1928, Collection of Judgments, Series A no. 17, p. 47)
              "Ido not want an uprising of people that would leave me at the first failure, I want revolution with citizens able to bear all the temptations to a prolonged struggle, what, because of the fierce political conditions, will be our guide or cattle to the slaughterhouse"
              GOTSE DELCEV

              Comment

              • George S.
                Senior Member
                • Aug 2009
                • 10116

                EUROPEAN COURT OF HUMAN RIGHTS



                CASE OF THE FORMER KING OF GREECE & OTHERS

                v. GREECE


                (Application no. 25701/94)


                JUDGMENT

                (Just satisfaction)




                STRASBOURG


                28 November 2002




                This judgment is final but may be subject to editorial revision.


                In the case of the Former King of Greece & Others v. Greece,

                The European Court of Human Rights, sitting as a Grand Chamber composed of the following judges:

                Mr L. Wildhaber, President,

                Mr J.-P. Costa,

                Mr L. Ferrari Bravo,

                Mr Gaukur Jörundsson,

                Mrs E. Palm,

                Mr L. Caflisch,

                Mr I. Cabral Barreto,

                Mr W. Fuhrmann,

                Mr B. Zupancic,

                Mrs N. Vajic,

                Mr J. Hedigan,

                Mrs W. Thomassen,

                Mr M. Pellonpää,

                Mrs M. Tsatsa-Nikolovska,

                Mr E. Levits,

                Mr K. Traja,

                Mr G. Koumantos, ad hoc judge,

                and also of Mr P. Mahoney, Registrar,

                Having deliberated in private on 26 June and 6 November 2002,

                Delivers the following judgment, which was adopted on the last-mentioned date:



                PROCEDURE

                1. The case originated in an application (no. 25701/94) against the Hellenic Republic lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the former King of Greece and eight members of his family, on 21 October 1994. The applicants alleged that Law no. 2215/1994 which was passed by the Greek Parliament on 16 April 1994 and became law with effect from 11 May 1994 violated their Convention rights. The applicants were represented by Messrs. Nathene & Co., Solicitors in London. The Greek Government (“the Government”) were represented by the delegate of their Agent, Mr M. Apessos, Senior Adviser of the State Legal Council. The Commission declared the application partly admissible on 21 April 1998 in so far as it concerned the former King of Greece (“the first applicant”), his sister, Princess Irene (“the second applicant”), and his aunt, Princess Ekaterini (“the third applicant”). It referred the case to the Court, in accordance with the provisions applicable prior to the entry into force of Protocol No. 11 to the Convention, on 30 October 1999 (Article 5 § 4 of Protocol No. 11 and former Articles 47 and 48 of the Convention).

                2. In a judgment delivered on 23 November 2000 (“the principal judgment”), the Court (Grand Chamber) held that there had been a violation of Article 1 of Protocol No. 1 (by fifteen votes to two) and that it was not necessary to examine the applicants' complaint under Article 14 of the Convention taken together with Article 1 of Protocol No. 1 (unanimously). More specifically, as regards Article 1 of Protocol No. 1, the Court held that the lack of any compensation for the deprivation of the applicants' property upset, to the detriment of the applicants, the fair balance between the protection of property and the requirements of public interest (The former King of Greece and Others v. Greece [GC], no. 25701/94, § 99, ECHR 2000–XII).

                3. Under Article 41 of the Convention the applicants sought just satisfaction of GRD 165,562,391,740 for their immovable property, plus £ 3,416,330 for their personal movable property (i.e. furniture, paintings, books, etc). They further claimed £ 100,000 for non-pecuniary damage, but on the basis that this sum was to be given to the victims of the earthquake which struck Athens in September 1999. Lastly, they claimed £ 644,502.42 in respect of costs and expenses in the national courts and before the Convention institutions until the date of the hearing on the merits of the case before the Court, namely 14 June 2000.

                4. Since the question of the application of Article 41 of the Convention was not ready for decision, the Court reserved it and invited the Government and the applicants to submit, within six months, their written observations on that issue and, in particular, to notify the Court of any agreement they might reach (ibid., § 107, and point 3 of the operative provisions).

                5. The applicants and the Government each filed three sets of observations within the extended time-limits allowed to them. No basis was found on which a friendly settlement could be secured.




                THE LAW

                6. Article 41 of the Convention provides:

                “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”



                A. Damage

                1. Submissions by the applicants in their observations dated 21 May 2001, 28 November 2001 and 15 April 2002

                7. The applicants primarily invited the Court to state that the annulment of Law no. 2215/1994 and the return of the property to them (together with compensation for non-pecuniary damage and costs and expenses incurred in vindicating their rights) would constitute restitutio in integrum. In the event of the estates not being returned, they affirmed that they found no reason why the amount of compensation should be less than full compensation. In that connection they stressed that the taking of their property had not been part of any national economic or social programme and that even if it had been part of such a programme, Article 17 of the Greek Constitution provided for full compensation to be paid.

                8. As for the date for valuing the property, the applicants submitted that the amount of compensation should be based on the current value of the property. Further, they sought interest on the amount of compensation in so far as necessary.

                (a) Pecuniary damage

                (i) The claims of each applicant

                9. For the purposes of assessing the pecuniary damage suffered, the applicants asked the Court to have regard to the position of each individual applicant, which could be summarised as follows. The claim in respect of Tatoi was made by the first applicant alone; the claim in respect of Polydendri was made by the three applicants in proportion to their respective ownership rights (101,5/288 for the first applicant, 101,5/288 for the second applicant and 36/288 for the third applicant); the claim in respect of Mon Repos was made by the first applicant alone; lastly, the claim in respect of the movable property was made by the first applicant alone.

                As regards in particular the claim in respect of the Tatoi estate

                10. The applicants emphasised that the whole of Tatoi should be taken into account for the assessment of just satisfaction. In particular, they contested the Government's argument (see paragraph 46 below) that the claim for just satisfaction in relation to Tatoi should be limited to that part of Tatoi which remained with the first applicant in 1992 after a donation of an area of 37,426,000 square metres to the National Forest of Tatoi Foundation (see paragraphs 37-39 of the principal judgment).



                11. The applicants admitted that in their memorial dated 13 April 2000 they had stated that they were not making any claim to the property of the Foundation. However, this was on the express basis that they did not accept the Government's contention that the 1992 arrangement was invalidated by Law no. 2215/1994. Indeed, their claim was that the 1994 law was not valid. However, in its principal judgment the Court found that Law no. 2215/1994 was valid and that the land which had been donated to the Foundation in 1992 remained with the first applicant when the 1994 law was passed (see paragraphs 71-72 of the principal judgment). As a result of that judgment, the applicants considered that they should be compensated for the loss of that land as well as for the remainder of the Tatoi property. The applicants pointed out that the market valuation of the Government's own valuers, Lambert Smith Hampton (see paragraphs 17 and 48 below), also referred to the whole of Tatoi.

                12. As for the Government's argument (see paragraph 47 below) that in assessing just satisfaction the Court should take into account the fact that part of the Tatoi property (namely the Bafi area) had been a donation to King George I (the first applicant's great-grandfather), the applicants stated that the Bafi forest had not been donated to King George I, but had been purchased by him. The sum fixed and paid had been GRD 60,000, which was the value of the property at the time, and by no means a symbolic sum. In any event, even if the Bafi area had been a donation to King George I, this would not in any way have affected the first applicant's ownership of the land, or his right to compensation for its taking.

                (ii) Valuation

                13. As regards the method of valuation that should be used to determine an appropriate amount of compensation if the relevant immovable property was not returned to them, the applicants made the following submissions.

                (a) The “objective” value

                14. The applicants first made reference to the so-called “objective”, or tax value, which is arrived at by the application of a statutory formula for valuation. They stressed that this value represented the minimum value which under Greek law the State would have to pay by way of compensation for a lawful expropriation. It was open to the person whose property had been expropriated to insist that compensation should instead be based on market value, if he considered that the “objective” value was lower than what could fairly be obtained in the market.

                15. In that connection, the applicants pointed out that on 13 April 2000 they had submitted to the Court a report by Moore Stephens SA dated 27 March 2000 calculating the “objective” value as GRD 165,562,391,740.

                That report had been criticised by the Government who had asserted that it contained errors of calculation. The applicants contended that the Government's criticism was based on changes in the relevant Greek law concerning the basis for calculation of the “objective” value which took place shortly after the submission of the report. It was thus conceivable that these changes were specifically intended to lower the values applicable to their properties; nonetheless, the applicants had asked Moore Stephens SA to prepare a new report “in the light of the subsequent and ex post facto changes in the law”. This second report dated 16 November 2001 calculated the “objective” value as GRD 92,762,992,030. This amount was broken down as follows: Tatoi: GRD 67,555,055,225; Polydendri: GRD 19,237,144,050; Mon Repos: GRD 5,970,792,755.

                16. However, the applicants submitted that it would be wrong for the Court to base its assessment of compensation on that value; they repeated that the statutory formula had been altered at the Government's instigation in the course of the proceedings, and that this change had had the effect of reducing the “objective” value of the properties to an amount very significantly below their true market value.

                (b) The market value

                17. The applicants stated that they were prepared to accept the market value stated in the valuation report prepared by Lambert Smith Hampton on behalf of the Government on 29 May 2000. This report expressly noted that Lambert Smith Hampton had been “instructed...to inspect and assess the current open market capital value of the...properties”. According to the report, the value of all the relevant properties was estimated at GRD 187,592,000,000. The applicants further pointed out that it was stated on the last page of the report that “a special user [might] well pay a higher price in order to acquire one or more of the above major properties”. They also stressed that the figures supplied by the report were May 2000 figures and that in Greece prices had risen very considerably in recent months.

                18. However, the applicants observed that the Government had not clarified their position as to whether they accepted this valuation. In fact, the Government had stated that they had commissioned Lambert Smith Hampton to prepare a report so that they could assess the magnitude of the so called “tax exemptions” (see paragraph 48 below). The applicants argued that, whatever the Government's primary purpose in obtaining the report, the fact remained that it provided a relevant and reliable yardstick of market valuation.

                19. The applicants further contended that they had themselves obtained a report on the market value of the properties by the international valuers FPD Savills. This report, dated 7 April 2001, estimated the total value of the

                properties at GRD 161,100,000,000. This calculation was conservative as compared with the higher value given in the Lambert Smith Hampton report submitted by the Government, although both reports adopted the same careful methodology.

                20. The applicants submitted that there could be no justification for the Court adopting a value which was below the lower of the two estimates that had been placed before it by the parties. However, the Government had submitted that the market valuation of the properties was not an appropriate method on which to base the Court's assessment of just satisfaction (see paragraphs 49-51 below). The applicants considered that the reasons put forward by the Government for this view were disingenuous.

