Rorate Caeli

EUROPEAN COURT OF HUMAN RIGHTS

Dimitras and Others v. Greece (applications nos. 42837/06, 3269/07, 35793/07 and 6099/08)
[See also Lautsi v. Italy]

OBLIGATION TO REVEAL RELIGIOUS CONVICTIONS
TO AVOID TAKING OATH ON BIBLE IN COURT
CONTRARY TO FREEDOM OF RELIGION

Unanimously

Violation of Article 13 (right to an effective remedy)
Violation of article 9 (freedom of thought, conscience and religion)
of the European Convention on Human Rights

Principal facts

The applicants are Panayote Dimitras, Theodoros Alexandridis, Nafsika Papanikolatou and Andrea Gilbert. The last applicant is a United States national and the other three are Greek nationals. They were born in 1953, 1976, 1955 and 1947 respectively and live in Athens.

They were summoned to appear in court on various dates between February 2006 and December 2007, as witnesses, complainants or suspects in criminal proceedings. In conformity with Article 218 of the Code of Criminal Procedure, they were asked to take the oath by placing their right hands on the Bible. Each time, they informed the authorities that they were not Orthodox Christians and preferred to make a solemn declaration instead, which they were authorised to do.

In several cases, in the standard wording of the minutes of the proceedings concerned, the words “Orthodox Christian”, were crossed out and replaced by the handwritten references “atheist” and “made a solemn declaration”, for example. Some records were actually incorrect, stating “Orthodox Christian – took the oath” when in fact the person was an atheist and had made a solemn declaration instead. Even when they appeared in court without being required to take the oath, the applicants had had to reveal their religious convictions in order to request the amendment of the standard reference to “Orthodox Christian” on the form used for the minutes.

Complaints, procedure and composition of the Court

Relying on Articles 9 (right to freedom of thought, conscience and religion), 13 (right to an effective remedy), 8 (right to respect for private and family life and correspondence) and 14 (prohibition of discrimination), the applicants complained that they had been obliged to reveal their “non-Orthodox” religious convictions when taking the oath in court.

They further alleged, relying on Article 6 § 1 (right to a fair trial), that the presence of religious symbols in the courtrooms and the fact that Greek judges were Orthodox Christians raised doubts about their impartiality.

The applications were lodged with the European Court of Human Rights on 16 August 2006, 4 January 2007, 13 July 2007 and 11 January 2008 respectively.

Judgment was given by a Chamber of seven judges, composed as follows:

Nina Vajić (Croatia), President,
Christos Rozakis (Greece),
Khanlar Hajiyev (Azerbaijan),
Dean Spielmann (Luxembourg),
Sverre Erik Jebens (Norway),
Giorgio Malinverni (Switzerland),
George Nicolaou (Cyprus), Judges,

and also Søren Nielsen, Section Registrar.

Decision of the Court
[...]
Articles 8, 9 and 14

The Court reiterated that freedom of thought, conscience and religion, which went hand in hand with pluralism, was one of the foundations of a “democratic society” and that in its religious dimension that freedom was an essential part of any believer’s identity, as well as being a precious asset for atheists, agnostics, sceptics and the unconcerned. It had already held that freedom to manifest one’s religious beliefs included an individual’s right not to reveal his faith or his religious beliefs and not to be obliged to act or refrain from acting in such a way that it was possible to conclude that he did or did not have such beliefs – and all the more so when aptitude to exercise certain functions was at stake.

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.

Having regard to these findings, the Court did not consider it necessary to examine the complaint under Articles 8 and 14 separately.

Under Article 41 (just satisfaction), the Court held that Greece was to pay the applicants 15,000 euros jointly in respect of non-pecuniary damage.

***

The judgment is available only in French. This press release is a document produced by the Registry. It does not bind the Court. The judgments are available on its website. [http://www.echr.coe.int/]

23 comments:

John (Ad Orientem) said...

LOL Aren't these the same idiots who ordered the monks to start allowing women on Mt. Athos?

Jordanes said...

