On 31 October 2019, the European Court of Human Rights (ECtHR) issued a judgment in the case Papageorgiou and others v. Greece concerning mainly the requirement by parents and/or children to state that they are not Orthodox Christian in order to be exempted from religious education in Greek schools. The ECtHR found that such practice was in violation of the European Convention of Human Rights (ECHR) and its Protocol No. 1, basing its conclusion on its case law:
88. Although the first two applicants in application no. 4762/18 and the first applicant in application no. 6140/18 were under no obligation to disclose their religious convictions, requiring them to submit a solemn declaration amounted to forcing them to adopt behaviour from which it might be inferred that they themselves and their children hold – or do not hold – any specific religious beliefs (see, mutatis mutandis, Alexandridis, cited above, § 38, and Dimitras and Others v. Greece, nos. 42837/06, 3237/07, 3269/07, 35793/07 et 6099/08, § 78, 3 June 2010).
89. In the above-mentioned cases the Court stated that the freedom to manifest one’s beliefs also contained a negative aspect, namely the individual’s right not to manifest his or her religion or religious beliefs and not to be obliged to act in such a way as to enable conclusions to be drawn as to whether he or she held – or did not hold – such beliefs. The State authorities did not have the right to intervene in the sphere of individual conscience and to ascertain individuals’ religious beliefs or oblige them to reveal their beliefs concerning spiritual matters.
90. Having regard to the foregoing, the Court dismisses the Government’s objection of non-exhaustion as regards the applicants’ omission to use the exemption procedure and concludes that there has been a breach of their rights under the second sentence of Article 2 of Protocol No. 1, as interpreted in the light of Article 9 of the Convention.
The legal provisions invoked:
Article 2 of Protocol No. 1: No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.
Article 9 of ECHR: 1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
The case law invoked related to the oath taking procedure before Greek criminal courts which required all persons involved to declare their religion. The ECtHR had found that such practice was in violation of the European Convention of Human Rights (ECHR). The main reasoning of the ECtHR was detailed in the judgment Dimitras and others v. Greece published on 3 June 2010:
The applicants had been considered as Orthodox Christians as a matter of course, and had been obliged, sometimes in hearings, to point out that they did not subscribe to that faith and, in some cases, to specify that they were atheists or Jews in order to have the standard wording of the minutes amended. In some court records they were expressly described as “atheists” or “of the Jewish faith”.
This interference with their freedom of religion had been based on Articles 218 and 220 of the Code of Criminal Procedure and pursued the legitimate aim of the proper administration of justice. Article 218 regulated the taking of the oath in court, on the Bible. It was thus presumed in the Code of Criminal Procedure that all witnesses were Orthodox and willing to take the oath, as reflected in the standard wording of the records of court proceedings. Indeed, it is only exceptions to the rule that Article 220 provides for, allowing those who were not Orthodox Christians to take the oath in conformity with another religion or to make a solemn declaration if they had no religion or their religion did not permit oath taking.
The wording of Article 220 actually required people to give details of their religious beliefs if they did not want the presumption contained in Article 218 to apply to them. Some of the applicants had had to convince the court officials concerned that they did not subscribe to any religion, failing which they would have had to take a religious oath. The incompatibility of the impugned legal provisions with Article 9 of the Convention was even more evident in Article 217 of the Code of Criminal Procedure, which stipulated that in any event all witnesses were required, amongst other information, to state their religion before testifying in criminal proceedings. The Court further noted that, unlike the Code of Criminal Procedure, the Code of Civil Procedure provided for witnesses, if they so wished and without any other formality, to be able to choose between taking a religious oath and making a solemn declaration.
The Court found that requiring the applicants to reveal their religious convictions in order to be allowed to make a solemn declaration had interfered with their freedom of religion, and that the interference was neither justified nor proportionate to the aim pursued. There had therefore been a violation of Article 9.
Nine additional cases concerning the oath procedure were examined by the ECtHR. Four led to judgments finding violations of Article 9 while the subsequent five were concluded on after a friendly settlement procedure either with unilateral declarations by Greece (when there was disagreement on the compensation) or in one case with a mutually agreed upon friendly settlement:
Before the above case (in 2008):
Alexandridis v. Greece (judgment)
After the above case (in 2011-2018):
Dimitras and others v. Greece (No.2); Dimitras and others v. Greece (No.3); Dimitras and Gilbert v. Greece; (judgments)
Four ( 1 – 2 – 3 – 4 ) Dimitras and others v. Greece (unilateral declarations) and one Dimitras v. Greece (friendly settlement).
