A few months ago, I wrote about [1] & published an interview with Vasilis Sotiropoulos [2], the legal advisor to the Athenians’ association. At this stage, the Association was trying to bring a claim in the European Court of Human Rights over the return of the Parthenon Marbles.
Since then, the claim has been rejected as inadmissible, but this is largely down to technical issues. Part of the decision relates to the fact that the Athenians Association brought the claim as an organisation, but that 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. On this basis, if such a claim was to be brought by the Greek state, then this reason for inadmissibility would no longer be valid.
I’m posting the Independent’s article first, followed by the Athenian Association’s response & the legal decision itself.
There are other issues, particularly one relating to timing, but none of them completely closes the door on this case – hopefully I will have time to make a longer post about this in the next few days.
[3]Syllogos ton Athinaion logo
From:
Independent [4]
First-ever legal bid for return of Elgin Marbles to Greece thrown out by European Court of Human Rights
Ian Johnston
19th July 2016The first-ever legal bid to force the UK to return the Elgin Marbles to Greece has been thrown out by the European Court of Human Rights.
The court ruled that because the alleged theft of the sculptures from the 2,500-year-old Parthenon temple took place more than 150 years before the UK signed up to the human rights convention, it did not have the power to consider the lawsuit.
Campaigners for the return of the sculptures pointed out that the court had not made a ruling on the “merits of the case”.The marbles were taken from the temple by the Earl of Elgin in the 1800s and he then sold them to the British Government in 1816 after running into financial difficulties.
At the time, Greece was occupied by the Ottoman Empire. Lord Elgin obtained a “firman”, a legal document, that apparently allowed him to take some stones but some believe it did not entitle him to cut sculptures from the building.
The marbles are regarded as some of the finest sculptures ever created and the Parthenon, built by the democratic Athenians after victory over the Persian Empire, is arguably the most important monument in Europe.
The Greek Government was given extensive legal advice from lawyers Amal Clooney and Geoffrey Robertson, but appears to have decided against taking Britain to court.
Instead, the case against the UK was brought by the Athenians’ Association, a cultural group, after the British Government refused an offer last year by Unesco to mediate between Greece and Britain.
The British Government and the British Museum, where about half the surviving Parthenon sculptures are on display, insist the Earl of Elgin acquired them legally.
In its ruling, which was sent to the Athenian Association last month, the European court said: “The Court notes that the marbles were removed from Greece in the early 19th century.
“In order to bring the matter within the temporal jurisdiction of the Court, the applicant has sought to rely on the refusal of the United Kingdom to enter into mediation with Greece concerning the return of the marbles and the continuing refusal to return the marbles.
“However, it is clear from the nature of the applicant’s complaints that its underlying grievance is the allegedly unlawful removal of the marbles from Greece. The removal having occurred some 150 years before the Convention was drafted and ratified by the respondent state, the applicant’s complaints would appear to be inadmissible.”
The judges also said the Athenians’ Association did not have “any right … to have the marbles returned to Greece”.
The Athenians’ Association’s legal representative, Vassilis Sotiropoulos, said the case was a “first step”.
He claimed the judgement could actually help the Greek Government take legal action in the future.
“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,” Mr Sotiropoulos said.
“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.”
Andrew George, of the British Association for the Reunification of the Parthenon Sculptures, said the ruling did not affect the arguments in favour of sending the sculptures back.
“We’ve learned nothing from this. There’s been no test of the merits of the case, just that this is not the arena to resolve the justice or otherwise of the case,” he said.
“The UK Parliament effectively state-sanctioned the improper acquisition of the sculptures exactly 200 years ago this year.
“But this doesn’t make it a cause of pride for the British, nor does it make the act nor their continued retention either ethical or just.”
On 10 July, a cross-party group of MPs launched a Bill to return the sculptures to Athens, where the Acropolis Museum was built specifically to house them within sight of the Parthenon.
The British Museum argues that it “tells the story of cultural achievement throughout the world, from the dawn of human history over two million years ago until the present day”.
“The Parthenon Sculptures are a vital element in this interconnected world collection. They are a part of the world’s shared heritage and transcend political boundaries,” it says.
“The Acropolis Museum allows the Parthenon sculptures that are in Athens (approximately half of what survive from antiquity) to be appreciated against the backdrop of ancient Greek and Athenian history. The Parthenon sculptures in London are an important representation of ancient Athenian civilisation in the context of world history.”
