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DECISION ELEMENTS 

 A.P. 590 /2015
 

Court: AREIOS PAGOS

Place: ATHENS

Decision No.: 590

Year: 2015

Summary

Association not recognized - Election of new members - Masonic association - Disciplinary procedure -. The Grand Council of the 33rd degree for Greece of the Ancient and Proven Scottish type is an association of persons that does not have a profit-making purpose, has been organized and operates as an association, but does not formally have the status of an association since the necessary formalities have not been observed (unrecognized association ).Illegal imposition of a penalty of definitive removal during the disciplinary process of the Masonic Association.

 

 

Text of Decision

 

Number 590/2015 

 

THE COURT OF ARIUS PAGO

A1' Political Department 

 

 

CONSOLIDATED by Judges: Antonio Zeugolis, Presiding Areopagite (obstructed by the Vice-President of the Supreme Court Georgios Chrysikos), Georgios Lekka, Penelope Zotanou, Athanasios Kagani and Dimitrios George, Areopagites.

MEETED publicly in his audience, on April 20, 2015, in the presence of Secretary Georgios Fistouris, to judge between:

 

Of the appellants: 1) Association of Persons without legal personality under the name "SUPREME COUNCIL OF THE 33rd DEGREE FOR GREECE OF THE ANCIENT AND APPROVED SCOTTISH TYPE", 2) Association of Persons without legal personality under the name "GREAT COUNCIL OF THE 33rd DEGREE FOR GREECE" DA OF THE ANCIENT AND OF APPROVED SCOTTISH TYPE", which are based in Athens and are legally represented, which were represented by their attorney H. M. and filed motions.

 

Of the appellant: R. N., resident of ..., who was represented by his attorney Georgios Tsaprounis and did not file any motions.

 

The legal dispute started with the action from 14/2/2009 of the already appellee, which was filed in the Single Member Court of First Instance of Athens. The decisions were issued: 4875/2009 final of the same Court and5886/2013 of the Court of Appeal of Athens. The appellants request the annulment of the last decision with their application dated 8/2/2014 and the additional reasons thereof dated 2/11/2014.

 

During the discussion of this application, pronounced by the panel, the parties appeared, as noted above. The Reporter Areopagitis Dimitrios George read his report from 3/12/2014, in which he recommended the rejection of the appeal against the 5886/2013 decision of the Court of Appeal of Athens as well as the additions due to it. The attorney for the appellants asked for the application to be accepted, the attorney for the appellant for its rejection, and each for the condemnation of the opposing party in court costs.

 

CONSIDERED ACCORDING TO THE LAW

 

According to article 559 no. 1 KPolD, grounds for appeal are established if a rule of substantive law was violated. The rule of law is violated if it is not applied, while the conditions for its application were met based on the uncontrollably accepted, as proven, facts by the court of substance, or if it is applied, when it should not be, as well as if it is applied incorrectly, and the violation manifests itself , either with a false interpretation, or with a bad application, i.e. with a wrong classification (All AP 7/2006). Furthermore, according to the provision of article 559 no. 19 of the Civil Code, an appeal is allowed if the decision has no legal basis and in particular if it has no justifications at all or has contradictory or insufficient justifications in matters that have a significant effect on the outcome of the trial. From the provision in question, which constitutes a sanction for the violation of Article 93 § 3 of the Constitution, it follows that the grounds for appeal provided for therein are established when no facts are set forth in the minor proposition of the legal reasoning (lack of reasoning), or when the set forth do not cover all the elements required, based on the actual applicable rule of law, for the occurrence of the claimed legal consequence or its denial (insufficient reasons) or when they contradict each other (contradictory reasons). However, there is no lack of reasons when the decision contains brief but complete reasons. On the other hand, the legally necessary content of the minor proposal is determined by the applicable rule of substantive law, the factual content of which must be fully covered by the assumptions of the decision in its evidentiary conclusion and leave no doubt. In the absence of this, referring only to the analysis and weighing of the evidence and more generally in terms of the justification of the evidentiary conclusion, if this is clearly formulated, they do not constitute insufficient justifications. That is, only what was proven or not proven needs to be fully and clearly stated in the decision and not why it was proven or not proven. Furthermore, the arguments of the court related to consideration of the evidence, do not constitute assumptions on the basis of which the evidentiary conclusion is formed and therefore do not constitute "reasoning" of the decision, so that in the context of the investigated provision of Article 559 no. 19 of the Civil Code to be amenable to this criticism for contradiction or inadequacy, while the same ground for appeal is not created either because the court does not specifically and thoroughly analyze the arguments of the parties that do not constitute independent claims, in which case the relevant ground for appeal is rejected as inadmissible (AP 551/2011).

