Valsamis v. Greece

Publisher	Council of Europe: European Court of Human Rights
Publication Date	18 December 1996
Citation / Document Symbol	74/1995/580/666
Cite as	Valsamis v. Greece, 74/1995/580/666, Council of Europe: European Court of Human Rights, 18 December 1996, available at: https://www.refworld.org/cases,ECHR,3ae6b6272c.html [accessed 19 May 2023]
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EUROPEAN COURT OF HUMAN RIGHTS

CASE OF VALSAMIS v. GREECE

(74/1995/580/666)

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

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)

The Netherlands: B.V. Juridische Boekhandel &Antiquariaat

A. Jongbloed & Zoon (Noordeinde 39, NL - 2514 GC 's-Gravenhage)

- ii -

SUMMARY

Judgment delivered by a Chamber

Greece - penalty of a 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

I. 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 a day 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-pecuniary damage: judgment afforded sufficient 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 Valsamis 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 13 September 1995, within the three-month period laid down by Article32 1 and Article47 of the Convention. It originated in an application (no. 21787/93) against the Hellenic Republic lodged with the Commission under Article25 by three Greek nationals, Elias, Maria and Victoria Valsamis, on 26 April 1993.

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 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. The Chamber to be constituted included ex officioMrN.Valticos, the elected judge of Greek nationality (Article43 of the Convention), and Mr R. Ryssdal, the President of the Court (Rule21 4(b)). On27 September 1995, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr Thór Vilhjálmsson, Sir John Freeland, Mr M.A. Lopes Rocha, Mr L. Wildhaber, Mr G. Mifsud Bonnici, Mr D. Gotchev and MrP.Jambrek (Article43 in fine of the Convention and Rule21 5).

4. 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 and 38). Pursuant to the order made in consequence, the Registrar received the Government's memorial on 28 May 1996 and the applicants' memorial on 29 May.

On10 January 1996 the Commission had produced the file on the proceedings before it, as requested by the Registrar on the President's instructions.

5. 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

I. The circumstances of the case

6. The three applicants are Jehovah's Witnesses. Elias and Maria Valsamis are the parents of Victoria, who was born in 1980 and is currently a pupil in the last three years of State secondary education at a school in Melissia, Athens.

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.

7. On 20 September 1992 Mr and Mrs Valsamis submitted a written declaration in order that their daughter Victoria, who was then 12 and in the first three years of secondary education at a school in Melissia, 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.

8. Victoria was exempted from attendance at religious-education lessons and Orthodox Mass.

In October 1992, 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.

9. Victoria informed the headmaster that her religious beliefs forbade her joining in the commemoration of a war by taking part, in front of the civil, Church and military authorities, in a school parade that would follow an official Mass and would be held on the same day as a military parade.

According to the applicants, the school authorities refused to accept her statement. In the Government's opinion, it was imprecise and muddled and did not make clear the religious beliefs in question. At all events, her request to be excused attendance was refused but she nevertheless did not take part in the school's parade.

10. On 29 October 1992 the headmaster of the school punished her for her failure to attend with one day's 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 13 below).

II. Relevant domestic law and practice

A. On religion

11. The 1975 Constitution contains the following provisions:

Article3

"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 June1850 and the Synodical Act of 4 September1928.

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

"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."

12. 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

13. Circular no. C1/1/1 of 2 January 1990 issued by the Ministry of Education and Religious Affairs provides:

"School children 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."

14. 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 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

15. 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

16. Article 95 of the Constitution is worded as follows:

"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

17. Section 105 of the Introductory Act 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 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. 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

18. The applicants applied to the Commission on 26 April 1993. 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.

19. On 29 November 1994 the Commission declared the application (no. 21787/93) admissible. In its report of 6July 1995 (Article 31), 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 (nineteen votes to ten);

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

(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-four 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-six votes to three);

(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 (twenty-four votes to five).

The full text of the Commission's opinion and of the four separateopinions contained in the report is reproduced as an annex to this judgment[fn3] .

FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT

20. In their memorial the Government requested the Court to dismiss the application as being unfounded.

AS TO THE LAW

21. Relying on Article 2 of Protocol No. 1 and Articles3, 9 and 13 of the Convention, the applicants complained of the penalty of one day's suspension from school that was imposed on the pupil Victoria, who had refused to take part in the school parade on 28 October, a national day in Greece. Since, owing to their religious beliefs, Mr and Mrs Valsamis were opposed to any event with military overtones, they had sought an exemption for their daughter, but in vain. 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 Article9 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

22. Mr and Mrs Valsamis alleged that they were the victims of a breach of Article 2 of Protocol No. 1, 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 Victoria'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.

23. 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 >

Valsamis v. Greece

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