                21. More specifically, as to the Government's assertion that the present case was unique in the history of the Court in terms of the value of the properties in question, the applicants contended that it was surprising that the Government should seek to rely on the extent of its own violation of the Convention as a reason for reducing the amount of compensation to be awarded to the victims of that violation. The fact that the property in question was large and valuable provided no justification, as a matter of legal principle and logic, for reducing the amount of compensation. Moreover, this argument was contradicted by the report of the Government's own valuers, Lambert Smith Hampton, who had taken into account comparable transactions, and who had felt able, on the strength of such comparative and other evidence, to express a view as to the fair market value of the properties. The same applied to FPD Savills, who had likewise been able to estimate the market value of the properties on the basis of comparative and other evidence.

                22. The applicants further contended that the fact that a large part of the relevant land was forest land had no bearing on the appropriateness of using market value as a basis for the assessment of just satisfaction. Both Lambert Smith Hampton and FPD Savills had taken into account the particular features of the relevant properties, including the fact that much of the land enjoyed a protected status as forest land, when arriving at their estimates of market value.

                23. In the circumstances, the applicants submitted that the Government had put forward no credible argument as to why the market value method of valuation was inappropriate in this case and that they had failed to give any cogent reason why the market value report prepared by their own valuers, Lambert Smith Hampton, should not be used as a basis for the Court's assessment of just satisfaction. Alternatively, at the very least, the award of just satisfaction should reflect the valuation contained in the applicants' market value report prepared by FPD Savills.



                24. The applicants therefore invited the Court to base its decision on the two market valuations that it had before it and award them an amount of at least GRD 161,100,000,000 in respect of the immovable property, if that property was not returned to them.

                (iii) Movable property

                25. The first applicant submitted that his main concern was to have his movable property in Greece (i.e. furniture, cutlery, books, paintings, etc.) returned to him. These chattels were personal belongings with sentimental and family associations “just as any family has”. The first applicant argued that to the best of his knowledge, confiscation or even expropriation of personal movable items had no precedent in Greece or in any other country.

                26. However, should the Government fail to restore these chattels to him, the first applicant sought an award of compensation representing their market value. He referred to a valuation made by Christie, Manson & Woods Ltd. (“Christie's”), which estimated the current value of the chattels at £ 3,723,800.

                27. The first applicant noted, however, that the Christie's valuation only covered part of his movable property still in Greece. It did not include any of the 826 items of movable property loaned by him in 1977 for the use of the Presidency of the Republic. Nor did it include all the items belonging to him that remained at Tatoi.

                28. Moreover, the first applicant argued that the Government were wholly wrong to submit that he was making a claim in respect of chattels which were already in his possession. He confirmed that the National Gallery of Greece had granted him official permission for the export of certain works of art belonging him; however, it was apparent from a comparison of the number of items referred to in the permission (271) with the number of items listed in the Christie's valuation (912), that the permission to export dealt only with part of his chattels in Greece. None of the chattels referred to in the Christie's valuation had been exported from Greece.

                29. In particular, as to the works of art referred to in the official permission, the first applicant submitted that he had made arrangements for their export, but before all the relevant chattels could be exported, a ministerial decision was taken which had the effect of countermanding the permission. This meant that only part of the items for which permission had originally been granted were in fact exported. The export of those items had taken place with the official approval of the authorities and their stamp. As for the very substantial number of chattels that were listed in the permission but had remained in Greece, the first applicant could not be certain that some of them had not been misappropriated by third parties in Greece.



                30. The first applicant further submitted that he had recently received notification of a decision by the Minister of Finance in Greece that a committee should be formed to compile an inventory and evaluation of the movable property which remained at Tatoi. He had accepted this proposal through his representative in Greece. He emphasised, however, that the proposed exercise of producing an inventory and evaluation of the relevant chattels should not be permitted to delay the Court's determination of the issue of just satisfaction so far as the remainder of the case was concerned. He submitted that there was no good reason why the Court should not reach a speedy decision so far as the properties of Tatoi, Polydendri and Mon Repos were concerned and, if need be, postpone the determination of just satisfaction in relation to the chattels until after completion of the proposed inventory and evaluation.

                (iv) Past privileges and tax exemptions

                31. The applicants stressed that, as a matter of legal principle and logic, any privileges or tax exemptions that were available to members of the royal family in the past had no bearing whatever on the amount of just satisfaction that should be awarded.

                32. In fact, the concept of just satisfaction required the owner to be fairly compensated for what he had lost by being deprived of his property, regardless of any benefits or privileges which might have been received by him or his predecessors prior to the taking of the property. The issue of just satisfaction had to be examined in relation to the interference with the relevant ownership rights as they were at the time of the taking, and it was the value of those ownership rights which had to be considered.

                33. Moreover, there was no precedent in the jurisprudence of the Court for such matters to be taken into account when assessing compensation for the loss of property: on the contrary, the Court's case-law made it clear that the respondent Government were under an obligation to make reparation for the consequences of the breach of the Convention in such a way as to restore as far as possible the situation existing before the breach. This involved returning of the relevant property to the applicants, or payment of compensation reflecting its current value. It would in any event be quite illogical for the Court to take any past privileges or tax exemptions into account in determining the question of just satisfaction, given its ruling that these matters could not be relevant in relation to the issue of proportionality (see paragraph 98 of the principal judgment).

                34. More specifically, the applicants argued that to refer to any tax exemptions enjoyed by the royal family in the past was somewhat misleading unless reference was made to the special obligations of the royal family. The latter had in fact many obligations to the State which were specified by law, including an obligation for the King to pay for all the outgoings of his household, down to the last drachma. The greatest part of the Civil List went to pay for expenses relating to the exercise of the King's functions, exactly as the Greek State today paid all the expenses of the President of the Republic.

                35. In other words, the tax exemptions which the royal family historically enjoyed, were provided by law in recognition of the very large expenses which the royal family were legally obliged to meet as part of their official duties. It would be tantamount to the retrospective imposition of tax for the value of any such exemptions now to be taken into account in reduction of the amount of compensation that would otherwise be awarded to them. The applicants referred to an expert report by Professor Georgiades which stated that this would not be permissible as a matter of Greek law, including the Greek Constitution. The same applied, as a matter of principle, under the Convention.

                36. Further, the applicants contended that any payments for essential repairs and renovation of the properties were provided by the State some fifty years ago, in recognition of the damage which had been caused to them during the period of civil unrest when they were in the possession of the State and were neglected.

                37. Moreover, the applicants stated that they had paid all amounts of tax owed by them, and that no amounts of tax had been written off pursuant to Article 5 of Law no. 2215/19941. In any event, such a repayment could not possibly be equated with payment of compensation.

                38. The applicants also argued that if it were relevant for the Court to take into account any benefits or privileges that might have been available to the royal family in the past, it would also need to consider any benefits provided by the royal family to the Greek State. The applicants referred, for example, to the donation to the Greek Heritage and Olympic Committee by King George I of an extremely valuable piece of land in the centre of Athens for the building of the Olympic Stadium. This was land that King George I had bought from Ziller, a well known German architect who designed most of the famous buildings in 19th century Athens. Ziller had bought the area where the marble stadium stood today in order to make archaeological excavations to find the old stadium. He had then gone bankrupt and in 1869 King George I had bought the land from him. Its current value ran into billions of drachmas.



                39. In view of the above, the applicants argued that any past privileges and tax exemptions that might have been available to them or to their predecessors were of no relevance to the question of just satisfaction. In any event, they submitted that the calculations and figures put forward by the two reports prepared in this respect for the Government by Deloitte & Touche (see paragraphs 61–63 below) were both misconceived and incorrect. To support this allegation, the applicants referred to a report by Moore Stephens SA dated 16 November 2001, which considered in detail the above-mentioned reports and in which it was stated that “Deloitte & Touche [had] made a number of very serious errors” and that the figure put forward by them as the present monetary value of the hypothetical tax burden (i.e. GRD 197,500,000,000 - see paragraph 61 below) was “grossly exaggerated”. Moore Stephens SA calculated that figure as GRD 11,332,678,976. This amount was broken down as follows: Tatoi: GRD 10,317,035,084; Polydendri: GRD 308,285,634; Mon Repos: GRD 707,358,258.

                (b) Non-pecuniary damage

                40. The applicants stressed that they had been deeply hurt and humiliated by the fact and manner of the taking of their property, by the deprivation of property of great sentimental value, and by their continuing exclusion from access to the family graves at Tatoi (see paragraph 41 below). There was nothing political about their claims and they presented no threat to the Greek Republic, which the first applicant had several times acknowledged; yet they had been singled out for adverse and punitive treatment, which would not have been accorded to other Greek nationals. They argued that they should be compensated for such feelings of distress and public humiliation to the same extent as any other applicant whose Convention rights had been violated.

                The royal graves

                41. The applicants stressed in particular that their ancestors' graves, including those of the first and second applicants' parents, were at Tatoi. Their Greek Orthodox religion imposed on them “the obligation and privilege of honouring the dead by laying flowers on their graves and above all by holding annual religious [commemorations]”. The applicants were deeply religious and it was particularly distressing for them to have been prevented from visiting their ancestors' graves and observing this tradition and obligation. As a matter of Greek law, they were entitled to have access to the graves. They also produced photographs of the area to show that the graves did not remotely resemble a national monument, but were the simple graves of a “family buried together”.

                2. Submissions by the Government in their observations dated 21 May 2001, 30 November 2001 and 16 April 2002

                42. The Government submitted that “the finding of a violation by the Court or, alternatively, the award of a symbolic sum” could reasonably be considered just satisfaction for the applicants. In their view, the nature of the violation found by the Court in the present case was of paramount importance. In fact, the transfer of the properties at stake was closely linked with the change of the regime in Greece and the establishment of the Republic. It could not therefore be equated with an arbitrary infringement of property rights or a trivial interference with the peaceful enjoyment of an individual's possessions.

                43. In view of the above, the Government first submitted that the claim for the return of the contested properties to the applicants was unsubstantiated. Nor could the applicants claim full compensation for the taking of their properties.

                44. In that connection, the Government wished to remind the Court of the known European precedents in this field during the 20th century, that is regime changes from monarchies to the republican form of parliamentary government, namely in Portugal (1910), in Germany and Austria (1919), in Greece (1924), in Spain (1931) and in Italy (1946). Although there had been differences between these changes of regime, there was nevertheless a common feature that characterised the fate of the possessions of the members of the former royal families: with the exception of the private property of King Manuel II of Portugal, the private possessions of all former European monarchs or emperors had in one way or another been expropriated without compensation or without full compensation. Such long established practice, justified not by reasons of political expediency but in view of the privileges afforded in the past to the former royal families and the necessity to ensure the enforcement of radical constitutional changes (the abolition of monarchies), should be taken into account in the award of just satisfaction. The Court should not deny the right of the Greek State “to resolve an issue which it considered to be prejudicial for its status as a republic” (see paragraph 88 of the principal judgment), through the award of excessive compensation, the payment of which was likely to have very serious financial implications for the Hellenic Republic.