 

Finally, according to the regulation of the Supreme Council of the 33rd for Greece of the ancient and accepted Scottish type of 1872, it is provided in article 8 that officers are elected under the Supreme Council only from among its members, for three years and in the month of December, by open vote and by an absolute majority of those present, of the fraction considered as an integral unit.

 

All the officers of the Supreme Council are eligible for re-election subject to paragraph 11 of article 15. Article 10 states that in the event of the death, resignation or inability to exercise the duties of the Supreme Grand Brigadier or the Deputy Grand Brigadier the Supreme Council must convene within fifteen (15) days under the chairmanship of the other of them and to proceed with the election of his successor for the remainder of the three-year period. If the above case occurs for both of them, the Supreme Council meeting within fifteen (15) days under the Chairmanship of the most senior of its active members and after his invitation, proceeds either with the election of these two officers or temporarily only with the election of Deputy Grand Brigadier or simply elects one of its members for the temporary, maximum up to three months from his election, management of the work of the Supreme Council. According to article 11 of the Regulation, in the event of a vacancy in the position of one of the other officers during the three-year period, the Subordinate Council must, within fifteen (15) days, proceed to fill it for the remainder of the three-year period.

According to article 34, the members of the Supreme Council are invited in writing to a meeting under the Grand Chancellor, Grand Secretary General at least five (5) days in advance. In urgent cases, the invitation is also made in writing, either one day before the session or unannounced. The daily schedule of work must be mentioned in the invitation to the members of the Supreme Council.

 

In the present case, the Court of the substance, in its unaudited judgment, accepted the following exact copy: The Grand Council of the 33rd degree for Greece of the Ancient and Accepted Scottish type is an association of persons that does not have a profit-making purpose, has been organized and operates as a union, but does not formally have the status of a union, since the necessary conditions have not been met formulations.

Therefore, it is about an association that is an "unrecognized association" and the relationships created around it are governed primarily by its statutes and additionally by the provisions of the A.K. for unions, including those of articles 88 and 101 of the Civil Code.

In particular, its statute consists of

 

a) the great constitutions of 1762 and 1786 of Freemasonry and

b) the General Regulation of the Supreme Council of the 33rd degree for Greece of the Ancient and Proven Scottish type (of the year 2006).

 

The above also applies to the Supreme Council of the 33rd degree for Greece of the Ancient and Accepted Scottish type, which consists of the officials of the Great Council.

 

In particular the plaintiff had been elected asPresident- Supreme Grand Brigadier General of the Supreme Council in November 2007 for a three-year term, expiring on 3-11-2010. Pursuant to the invitation dated 5-11-2008, the Supreme Council was convened by order of the plaintiff to meet on 10-11-2008 at 18.00, at the Masonic Hall, with items on the agenda 1. the 49th European Conference of Supreme Grand Brigades, 2. the approval of expenses and 3. any other work normally performed. In fact, on the above date, the Supreme Council met, which was presided over by the plaintiff.

During the discussion on the subject of the agenda, the Adjutant Grand Brigadier S. K. stated that he is relinquishing the mandate for the organization and holding of the 49th conference, due to the impossibility of carrying it out.

Prior to this, the Grand Treasurer, H. M., stated that he is taking responsibility for the organization of the above conference, furthermore that he is resigning from the office of the Grand Treasurer for the preparation of this (conference) due to workload.

Thus a vacuum was created in the above position, which in order to be filled, it was decided by the present members of the Supreme Council of the first defendant, that the plaintiff assume the office of the Grand Treasurer and the office of the plaintiff, that is, the Supreme Grand Marshal, H. M..The plaintiff reacted strongly to this development, since he himself had never declared that he was resigning from his office, nor was there any other obstacle to his remaining in it and for this reason he abstained in the upcoming vote.

 

It was further shown that during the same meeting, new active members were elected to fill the positions of the first defendant and specifically K.G., E.G., E.G., S.Th., N.K., N K., E. M. and D. P. and then it was decided that the reception and the official confirmation of the newly elected will take place on 11-12-2008 at 18.00.

 

However, the plaintiff reacted similarly to the above election of new members. It was further proven that on the above date (12-11-2008) the awarding ceremony actually took place, as well as the official confirmation of the rank to the newly elected, in which the plaintiff was also present, without performing the duties of High Grand Brigade Commander.

