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You are here: BAILII >> Databases >> European Court of Human Rights >> EFSTRATIOU v. GREECE - 24095/94 [1996] ECHR 69 (18 December 1996)
URL: http://www.bailii.org/eu/cases/ECHR/1996/69.html
Cite as: [1996] ECHR 69
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In the case of Efstratiou v. Greece (1),
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of
Human Rights and Fundamental Freedoms ("the Convention") and the
relevant provisions of Rules of Court A (2), as a Chamber composed of
the following judges:
Mr R. Ryssdal, President,
Mr Thór Vilhjálmsson,
Mr N. Valticos,
Sir John Freeland,
Mr M.A. Lopes Rocha,
Mr L. Wildhaber,
Mr G. Mifsud Bonnici,
Mr D. Gotchev,
Mr P. Jambrek,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 2 September and
27 November 1996,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 77/1996/696/888. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since its
creation and on the list of the corresponding originating applications
to the Commission.
2. Rules A apply to all cases referred to the Court before the entry
into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only
to cases concerning States not bound by that Protocol (P9). They
correspond to the Rules that came into force on 1 January 1983, as
amended several times subsequently.
_______________
PROCEDURE
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 28 May 1996, within the
three-month period laid down by Article 32 para. 1 and Article 47 of
the Convention (art. 32-1, art. 47). It originated in an application
(no. 24095/94) against the Hellenic Republic lodged with the Commission
under Article 25 (art. 25) by three Greek nationals,
Petros, Anastassia and Sophia Efstratiou, on 25 April 1994.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby Greece recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46). The
object of the request was to obtain a decision as to whether the facts
of the case disclosed a breach by the respondent State of its
obligations under Article 2 of Protocol No. 1 (P1-2) and of
Articles 3, 9 and 13 of the Convention (art. 3, art. 9, art. 13).
2. In response to the enquiry made in accordance with Rule 33
para. 3 (d) of Rules of Court A, the applicants stated that they wished
to take part in the proceedings and designated the lawyers who would
represent them (Rule 30).
3. On 10 June 1996 the President of the Court decided that, in the
interests of the proper administration of justice, this case should be
referred to the Chamber constituted on 27 September 1995 to hear the
case of Valsamis v. Greece (1) (Rule 21 para. 7).
_______________
1. Case no. 74/1995/580/666.
_______________
4. That Chamber included ex officio Mr N. Valticos, the elected
judge of Greek nationality (Article 43 of the Convention) (art. 43),
and Mr R. Ryssdal, the President of the Court (Rule 21 para. 4 (b));
the other seven members, drawn by lot, were Mr Thór Vilhjálmsson,
Sir John Freeland, Mr M.A. Lopes Rocha, Mr L. Wildhaber,
Mr G. Mifsud Bonnici, Mr D. Gotchev and Mr P. Jambrek (Article 43 in
fine of the Convention and Rule 21 para. 5) (art. 43).
5. As President of the Chamber (Rule 21 para. 6), Mr Ryssdal,
acting through the Registrar, consulted the Agent of the
Greek Government ("the Government"), the applicants' lawyers and the
Delegate of the Commission on the organisation of the proceedings
(Rules 37 para. 1 and 38). Pursuant to the order made in consequence,
the Registrar received the applicants' memorial on 24 July 1996. The
Government considered it unnecessary to file one. On 9 August 1996 the
Secretary to the Commission indicated that the Delegate did not wish
to reply in writing.
6. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
26 August 1996. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr P. Georgakopoulos, Senior Adviser,
Legal Council of State, Delegate of the Agent,
Mrs K. Grigoriou, Legal Assistant,
Legal Council of State, Counsel;
(b) for the Commission
Mr M.P. Pellonpää, Delegate;
(c) for the applicants
Mr P.E. Bitsaxis, of the Athens Bar,
Mr N. Alivizatos, Professor of Constitutional Law,
University of Athens, Advisers.
The Court heard addresses by Mr Pellonpää, Mr Alivizatos,
Mr Bitsaxis and Mr Georgakopoulos.
At the hearing the Delegate of the Agent of the Government
filed certain documents.