                45. Should the Court consider, however, that compensation was owed for the damage allegedly suffered by the applicants, the Government made the following submissions.



                (a) Pecuniary damage

                (i) The scope of the applicants' claim as regards the Tatoi estate

                46. The Government contended that the applicants' claim for just satisfaction in relation to the Tatoi estate should exclude that part of the property which the first applicant had donated to the National Forest of Tatoi Foundation in 1992 (see paragraphs 37-39 of the principal judgment). More specifically, they argued that in their observations dated 13 April 2000 the applicants had stated that they made “no claim to the property of the National Forest of Tatoi Foundation”. Therefore, the applicants' claim for just satisfaction was limited to 3,962,710 square metres, namely to that part of Tatoi that was neither sold nor donated by the first applicant under the 1992 agreement; as a result, a claim for the whole of Tatoi would be outside the scope of the application (ultra petita).

                47. Further, the Government argued that it should be taken into account when assessing just satisfaction that a substantial part of the Tatoi property, namely the Bafi area, was not purchased by King George I but was conceded to him for a symbolic sum. The same applied to the Mon Repos estate, 97% of which had been donated to King George I by the Provincial Council of the island of Corfu in 1864.

                (ii) Valuation

                48. The Government emphasised from the outset that the only purpose of the preparation of the Lambert Smith Hampton report was to make possible the calculation of the hypothetical tax burdens on the properties at a time when the system of the objective value did not exist. In other words, the Government's intention had been to evaluate the precise amount of the tax exemptions enjoyed by the applicants throughout the reign of their family and, in particular, the inheritance tax that the applicants and their ancestors would have been called upon to pay if they had been treated as ordinary citizens, a status that the applicants claimed for themselves “whenever it [suited] them”. In order to do so, the Government had first to assess the value of the contested estates at the relevant dates. The Lambert Smith Hampton report was in no way meant to be used for the purpose of the application of Article 41.

                (a) Market value

                49. The Government argued that a market valuation of the properties was not an appropriate method on which to base the Court's assessment of just satisfaction, for the following reasons.

                – Substantial portions of the properties were forest lands, namely lands which had always been strictly protected under the Greek Constitution and, as such, could not be exploited for urban development or other real estate purposes. More specifically, 90% of the Tatoi estate and 100% of the Polydendri estate were excluded from any commercial exploitation, since they had always been designated as forests. Moreover, the agricultural portions of Tatoi exceeded 250,000 square metres; therefore, according to the existing legislation (Law no. 2148/1952), they could not be freely transferred without the authorities' permission. Lastly, the Mon Repos estate was strictly protected as an archaeological area and the residence on it had been completely refurbished by the State and now accommodated a museum.

                – The estates were so huge that it was impossible to find transactions of a comparable value in Greece, if not in Europe, which could be used as an appropriate reference for the purpose of calculating market value. In that connection, the Government submitted an appraisal report by American Appraisal (Hellas) Ltd., according to which the “open market value” of the contested estates amounted to the rounded sum of EUR 346,426,578, a considerably lower sum than the values suggested in the other experts' reports.

                50. The Government further submitted that the inherent fluidity and uncertainty of market criteria was obviously the reason why the applicants themselves had made, over the years, profoundly diverging assessments of the estates' real value.

                51. The Government concluded that, in view of the particular nature of the properties, the market value system of assessment was inappropriate to serve as a basis for the purposes of applying Article 41. Instead of elusive market criteria, more objective standards should be used as the starting point for the award of just satisfaction in the present case.

                (b) Objective value

                52. The Government argued that the system of “objective” values was far the more appropriate, provided that it was applied correctly. They pointed out that this system had first been introduced in Greece in 1982. Under the “objective” value system, taxable values for the purpose of transfers, donations and inheritances were calculated on the basis of a unit price; this price, which was fixed by the State upon proposals by independent experts' committees, was readjusted every two years at the latest to reflect the market value of estates and was also subject to judicial review. In 1990 the system of “objective” values had been extended to cover expropriations also; as from 1998 it also applied to properties located outside the existing town plans. The Government stressed that the State was bound by that system even when the method of calculation conflicted with its own interests.

                53. The Government further observed that the applicants, although they now endorsed the market-value method, had initially stated in their memorial dated 13 April 2000: “The Court may consider that it is convenient to use these values as the basis for assessing compensation so as to avoid the need for complex and lengthy proceedings in relation to the Article 41 claim for just satisfaction”. They had accordingly submitted a first report by Moore Stephens SA estimating the “objective” value of their estates at GRD 165,562,391,740. However, that assessment contained miscalculations and factual errors for each one of the properties.

                54. In particular, the Government estimated the objective value of the estates as follows: Tatoi: GRD 7,429,746,426; Polydendri: GRD 10,683,544,050; Mon Repos: GRD 5,970,792,755.

                55. They therefore contended that the calculation of the “objective” value of the estates contained in the second report by Moore Stephens SA produced by the applicants (i.e. GRD 92,762,992,030 – see paragraph 15 above) was closer to the accurate objective value of the estates; they observed however that the applicants persisted in taking into account the whole of the Tatoi property. In that connection the Government reiterated their argument that the Court could not admit this belated claim since it was bound by the requirement to avoid adjudicating ultra petita.

                56. In sum, the Government submitted that, according to the “objective value” system of calculation, the aggregate value of the properties was GRD 24,084,083,231.

                (iii) Past privileges and tax exemptions

                57. The Government submitted that the pecuniary damage allegedly suffered by the applicants should be adjusted downwards in view of the privileges and other benefits awarded to the contested estates throughout the reign of the applicants' family in Greece. These privileges and tax exemptions afforded in the past to the royal family should be taken into account in order to make an accurate assessment of the applicants' claims for just satisfaction (see paragraph 98 of the principal judgment).

                58. In particular, the Government observed that in the instant case the Court ruled that, prior to the 1994 law, the properties at stake were private properties owned by the applicants (see paragraphs 72, 73 and 77 of the principal judgment). However, under all legal systems, private properties were subject to taxation. More specifically, whenever a succession from generation to generation or a transfer from person to person occurred, private properties were subject to inheritance tax or transfer tax respectively, which were calculated in relation to the properties' size and value.

                59. Therefore, the Government submitted that for the assessment of pecuniary damage, the Court could not ignore the fact that during the reign of the applicants' family their properties were fully exempted from inheritance tax. That was the case in each of the four successions to the Greek crown which had occurred since the death of the founder of the dynasty, King George I, in 1913. The Government emphasised that two of these successions had not been successions from father to son, but from son to father (in 1920) and from brother to brother (in 1947). These successions would normally have been subject to substantially higher tax rates under Greek law.

                60. The Government observed that prior to the hearing on the merits of the case of 14 June 2000, they had produced a preliminary report by Deloitte & Touche containing an estimation of the hypothetical burden relating to inheritance and property transfer tax pertaining to each one of the three estates. Calculated on the basis of the historical market value of the properties (which was assessed by Lambert Smith Hampton) and of the tax provisions in force at the time of each transfer, the report concluded with two alternative estimates.

                61. According to the first estimate, the above-mentioned hypothetical burden amounted to GRD 197,500,000,000 on 31 December 1999. Deloitte & Touche had arrived at that conclusion by taking as the starting point the amount of the aggregate inheritance and transfer tax (i.e. the tax burden associated with the successive transfers of the properties from 1872 to 1964) that the applicants would have been asked to pay in the year of the last transfer, namely 1964, had they been treated as ordinary Greek citizens (i.e. GRD 251,000,000). Further, Deloitte & Touche's calculation had been based on annual compound interest and referred to the prevailing interest rate that was in force in Greece during the period 1964-1999 (namely the interest burden in a given year, computed on the amount of capital and interest accumulated as of the end of the previous year).

                62. The Government noted that the applicants' experts, Moore Stephens SA, contested the method used by Deloitte & Touche for the calculation of these figures and estimated the amount of the hypothetical tax burden at GRD 11,300,000,000 approximately (see paragraph 39 above). However, as observed by Deloitte & Touche, the method used by the applicants' experts was not a proper method for calculating the applicants' hypothetical burden in real terms, because instead of taking into consideration the annual compound interest, they referred to the income that a normal bank account would yield.

                63. For their second estimate, Deloitte & Touche had produced, instead of the aggregate amount of the applicants' hypothetical tax burden, the portion of the contested estates that the applicants would have had to sell in order to pay the corresponding taxes at the date of each transfer, if they had not been exempted from the payment of inheritance and property taxes. According to that method of calculation (which was confirmed by a final report prepared by Deloitte & Touche), the area of the three estates would have been reduced as follows: Tatoi: 73.15%; Mon Repos: 73.08%; Polydendri: 45.96%.

                64. The Government noted that the applicants, though contesting the above figures, appeared to endorse the method used for their calculation. According to the applicants' experts (see page 3 of the Moore Stephens SA report of 16 November 2001), Tatoi would hypothetically have been reduced by 55.10%, Mon Repos by 66.74% and Polydendri by 33.66%. The Government observed that the applicants' most important deviation from their percentages concerned the estate of Tatoi. That deviation, however, was due to the fact that the applicants had erroneously based their calculation on the entire estate (see paragraphs 46 and 55 above).

                65. For the other substantial privileges connected with the status of the properties during the reign of the applicants' family, including income tax exemptions, payment of maintenance and security costs and the like, the Government referred to their previous submissions to the Commission and the Court.

                (iv) Movable property

                66. The Government stated that in 1991 they had allowed the first applicant to remove from the Tatoi and Mon Repos residences the chattels stored therein. The first applicant had removed only a certain number of items in February 1991. The Greek State could not therefore be held responsible for any chattels that the first applicant did not want and did not remove although he was free to do so.

                67. Moreover, the Government had compared the list of the chattels allegedly found by Christie's in Tatoi and Mon Repos in 1991 with the official permission granted by the National Gallery of Greece for the export of the applicants' paintings. From this comparison it appeared that numerous items actually claimed by the applicants had in fact been removed by them from Greece long ago.

                68. Lastly, the Government submitted that, for the most part, these chattels did not constitute personal belongings but gifts offered to the first applicant and his ancestors in their capacity as Heads of State. They could not, therefore, be considered “possessions” within the meaning of Article 1 of Protocol No. 1.