 

Subsequently, the plaintiff, although summoned by the newly elected Supreme Grand Master, H. M., refused to hand over to the latter the office, masonic tools, etc. and he to receive the Treasury.

 

Then he (plaintiff) communicated with a bailiff extra-judicial statements and to the Grand Lodge of Greece, that the above are masonic offenses, provided for by article 104 and entail penalties, provided for by article 116 of the General Regulations and thusH. M., in the capacity of the Supreme Grand Brigadier invited, with the invitation of 19-11-2008, the members of the Supreme Council to come on 26-11-2008 at 17.00 at the offices of the Supreme Council, in order to consider whether to reject the plaintiff's burden, charge, or an inquest will be held.

It should be noted that the plaintiff became aware of the above invitation and in fact with his out-of-court statement dated 26-11-2008, which was served on the same day to the first defendant and specifically half an hour before her meeting (see the attached document number 9592Γ726-11 -2008 of the bailiff at the Court of First Instance of Athens Kon/nou-N.K.),he developed his positions, announced that he never resigned from the position of Supreme Grand Brigade Commander and furthermore that he will not be present at the above meeting.

 

Then, after the disciplinary procedure was finished, the first defendant held a Plenary session on 15-12-2008 as the Supreme Disciplinary Council and after adjudicating the charges against the plaintiff, imposed on him the penalty of permanent removal.

 

The said decision was communicated to him on 21-12-2008, through a postal service company and is as follows: "We inform you that the Supreme Council of the 33rd and last degree for Greece of the Ancient and Accepted Scottish Type met in plenary on the 15 December 2008, at 6:00 p.m. as the Supreme Disciplinary Council, he examined the actions attributed to you, decided that you are guilty and imposed the sanction of definitive removal on you". According to article 15 par. 1 of the General Regulations of the Supreme Council of the 33rd degree "the Supreme Grand Master, head of Greek Philosophical Freemasonry, or his legal Deputy, convenes and directs the work of the Supreme Council and presides over its sessions".

 

According to article 34 of the said Regulation "the members of the Supreme Council are invited in writing to a meeting under the Deputy Major General or his legal deputy through the General Secretary General at least five (5) days in advance.

In urgent cases, the invitation is made, also in writing, either one day before the session or on the same day. The agenda of the work must be mentioned in the invitation to the members of the Ministry. According to article 10 of the same regulation "in case of death, resignation or inability to exercise the duties of the Minister. Max Tax or of the Anthyp. Grand Tax., the Supreme Council must convene within fifteen (15) days under the chairmanship of the other of them and proceed with the election of his successor for the remainder of the three-year period... if the invitation is not made on time, any of the members of the Ministry Comp. to call this to a meeting for the above-mentioned election...". And according to article 38 of the Regulation "all decisions of the Min. Comp. taken by open vote. Similarly, the election of its officers is carried out. The members vote according to seniority of admission to the Ministry. Comp. First the youngest and last of all votes the Minister. Mag. Tax.". According to article 39 "every proposal, submitted to the Ministry Comp. It is done in writing and submitted to the General Secretariat at least five (5) days before the session of the Ministry. Convention, as stated in the daily schedule". According to article 8 of the Regulation "officers are elected under the Minister. Comp. Only from its members, for three years and during the month of December, by open vote and by an absolute majority of those present, of the fraction considered as an integral unit...". According to article 14 of the Regulation "for the filling of a position or positions members of the Grand Council or active members in the Supreme Council each member of the Ministry Council is entitled until October 31 of each year to submit to the General Secretariat to fill each vacant position in a proposal signed by him, the name of one of the Honorary Ministers. Major Gen. Apt. to fill the position of an absentee member or one of the absentee members of the Ministry in Athens or Piraeus. Comp. To fill the position of an active member of the Ministry of Comp. If the vacant positions are more than one, the proposal cannot contain names more than the vacant positions. After the above deadline, the Secretary General No one can accept a proposal, but he immediately compiles the list of those nominated in due time and sends this list to all members at least eight (8) days before the regular session of the Ministry. Comp. of the month of December of each year, during which alone the election of the new non-executive members of the General Assembly takes place. or active members of the Ministry Comp. A single negative vote, which must be justified, is sufficient to reject the candidate. Two or more negative votes, even without justification, result in the rejection of the candidate". According to article 57 of the Regulation "the 33rd and last grade of the A.A.S.T. is awarded in accordance with the Standard of the degree, in an official meeting for this purpose, only under the Minister. Convention, before which the official assurance is given, following a favorable decision of the Minister. Comp. Furthermore, according to article 124 of the G.K. "in the case of an accusation against a member of the General Assembly, the Minister of Assembly, either as a result of a complaint or taken ex officio, decides in the absence of the defendant whether in principle to reject this accusation or to order an interrogation. In the second case it is defined, to this end, an investigative committee consisting of the Grand Secretary and two other members of the Minister of Congress, The Committee appoints a Reporter... The conclusion of this is filed with the Grand General Secretariat and submitted to the Minister of Congress, which, after hearing the speaker, it is decided whether the accused is acquitted or must be summoned to a trial before the plenary session of the Minister of Justice. in the meantime obtain knowledge of the documents of the procedure. In this way, the plaintiff is also notified if there is such a thing." From the aforementioned provisions of the General Regulation, in combination with the others