AS TO THE FACTS
I. Circumstances of the case
7. The three applicants are Jehovah's Witnesses. Petros and
Anastassia Efstratiou are the parents of Sophia, who was born in 1978
and is currently a pupil in the last three years of
State secondary education at a school at Komotini.
According to them, pacifism is a fundamental tenet of their
religion and forbids any conduct or practice associated with war or
violence, even indirectly. It is for this reason that
Jehovah's Witnesses refuse to carry out their military service or to
take part in any events with military overtones.
8. At the start of the school year 1993/94 Mr and Mrs Efstratiou
submitted a written declaration in order that their daughter Sophia,
then 14, should be exempted from attending
school religious-education lessons, Orthodox Mass and any other event
that was contrary to her religious beliefs, including
national-holiday celebrations and public processions.
9. Sophia was exempted from attendance at religious-education
lessons and Orthodox Mass.
In October 1993, however, she, in common with the other pupils
at her school, was asked to take part in the celebration of the
National Day on 28 October, when the outbreak of war between Greece and
Fascist Italy on 28 October 1940 is commemorated with school and
military parades.
On this occasion school parades take place in nearly all towns
and villages. In the capital there is no military parade on
28 October, and in Salonika the school parade is held on a different
day from the military parade. The school and military parades are only
held simultaneously in a small number of municipalities.
Sophia refused to parade on account of her religious beliefs.
10. On 1 November 1993 the teachers' committee at her school
punished her for her failure to attend with two days' suspension from
school. That decision was taken in accordance with Circular no. C1/1/1
of 2 January 1990 issued by the Ministry of Education and
Religious Affairs (see paragraph 14 below).
11. On 11 November 1994 Sophia was again punished with suspension,
for one day, on the ground that she had not taken part in the
school parade held on 28 October 1994.
II. Relevant domestic law and practice
A. On religion
12. The 1975 Constitution contains the following provisions:
Article 3
"1. The dominant religion in Greece is that of the
Christian Eastern Orthodox Church. The Greek Orthodox Church,
which recognises as its head Our Lord Jesus Christ, is
indissolubly united, doctrinally, with the Great Church of
Constantinople and with any other Christian Church in
communion with it [omodoxi], immutably observing, like the
other Churches, the holy apostolic and synodical canons and
the holy traditions. It is autocephalous and is administered
by the Holy Synod, composed of all the bishops in office, and
by the standing Holy Synod, which is an emanation of it
constituted as laid down in the Charter of the Church and in
accordance with the provisions of the Patriarchal Tome of
29 June 1850 and the Synodical Act of 4 September 1928.
2. The ecclesiastical regime in certain regions of the
State shall not be deemed contrary to the provisions of the
foregoing paragraph.
3. The text of the Holy Scriptures is unalterable. No
official translation into any other form of language may be
made without the prior consent of the autocephalous
Greek Church and the Great Christian Church at
Constantinople."
Article 13
"1. Freedom of conscience in religious matters is
inviolable. The enjoyment of personal and political rights
shall not depend on an individual's religious beliefs.
2. There shall be freedom to practise any known religion;
individuals shall be free to perform their rites of worship
without hindrance and under the protection of the law. The
performance of rites of worship must not prejudice
public order or public morals. Proselytism is prohibited.
3. The ministers of all known religions shall be subject to
the same supervision by the State and to the same obligations
to it as those of the dominant religion.
4. No one may be exempted from discharging his obligations
to the State or refuse to comply with the law by reason of his
religious convictions.
5. No oath may be required other than under a law which
also determines the form of it."
13. A royal decree of 23 July 1833 entitled "Proclamation of the
Independence of the Greek Church" described the Orthodox Church as
"autocephalous". Greece's successive Constitutions have referred to
the Church as being "dominant". According to Greek conceptions, the
Orthodox Church represents de jure and de facto the religion of the
State itself, a good number of whose administrative and educational
functions (marriage and family law, compulsory religious instruction,
oaths sworn by members of the Government, etc.) it moreover carries
out. Its role in public life is reflected by, among other things, the
presence of the Minister of Education and Religious Affairs at the
sessions of the Church hierarchy at which the Archbishop of Athens is
elected and by the participation of the Church authorities in all
official State events; the President of the Republic takes his oath of
office according to Orthodox ritual (Article 33 para. 2 of the
Constitution); and the official calendar follows that of the
Christian Eastern Orthodox Church.
