Efstratiou v. Greece

Publisher	Council of Europe: European Court of Human Rights
Publication Date	18 December 1996
Citation / Document Symbol	77/1996/696/888
Cite as	Efstratiou v. Greece, 77/1996/696/888, Council of Europe: European Court of Human Rights, 18 December 1996, available at: https://www.refworld.org/cases,ECHR,3ae6b6524.html [accessed 19 May 2023]
Disclaimer	This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

EUROPEAN COURT OF HUMAN RIGHTS

CASE OF EFSTRATIOU v. GREECE

(77/1996/696/888)

JUDGMENT

STRASBOURG

18 December 1996

The present judgment is subject to editorial revision before its reproduction in final form in the Reports of Judgments and Decisions for 1996. These reports are obtainable from the publisher Carl Heymanns Verlag KG (Luxemburger Straße 449, D-50939 Köln), who will also arrange for their distribution in association with the agents for certain countries as listed overleaf.

- i -

List of Agents

Belgique/Belgium: Etablissements Emile Bruylant (rue de la Régence 67,

B - 1000 Bruxelles)

Luxembourg: Librairie Promoculture (14, rue Duchscher

(place de Paris), B.P. 1142, L - 1011 Luxembourg-Gare)

Pays-Bas/The Netherlands: B.V. Juridische Boekhandel & Antiquariaat

A. Jongbloed & Zoon (Noordeinde 39, NL - 2514 GC

LaHaye/'s-Gravenhage)

- ii -

SUMMARY

Judgment delivered by a Chamber

Greece - penalty of two days' and then one day's suspension from school for failure to take part in a school parade on grounds of religious beliefs of pupil and her parents, who were Jehovah's Witnesses

lI. Article 2 of Protocol No. 1

Relied on by the parents only - unnecessary for Court to consider of its own motion whether the pupil's right to education had been respected.

Recapitulation of Court's case-law.

Not for Court to rule on Greek State's decisions as regards setting and planning of school curriculum, but Court surprised that pupils could be required on pain of suspension from school, even if only for two days, to parade outside school precincts on a holiday - nevertheless, nothing, either in purpose of parade or in arrangements for it, could offend applicants' pacifist convictions to an extent prohibited by second sentence of Article 2 of Protocol No. 1.

Such commemorations of national events served, in their way, both pacifist objectives and the public interest - presence of military representatives at some of the parades which took place in Greece on day in question did not in itself alter nature of parades - furthermore, the obligation on the pupil did not deprive her parents of their right to enlighten and advise their child, to exercise with regard to their child natural parental functions as educators, or to guide their children on a path in line with their parents' own religious or philosophical convictions.

Not for Court to rule on expediency of other educational methods which, in the applicants' view, would be better suited to aim of perpetuating historical memory among younger generation - however, penalty of suspension, which could not be regarded as an exclusively educational measure and might have some psychological impact on the pupil on whom it was imposed, was nevertheless of limited duration and did not require exclusion of pupil from school premises.

Conclusion: no violation (seven votes to two).

- iii -

II. Article 9 of the Convention

Relied on by the pupil only - Court had already held that obligation to take part in school parade was not such as to offend the parents' religious convictions - impugned measure had therefore not amounted to an interference with pupil's right to freedom of religion.

Conclusion: no violation (seven votes to two).

III. Article 3 of the Convention

Recapitulation of Court's case-law.

Conclusion: no violation (unanimously).

IV. Article 13 of the Convention

The allegations of failure to comply with Article 2 of Protocol No. 1 and Article 9 of the Convention had been arguable, so that applicants had been entitled to have a remedy in order to raise them -on the other hand, the complaint under Article 3 of the Convention contained no arguable allegation of a breach.

Applicants had not been able to obtain a judicial decision that disciplinary measure of suspension from school was unlawful, which was a prerequisite for submitting a claim for compensation - the actions for damages referred to in Article 57 of Civil Code and section 105 of Introductory Law to Civil Code had therefore been of no avail to them - as to other remedies relied on, the Government had cited no instance of their use similar to the instant case, and their effectiveness had accordingly not been established.

Conclusion: violation of Article 13 taken together with Article 2 of Protocol No. 1 and Article 9 of the Convention, but not taken together with Article 3 of the Convention (unanimously).

V. Article 50 of the Convention

A. Non-pecuniarydamage:judgmentaffordedsufficient compensation.

B. Costs and expenses (before the Convention institutions): reimbursed in part.

Conclusion: respondent State to pay specified sums to applicant (unanimously).

Court's case-law referred to

7.12.1976, Kjeldsen, Busk Madsen and Pedersen v. Denmark; 18.1.1978, Ireland v. the United Kingdom; 6.9.1978, Klass and Others v. Germany; 13.8.1981, Young, James and Webster v. the United Kingdom; 25.2.1982, Campbell and Cosans v.the United Kingdom; 18.12.1986, Johnston and Others v.Ireland; 21.6.1988, Plattform " rzte für das Leben"v. Austria; 21.2.1990, Powell and Rayner v. the United Kingdom; 30.10.1991, Vilvarajah and Others v.the United Kingdom; 25.5.1993, Kokkinakis v. Greece

In the case of Efstratiou v. Greece[fn1] ,

The European Court of Human Rights, sitting, in accordance with Article43 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") and the relevant provisions of Rules of Court A[fn2] , 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:

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 Article32 1 and Article47 of the Convention. It originated in an application (no.24095/94) against the Hellenic Republic lodged with the Commission under Article25 by three Greek nationals Petros, Anastassia and Sophia Efstratiou, on 25 April 1994.