Between the publication of the judgments in Dimitras and others v. Greece (No.2) and Dimitras and others v. Greece (No.3) Greece implemented the judgments and, on 2 April 2012, amended the oath taking in the Code of Criminal Procedure to make it identical with the oath taking in the Code of Civil Procedure that the ECtHR had found in conformity with the ECHR.
It is noteworthy that, in mid-2008, after the publication of the very first judgment on oath taking (for lawyers so as to join the bar), Alexandridis v. Greece, Greece invoked that judgment to introduce a neutral procedure for parents and/or children who sought exemption from religious education for reasons of conscience. Had that not changed in 2015, Greece would have avoided the Papageorgiou judgment. In the latter, the Greek Helsinki Monitor (GHM)’s third party intervention is summarized as follows:
71. The Greek Helsinki Monitor emphasised that soon after the Court’s judgment on religious oath taking in Greece in Alexandridis v. Greece (no. 19516/06, 21 February 2008), the Ministry of Education had issued two circulars, in July and August 2008, confirming and solidifying the year-long practice that exemption from religious education would be granted when requested by students or their parents for reasons of consciousness without any declaration of religious beliefs being requested. However, not only had the change introduced by the circular of 23 January 2015 been unnecessary, it had also led to a disturbance in the democratic functioning of the education system. This disturbance had been caused by the imposition of institutional discrimination and a violation of the Convention for those who had to declare their (non-) religious beliefs in order to enjoy another right, that of the exemption from religious education. Moreover, both the Court (Folgerø and Others, cited above) and the UN Human Rights Committee (in its views on Leirvag v. Norway – Communication no. 1155/2003) had ruled that asking parents to provide reasons as to why they sought to exempt their children from religious education was contrary to the Convention and the International Covenant on Civil and Political Rights.
72. Referring to the above-mentioned Folgerø and Others judgment, the Greek Helsinki Monitor stated that a comparison between the Norwegian and Greek religious education curricula indicated that the Greek curriculum was much less objective, critical and pluralistic, and much more a form of indoctrination into the official State religion, as it admittedly had a “confessional” character. Whereas in Norway half of the items listed referred to Christianity alone, in Greece, according to an official report by the Church of Greece in June 2017, 82% of the items in primary religious education had a confessional character (of which only 10% had an inter-confessional character) and 18% had a non-confessional character. The respective percentages for middle religious education were 74% confessional (of which 20% were inter-confessional) against 26% non-confessional. Both in the legislation and the circulars, as well as in practice, there was a thorough teaching of Orthodox Christianity and usually a superficial teaching of other Christian and non-Christian religions or other beliefs. In that report, the Church of Greece expressed its satisfaction with the confessional character of religious education.
In the ten Alexandridis and several Dimitras applications, the applicants were all GHM-affiliated activists represented by GHM. One of them was subsequently the representative of the applicants in the two Papageorgiou and others applications that were submitted along with another one by the Union of Atheists that is still pending before the ECtHR (they have also filed applications before domestic courts). Finally, in early 2020, the ECtHR communicated to Greece another application submitted by GHM concerning the mandatory declaration of religion of the parents and of the children in the latter’s birth registration certificates, a declaration prescribed by law. The related and self-explanatory ECtHR summary:
Pelagia Papanikolaou against Greece
[lodged on 12 August 2019 and communicated on 28 January 2020 ]
SUBJECT MATTER OF THE CASE: The application concerns the registration of the applicant’s religion in her daughter’s birth registration act, pursuant to Article 22 par. e) of Law no. 344/1976.
QUESTION TO THE PARTIES: Has there been a violation of the applicant’s right to freedom of religion, as guaranteed by Article 9 of the Convention, as a result of the requirement to declare her religion in the birth registration act of her daughter?
The ECtHR decided to handle this application as a potentially leading case and to give it priority (as the ECtHR had also done for the Papageorgiou application). Its judgment is expected to be published in 2021.