B. On school matters
14. Circular no. C1/1/1 of 2 January 1990 issued by the
Ministry of Education and Religious Affairs provides:
"Schoolchildren who are Jehovah's Witnesses shall be exempted
from attending religious-education lessons, school prayers and
Mass.
...
In order for a schoolchild to benefit from this exemption,
both parents (or, in the case of divorced parents, the parent
in whom parental authority has been vested by court order, or
the person having custody of the child) shall lodge a written
declaration to the effect that they and their child (or the
child of whom they have custody) are Jehovah's Witnesses.
...
No schoolchild shall be exempted from taking part in other
school activities, such as national events."
15. The relevant Articles of Presidential Decree no. 104/1979 of
29 January and 7 February 1979 are the following:
Article 2
"1. The behaviour of pupils inside and outside the school
shall constitute their conduct, irrespective of the manner -
by act or by omission - in which they express it.
Pupils shall be required to conduct themselves suitably, that
is to say in accordance with the rules governing school life
and the moral principles governing the social context in which
they live, and any act or omission in contravention of the
rules and principles in question shall be dealt with according
to the procedures provided in the educational system and may,
if necessary, give rise to the disciplinary measures provided
in this decree."
The disciplinary measures laid down in Article 27 of the same
decree are, in increasing order of severity, a warning, a reprimand,
exclusion from lessons for an hour, suspension from school for up to
five days and transfer to another school.
Article 28 para. 3
"Suspended pupils may remain at school during teaching hours
and take part in various activities, under the responsibility
of the headmaster."
C. Appeals
1. The right of petition
16. Article 10 of the Constitution provides:
"Any person, or persons acting jointly, shall be entitled,
subject to compliance with the laws of the State, to submit
written petitions to the authorities. The latter shall be
required to act as quickly as possible in accordance with the
provisions in force and to give the petitioner a reasoned
written reply in accordance with the statutory provisions."
Article 4 of Legislative Decree no. 796/1971 provides:
"Once the authorities have received the petition [provided for
in Article 10 of the Constitution], they must reply in writing
and give the petitioner all necessary explanations, within the
time deemed absolutely necessary, which shall not exceed
thirty days from service of the petition."
2. Judicial review
17. Article 95 of the Constitution is worded as follows:
"The following shall in principle lie within the jurisdiction
of the Supreme Administrative Court:
(a) the setting aside, on application, of enforceable acts of
the administrative authorities for misuse of authority or
error of law.
..."
According to the settled case-law of the
Supreme Administrative Court, "decisions of school authorities to
impose on pupils the penalties provided in Article 27 of
Presidential Decree no. 104/1979 are intended to maintain the necessary
discipline within schools and contribute to their smooth running; they
are internal measures which cannot be enforced through the courts, and
no application lies to have them set aside by the courts"
(judgments nos. 1820/1989, 1821/1989 and 1651/1990). Only transfer to
another school has been held to be enforceable and amenable to being
quashed by the Supreme Administrative Court (judgment no. 1821/1989).
3. Actions for damages
18. Section 105 of the Introductory Law to the Civil Code provides:
"The State shall be under a duty to make good any damage
caused by the unlawful acts or omissions of its organs in the
exercise of public authority, except where the unlawful act or
omission is intended to serve the public interest. The person
responsible shall be jointly and severally liable, without
prejudice to the special provisions on ministerial
responsibility."
This section establishes the concept of a special prejudicial
act in public law, creating State liability in tort. This liability
results from unlawful acts or omissions. The acts concerned may be not
only legal acts but also physical acts by the administrative
authorities, including acts which are not in principle enforceable
through the courts (Kyriakopoulos, Interpretation of the Civil Code,
section 105 of the Introductory Law to the Civil Code, no. 23;
Filios, Contract, Special Part, volume 6, Tort, 1977, para. 48 B 112;
E. Spiliotopoulos, Administrative Law, 3rd edition, para. 217;
Court of Cassation judgment no. 535/1971, Nomiko Vima, 19th year,
p. 1414; Court of Cassation judgment no. 492/1967, Nomiko Vima,
16th year, p. 75).
The admissibility of an action for damages is subject to
one condition, namely the unlawfulness of the act or omission.