From:
Athenians’ Association [5]
THE EUROPEAN COURT OF HUMAN RIGHTS ON THE RECOURSE OF THE ATHENIANS’ ASSOCIATION REGARDING THE PARTHENON SCULPTURES
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».
From:
European Court of Human Rights [6]
FIRST SECTION
DECISIONApplication no. 48259/15
SYLLOGOS TON ATHINAION
against the United KingdomThe European Court of Human Rights (First Section), sitting on 31 May 2016 as a Committee composed of:
Kristina Pardalos, President,
Paul Mahoney,
Robert Spano, judges,
and Milan Blaško, Acting Deputy Section Registrar,
Having regard to the above application lodged on 24 September 2015,
Having deliberated, decides as follows:THE FACTS
The applicant, Syllogos Ton Athinaion, is a Greek association founded in 1895 in Athens with the aim, inter alia, of ensuring the protection and maintenance of the monuments and works of art connected with the history of Athens. It was represented before the Court by Mr V. Sotiropoulos, a lawyer practising in Athens.
The facts of the case, as submitted by the applicant, may be summarised as follows.
In the early nineteenth century, Lord Elgin transported a collection of sculptures that were originally part of the temple of the Parthenon of Athens (known as the “Elgin” or “Parthenon” Marbles) from Greece to the United Kingdom. The Marbles were subsequently purchased by the United Kingdom Government and passed to the British Museum.
Greece subsequently unsuccessfully sought the return of the Marbles.
On 9 August 2013 the United Nations Educational, Scientific and Cultural Organization (“UNESCO”) offered to mediate between the two countries. On 26 March 2015 the United Kingdom declined the offer of mediation. It stated that the Marbles had been legally acquired by Lord Elgin.
COMPLAINTS
The applicant argued under Articles 8, 9, 10 and 13 of the Convention and Article 1 of Protocol No. 1 that the refusal of the United Kingdom to take part in mediation with Greece amounted to a violation of its human rights and, indirectly, of the human rights of its members and their ancestors.
Under Article 8, it contended that the statement of the United Kingdom to UNESCO, the retention of the Marbles and the refusal of mediation breached its right to respect for private life. The violation stemmed from the failure to respect the applicant’s ability to protect the monuments of Athens, as provided for in its articles of association and as an aspect of its cultural identity, and the diffusion of alleged lies as to the legality of the acquisition of the Marbles.
Under Article 9, the applicant argued that the statement made to UNESCO and the retention of the Marbles constituted a breach of its right to respect for its conscience.
Under Article 10, the applicant relied on its right of access to cultural information that could be obtained from the Marbles in relation to their history and the history of Athens.
Under Article 13, the applicant argued that the refusal of the United Kingdom to participate in mediation organised by UNESCO constituted the denial of a remedy.
Finally, under Article 1 of Protocol No. 1 to the Convention, the applicant contended that the retention of the allegedly unlawfully removed Marbles constituted an interference with its proprietary right to access to the whole monument.
THE LAW
The Court notes that the Marbles were removed from Greece in the early nineteenth century. In order to bring the matter within the temporal jurisdiction of the Court, the applicant has sought to rely on the refusal of the United Kingdom, on 26 March 2015, to enter into mediation with Greece concerning the return of the Marbles and the continuing refusal to return the Marbles. However, it is clear from the nature of the applicant’s complaints that its underlying grievance is the allegedly unlawful removal of the Marbles from Greece. The removal having occurred some 150 years before the Convention was drafted and ratified by the respondent State, the applicant’s complaints would appear to be inadmissible as incompatible ratione temporis with the provisions of the Convention.
Even assuming that the continued retention of the Marbles constitutes a continuing act or that the refusal to engage in 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, the Court is satisfied that the application is inadmissible as incompatible ratione materiae with the provisions of the Convention and its Protocols. None of the Articles invoked by the applicant can be said, either on the basis of the text of the Article in question or by virtue of the Court’s interpretative case-law, to give rise to any right for an association in the position of the applicant to have the Marbles returned to Greece or to have the respondent State engage in international mediation for their return.
In particular, while it is true that the Court has been prepared, in certain circumstances, to give some degree of recognition to ethnic identity as an aspect of Article 8 rights (see, for example, Chapman v. the United Kingdom [GC], no. 27238/95, §§ 76 and 93-96, ECHR 2001‑I), the applicant has failed to point to any case of this Court where it has held that Article 8 gives rise to a general right to protection of cultural heritage of the nature contended for in the present case.
The application must therefore be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Done in English and notified in writing on 23 June 2016.
Milan Blaško
Acting Deputy RegistrarKristina Pardalos
President