                (b) Non-pecuniary damage

                69. The Government considered that the gravity of the prejudice caused to the applicants under the circumstances of the case was an important criterion for the award of just satisfaction, especially as regards the non-pecuniary damage allegedly suffered by them. They noted that the applicants' allegations that they were the victims of political persecution had been rejected by the Commission, which had also found that there had been no violation of the applicants' rights under Articles 3, 6 and 8 of the Convention (see the Commission's decision as to the admissibility of the application of 21 April 1998, unpublished), observing, on that point: “the applicants' claims to the opposite appear most unfortunate taking into consideration the unconstitutional role played by the first applicant in the politics of Greece prior to his departure from the country in 1967: by appointing the colonels' government after the military coup of 21 April 1967, the former king undermined...the very foundations of parliamentary democracy and of the rule of law, that is the pillars of democratic government, whose protection constitutes the raison d'être of the Council of Europe”.

                70. In view of the above, the Government submitted that “not a single Greek drachma could possibly be granted by the Hellenic Republic to the former monarch”, in view of the “highly political character of the applicants' claims”.

                The royal graves

                71. As regards in particular the problem of access to the royal graves, the Government considered it inappropriate to enter into a discussion with the applicants on the legal nature of the graves. Both under Greek and European law, royal graves were considered historical monuments, and as such they belonged to the State. In any event, the applicants were not prevented from visiting the graves of their ancestors whenever they wished. They should, however, comply with Law no. 2215/1994, whose provisions2, “pertaining to the award of travel documents to the applicants as well as to the recognition of their citizenship by the Hellenic Republic”, had been found by the Commission to be in conformity with the Convention (see the Commission's decision as to the admissibility of the application, op. cit.).

                3. The Court's assessment

                (a) Pecuniary damage

                72. The Court reiterates that a judgment in which it finds a breach imposes on the respondent State a legal obligation to put an end to the breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 32, ECHR 2000-XI).

                73. The Contracting States that are parties to a case are in principle free to choose the means whereby they will comply with a judgment in which the Court has found a breach. This discretion as to the manner of execution of a judgment reflects the freedom of choice attaching to the primary obligation of the Contracting States under the Convention to secure the rights and freedoms guaranteed (Article 1). If the nature of the breach allows of restitutio in integrum, it is for the respondent State to effect it, the Court having neither the power nor the practical possibility of doing so itself. If, on the other hand, national law does not allow - or allows only partial - reparation to be made for the consequences of the breach, Article 41 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate (see Brumarescu v. Romania (just satisfaction) [GC], no. 28342/95, § 20, ECHR 2001-I).

                74. In the principal judgment the Court held that the interference in question satisfied the requirement of lawfulness and was not arbitrary (see paragraphs 82, 88 and 90 of the principal judgment). The act of the Greek Government which the Court held to be contrary to the Convention was an expropriation that would have been legitimate but for the failure to pay any compensation (see paragraph 99 of the principal judgment).

                75. The lawfulness of such a dispossession inevitably affects the criteria to be used for determining the reparation owed by the respondent State, since the pecuniary consequences of a lawful taking cannot be assimilated to those of an unlawful dispossession. In this connection, international case-law, of courts or arbitration tribunals, gives the Court valuable guidance; although that case-law concerns more particularly the expropriation of industrial and commercial undertakings, the principles identified in that field are valid for situations such as the one in the instant case. In the Amoco International Finance Corporation case the Iran-United States Claims Tribunal stated, referring to the judgment of the Permanent Court of International Justice in the Case Concerning the Factory at Chorzów3, that:

                “a clear distinction must be made between lawful and unlawful expropriations, since the rules applicable to the compensation to be paid by the expropriating State differ according to the legal characterisation of the taking.” (Amoco International Finance Corporation v. Iran, Interlocutory Award of 14 July 1987, Iran–U.S. Claims Tribunal Reports (1987–II), § 192)

                76. A very similar stand was taken by the Court in the case of Papamichalopoulos and Others v. Greece. In that case the Court found a violation on the basis of an irregular de facto expropriation (occupation of land by the Greek Navy since 1967) which had lasted more than twenty-five years by the date of the principal judgment of 24 June 1993. In its judgment on just satisfaction, the Court held:

                “...the unlawfulness of such a dispossession inevitably affects the criteria to be used for determining the reparation owed by the respondent State, since the pecuniary consequences of a lawful expropriation cannot be assimilated to those of an unlawful dispossession.”

                Consequently, the Court ordered the Greek State to pay the applicants “for damage and loss of enjoyment since the authorities took the possession of the land in 1967, the current value of the land, increased by the appreciation brought about by the existence” of certain buildings which had been erected on the land since the occupation, as well as the construction costs of those buildings (Papamichalopoulos and Others v. Greece (Article 50), judgment of 31 October 1995, Series A no. 330-B, p. 59, §§ 36 and 39).

                77. In view of the above, the Court is of the opinion that in the present case the nature of the breach found in the principal judgment does not allow the Court to proceed on the basis of the principle of restitutio in integrum (see, a contrario, the Papamichalopoulos and Others v. Greece (Article 50) judgment, op. cit.). That said, the Government are of course free to decide on their own initiative to return all or part of the properties to the applicants.

                78. However, in case of non-restitution, the compensation to be fixed in the present case need not, unlike in the above-mentioned cases concerning per se illegal dispossessions, reflect the idea of wiping out all the consequences of the interference in question. As the lack of any compensation, rather than the inherent illegality of the taking, was the basis of the violation found, the compensation need not necessarily reflect the full value of the properties. In its search for appropriate compensation the Court must seek guidance in the general standards expressed in its case-law on Article 1 of Protocol No. 1, according to which a taking of property without payment of an amount reasonably related to its value would normally constitute a disproportionate interference which could not be considered justifiable under Article 1 of Protocol No. 1 (see the James and Others v. the United Kingdom judgment of 21 February 1986, Series A no. 98, p. 36, § 54). However, while it is true that even in many cases of lawful expropriation, such as a distinct taking of land for road construction or other public purposes, only full compensation may be regarded as reasonably related to the value of the property, this rule is not without exceptions. As stated in the James v. the United Kingdom case cited above, legitimate objectives of “public interest”, such as pursued in measures of economic reform or measures designed to achieve greater social justice, may call for less than reimbursement of the full market value (ibid.). The Court considers that less than full compensation may be equally, if not a fortiori, called for where the taking of property is resorted to with a view to completing “such fundamental changes of a country's constitutional system as the transition from monarchy to republic” (see paragraph 87 of the principal judgment).

                79. In conclusion, unless the Government decide on their own initiative to return the properties to the applicants, the Court deems it appropriate to fix a lump sum based, as far as possible, on an amount “reasonably related” to the value of the property taken, i.e. an amount which the Court would have found acceptable under Article 1 of Protocol No. 1, had the Greek State compensated the applicants. In determining this amount the Court will take into account the claims of each applicant, the question of the movable property, the valuations submitted by the parties and the possible options for calculating the pecuniary damage, as well as the lapse of time between the dispossession and the present judgment. The Court considers that in the unique circumstances of the present case resort to equitable considerations is particularly called for.

                (i) The claims of each applicant

                80. For the purposes of assessing the pecuniary damage suffered, the applicants asked the Court to have regard to the position of each individual applicant. The Court has taken note of the applicants' situation. It is clear that the compensation for the pecuniary damage suffered mainly concerns the first applicant. Although it would be possible to fix an overall sum which the applicants would have to share among themselves on the basis of their respective ownership rights, the Court considers that it is preferable, given the circumstances of the case, to fix separate awards for each applicant.

                As regards in particular the claim in respect of the Tatoi estate

                81. The Court accepts the applicants' submission that the whole of Tatoi should be taken into account for the assessment of just satisfaction. In its principal judgment it found that Law no. 2215/1994 was valid and that the land which had been donated to the Foundation in 1992 remained with the first applicant when the 1994 law was passed (see paragraphs 71-72 of the principal judgment). It would therefore be inconsistent to suggest that, although the 1992 agreement was repealed by a later law, its legal consequences were still valid and should be taken into account for the assessment of just satisfaction. The Court will therefore take into account the whole of the Tatoi estate.

                As regards the ways in which Tatoi and Mon Repos were acquired

                82. The Court notes the Government's submission that it should bear in mind when assessing just satisfaction that a substantial part of the Tatoi property, namely the Bafi area, was not purchased by King George I but was conceded to him for a token sum and that the same should apply to the Mon Repos estate, 97% of which had been donated to King George I by the Provincial Council of the island of Corfu in 1864.

                83. In the principal judgment, the Court held that, notwithstanding the manner of acquisition of the lands in question, the Tatoi and Mon Repos estates belonged to the first applicant before the entry into force of Law no. 2215/1994 (see paragraphs 70, 76, 77 and 78 of the principal judgment). Therefore, it considers that the manner of acquisition of the properties cannot deprive the first applicant of his right to compensation; it may, though, be taken into account for the determination of the level of compensation.

                (ii) The movable property

                84. The Court notes that the parties are in disagreement as regards both the nature of the chattels and the number of items which remain at Tatoi. As a matter of principle, the Court considers that the first applicant should be compensated for his personal belongings that are still in Greece. However, it is not its task to make an itemised assessment of their value. The Court notes in this respect that it is intended that a special committee will be formed to perform that work. Nonetheless, the Court does not consider it necessary to postpone the determination of just satisfaction in relation to the chattels until after completion of the proposed exercise. The lump sum to be fixed to compensate on an equitable basis the pecuniary damage sustained will also cover the question of the chattels.

                (iii) The possible options for calculating the pecuniary damage

                85. In calculating the pecuniary damage, the Court considers that two basic questions must be posed: (a) Which method to choose? and (b) Should the amounts arrived at be adjusted downwards in view of the privileges and other benefits afforded in the past to the royal family?

                (a) The method for calculating the pecuniary damage

                86. To start with, the Court must choose its method of calculation, namely whether it will base its assessment on the market or the “objective” value of the properties. In the Court's view, the valuation method to be chosen must be one that, had it been applied by the Greek State when the 1994 law was enacted, would have produced compensation that met the standards identified by the Court.

                87. It is useful to recall at this point the various amounts arrived at by the parties when using the above methods of calculation.

                The market value

                88. The Court notes that the experts' reports as regards the market value of the estates arrive at the following amounts.


                Lambert Smith Hampton (submitted on behalf of the Government):

                GRD 187,592,000,000

                EUR 550,526,779.16

                FPD Savills (submitted on behalf of the applicants):

                GRD 161,100,000,000

                EUR 472,780,630.96

                American Appraisal Hellas Ltd. (submitted on behalf of the Government)



                EUR 346,426,578



                89. The Court is unable to accept this method of valuation. To start with, it notes the wide gaps between the parties' calculations and even between the estimates of the Government's own valuers. In fact, the Court has become aware of the difficulties in calculating the market value of the properties; for example, a degree of artificiality would be involved in the assumption that there would be a willing buyer for the estates concerned (see the Lithgow and Others v. the United Kingdom judgment of 8 July 1986, Series A no. 102, p. 54, § 129). The Court is persuaded that the three properties, and in particular Tatoi and Mon Repos, are wholly unsuitable for any commercial exploitation.