Article 57 of the Civil Code ("Personal rights") provides:
"Any person whose personal rights are unlawfully infringed
shall be entitled to bring proceedings to enforce cessation of
the infringement and restraint of any future infringement.
Where the personal rights infringed are those of a deceased
person, the right to bring proceedings shall be vested in his
spouse, descendants, ascendants, brothers, sisters and
testamentary beneficiaries. In addition, claims for damages
in accordance with the provisions relating to unlawful acts
shall not be excluded."
PROCEEDINGS BEFORE THE COMMISSION
19. The applicants applied to the Commission on 25 April 1994.
They alleged violations of Article 2 of Protocol No. 1 (P1-2) and of
Articles 3 and 9 of the Convention (art. 3, art. 9) and of Article 13
of the Convention taken together with the aforementioned Articles
(art. 13+P1-2, art.13+3, art. 13+9).
20. On 16 October 1995 the Commission declared the application
(no. 24095/94) admissible. In its report of 11 April 1996 (Article 31)
(art. 31), it expressed the opinion that
(a) there had been no violation of Article 2 of Protocol No. 1
(P1-2) in respect of the first two applicants (twenty votes to eight);
(b) there had been no violation of Article 9 of the Convention
(art. 9) in respect of the third applicant (nineteen votes to nine);
(c) there had been no violation of Article 3 of the Convention
(art. 3) in respect of the third applicant (unanimously);
(d) there had been a violation of Article 13 of the Convention
taken together with Article 2 of Protocol No. 1 (art. 13+P1-2) in
respect of the first two applicants (twenty-three votes to five);
(e) there had been a violation of Article 13 of the Convention
taken together with Article 9 of the Convention (art. 13+9) in respect
of the third applicant (twenty-four votes to four);
(f) there had been no violation of Article 13 of the Convention
taken together with Article 3 of the Convention (art. 13+3) in respect
of the third applicant (unanimously).
The full text of the Commission's opinion and of the
five separate opinions contained in the report is reproduced as an
annex to this judgment (1).
_______________
Note by the Registrar
1. For practical reasons this annex will appear only with the printed
version of the judgment (in Reports of Judgments and
Decisions 1996-VI), but a copy of the Commission's report is obtainable
from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT
21. In their memorial the Government requested the Court to dismiss
the application as being unfounded.
AS TO THE LAW
22. Relying on Article 2 of Protocol No. 1 (P1-2) and Articles 3,
9 and 13 of the Convention (art. 3, art. 9, art. 13), the applicants
complained of the penalties of suspension from school that were imposed
in November 1993 and November 1994 on the pupil Sophia, who had refused
to take part in the school parade on 28 October - a national day in
Greece - on account of her own and her parents' religious beliefs.
They relied on the Commission's opinion in the case of Arrowsmith
v. the United Kingdom (application no. 7050/75, Decisions and
Reports 19, p. 19, para. 69), according to which pacifism as a
philosophy fell within the ambit of the right to freedom of thought and
conscience, and the attitude of pacifism could thus be seen as a belief
protected by Article 9 para. 1 (art. 9-1). They therefore claimed
recognition of their pacifism under the head of religious beliefs,
since all Jehovah's Witnesses were bound to practise pacifism in daily
life.
I. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 1 (P1-2)
23. Mr and Mrs Efstratiou alleged that they were the victims of a
breach of Article 2 of Protocol No. 1 (P1-2), which provides:
"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."
The parents did not allege any breach of Sophia's right to
education. On the other hand, they considered that the above provision
(P1-2) prohibited requiring their daughter to take part in events
extolling patriotic ideals to which they did not subscribe; pupils'
education should be provided through history lessons rather than
school parades.
24. The Government contested the parents' submission, arguing that
the school parade on 28 October had no military overtones such as to
offend pacifist convictions.
They disputed that Mr and Mrs Efstratiou's belief could count
as a conviction for the purposes of Article 2 of Protocol No. 1 (P1-2).
They added that the State's educational function, which had to be
understood in a broad sense, allowed it to include in pupils'
school curriculum the requirement to parade on 28 October.
The National Day commemorated Greece's attachment to the values
of democracy, liberty and human rights which had provided the
foundation for the post-war legal order. It was not an expression of
bellicose feelings, nor did it glorify military conflict.