These atheist flibbertygibbets remind me of the insufferable communist peasant in Monty Python and the Holy Grail. "Help! Help! I'm being repressed!"

Arthur's response is the one that ought to be given to these atheists: "Shut up! Bloody peasant!"

Anonymous said...

Annyways, Greece isn't very friendly with Roman Catholics, so this could benefit the Church.

Brad said...

I find it hard to get upset by this. Is it a surprise to you that the EU is founded on secular principles? The court affirms only that one should be allowed to make a solemn declaration rather than a religious oath without being forced to reveal one's (lack of) religious convictions. In fact, this holding (although without conceding all of the principles on which it is based) is in accordance with Humanae Vitae.

Anonymous said...

"Some records were actually incorrect, stating “Orthodox Christian – took the oath” when in fact the person was an atheist and had made a solemn declaration instead."

What value has a "solemn declaration" of "an atheist"? This is pitiful and laughable parody of justice.

Gideon Ertner said...

'What value has a "solemn declaration" of "an atheist"?'

What use does an oath sworn on the Bible have if the litigant is an atheist?

Gideon Ertner said...

Of course it is perfectly in accord with common sense to amend an oath to make it conform with what the litigant 'holds sacred,' so to speak - the atheist who swears by the Bible is naturally less inclined to respect his oath than a Christian (perhaps he could be made to swear by the European Declaration of Human Rights...?)

However I see the court's point that it is not entirely reasonable to grill litigants about their beliefs in this circumstance. But it really is a minor and trivial point. If this is the only kind of human rights 'abuses' left in Europe, the ECHR ought to be abandoned. They have too little to do.

I am not sure I see what the ECHR proposes as a solution, but it seems the logical conclusion is either that there should be no oath at all, that the oath on the Bible should be replaced by a 'solemn declaration' or that litigants should be able to opt for a 'solemn declaration' without further specification of their beliefs. The two former options are horrendous, but the latter I would deem acceptable. Such a declaration would be founded on principles of natural moral obligations that apply to all persons regardless of religion or lack thereof.

New Catholic said...

Logic? Common sense? Law? Rights?

Dear friends, their only purpose and motivation is to remove any trace of religion from the public square - any trace of Christ, to be precise. That has been their motivation for centuries.

Anyway, no comment was added to the text of the post. It is merely another picture of the Continent in our age.

Anonymous said...

I wonder what book Satanists will be allowed to swear on?

This ruling is yet another indication that the European Union is a bad idea. The State should be Catholic. When we are forced to swear on some other book, we are merely making a promise in accordance with our beliefs, knowing full well that, at law, we are bound to tell the truth.

So all the atheists should be forced to swear on the Bible. It is not the book that makes them tell the truth but the knowledge that they are bound to do so at law. The book used should be that of the state religion and of the great majority of the people, for whom the book used carries extra personal meaning.

P.K.T.P.

Anonymous said...

It is possible to be both an atheist and trustworthy. Gideon Ertner's points are cogent and correct.

Anonymous 18.41, however, is smug.

Duarte Valério said...

As usual, many people assume that the European Court of Human Rights has anything to do with the European Union. It does not. Irrespective of the goodness of the court's decisions, irrespective of the merits of the European Union, please get your facts right: the Court was instituted by the Council of Europe.

Actually, how could it be a European Union court, with justices from Azerbaijan and Switzerland?

Jack said...

Greece is officially an Orthodox country and has been such ever since it declared independence from the Turks in 1821.

I might add that the few times I have had to give testimony, I have insisted doing so on affirmation. I really question the right of a secular jurisdiction, such as any of the United States, of imposing what is essentially a spiritual obligation upon me as a Christian, which is what an oath is.

Ma Tucker said...

Are the Bibles we swear upon Catholic or the ones doctored by heretics?

I do find the process objectionable. Let your yes be yes and no be no. Those who respect Truth tell the truth. Those who do not, will/may not. I see no reason to add sacrilege to the sin of deceit. With courts ruling the legality of murdering the unborn I think all Bibles should be confiscated from the sick and satanic premises. They have become mockers of justice and bring the law into disrepute.