                90. Moreover, the Court recalls that full compensation is not the standard applicable in the circumstances of the present case (see paragraphs 78 and 79 above). Further, the Court cannot make an award which would exceed the amount that would have been acceptable in terms of Article 1 of Protocol No. 1, had the Greek State compensated the applicants.

                The “objective” value

                91. The Court notes that the parties' estimates as regards the “objective” value of the estates may be recapitulated as follows.


                Government:

                GRD 24,084,083,231

                EUR 70,679,627.97

                Applicants:

                GRD 92,762,992,030

                EUR 272,231,818.14





                92. These amounts are broken down as follows.



                Tatoi


                Government:

                GRD 7,429,746,426

                EUR 21,804,098.10

                Applicants:

                GRD 67,555,055,225

                EUR 198,254,013.87




                Polydendri


                Government:

                GRD 10,683,544,050

                EUR 31,353,027.99

                Applicants:

                GRD 19,237,144,050

                EUR 56,455,301.69




                Mon Repos


                Government:

                GRD 5,970,792,755

                EUR 17,522,502.58

                Applicants:

                GRD 5,970,792,755

                EUR 17,522,502.58



                93. Though at first view there is a great disparity in the parties' estimates as regards the “objective” value also, the Court observes that these differences are mainly due to the fact that the Government took into account only 3,962,710 square metres of the Tatoi estate whereas the applicants calculated on the basis of the whole of Tatoi (which is approximately 41,000,000 square metres – see paragraphs 68-72 of the principal judgment). Had the Government calculated on the basis of the whole of Tatoi, they would have arrived at an amount very close to that proposed by the applicants. There is also a difference of GRD 8,553,600,000 (EUR 25,102,274.39) as regards the Polydendri estate, which the applicants' valuers, Moore Stephens SA, sought to justify in extensive submissions. Lastly, the Court notes that the parties agree on the value of Mon Repos.

                94. In view of the above considerations, and also of the fact that this system is based on more objective standards and that the parties seem to endorse similar methods of calculation, the Court proposes to take as the starting point the parties' estimates as to the “objective” value of the estates.

                (b) Downwards adjustment of the amounts arrived at in view of the privileges and other benefits afforded in the past to the royal family

                95. The Court recalls that in paragraph 98 of its principal judgment it held:

                “...as regards the Government's argument that the issue of compensation was indirectly covered, the Court notes first that compensation provided for by Legislative Decree No. 225/1973 is irrelevant to the instant case, Law No. 2215/1994 being the sole legal basis of the interference of which the applicants complain. Nor can the circumstances to which the Government refer be regarded as payment of compensation. In this respect the Court agrees with the applicants when they argue that in the context of the expropriation in question there are no reciprocal or mutual debts to be set off against each other. The privileges afforded in the past to the royal

                family or the tax exemptions and the writing-off of all the debited taxes owed by the former royal family, have no direct relevance to the issue of proportionality, but could possibly be taken into account in order to make an accurate assessment of the applicants' claims for just satisfaction under Article 41 of the Convention”.

                96. In view of that ruling, the Court agrees with the Government when they argue that the pecuniary damage allegedly suffered by the applicants should be adjusted downwards in view of the privileges and other benefits awarded in the past to the properties in question.

                97. However, the Court considers that the pecuniary loss cannot be calculated as merely the arithmetical difference between the “objective” value of the properties and the present monetary value of the hypothetical tax burden, since that would be tantamount to the retrospective imposition of taxes on the former royal family by the Court.

                98. In particular, it is true that in order to make an accurate assessment of the applicants' claims for just satisfaction, the Court cannot ignore the special circumstances surrounding the abolition of the monarchy; however, the “hypothetical tax burden” and the privileges afforded in the past to the applicants' family can only serve as indications for the reduction of the amounts awarded. It is useful to recall the parties' submissions on that issue.


                Government:

                GRD 197,500,000,000

                EUR 579,603,815.11

                Applicants:

                GRD 11,332,678,976

                EUR 33,258,045.42



                99. It is clear that at this point there is a great disparity in the parties' estimates. The Court agrees with the applicants' valuers when they argue that the figures put forward by the Government are “grossly exaggerated”. To accept these figures would mean that the applicants owe the Greek State a sum (GRD 197,500,000,000 – EUR 579,603,815.11) which is even higher than the market value of the properties (GRD 187,592,000,000 – EUR 550,526,779.16) as calculated by the Government's own valuers, Lambert Smith Hampton. The Court is not prepared to accept that conclusion.

                100. In view of all the above considerations, the Court awards the applicants on an equitable basis, as required by Article 41 of the Convention, the following amounts in compensation for the pecuniary damage sustained: to the first applicant EUR 12,000,000; to the second applicant EUR 900,000; to the third applicant EUR 300,000.



                (b) Non-pecuniary damage

                101. The Court wishes to emphasise that it is not its task to examine either the role played by the first applicant in the politics of Greece prior to his departure from the country in 1967 or the reasons that led up to the abolition of the monarchy in 1974. Although the Court cannot ignore the political features of the case, and has not done so, it is certainly not its role to enter into a discussion with the parties as to who is to be blamed for the dispute between them.

                102. That said, the Court considers that, having regard to what is at stake in the case and all its special features, no special issue arises in relation to non-pecuniary damage, including the question of access to the royal graves.



                B. Costs and expenses

                103. The applicants claimed GBP 983,851.47 for the costs and expenses incurred by them in vindicating their Convention rights. They submitted detailed schedules setting out the costs and expenses incurred in the proceedings before the Commission and the Court.

                104. The Government submitted that the amounts claimed were exorbitant and insufficiently substantiated; in any event, the fees were much higher than those normally necessary for the handling of a case before the Convention institutions.

                105. According to the Court's established case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually incurred, were necessarily incurred and were also reasonable as to quantum (see Iatridis v. Greece (just satisfaction), op. cit., § 54). Furthermore, legal costs are only recoverable in so far as they relate to the violation found (see Beyeler v. Italy (just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002).

                106. The Court does not doubt that the fees claimed were actually incurred. However, it agrees with the Government that the total costs claimed under that head appear excessive. Moreover, the Court notes that the Commission dismissed an important part of the applicants' complaints.

                107. The Court therefore considers that the costs incurred by the applicants before the Convention institutions should be reimbursed to them only in part. Having regard to the circumstances of the case, the rates applied in the United Kingdom and the special complexity of the question of the application of Article 41, the Court considers it reasonable to award the applicants jointly EUR 500,000, including value added tax.



                C. Default interest

                108. The Court considers that the default interest should be fixed at an annual rate equal to the marginal lending rate of the European Central Bank plus three percentage points.



                FOR THESE REASONS, THE COURT UNANIMOUSLY

                1. Holds

                (a) that the respondent State is to pay the applicants, within three months, the following amounts:

                (i) to the first applicant EUR 12,000,000 (twelve million euros) in respect of pecuniary damage;

                (ii) to the second applicant EUR 900,000 (nine hundred thousand euros) in respect of pecuniary damage;

                (iii) to the third applicant EUR 300,000 (three hundred thousand euros) in respect of pecuniary damage;

                (iv) to the three applicants jointly EUR 500,000 (five hundred thousand euros) in respect of costs and expenses, including value added tax;

                (b) that simple interest at an annual rate equal to the marginal lending rate of the European Central Bank plus three percentage points shall be payable from the expiry of the above-mentioned three months until settlement;


                2. Dismisses the remainder of the applicants' claim for just satisfaction.


                Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 28 November 2002.


                Luzius Wildhaber

                President

                Paul Mahoney

                Registrar



                NOTES



                1. Article 5 § 1 of Law no. 2215/1994 provided that taxes already assessed were written off. All legal proceedings pending before the administrative courts or the Supreme Administrative Court in respect of inheritance and other taxes, surcharges and penalties were discontinued. Amounts paid by the former King and other members of the royal family in respect of tax might be claimed back from the Greek State, but the State might oppose any set-off of such a claim against any claim of the State against the royal family.

                2. Law no. 2215/1994 imposed preconditions for the continued recognition of the Greek nationality of the former King and the royal family, and for the retention of their Greek passports:

                - A declaration had to be submitted to the Registrar of Births, Marriages and Deaths of Athens to the effect that the former King and the royal family unreservedly respected the 1975 Constitution and accepted and recognised the Greek Republic.

                - A further declaration had to be submitted to the Registrar to the effect that the former King and the royal family unreservedly waived any claim relating to the past holding of any office or possession of any official title.

                - The former King and the members of the royal family had to register in the Municipal Register of Citizens under a name and a surname.



                3. In that case, the Permanent Court of International Justice held that “...reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed. Restitution in kind, or, if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear; the award, if need be, of damages for loss sustained which would not be covered by restitution in kind or payment in place of it – such are the principles which should serve to determine the amount of compensation due for an act contrary to international law.” (judgment of 13 September 1928, Collection of Judgments, Series A no. 17, p. 47)
                "Ido not want an uprising of people that would leave me at the first failure, I want revolution with citizens able to bear all the temptations to a prolonged struggle, what, because of the fierce political conditions, will be our guide or cattle to the slaughterhouse"
                GOTSE DELCEV

                Comment

                • George S.
                  Senior Member
                  • Aug 2009
                  • 10116

                  Macedonian Orthodox Youth Association of North America

                  URL: www.moyana.org

                  Metodija A. Koloski

                  As an American citizen of Macedonian descent, I want to express my heartfelt concern for the Macedonian people who are staring in the face of mass oppression as a result of bias in the world media. I would like to share what I believe to be the truth surrounding the Macedonian conflict and the world mass media's response to the current crisis. The Macedonians are fighting a formidable enemy who maintains a significant stake in the world mass media, resulting in prejudicial media coverage of the events that are unfolding. The truth about the Macedonian people and their noble struggle to preserve Macedonia as a democratic and peaceful state has not only been overshadowed, but also blatantly misrepresented.

                  Out of all the countries that emerged from the former unified nation of Yugoslavia, Macedonia was the only country that maintained peace for the past 10 years. Now that peace is being destroyed by the attacks of the Kosovar Albanian terrorists in their pursuit of creating a "Greater Albania." The Kosovar Albanian terrorists are trying to rip peace and democracy apart in Macedonia in their vain pursuit of aggrandizement and are killing innocent civilians in Macedonia, Christian and Muslim alike. The Kosovar Albanian terrorists are attacking the very people who opened not only the Macedonian border, but also their hearts to save Kosovar lives just 2 years ago. The Macedonian people acted in good faith in order to save their fellow man and this humane gesture is being returned with gunfire. This is the side of the story you do not see represented by the media.