Communal celebration of it retained today an idealistic and pacifist
character that was strengthened by the presence of school parades.
Lastly, a pupil's temporary suspension had a negligible effect
on the annual programme of study and could not be regarded as a denial
of the right to education.
25. In the Commission's view, the convictions of
Jehovah's Witnesses were protected by Article 2 of Protocol No. 1
(P1-2) and the school parade in question was not of a military
character incompatible with pacifist convictions.
At the hearing the Delegate added that the scope of Article 2
of Protocol No. 1 (P1-2) was limited; the provision (P1-2) must enable
parents to obtain exemption from religious-education lessons if the
religious instruction was contrary to their convictions, but it did not
require the State to guarantee that all their wishes, even if they were
founded on their convictions, should be acceded to in educational and
related matters. In this instance, the pupil had not been refused the
right to education by being suspended for only a short time.
26. The Court does not consider that it must rule of its own motion
on the question whether the pupil Sophia's right to education was
respected.
It reiterates that "the two sentences of Article 2 [of
Protocol No. 1] (P1-2) must be read not only in the light of each other
but also, in particular, of Articles 8, 9 and 10 of the Convention
(art. 8, art. 9, art. 10)" (see the Kjeldsen, Busk Madsen and Pedersen
v. Denmark judgment of 7 December 1976, Series A no. 23, p. 26,
para. 52).
The term "belief" ("conviction") appears in Article 9 (art. 9)
in the context of the right to freedom of thought, conscience and
religion. The concept of "religious and philosophical convictions"
appears in Article 2 of Protocol No. 1 (P1-2). When applying that
provision (P1-2), the Court has held that in its ordinary meaning
"convictions", taken on its own, is not synonymous with the words
"opinions" and "ideas". It denotes "views that attain a certain level
of cogency, seriousness, cohesion and importance" (see the
Campbell and Cosans v. the United Kingdom judgment of 25 February 1982,
Series A no. 48, p. 16, para. 36).
27. As the Court observed in its judgment of 25 May 1993 in the
case of Kokkinakis v. Greece (Series A no. 260-A, p. 18, para. 32),
Jehovah's Witnesses enjoy both the status of a "known religion" and the
advantages flowing from that as regards observance.
Mr and Mrs Efstratiou were accordingly entitled to rely on the right
to respect for their religious convictions within the meaning of this
provision (P1-2). It remains to be ascertained whether the State
failed to discharge its obligations to respect those convictions in the
applicants' case.
28. The Court reiterates that Article 2 of Protocol No. 1 (P1-2)
enjoins the State to respect parents' convictions, be they religious
or philosophical, throughout the entire State education programme
(see the Kjeldsen, Busk Madsen and Pedersen judgment cited above,
p. 25, para. 51). That duty is broad in its extent as it applies not
only to the content of education and the manner of its provision but
also to the performance of all the "functions" assumed by the State.
The verb "respect" means more than "acknowledge" or "take into
account". In addition to a primarily negative undertaking, it implies
some positive obligation on the part of the State (see the
Campbell and Cosans judgment cited above, p. 17, para. 37).
The Court has also held that "although individual interests
must on occasion be subordinated to those of a group, democracy does
not simply mean that the views of a majority must always prevail: a
balance must be achieved which ensures the fair and proper treatment
of minorities and avoids any abuse of a dominant position"
(Young, James and Webster v. the United Kingdom judgment of
13 August 1981, Series A no. 44, p. 25, para. 63).
29. However, "the setting and planning of the curriculum fall in
principle within the competence of the Contracting States. This mainly
involves questions of expediency on which it is not for the Court to
rule and whose solution may legitimately vary according to the country
and the era" (see the Kjeldsen, Busk Madsen and Pedersen judgment cited
above, p. 26, para. 53). Given that discretion, the Court has held
that the second sentence of Article 2 of Protocol No. 1 (P1-2) forbids
the State "to pursue an aim of indoctrination that might be regarded
as not respecting parents' religious and philosophical convictions.
That is the limit that must not be exceeded" (ibid.).