evidence proved that the first defendant, the Supreme Council, decided illegally

 

 

A) on 10-11-2008 the election of H.M. to the office of Supreme Grand Brigade Commander and in fact to the position of the plaintiff, since

a) no such issue was included in the invitation of the members of the Supreme Council as an agenda item in violation of article 34 of the Civil Code,

b) at no time during the meeting was there an explicit or implicit declaration of resignation on the part of the claimant from his office or inability to perform his duties, nor had his term of office expired, so that there was a case of electing a successor to His Highness the Grand Brigadier and thereforethe election of H. M. to the above office, with the simultaneous removal of the plaintiff, took place in violation of article 10 of the Civil Code.and

 

B) on 10-11-2008 decided on the election of new members for the rank of the 33rd degree and of the Supreme Council and decided to take their oath on 12-11-2008, when they were awarded the rank in question, since

a) no such issue was included in the invitation of the members of the Supreme Council, as an agenda item, in violation of article 34 of the G.K.,

b) as it turned out, the preliminary procedure provided for by article 14 of the G.C. had not been complied with, namely the submission to the General Secretariat by 10-31-2008 of a proposal for an active member candidate, signed by a member of the Supreme Council , and in its absence, the election of the new members of the Supreme Council was not legal, as well as their installation to that extent.

 

It was further proven that the Supreme Council, on 15-12-2008, illegally imposed in violation of G.K. at the expense of the plaintiff the disciplinary penalty of his definitive deletion, since he was not summoned to attend the above meeting, as expressly defined in article 124 par. 3 sub. in G.K.'s.

Besides, the summons cited by the defendants concerns his invitation to the meeting of 11-26-2008, during which, based on article 124 G.K. it was decided in his absence to carry out an interrogation and it does not concern the summoning of the latter during the final meeting of the Plenary of the Supreme Council, after submitting to it the conclusion of the rapporteur who carried out the interrogation.

 

It should be noted that the claimant strongly reacted to the aforementioned decisions, which were taken during the meetings of 10-11-2008 and 12-11-2008.

In fact, for this reason he refused to comply with them (decisions) and to hand over the office, the chain of the Order, the gifts and the seal, which he had as High Brigade Commander.

In particular, it was proven that the plaintiff sent a letter to all the Philosophical Laboratories, in which he described what illegally took place during the meeting of the Supreme Council on 10-11-2008, declaring at the same time that he still carries and exercises the duties of the Supreme Grand Brigadier.

 

In fact, on 12-11-2008 he issueddecree of impeachment and dismissal of H. M..

 

Subsequently, on 26-11-2008, the plaintiff submitted to the Supreme Council with a bailiff his notice of 26-11-2008 (see the report of service of the bailiff to the Court of First Instance of Athens K. - N. K.), in which he exposed the illegal things that took place, declaring at the same time that if order is not restored, he will appeal to the Greek Courts.

 

However, in the context of finding a compromise solution, which would lead to the return of calm to the Masonic Union, the plaintiff on 28-11-2008, addressing H. M., as Supreme Grand Master, signed a document (letter), with which declared that he was resigning from his position, due to the inability to effectively and fully exercise his duties, due to his advanced age and health condition, expressing his desire to remain in the High Council as a simple Active Member thereof, then no negotiation followed , in order for the claimant to receive the office of Honorary Highness Grand Brigadier (see the undated draft letter provided, signed by the claimant, as he himself admits). However, the above documents were drawn up and signed by the plaintiff before the decision to remove him was made and therefore do not prove the contrary, that is, that he wished to resign his office and receive the office of Honorary Supreme Grand Brigadier. In fact, the above statements were reinforced by the testimony of the defendants' witness, who, when examined in the first instance court, testified that the plaintiff had not said that he was resigning from his position, and moreover that he revoked the aforementioned letter of resignation.