                  The international community must know that Macedonia is a peaceful democracy, that all its citizens are treated as first class people, that all its minorities possess rights that are protected per the standards of the United Nations, that in Macedonia, all its minorities can elect their own representatives to any position in government, that in Macedonia, the minorities have rights to their own schools and that in Macedonia minorities are represented in the ruling coalition government. They must know that in Macedonia any citizen regardless of ethnicity can run for President and they have, and that in Macedonia the Macedonian people deserve the right to LIVE IN A COUNTRY FREE OF TERRORISM!

                  I would like to ask the Kosovar Albanian terrorists how can they complain about the alleged lack of rights given to their kin in Macedonia while at the same time they deny the most basic rights to the Macedonians living in Albania? How can such injustice be tolerated in this modern era?

                  World Leaders and Media, I beg of you to open your eyes to the real cause of the crisis in Macedonia. This is not a war for civil rights-this is an act of aggression based purely on Kosovar greed for additional territory! The media and the world leaders have all ignored the plans of many Albanian terrorists to form a "GREATER ALBANIA" that strips beautiful and proud countries of their land. Just two years ago the Macedonian community opened her arms to all refugees. We sheltered the unsheltered, we fed the starving and we gave water to the thirsty. Now these refugees call themselves rebels and return a bullet to our people instead of bread! Now they are not refugees they are terrorists! How can you, President Bush, and all world leaders ask our people to sit at a table and give away our culture and our land? The Macedonian government will not give up an inch of land to this terrorist invasion and honestly, should they? I ask the Proud Americans, would America do so? Let us imagine that there is a foreign country connected to the state of California and this country decides to invade the California border hoping to gain land and improve their economic condition through theft. Would our government ask to sit at a table and speak to the leaders of this terrorist organization? Or would our great, powerful military be dispatched to protect our borders? The answer is clear, so how can the world and how can the USA demand the Macedonian government do what they themselves would not? Let me be clear where my heart and head is today. I am a proud American who is extremely proud of his Macedonian heritage. America has given all of us opportunities in life we might not have had in other places in the world. Why not encourage the democratic Macedonian people to share our dream and not sentence them to lives of oppression and bloodshed?

                  I am proud to say I would die before I let the American and Macedonian flags fall to the ground! To this end Mr. President Bush, World Leaders, and Media, I write this appeal, give the Macedonian people and their homeland the respect they deserve. Support peace in Macedonia, support freedom and liberty across this globe! Peace and Democracy must prevail in Macedonia, and it will!

                  Regards,

                  Metodija A. Koloski
                  New Jersey, USA
                  "Ido not want an uprising of people that would leave me at the first failure, I want revolution with citizens able to bear all the temptations to a prolonged struggle, what, because of the fierce political conditions, will be our guide or cattle to the slaughterhouse"
                  GOTSE DELCEV

                  Comment

                  • George S.
                    Senior Member
                    • Aug 2009
                    • 10116

                    Re: Ancient Macedonians are Greeks
                    State of Illinois General Assembly - Resolution 92_SR0446

                    Metodija Koloski

                    July 11, 2002

                    Governor George H. Ryan ([email protected]),
                    Senators, and Members of the House of Representatives of the State of Illinois:

                    Regarding Resolution 92_SR0446 made by the State of Illinois General Assembly declaring that the "Ancient Macedonians are Greeks."

                    As an American citizen of Macedonian origin I am writing to convey my disappointment over Resolution 92_SR0446 adopted by the Illinois Senate General Assembly on June 1st, 2002.

                    The Macedonian identity has given rise to many controversies and debates. Did the State of Illinois even bother to study the Macedonian Question before making such a ludicrous resolution?

                    The Modern Greek claim -- that the ancient Macedonians were Greek -- is politically motivated and is not supported by historical evidence. This political mythology was created in the late 19th century to advance territorial claims against Ottoman Macedonia. In its current incarnation it is used by Greece as an excuse to discriminate against its Macedonian minority.

                    Ancient Macedonians were among the peoples that lived between northern Greece (Thessaly) and Thrace in the Balkans and were considered by the classical Greeks as "non-Greek Barbarians" that could not participate in the Greek Olympic Games. Herodotus wrote that "Macedonians" were "Dorians" and were never admitted to the Greek community. They did not speak Greek but another language presently unknown of which only proper names remain.

                    There is a large gap between ancient and modern times. Macedonia has been a kingdom, as well as a province under Rome, Byzantium and the Ottoman Empire. It is true that the ancient Macedonian capital of Pella has been located in northern Greece since Macedonia's partition in 1913. However, this does not make the ancient Macedonians Hellenic or Greek. Consider that the Modern Greek State itself was only formed ca. 1829 and even then under a Bavarian monarchy.

                    But who is the State of Illinois to pass a resolution proclaiming the ancient Macedonians to be Hellenes? Has the Senate tested the blood of the today's Greeks and compared it with the bones of the ancient Macedonians?

                    Recent genetic research, -- "HLA genes in Macedonians, and the sub-Saharan origin of the Greeks" (2001) -- has established that Greeks exhibit a sub-Saharan origin whereas Macedonians are related to the older Mediterranean sub-group and, more to the point, do not show a close relationship to Greeks (1).

                    Allow me also to mention the struggle facing the Macedonian minority in Greece. Following the Balkan Wars of 1912-13, Greece annexed half the territory of Ottoman Macedonia and instigated a policy of denationalization (ethnic cleansing) and forced assimilation of the indigenous Macedonian population (2).

                    It is widely known that Greece refuses to acknowledge the existence of any national minorities or even minority languages (2). These difficulties still persist in Greece as highlighted by the US Helsinki Commission hearing of June 2002 (3).

                    The Greek government will ultimately have to recognize that there is a distinct Macedonian ethnic identity.

                    The Illinois General Assembly's recent resolution, however, is nothing short of a hate crime denying Macedonians their ethnic identity.

                    With all due respect,

                    Metodija A. Koloski -- a first generation American of Macedonian descent - e-mail: [email protected]
                    "Ido not want an uprising of people that would leave me at the first failure, I want revolution with citizens able to bear all the temptations to a prolonged struggle, what, because of the fierce political conditions, will be our guide or cattle to the slaughterhouse"
                    GOTSE DELCEV

                    Comment

                    • George S.
                      Senior Member
                      • Aug 2009
                      • 10116

                      Introductory Session on Albanians in the Balkans
                      American University, Washington College of Law

                      By Metodija A. Koloski

                      October 30th, 2003

                      On October 30th, 2003, I attended the Introductory Session on the Albanians in the Balkans, co-sponsored by the International Legal Studies Program Student Board, the Embassy of the Republic of Albania, the National Albanian American Council, and the New Albanian Generation.

                      The topics discussed were: the Albanian political, economic and social development and its role in the Balkan region, regional perspectives and Kosovo's final status, and the political status of Albanians in other regions, including Macedonia and Montenegro.

                      According to His Excellency, Dr. Fatos Tarifa, the Albanian Ambassador to the United States, Albania was a very isolated society and did not have any diplomatic relations with the U.S. until the early 1990s. After a brief historical background of communist Albania, Ambassador Tarifa stated that the political situation in Albania is much more stable. There is 7% annual growth, which is higher than most countries in the region. He went on to say that Albania has a low inflation rate of 2% to 4% but its unemployment rate is 15% to 20%. "In 13 years you cannot build a country," said Ambassador Tarifa after discussing how it took the U.S. so long to become politically and economically stable. Albania, by the way, plans to receive an invitation to join the European Union by 2006.

                      The Ambassador declared the utmost respect for the U.S. because it is the U.S. that freed Kosovo. He termed Albania the "Israel of Europe," going on to state that Albania gives the most support to the U.S. even more than any of the other countries in the Balkans. I can only wonder how the Ambassador could so easily dismiss the enormous support Macedonia, Greece, and Bulgaria have given and continue to give the U.S.

                      The Ambassador went on to mention that because of such good relations with the U.S., Albania was the first country in Europe to ratify the ICC agreement exempting American criminals of war from being brought to trial in the ICC. I questioned the Ambassador on this and asked him whether this was in the best long term interest of Albania, given that Albania's future is in the European Union, not the United States. He believed that it was. I told him I thought it unfair that the United States was pressuring small countries like Macedonia and Albania to ratify the ICC exemption.

                      What did this session have to do with Macedonia?

                      Ambassador Tarifa went on to claim there are about 8 to 9 million Albanians in the Balkans -- which would make the Albanian nation the fourth largest in the region. He went on to say that 3.6 million Albanians live in Albania, 2 million in Kosovo, 1 million in Macedonia, and the remainder, (unknown number) in Greece and Montenegro.

                      According to the CIA - The World Factbook [http://www.cia.gov/cia/publications/.../geos/mk.html]

                      Macedonia has a population of 2,063,122 of which 22.7% of the population is of Albanian descent. The results of the census taken between November 1st and the 15th, 2002 will be available to the public by the end of this year. Macedonia has a population growth rate of 0.4% and it would be unrealistic to state that from 1994 to present day the Albanian population has grown from 22.7% to 50%. Using the Ambassador’s dubious math 50% of Macedonia's population is Albanian.

                      Toward the end of his speech, the Ambassador said that Kosovar Albanians equal half the Albanian nation. I suppose this must mean that 4 to 4.5 million Albanians live in Kosovo – which only has a population of 2 million.

                      What was the real motive behind what the Albanian Ambassador said at this session? To be honest, it sounds like Albania's ambition is to create a "Greater" Albania. While Albania is not publicly stating it has territorial pretensions in Macedonia, Greece, Montenegro, and the limbo UN administered Kosovo there is an underlying irredentist subtext to the Ambassador's speech.

                      The Albanian lobby in the United States, led by Senator DioGuardi, is currently involved in proving to the U.S. House Committee on Foreign Relations (meeting was held on Thursday, October 30th, 2003) that the Albanians in Montenegro are being discriminated against.

                      I thought it relevant at this point to ask the Ambassador how the Albanian government treats its Macedonian minority. He stated there are no problems with the Macedonian minority in Albania and they have the same rights as all.