30. The imposition of disciplinary penalties is an integral part
of the process whereby a school seeks to achieve the object for which
it was established, including the development and moulding of the
character and mental powers of its pupils (see the
Campbell and Cosans judgment cited above, p. 14, para. 33).
31. In the first place, the Court notes that Miss Efstratiou was
exempted from religious-education lessons and the Orthodox Mass, as had
been requested by her parents. The latter also wished to have her
exempted from having to parade during the national commemoration on
28 October.
32. While it is not for the Court to rule on the Greek State's
decisions as regards the setting and planning of the school curriculum,
it is surprised that pupils can be required on pain of suspension from
school - even if only for two days - to parade outside the
school precincts on a holiday.
Nevertheless, it can discern nothing, either in the purpose of
the parade or in the arrangements for it, which could offend the
applicants' pacifist convictions to an extent prohibited by the
second sentence of Article 2 of Protocol No. 1 (P1-2).
Such commemorations of national events serve, in their way,
both pacifist objectives and the public interest. The presence of
military representatives at some of the parades which take place in
Greece on the day in question does not in itself alter the nature of
the parades.
Furthermore, the obligation on the pupil does not deprive her
parents of their right "to enlighten and advise their children, to
exercise with regard to their children natural parental functions as
educators, or to guide their children on a path in line with the
parents' own religious or philosophical convictions"
(see, mutatis mutandis, the Kjeldsen, Busk Madsen and Pedersen judgment
cited above, p. 28, para. 54).
33. It is not for the Court to rule on the expediency of other
educational methods which, in the applicants' view, would be better
suited to the aim of perpetuating historical memory among the
younger generation. It notes, however, that the penalty of suspension,
which cannot be regarded as an exclusively educational measure and may
have some psychological impact on the pupil on whom it is imposed, is
nevertheless of limited duration and does not require the exclusion of
the pupil from the school premises (Article 28 para. 3 of
Decree no. 104/1979 - see paragraph 15 above).
34. In conclusion, there has not been a breach of Article 2 of
Protocol No. 1 (P1-2).
II. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION (art. 9)
35. Miss Efstratiou relied on Article 9 of the Convention (art. 9),
which provides:
"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."
She asserted that the provision (art. 9) guaranteed her right
to the negative freedom not to manifest, by gestures of support, any
convictions or opinions contrary to her own. She disputed both the
necessity and the proportionality of the interference, having regard
to the seriousness of the penalty, which stigmatised her and
marginalised her.
36. In the Government's submission, Article 9 (art. 9) protected
only aspects of religious practice in a generally recognised form that
were strictly a matter of conscience. The State was not under an
obligation to take positive measures to adapt its activities to the
various manifestations of its citizens' philosophical or
religious beliefs.
37. The Commission considered that Article 9 (art. 9) did not
confer a right to exemption from disciplinary rules which applied
generally and in a neutral manner and that in the instant case there
had been no interference with the applicant's right to freedom to
manifest her religion or belief.
38. The Court notes at the outset that Miss Efstratiou was exempted
from religious education and the Orthodox Mass, as she had requested
on the grounds of her own religious beliefs. It has already held, in
paragraphs 32-34 above, that the obligation to take part in the school
parade was not such as to offend her parents' religious convictions.
The impugned measure therefore did not amount to an interference with
her right to freedom of religion either (see, in particular, the
Johnston and Others v. Ireland judgment of 18 December 1986, Series A
no. 112, p. 27, para. 63).
39. There has consequently not been a breach of Article 9 of the
Convention (art. 9).
III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION (art. 3)
40. Miss Efstratiou went on to allege, without giving any
particulars, that her suspension from school was contrary to Article 3
of the Convention (art. 3), which provides:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
41. The Government did not express a view.
42. The Court reiterates that ill-treatment must attain a
minimum level of severity if it is to fall within the scope of
Article 3 (art. 3) (see, in particular, the Ireland
v. the United Kingdom judgment of 18 January 1978, Series A no. 25,
p. 65, para. 162, and the Campbell and Cosans judgment cited above,
pp. 12-13, paras. 27-28). Like the Commission, it perceives no
infringement of this provision (art. 3).
43. In conclusion, there has been no breach of Article 3 of the
Convention (art. 3).
IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION (art. 13)
44. The three applicants also complained of a breach of Article 13
of the Convention (art. 13), which provides:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before
a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity."