In view of the above accepted facts, however, there is a clear application of the rules of substantive law governing associations of persons without legal personality as well as of their statutes, and the facts were correctly brought under the above relevant rules. And from the detailed listing of the uncontrollably accepted facts, it was not proven that there was a confession by the respondent, with the sending of his letter of 28-11-2008 to H. M., about which a full report is made and even a retraction of his letter of resignation, at the stage of the negotiations for a compromise resolution of the dispute, there are no contradictions either, since the respondent strongly reacted to all the procedural actions and none accepted, voted against and protested his dismissal in the above manner, since neither the time his term of office had expired, nor had he resigned, nor was there such an issue at the convocation of the Supreme Council of 10-11-2008, nor does this major issue of his dismissal emerge as an urgent case included in the concept of "all other work normally performed", nor certainly did he wish to assume the position of Great Treasurer, from which H. M. had resigned and only his position had to be filled. These also apply to the subsequent actions of certain members as well as to their removal as a disciplinary penalty. The counter-arguments under the grounds of appeal of the main petitioner and the first of the additional grounds, as the decision having contradictory reasons, are deemed unfounded and therefore the grounds that go back to a violation of the articles are rejected. 559 no. 1 and 19 of the Civil Code.

According to the article 559 no. 20 of the Civil Code, appeal is allowed if the court distorted the content of the document by accepting facts obviously different from those stated in the document. The above reason is established, only when the court of substance committed, with regard to the document, a diagnostic error, i.e. referring to the reading of the document (reading error), with the admission that it contains incidents manifestly different from those it actually includes, not and when from the contents of the document, which he correctly read, he draws an evidentiary conclusion different from that which the appellant considers correct. In the last case, it is a complaint referring to the assessment of real facts that escapes the appellate control (all AP 2/2008). A misreading of the document is not sufficient to establish the argument, but the Court of the substance must in addition have based its evidentiary conclusion exclusively or mainly on the document, the content of which is allegedly distorted, not when it has simply considered it together with other evidentiary means, without excluding the document, with the conclusion reached on the existence or non-existence of the provable fact, because in this case it is not possible to verify its special evidentiary importance.

In this case, it is mentioned in the decision that "in the context of finding a compromise solution, which would lead to the return of calm to the Masonic Union, the plaintiff (respondent) on 11-28-2008, addressing H. M., as Supreme Grand Master , signed a document (letter), declaring that he was resigning from his position, due to the inability to effectively and fully exercise his duties, due to his advanced age and health condition, expressing his desire to remain in the High Council as a simple Active Member thereof, no negotiation subsequently followed, in order for the plaintiff to receive the office of Honorary Supreme Grand Brigadier (see the draft undated letter submitted, bearing the plaintiff's signature, as he himself admits). accepts the decision, the above documents were drawn up and signed by the plaintiff before the decision on his removal was taken and therefore do not prove the contrary, that is, that he wished to resign his office and receive the office of Honorary Highness Grand Brigadier . In fact, the above was reinforced by the testimony of the defendants' witness, who, when examined in the court of first instance, testified that the plaintiff had not said that he was resigning from his position, and moreover that he revoked the aforementioned letter of resignation". In view of the above, it follows that the document from 28-11-2008 was simply considered together with the other evidence without excluding this document, regarding the conclusion reached by the Court of the substance above and therefore is rejected as inadmissible the article 559 No. 20 of the Civil Code, the alleged reason for the distortion of the above document.

In view of the above, the appeal and the additional grounds against the 5886/2013 decision of the Court of Appeal of Athens must be rejected, the introduction of the fee to the Public Fund ordered (art. 495 § 4 of the Civil Code and art. 12 Law 4055/2012) and finally court costs be imposed against the appellants and in favor of the respondent who appeared without submitting motions (no. 176, 183 of the Civil Code), as in the ruling.

 

 

FOR THESE REASONS 

 

Dismisses the application and the additional grounds against it5886/2013 decision of the Court of Appeal of Athens.

It orders the introduction of the fee to the Public Treasury, and imposes on the appellants the court costs of the appellant, who appeared without filing motions, which he sets at the amount of one thousand eight hundred (1,800) Euros.

DECIDED and decided in Athens on April 28, 2015.

 

 

PUBLISHED in Athens at a public meeting, in his audience, on May 12, 2015.

THE PRESIDENT AREOPAGITIS THE SECRETARY

 

 

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