                      This contradicts the statements in an interview done on June 15th, 2001 with Edmond Temelko, the president of the Macedonian organization "Prespa" in Albania, were he states:

                      "The plight of the Macedonians in Albania is already known. Macedonians in Albania are discriminated against and the government continues to unrealistically present their numbers. Albania recognizes that on its territory live only 5,000 Macedonians. But we alone, as Macedonian organizations in Albania number 120,000 Macedonians who are members of our organizations, or if we investigate there are perhaps more then 350,000 Macedonians in Albania."
                      Taken from the Macedonian Human Rights Movement of Canada [http://www.mhrmc.ca/reports/03/osce_albania.html]

                      I might also point out that the Roma minorities in Albania are ill treated by the Albanian officials according to the European Roma Rights Center in the form of beatings, arbitrary detention and extortion of money. The ERRC states that the Roma in Albania are exposed to discriminatory tendencies in the allocation of housing, in the school system, and in the military. For more information about the Roma minority in Albania, please visit [http://www.student.uit.no/regnbuen/news/970626_2.html]

                      I would like to turn to a quote regarding the treatment of Albanians in Macedonia,

                      ...the Albanians in Macedonia enjoy the same voting rights and other civil liberties as other Macedonian citizens. Largely Moslem, they can practice their religion without interference either from the state authorities or from the Macedonian Orthodox Church. They now have far more freedom than the Albanians in Kosovo and even in certain respects than those in Albania itself. The Macedonian government leaders fear, however, that granting special ethnic rights to the Albanians will merely encourage secessionism and the break-up of the Macedonian state. Partly as a consequence, the Macedonians have dragged their feet on two key issues: the rights of Albanians to education in their own language and Albanian representation in state organs, notable the police force.

                      Taken from Misha Glenny's book, The Fall of Yugoslavia, the Third Balkan War, 3rd Revised Edition, Pages 261-2

                      The Macedonian minority in Albania does not even have a fraction of the rights of the Albanian minority in Macedonia. The Ambassador may wish to consider this before commenting on any perceived discrimination Albanians may face in the region. Better yet, when it comes to minority rights in the Balkans, Albania should consider applying the Macedonian model.

                      Metodija A. Koloski may be reached at: [email protected]
                      "Ido not want an uprising of people that would leave me at the first failure, I want revolution with citizens able to bear all the temptations to a prolonged struggle, what, because of the fierce political conditions, will be our guide or cattle to the slaughterhouse"
                      GOTSE DELCEV

                      Comment

                      • George S.
                        Senior Member
                        • Aug 2009
                        • 10116

                        Macedonian Refugees and World Refugee Day

                        by Metodija Koloski

                        June 20, 2004


                        Today, June 20th, we mark World Refugee Day.

                        "World Refugee Day is a salute to the indomitable spirit and courage of the world's refugees, and as such it should be a real celebration."1 June 20th is a day in which we think about the 28,000 Macedonian children refugees (Detsa Begaltsi) who left their homes during the Greek Civil War, and extend to them our encouragement, support and respect. I salute and commemorate those who have died without returning to their homes and praise those who are alive and continue to fight for their return.

                        I selected a passage from "The Plight of the Macedonian Refugee Children" by Risto Stefov



                        which I highly recommend reading in order to see how tragic the situation was for those children:

                        "It was a dreary spring day on March 25th, 1948 when it all began. It was a day filled with high emotions, tears and heartbreak for the mothers and children of western Aegean Macedonia. It was the day the Detsa Begaltsi (Refugee Children) left, and for most it was the last time that they would ever see their beloved family and home."

                        "Mothers prepared luggage, a change of clothing, food and eating utensils before escorting their little ones to the designated meeting places. With eyes tearing mothers said goodbye to their loved ones before sending them into the hands of destiny. Their cries could be heard for a long time as they disappeared into the distance. It didn't take too long before the emptiness was felt and many mothers could not stop crying and contemplating the fate of their little ones."

                        To learn more about the recent struggles of the Detsa Begaltsi, please visit:



                        Also, here is the website of the United Nation's High Commission for Refugees' World Refugee Day (the intro flashpoint presentation is POWERFUL):



                        Metodija A. Koloski may be reached at: [email protected]
                        "Ido not want an uprising of people that would leave me at the first failure, I want revolution with citizens able to bear all the temptations to a prolonged struggle, what, because of the fierce political conditions, will be our guide or cattle to the slaughterhouse"
                        GOTSE DELCEV

                        Comment

                        • George S.
                          Senior Member
                          • Aug 2009
                          • 10116

                          Letter to the Voice of America in Response to Their Use of Former Yugoslav Republic of Macedonia

                          By Metodija A. Koloski

                          March, 2004



                          Dear Sir or Madam:

                          I recently read your article “Ethnic Albanians Boycott Macedonian Elections Marred by Reports of Voting Irregularities,” and I am disturbed that you make reference to Macedonia within your opening paragraph as the “former Yugoslav republic of Macedonia.”

                          According to the State Department briefing on November 4th, 2004, Mr. Boucher stated that the United States “have now decided to refer to Macedonia officially as the Republic of Macedonia. By recognizing Macedonia's chosen constitutional name, we wish to underscore the U.S. commitment to a permanent, multiethnic, democratic Macedonian state within its existing borders.”

                          The Voice of America is an American news agency and should respect the decision of the United States. It is not necessary to state that Macedonia was once a former Yugoslav republic. My question to you is why in your reporting regarding Bosnia, Croatia, Slovenia, or Serbia you do not state the former Yugoslav republic of Bosnia, etc…? What is so special about Macedonia? Macedonia’s constitutional name is the Republic of Macedonia and the world must and should respect this.

                          I ask you kindly to remove this reference within your reporting.

                          Thank you for your time and consideration. I look forward to hearing back from you.

                          Sincerely,
                          Meto Koloski

                          Metodija A. Koloski may be reached at: [email protected]

                          -----
                          Contact VOA here: http://www.voanews.com/english/contact.cfm
                          "Ido not want an uprising of people that would leave me at the first failure, I want revolution with citizens able to bear all the temptations to a prolonged struggle, what, because of the fierce political conditions, will be our guide or cattle to the slaughterhouse"
                          GOTSE DELCEV

                          Comment

                          • George S.
                            Senior Member
                            • Aug 2009
                            • 10116

                            FOR IMMEDIATE RELEASE:

                            NOVEMBER 1st, 2005

                            WASHINGTON, D.C. - - The United Macedonian Diaspora sends letter on November 1, 2005 to the President of the Hellenic Republic, His Excellency, President Karolos Papoulias regarding his recent "invitation to all those disputing the Hellenic character of Macedonia to visit the findings unearthed by archaeological excavations in Vergina." News article regarding President Papoulias’ invitation may be found at http://www.mpa.gr/article.html?doc_id=551808

                            His Excellency, President Karolos Papoulias
                            c/o His Excellency, Ambassador Alexandros P. Mallias
                            Hellenic Republic
                            Embassy of Greece
                            2221 Massachusetts Ave. N.W.
                            Washington, DC 20008
                            VIA FACSIMILE: (202) 939-1324

                            Your Excellency,

                            We are writing in reference to your recent "invitation to all those disputing the Hellenic character of Macedonia to visit the findings unearthed by archaeological excavations in Vergina." The United Macedonian Diaspora is not disputing the authenticity of the archeological excavations in Vergina. But can you explain to us what they have to do with modern state sponsored racial, national origin, and religious discrimination in modern Greece? Are you implying that because the ancient Macedonians shared a similar architecture with the ancient city-states that the Macedonians were Greek? Are you implying that because the ancient Macedonian royal court utilized the international ancient Koine language with the city-states that the Macedonians were Greek?

                            What exactly did you mean when you said you are issuing an "invitation to all those disputing the Hellenic character of Macedonia to visit the findings unearthed by archaeological excavations in Vergina?" This does not justify racism or ethnic discrimination by your government.

                            Your Excellency, you can find buildings with Athenian architecture in the United States today. However, this does not mean all Americans are Greek. You will also find Latin inscriptions on those same buildings. This does not mean all Americans are Romans.

                            If the ancient Macedonians shared some common elements with the neighboring ancient city-states, then this does not automatically make them kin. In fact, there is evidence reinforcing the notion that the ancient Greeks and the ancient Macedonians were two separate cultures and nations. Therefore, we respectfully ask, how are these ancient excavations, at all, germane to the modern inequities of the current Greek government?

                            It is well known, Your Excellency, that modern Greece was created for the first time in 1829. It is also public knowledge that modern Greece invaded, occupied and, with its partners Serbia and Bulgaria, partitioned Macedonia circa 1912-1913. The fact is, Your Excellency, that Macedonia was never Greek before the 1912-1913 invasion and occupation.

                            The United Macedonian Diaspora invites you to explain the Hellenic character of Macedonia and what it has to do with contemporary Greek state sponsored racial, ethnic, and religious discrimination today?

                            Specifically, how do you justify the current Greek Government’s state sponsored racial, national origin, and religious discrimination against Greek citizens of Macedonian national origin; especially, as a member state to the European Union and the Council of Europe? The express bold faced discrimination by your government was recently acknowledged by the European Court of Human Rights in their decisions holding that: 1) there is a Macedonian minority in Greece, and 2) that the Macedonian people are the continuous victims of Greek and Bulgarian state sponsored discrimination. The findings of the Court are consistent with findings of the United Nations, of the United States Department of State, and of various independent human rights agencies worldwide.

                            Your Excellency, do you not believe that it is time for the Greek Government to face reality and recognize that the ancient Macedonian heritage belongs to the Macedonians? This Macedonian heritage also belongs to the same tortured and discriminated Macedonians who today live in Greece without even the most basic human rights, especially the right to speak their own Macedonian language.

                            As you are well aware, Your Excellency, after the Balkan Wars in 1913 Greece annexed a large portion of Macedonia. Nonetheless, the Republic of Macedonia has never demanded border changes, nor does it object to the use of the name "Makedonia" to designate the Northern Province in Greece. With that said, there is absolutely no reason whatsoever for Greece to maintain it has the exclusive rights to the Macedonian name. Greece is Greece and Macedonia is Macedonia.

                            Your Excellency, we anticipate you will exhibit wisdom, courage and good will in recognizing, without delay, the Macedonian minority in your country. We urge you to stop interfering in the affairs of the Republic of Macedonia, and recognize our country by its constitutional name. We urge you to grant full and equal rights for all citizens born in Greece, despite their race, ethnicity, or religion.

                            Your Excellency, this is the 21st century and we need to think progressively toward the future. Let us bury the past and continue to build long standing relations between these two neighboring countries that share common interests in economic prosperity, religion, and peace in the region.