New Catholic said...

True, Mr. Valério. Remember, however, that, pursuant to the current institutional bases of the European Union, as defined by the Lisbon Treaty, the European Convention on Human Rights has privileged legal status for the Union (in certain ways, more so than it does for non-member States which are only members of the Council of Europe) and that, since the ECHR is the supreme interpreter of the Convention, its final decisions effectively become "general principles of the Union's law".

Anonymous said...

For an atheist swearing on anything is just an empty theater, because nobody will punish him if he lies. The difference between a believer swearing on the Bible and an atheist telling us that he will be telling truth "just because" is like between prayer and Masonic "minute of silence".

If there's no difference, why pray at all?

Seminarian said...

If I remember correctly Locke thought atheists could not be citizens precisely because of the question of oath-taking.

Crouchback said...

Mr Einstein do you solemnly swear to tell the truth...???

"Relatively speaking....yes"

We should all start playing them at their own game and see where it gets us

Anonymous said...

Time for Greece to leave the EU. What we are talking about here is a clash of culture. Our ancestors would have fund the concept of atheism or any other indifferentism odd and not really grasp the concept or lack of one.The Greeks should not be punished for refusing or not grasping the idea.
how do Christians maintain our culture unless we forcefully maintain it in the material world? Those who are atheists must live as if they believed there is a God.
For the truth is true and best for both atheist and Christian.But I have digressed. In as much as the bible is the symbolum for truth and virtue why not swear on it?

Jack said...

\\ The difference between a believer swearing on the Bible and an atheist telling us that he will be telling truth "just because" is like between prayer and Masonic "minute of silence".\\

I don't know what's so Masonic about a "minute of silence."

There are set prayers for every step in Masonic ceremonial.

Gideon Ertner said...

"For an atheist swearing on anything is just an empty theater, because nobody will punish him if he lies."

To the contrary - it is still perjury, so the state might very well punish him if he is found out.

Jason said...

"It is possible to be an atheist and be trustworthy."

I suppose. But what is his impediment to breech trust?

For him, swearing to be truthful on a bible should be no different than swearing on a comic book. Both should be equally meaningless to him.

But there is a difference for him. Denying the existence of God or anything else should leave one indifferent. But your garden variety atheist is not indifferent to the non-existent God, he hates Him and anything that speaks of Him.

Hatred of God has but one source.

shane said...

@New Catholic

Under the Lisbon Treaty, the EU, qua institution, will accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Fundamental rights, as guaranteed by the Convention "and as they result from the constitutional traditions common to Member States, shall constitute general principles of the Union's law". (Article 6 TEU). As all Member States have acceded to the Convention, any other conclusion would be absurd.

This does not mean, however, that the ECJ is going to turn itself into the EHCR. Its role is totally circumscribed by the wording of the Lisbon Treaty, especially Title VII of the Charter of Fundamental Rights of the European Union which stipulates that it is addressed in the first place to the institutions, bodies and agencies of the Union and "to the Member States only when they are implementing Union law". The Charter "does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties". Detailed explanations accompany each article of the Charter.

New Catholic said...

Shane, I did not state any other thing.

What I did say is that statutes, such as the Convention, do not interpret themselves; that, regarding the Convention, the supreme interpreter is the ECHR; that Lisbon establishes, exactly in the article you mention, that matters of human rights are general principles of the UNION's Law; and that, if the principles of human rights established by the Convention are interpreted by the ECHR, its interpretations become, by an indirect yet certain way, the law of the Union regarding Human Rights.

It is quite true that the ECJ may in theory, in individual cases, disregard the interpretation of the Convention set by the ECHR. Do you think that this is likely to happen, especially in matters in which a secular worldview could prevail?

The Supreme or Constitutional Courts of the Member-States could try to limit the damages of the ECHR interpretations, and are more likely to do so than the ECJ, particularly in the larger nations, though that remains to be seen. (Let us see, for instance, what Italy will do if its appeal on Lautsi is rejected.)