They asserted that no effective remedy was available to them
for submitting their complaints and having the disciplinary penalty set
aside.
45. The Government accepted that it was not possible to apply to
the Supreme Administrative Court to have the disciplinary measure -
which was purely educational - set aside. Apart from the general
remedies provided in the Constitution, the applicants could, however,
avail themselves of those provided by Article 57 of the Civil Code, for
infringement of personal rights, and section 105 of the
Introductory Law to the Civil Code, for compensation for damage
sustained as a result of an unlawful act by a public authority. The
protection guaranteed by the courts therefore satisfied the
requirements of Article 13 (art. 13).
46. The Delegate of the Commission pointed out at the hearing that
the remedies were inadequate as they presupposed a finding that the
public authority's act complained of was unlawful.
47. The Court reiterates that Article 13 (art. 13) secures to
anyone claiming on arguable grounds to be the victim of a violation of
his rights and freedoms as protected in the Convention an effective
remedy before a national authority in order both to have his claim
decided and, if appropriate, to obtain redress (see, in particular, the
following judgments: Klass and Others v. Germany, 6 September 1978,
Series A no. 28, p. 29, para. 64; Plattform "Ärzte für das Leben"
v. Austria, 21 June 1988, Series A no. 139, p. 11, para. 25; and
Vilvarajah and Others v. the United Kingdom, 30 October 1991, Series A
no. 215, p. 39, para. 122).
48. The conclusions in paragraphs 34 and 39 above do not mean that
the allegations of failure to comply with Article 2 of Protocol No. 1
(P1-2) and Article 9 of the Convention (art. 9) were not arguable. The
Court accepts that they were. The applicants were therefore entitled
to have a remedy in order to raise their allegations. On the other
hand, as regards the complaint under Article 3 of the Convention
(art. 3), on which Miss Efstratiou did not expand, the Court considers
that it contains no arguable allegation of a breach
(see, mutatis mutandis, the Powell and Rayner v. the United Kingdom
judgment of 21 February 1990, Series A no. 172, pp. 14-15,
paras. 31-33).
49. It must accordingly be determined whether Greece's legal order
afforded the applicants an effective remedy within the meaning of
Article 13 of the Convention (art. 13) that enabled them to put forward
their arguable complaints and obtain redress.
It was common ground that it was not possible to apply to the
administrative courts for judicial review. That being so, the
applicants could not obtain a judicial decision that the disciplinary
measure of suspension from school was unlawful. Such a decision,
however, is a prerequisite for submitting a claim for compensation
(see paragraph 18 above). The actions for damages referred to in
Article 57 of the Civil Code and section 105 of the Introductory Law
to the Civil Code were therefore of no avail to them. As to the other
remedies relied on, the Government cited no instance of their use
similar to the present case, and their effectiveness has accordingly
not been established.
50. Like the Commission, the Court thus finds, having regard to all
the circumstances of the case, that the applicants did not have an
effective remedy before a national authority in order to raise the
complaints they later submitted at Strasbourg. There has consequently
been a breach of Article 13 of the Convention taken together with
Article 2 of Protocol No. 1 and Article 9 of the Convention
(art. 13+P1-2, art. 13+9), but not taken together with Article 3 of the
Convention (art. 13+3).
V. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)
51. By Article 50 of the Convention (art. 50),
"If the Court finds that a decision or a measure taken by a
legal authority or any other authority of a High Contracting
Party is completely or partially in conflict with the
obligations arising from the ... Convention, and if the
internal law of the said Party allows only partial reparation
to be made for the consequences of this decision or measure,
the decision of the Court shall, if necessary, afford just
satisfaction to the injured party."
A. Non-pecuniary damage
52. Mr and Mrs Efstratiou and their daughter each sought
compensation in the amount of 1,000 drachmas.
53. The Government found the applicants' attitude "remarkable".
The Delegate of the Commission did not express a view.
54. The Court considers that the applicants have sustained
non-pecuniary damage but that the finding of a breach of Article 13 of
the Convention taken together with Article 2 of Protocol No. 1 and
Article 9 of the Convention (art. 13+P1-2, art. 13+9) is sufficient to
compensate them for it.