                            Sincerely,

                            United Macedonian Diaspora

                            For more information about United Macedonian Diaspora the public is invited to contact the D.C. office at (202) 294-3400, or e-mail at [email protected]
                            "Ido not want an uprising of people that would leave me at the first failure, I want revolution with citizens able to bear all the temptations to a prolonged struggle, what, because of the fierce political conditions, will be our guide or cattle to the slaughterhouse"
                            GOTSE DELCEV

                            Comment

                            • George S.
                              Senior Member
                              • Aug 2009
                              • 10116

                              United Macedonian Diaspora Attends Briefing
                              on Macedonian Name in U.S. House of Representatives

                              WASHINGTON , D.C. – United Macedonian Diaspora attended a briefing in the U.S. House of Representatives on March 9th, 2006 organized by the Embassy of the Republic of Macedonia with the help and support of the Office of Congressman Mark Souder (R-IN). In his last Ambassadorial efforts to solidify U.S.-Macedonian relations, His Excellency, Ambassador Nikola Dimitrov briefed various Congressional staffers, members of the media, and Greek and Macedonian émigré organizations, respectively on the topic of The right to an identity: Republic of Macedonia and Resolutions H. Res. 521 and H. Con. Res. 306.

                              Ambassador Dimitrov started his elaboration by providing a brief overview on the contemporary history of Macedonia from the time of the Balkan Wars to present day. Prior to the Balkan Wars Macedonia was a large governing unit under the former Ottoman Empire, however through the Treaty of Bucharest, which ended the Balkan Wars, Macedonia was divided and split into four parts amongst Greece, Bulgaria, Serbia, and Albania. The part of Macedonia that was awarded to Serbia gained peaceful independence in 1991, shortly upon the breakup of Yugoslavia . It is known today as the sovereign country, Republic of Macedonia. From the turn of the 19 th century to present day, Macedonians have been subject to many negations and challenges; particularly, their name, their identity, and discrimination against their ethnic origin.

                              According to the Ambassador, Greece referred to its northern province as "Northern Greece " for 50 years until the 1980s when it changed its position. Macedonia 's foreign policy for the last 15 years has been to maintain good relations with its neighbors. "In an unprecedented manner," after a three year trade embargo imposed by Greece against Macedonia, "in 1995 Macedonia made an effort to accommodate Greece by changing its national flag and by reinforcing the no-change of borders provision of the Constitution adding that it "has no territorial claims against neighboring states'."

                              Ambassador Dimitrov highlighted how Greece's position underlying, H. Res. 521 and H. Con. Res. 306, was unfounded and discriminatory, because it is virtually impossible for a small country of two million people with a fledgling economy, such as Macedonia , to be an adversarial threat to Greece, or any other country in the region. Specifically, Macedonia has received over 850 million euros of Greek investment capital, which in turn created over 20,000 jobs in Macedonia according to the Greek Deputy Foreign Minister during his recent visit to Macedonia. Thus, when posed with the question of whether Macedonia was really a threat to Greece, the answer was clear; why would so many Greek investors invest their money in Macedonia if there was any real threat of any kind? His Excellency's quote, "they do not invest because of politics, but because of profit" seems to shed light on the issue, as Macedonia, with a fledgling economy, clearly has no territorial aspirations upon its larger and economically developed neighbor, Greece. To argue that Macedonia 's name is a threat to anyone, seems to be a mere failed attempt of unfounded racially prejudicial regimentation by the Greek government against it's neighboring country, Macedonia.

                              As a result of the national origin discrimination against people of Macedonian ethnicity, today Macedonia is the only country in the world which is still forced to use the name Yugoslavia; not even Serbia , who was Yugoslavia's successor, uses this name any longer. Macedonia 's request is simple and elementary, "let us be as we are," Macedonian! In response to a question from a representative of the American Hellenic Institute who asked "how can Macedonians claim they are Macedonians when they are not..," the Ambassador stated that he does not understand this Greek position "you are not this, you are this." The Ambassador made it simple as he said, "I am Nikola Dimitrov and I am a Macedonian." How hard can this be to understand? One does not choose his identity. Imposition of the ethnically derogatory designation, "FYROM" or Former Yugoslav Republic of Macedonia , is insulting to all Macedonians as it is an artificially created racial epithet intended to be defamatory. According to the Ambassador, it is both very hard to understand and to explain to his country's citizens why Congressional representatives would use the discriminatory designation and epithet, especially after the United States recognized Macedonia in November 2004 by its constitutional name.

                              "The objection of our neighbor Greece to our name since our independence in 1991," says Ambassador Dimitrov, "is a serious interference to Macedonia's right to exist." Every country has the right to self-determination, and Macedonia has the right to its name. Macedonia does not hold a trademark or "exclusive rights to the name Macedonia in geographic, cultural, historic and commercial terms." Furthermore, Ambassador Dimitrov stated that Macedonia "does not demand change, nor does it object to the use of the name Macedonia to designate the Greek Northern province. However, Greece does not have such exclusive rights either."

                              Ambassador Dimitrov expressed his belief that the U.S. House of Representatives – one of the greatest champions of freedom throughout history – will not interfere with the right, of a friendly nation of two million people, to have an independent national identity and to be called who they ethnically are. As such, it was overwhelmingly important to present evidence of the race-based discriminatory purpose behind Resolutions 521 and 306. To further clarify the Ambassador's points, the participants were provided two documents regarding the facts and arguments about the two Resolutions and their contents, which are enclosed along with this Press Release.

                              Ambassador Dimitrov concluded his presentation by quoting the great American Woodrow Wilson, a champion of human rights by stating "Just what is it that America stands for? If she stands for one thing more than another it is for the sovereignty of self-governing people."

                              The United Macedonian Diaspora commends Ambassador Dimitrov in his successful efforts while undertaking a four year mandate of representing the Republic of Macedonia in the United States . The United Macedonian Diaspora was proud to collaborate with such a noble individual, and our organization wishes Ambassador Dimitrov prosperity in all future endeavors.

                              Founded in 2004, United Macedonian Diaspora is an international membership organization based in Washington , D.C. addressing the interests and needs of Macedonians and Macedonian communities throughout the world.

                              For more information about United Macedonian Diaspora the public is invited to contact the D.C. office at (202) 294-3400, or e-mail at [email protected]

                              --
                              United Macedonian Diaspora
                              P.O. Box 19028
                              Washington, D.C. 20036
                              Phone: (202) 294-3400
                              E-mail: [email protected]
                              Website: http://www.umdiaspora.org
                              "Ido not want an uprising of people that would leave me at the first failure, I want revolution with citizens able to bear all the temptations to a prolonged struggle, what, because of the fierce political conditions, will be our guide or cattle to the slaughterhouse"
                              GOTSE DELCEV

                              Comment

                              • George S.
                                Senior Member
                                • Aug 2009
                                • 10116

                                Embassy of the Republic of Macedonia

                                Washington D.C.

                                Resolutions H.Res.521 and H.Res.306

                                Resolutions H.Res.521 and H.Con.Res.306 in the United States House of Representatives deal with an issue of paramount importance for the Republic of Macedonia – its name.

                                Regrettably, the reference “Former Yugoslav Republic of Macedonia” is used as a name for the country in both resolutions, even though in November 2004 the United States - as 119 countries already did - recognized it under its constitutional name - the Republic of Macedonia.

                                Both resolutions are based on inaccurate premises. As regards to the provisions of the HR Resolution 521, there is neither negative and nationalist propaganda, including in school text books, nor the students are being taught that parts of Greece belong to the Republic of Macedonia. Furthermore, it has to be underlined that even during the most difficult years of trade embargo imposed by Greece, Macedonians have never harbored hostile sentiments towards its neighbor. In an unprecedented manner, in 1995 Macedonia made an effort to accommodate Greece by changing its national flag and by reinforcing the no-change of borders provision of the Constitution adding that it “has no territorial claims against neighboring states”.

                                This is a rather unique dispute in the history of international relations when one free democratic country requests from another free democratic country – their neighbor – to change its name. The Republic of Macedonia has always emphasized that it does not hold exclusive rights over the name Macedonia in geographic, cultural, historic or commercial terms. It does not demand change, nor does it object to the use of the name Macedonia to designate the Greek Northern province. However, Greece does not have such exclusive rights either.

                                Macedonia fully observes its obligations under the 1995 Interim Accord with Greece. It remains committed to promote good relations with Greece and is determined to “resolve the differences over the name” as stipulated in the UN Security Council Resolution 817 in 1993. In spite of the controversy and the political risk involved, the Government of the Republic of Macedonia accepted the latest proposal to resolve the name differences, put forward by the UN mediator Mr. Nimetz on October 7, 2005, described by him as a basis that “meets the minimum requirements of both sides, and thus should be the basis of an honorable and acceptable solution”. Regrettably, it was Greece that immediately rejected this proposal.

                                The continuous challenge of its name since the independence of the Republic of Macedonia in 1991 has indeed become a security issue for the country. This denial has sent the wrong message to a nation of 2 million people focused on consolidating their multiethnic democracy in the heart of the Balkans in turbulent times: that the future of their country is not certain. At the same time it encourages and excuses radicals to work towards its disintegration because “the country is not fully recognized by the international community”.

                                By pursuing a constructive policy and by undertaking concrete steps, the Republic of Macedonia has become a steadfast partner and ally of the United States and a factor of stability in the Balkans and beyond:

                                - It has acquired its independence without armed conflicts;

                                - It respected the UN sanctions towards Serbia and Montenegro in conditions of several year- embargo imposed by Greece, suffering huge economic damage;

                                - Facing enormous risks for its economy and the delicate ethnic balance, in the course of the 1999 NATO intervention, it accepted more than 360.000 refugees from Kosovo, or 18% of the total population of the country;

                                - It resolved the 2001 crisis in Macedonia by applying political means and implemented the Ohrid Framework Agreement;

                                - It successfully develops multiethnic democracy in an extremely complex environment;

                                - It has an active role and contributes to the efforts of the international community for democratization and stabilization of other countries and regions.

                                The people of the Republic of Macedonia are tolerant and peace loving people. As President Bush said in October, they “…have showed the world that it's possible for people of different backgrounds to live together in peace”. Once its internal stability was consolidated, the Republic of Macedonia was among the first countries to send troops to both Iraq and Afghanistan, contributing to their historic fight for freedom. However, the readiness for a compromise on the name issue cannot include its freedom; freedom for its citizens to say who they are and freedom to expect respect from other free nations.

                                It is very difficult for the people of Macedonia to comprehend that in a time when Macedonian and American young men and women are in harms way, fighting shoulder to shoulder in Iraq and Afghanistan, some members of the US House of Representatives are engaged in sponsoring one sided resolutions that do not correspond with current developments in the UN talks.

                                Therefore, we believe that the esteemed members of the US House of Representatives should take these arguments into consideration, if and when they deliberate upon these resolutions.
                                "Ido not want an uprising of people that would leave me at the first failure, I want revolution with citizens able to bear all the temptations to a prolonged struggle, what, because of the fierce political conditions, will be our guide or cattle to the slaughterhouse"
                                GOTSE DELCEV

                                Comment

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