The Commission's request referred to Articles44 and 48 and to the declaration whereby Greece recognised the compulsory jurisdiction of the Court (Article46). 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 and of Articles 3, 9 and 13 of the Convention.

2. In response to the enquiry made in accordance with Rule33 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 (Rule30).

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[fn3] Rule 21 7).

4. That Chamber included ex officio Mr N. Valticos, the elected judge of Greek nationality (Article 43 of the Convention), and MrR.Ryssdal, the President of the Court (Rule 21 4 (b)); the other seven members, drawn by lot, were Mr Thór Vilhjálmsson, Sir John Freeland, MrM.A. Lopes Rocha, Mr L. Wildhaber, Mr G. Mifsud Bonnici, Mr D. Gotchev and Mr P. Jambrek (Article43 in fine of the Convention and Rule21 5).

5. As President of the Chamber (Rule21 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 (Rules37§1 and38). 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(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 P. Pellonpä, Delegate;

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 Pellonpä, Mr Alivizatos, MrBitsaxis and Mr Georgakopoulos.

At the hearing the Delegate of the Agent of the Government filed certain documents.

AS TO THE FACTS

lI. The 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 MrsEfstratiou 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 28October 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 28October, 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:

Article3

l"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 29June1850 and the Synodical Act of 4September1928.

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."

Article13

l"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 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:

l"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

l"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 3

l"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:

l"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:

l"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:

l"The following shall in principle lie within the jurisdiction of the Supreme Administrative(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 Act to the Civil Code provides:

l"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 Article 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, no. 23; Filios, "Contract. Special Part", volume 6, Tort, 1977, 48 B 112; E.Spiliotopoulos, "Administrative Law", 3rd edition, 217; Court of Cassation judgment no.535/1971; Nomiko Vima 19th year p. 1414, Court of Cassation judgment no. 492/1967, NomikoVima 16th year p. 492).

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:

l"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 ProtocolNo.1 and of Articles3 and 9 of the Convention and of Article 13 of the Convention taken together with the aforementioned Articles.

20. On 16 October 1995 the Commission declared the application (no.24095/94) admissible. In its report of 11 April 1996 (Article31), it expressed the opinion that

(a) there had been no violation of Article 2 of Protocol No.1 in respect of the first two applicants (twenty votes to eight);

(b) there had been no violation of Article 9 of the Convention in respect of the third applicant (nineteen votes to nine);

(d) there had been a violation of Article 13 of the Convention taken together with Article 2 of Protocol No. 1 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 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 in respect of the third applicant (unanimously).

The full text of the Commission's opinion and of the five separateopinions contained in the report is reproduced as an annex to this judgment[fn4] .

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 and Articles3, 9 and 13 of the Convention, 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 no. 19, p. 5, 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 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

23. Mr and Mrs Efstratiou alleged that they were the victims of a breach of Article 2 of Protocol No. 1, which provides:

l"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 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 Article2 of Protocol No. 1. 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 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 was limited; the provision 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 ProtocolNo. 1] must be read not only in the light of each other but also, in particular, of Articles 8, 9 and 10 of the Convention" (see the Kjeldsen, Busk Madsen and Pedersen v. Denmark judgment of 7December 1976, Series A no. 23, p. 26, 52).

The term "belief" ("convictions") appears in Article 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. When applying that provision, 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, 36).

27. As the Court observed in its judgment of 25 May 1993 in the Kokkinakis v. Greece case (Series A no. 260-A, p. 18, 32), Jehovah's Witnesses enjoy both the status of a "known religion" and the advantages flowing from that as regards observance. Mr and MrsEfstratiou were accordingly entitled to rely on the right to respect for their religious convictions within the meaning of this provision. 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 Article2 of Protocol No. 1 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, 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, 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, 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, 53). Given that discretion, the Court has held that the second sentence of Article 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,§33).

31. In the first place, the Court notes that MissEfstratiou 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 28October.

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 Article2 of Protocol No. 1.

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 child, to exercise with regard to their child 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, 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 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.

II. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION

35. Miss Efstratiou relied on Article 9 of the Convention, which provides:

l"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 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 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 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 18December 1986, Series A no. 112, p. 27,§63).

39. There has consequently not been a breach of Article 9 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

40. Miss Efstratiou went on to allege, without giving any particulars, that her suspension from school was contrary to Article3 of the Convention, which provides:

l"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 (see, in particular, the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, 162, and the Campbell and Cosans judgment cited above, pp. 12-13, 27-28). Like the Commission, it perceives no infringement of this provision.

43. In conclusion, there has been no breach of Article3 of the Convention.

Efstratiou v. Greece

Search Refworld

Countries

Topics