B. Costs and expenses
55. For the costs and expenses relating to the proceedings at
Strasbourg the applicants claimed a sum of 4,500,000 drachmas.
56. The Government questioned the amounts sought in respect of
lawyers' fees and sundry expenses. The Delegate of the Commission
expressed no view.
57. Having regard to the breach of Article 13 of the Convention
(art. 13), the Court, making its assessment on an equitable basis as
required by Article 50 (art. 50), awards the applicants
600,000 drachmas in respect of costs and expenses.
C. Default interest
58. According to the information available to the Court, the
statutory rate of interest applicable in Greece at the date of adoption
of the present judgment is 6% per annum.
FOR THESE REASONS, THE COURT
1. Holds by seven votes to two that there has not been a breach
of Article 2 of Protocol No. 1 (P1-2);
2. Holds by seven votes to two that there has not been a breach
of Article 9 of the Convention (art. 9);
3. Holds unanimously that there has not been a breach of
Article 3 of the Convention (art. 3);
4. Holds unanimously that there has been a breach of Article 13
of the Convention taken together with Article 2 of
Protocol No. 1 and Article 9 of the Convention (art. 13+P1-2,
art. 13+9), but not taken together with Article 3 of the
Convention (art. 13+3);
5. Holds unanimously that this judgment in itself constitutes
sufficient just satisfaction for the alleged non-pecuniary
damage;
6. Holds unanimously that the respondent State is to pay the
applicants, within three months,
600,000 (six hundred thousand) drachmas for costs and
expenses, on which sum simple interest at an annual rate of 6%
shall be payable from the expiry of the above-mentioned
three months until settlement.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 18 December 1996.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Registrar
In accordance with Article 51 para. 2 of the Convention
(art. 51-2) and Rule 53 para. 2 of Rules of Court A, the joint
dissenting opinion of Mr Thór Vilhjálmsson and Mr Jambrek is annexed
to this judgment.
Initialled: R.R.
Initialled: H.P.
JOINT DISSENTING OPINION OF JUDGES THÓR VILHJÁLMSSON AND JAMBREK
In this case we find a violation both of Article 2 of
Protocol No. 1 to the Convention (P1-2) and of Article 9 of the
Convention (art. 9). In this we disagree with the judgment. On the
other points set out in the operative provisions of the judgment we
voted in the same way as the majority of the judges.
Article 2 of Protocol No. 1 (P1-2)
Mr and Mrs Efstratiou alleged that there is a breach of this
Article (P1-2) where pupils, like their daughter Sophia, are forced as
part of their school duties to take part in organised events imbued
with a symbolism that is contrary to the most deeply held religious and
philosophical convictions of their parents. This applies even more
where the events are held in a public place, outside school, on a
national holiday with the intention of delivering a message to the
community concerned. According to Mr and Mrs Efstratiou, the pupils
are thus obliged to show publicly, by their acts, that they adhere to
beliefs contrary to those of their parents.
In our opinion, Mr and Mrs Efstratiou's perception of the
symbolism of the school parade and its religious and
philosophical connotations has to be accepted by the Court unless it
is obviously unfounded and unreasonable.
We do not think that the opinions of Mr and Mrs Efstratiou were
obviously unfounded and unreasonable. Even if their daughter's
participation in the parade would only have taken up part of one day
and the punishment for not attending was, in objective terms, not
severe, the episode was capable of disturbing both the parents and the
girl and humiliating Sophia. Commemorations of national events are
valuable to most people, but the Efstratiou family was under no
obligation to hold that opinion with regard to the parade at issue in
this case. Neither is it an argument against finding a violation that
the participation was part of Sophia's education, because the nature
of such school activities is not neutral and they do not form part of
the usual school curriculum.
For these reasons we find a violation of Article 2 of
Protocol No. 1 (P1-2).
Article 9 (art. 9)
Sophia Efstratiou stated that the parade she did not
participate in had a character and symbolism that were clearly contrary
to her neutralist, pacifist, and thus religious, beliefs. We are of
the opinion that the Court has to accept that and we find no basis for
seeing Sophia's participation in this parade as necessary in a
democratic society, even if this public event clearly was for most
people an expression of national values and unity.
We therefore find a violation of Article 9 (art. 9).