ECtHR rejects the Athenians’ Association case on a technicality

Following the decision of the three-member committee of the European Court of Human Rights (ECHR), composed of the judge of San Marino, the judge of Great Britain and the judge of Iceland, the appeal lodged by the “Athenians’ Association” about the Parthenon Sculptures is not being referred for trial and is rejected for a formal reason, without entering into the dispute’s substance. However, the points of the Athenians’ Association recourse that identify the legal bulwark hindering the Court from hearing the case in its substance “as submitted by the applicant (Association)” are laid out, thus offering important expertise for a future interstate recourse of the Hellenic Republic against the United Kingdom before this selfsame court.

In its Decision dated 23.6.2016, the three-member committee first examined the question of the significant lapse of time since the occurrence of the Sculptures’ removal by Lord Elgin. Characteristically, the Decision mentions that, due to time-lapse of 150 years before the establishment of the European Convention of Human Rights, the true events “would appear” not to fall within the field of the Court’s temporal jurisdiction. However, the selfsame text clearly bypasses this possible legal obstacle, mentioning, in particular, that the “continued retention of the Marbles constitutes a continuing act” and, alternatively, “the refusal [of the United Kingdom] to engage in [UNESCO’s] mediation could itself be viewed as an act which might arguably amount to an interference with Convention rights, such as to bring the application within the Court’s temporal jurisdiction”. Consequently, the ECHR points out, indirectly, the manner in which Greece will be able, in her interstate recourse against the United Kingdom, to overcome the issue of a significant period of time having elapsed since the occurrence that led the Sculptures to Great Britain, also enriching a relevant appeal with additional (and extensive) case-law that overcomes the question of temporal jurisdiction. In fine, the Decision did not therefore reject the appeal of the Athenians’ Association as inadmissible because of the Court’s incompatibility ratione temporis.

Of far greater importance, though, from the viewpoint of legal expertise is the final formal reason for which the Association’s appeal wasn’t examined in its substance, but was proclaimed inadmissible. The Decision mentions that, up to date, the European Court hasn’t recognised that a legal entity in the form of an association/club can invoke a violation of its own human rights so as to claim the return of cultural heritage or the involvement of a State in an international mediation. As regards this point, it is obvious that the European Court rejects the appeal not because it is unable to deepen the analysis of the Convention’s rights in the direction of recognising a deriving right to protect cultural heritage, but because (in the present phase) it is not prepared to recognise such a right to a private association. With this formulation, the European Court leaves the door wide open for the re-examination of a like appeal, insofar as it is submitted by Greece against the United Kingdom. Because if an association cannot invoke a violation of its rights so as to involve another State in an international mediation or to claim antiquities on behalf of its own State, it is a given that if the recourse is submitted by the Hellenic Republic, it will be examined according to totally different criteria, at least as regards its admissibility.

On the substance, also, the European Court declares that it “has been prepared, in certain circumstances, to give some degree of recognition to ethnic identity as an aspect of Article 8 rights”, despite the fact that, implicitly, it didn’t consider sufficient the case-law specifically invoked by the Association, leaving open the possibility of expanding, in the future, the “degree” of recognition of a right to protect cultural heritage, not only of course on the basis of Article 8, but possibly also on the combination of the bases of articles 9, 10 and 13 of the European Convention of Human Rights and Additional Protocol 1, if these are placed in the context of an interstate recourse (Greece against the United Kingdom).

Lastly, the European Court’s Decision doesn’t contain the smallest objection or hint regarding the non-compliance with another basic prerequisite of admissibility, which is that of the prior exhaustion of the effective domestic proceedings available in the State against which the complaint is lodged. The European Court’s silence with respect to this subject, which it characteristically bypasses, indicates that this possibly wouldn’t constitute a particular problem in a future recourse of the Hellenic Republic against the United Kingdom, precisely also because of the lack of relevant case-law in British courts, which up to date haven’t examined an equivalent complaint on the legal basis of a human rights violation.

“The first step has been taken,” stated the “Athenians’ Association” legal representative, Mr. Vassileios Sotiropoulos, stressing that “globally, this first statement of the European Court, historically the first court judgement, on the subject of the Parthenon Marbles highlights the points that Greece should focus on with particular attention in her recourse against the United Kingdom, revealing its judgement as regards the legal parameters that need to be addressed. Consequently, this Decision leaves open the possibility of a recourse submitted by Greece being proclaimed admissible, thus also indirectly offering precious expertise on how to handle the case henceforth and, in any case, without creating a negative precedent or res judicata on the case’s substance, which continues to remain unjudged and open to interstate litigation».

Source: The Athenians’ Association


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