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
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
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/]