Schoolchildren’s Right to Freedom of Religion: The Case of Papageorgiou and Others v. Greece before the ECtHR


A commentary by Noureldin Abdou*

 

A.   Introduction

In a recent unanimous Chamber judgment[1], the European Court of Human Rights (Court) rendered a unanimous Chamber decision, found the Hellenic Republic in violation of Article 2 of Protocol No. 1 (right to education) interpreted in light of Article 9 (freedom of thought, conscience, and religion) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).[2] The case involved a challenge to the regulation of compulsory religious education in Greek schools. The impugned procedure required individuals to reveal their religious beliefs and submit a solemn declaration that their children were not Orthodox Christians as a condition to apply for an exemption from religious education classes. [3]

B.   Factual and Legal Background

The applicants were five Greek nationals, parents and children, who live on the small Greek islands of Milos and Sifnos.[4] Under the Greek Constitution and other legislative texts, such as the Law on Education and various ministerial decisions, religious education is mandatory for all schoolchildren at primary and secondary level, the exemption from which is to be attained through a specific procedure.[5] In July 2017, the applicants asked the Supreme Administrative Court to annul two recent ministerial decisions setting the procedure for exemption from the religious education course.[6] The applicants asked to have their case examined under an urgent procedure before the start of the new school year but the Supreme Administrative Court dismissed their requests for lack of importance.[7] The case was never adjudicated because the initial hearing scheduled kept on being adjourned several times until September 2018 by which time the school year had already finished.[8] In their applications, the applicants extensively argued that the procedure for exemption from religious classes was contrary to Articles 8, 9 and 14 of the ECHR.[9] First, that the exemption procedure was contingent upon submitting a solemn declaration indicating their non‑Greek Orthodox Christian affiliation and thus contrary to the negative aspect of Article 9 ECHR. Second, such declarations were retained in school records subject to verification by the school principal, bearing a potential for criminal liability, had the latter considered their content false and reported to the public prosecutor,[10] contrary to Article 8 ECHR. Third, the offered religious education programme was not provided in an objective pluralistic manner.

C.   The Reasoning of the ECHR

The Court chose to examine the applicants’ complaint solely from the standpoint of Article 2 of Protocol No. 1 to the Convention, reading the provision in the light of Article 9 ECHR, which guarantees schoolchildren the right to an education in a form that respects their right to believe or not to believe.[11] The main issue in the case was the obligation imposed on the parents to disclose sensitive aspects of their private life, furnished in the form of a solemn declaration that their children were not Greek Orthodox Christians in order to have them exempted from the religious education course that does not correspond to their beliefs.[12] Despite the existence of varying exemption mechanisms offered by almost all of the Member States, including the option of attending a lesson in a substitute subject,[13] what mattered was whether the conditions for exemption or opting out were likely to place an undue burden on parents, as was the case of requiring them to disclose their religious or philosophical convictions.[14] The Court found that the applicant parents were in a situation forcing them into submitting a declaration from which it could have been inferred that they and their children held, or did not hold, a specific religious belief.[15] The Court considered that the current system for exempting children from religious education classes in Greece risked exposing sensitive aspects of the applicants’ private life.[16] The potential for conflict was likely to deter them from making such a request, especially in the case of living on small islands, where the great majority of the population owed allegiance to one particular religion and the risk of stigmatization was much higher than in big cities.[17] Furthermore, as pointed out by the applicants, no other classes were offered to exempted pupils, meaning they would have lost school hours for the very fact of their declared beliefs.[18] The Court stressed that the authorities did not have the right to intervene in the sphere of individual conscience, to ascertain individuals’ religious belief or to oblige them to reveal their beliefs.[19] Accordingly, the Court held that there had been a violation of Article 2 of Protocol No. 1, as interpreted in the light of Article 9 of the ECHR.[20]

D.   Analysis

In addressing the applicants’ complaints, the main arguments put forth by the Court rested on the following contours:

  I.        General Principles

The case reaffirms the Court’s settled jurisprudence regarding the general interpretation of Article 2 of Protocol No. 1.[21] The Article is dominated by its first sentence, providing the fundamental right to education, whereas the second sentence is an ‘adjunct’ ‘grafted onto the fundamental right to education’[22], acting as a check against potential indoctrination and safeguarding pluralism in education, which is deemed essential for the preservation of the democratic society as conceived by the Convention.[23] In the same vein, the second sentence of the Article should be read in light of not only the first sentence of the same Article, but also in light of Articles 8, 9 and 10 ECHR, and the general spirit of the Convention as a whole.[24] In the field of education and teaching, Article 2 of Protocol No. 1 functions as a lex specialis in relation to Article 9, whereby Member States are under the obligation to respect the right of parents to ensure that education in State schools is in conformity with their own religious and philosophical convictions.[25] Such duty is wide enough to encompass not only the content of education and the manner in which it is provided (e.g. a given religion having the preponderant weight in religious education and compulsory sex education)[26], but also extends to the performance of all the functions assumed by the State in that regard (e.g. access to educational establishments and disciplinary measures,[27] and presence of religious symbols in schoolrooms[28]).

   II.        Right to Respect Parents’ Religious and Philosophical Convictions

The case sets an example for the extent of permissible accommodation to the religious and philosophical convictions of parents regarding the education of their children. On the one hand, the Court reiterated that the word ‘respect’ in Article 2 of Protocol No.1 extends beyond the mere fact of ‘acknowledging or taking into account’[29] to include a positive obligation on the part of the State granting parents the right to demand respect for their convictions in teaching religion.[30] On the other hand, such duty is not indefinite in light of a wide margin of appreciation afforded to the State in determining the steps to be taken to ensure compliance with the Convention, with due regard to the needs of the community and the individual. Consequently, the Article cannot be interpreted in a manner entitling the parents to demand from the State a right to provide a tailored form of teaching in accordance with their beliefs or convictions.[31] To that effect, ‘conviction’ is construed not as a synonym for opinions or ideas, but more akin to belief.[32] In particular, it corresponds to views that attain a certain level of cogency, importance, cohesion and seriousness, which are worthy of respect in a democratic society, not incompatible with human dignity and do not conflict with the fundamental right of the child to education.[33]

  III.        Not Only Indoctrination

For the applicants to succeed based on former jurisprudence, they had to establish that the procedure surrounding mandatory religious course constituted less of an imparting of information process in an objective and pluralistic manner and leaning more towards an aim at indoctrination. Interestingly though, it could be perceived that the Court may have adopted a different approach, when it avoided engaging directly with the content of the religious education lessons or the mechanism of their delivery and focused on the exemption procedure instead,[34] notwithstanding the constitutional status of the Greek Orthodox faith as the ‘prevailing religion’.[35]

The Greek State defended the legality of the exemption procedure before the Court relying on the admissible restrictions to the parents’ right along the lines of the second paragraph in Articles 8-10 ECHR. In so doing, the Government argued: that the procedure was prescribed by law (the circulars and ministerial decisions fulfilling the constitutional mandate as per Article 16.2), pursued a legitimate aim (fending the abuse of the right to exemption from the constitutionally sanctioned religious education course), and that the solemn declaration and verification aspects as such were necessary for public interest.[36] For the Court, the gist of the matter was the undue burden placed on the parents when applying for the exemption, due to the risk of exposing sensitive aspects of their private life against the background of a small religiously compact society, in addition to the chilling effect of criminal liability potentially arising from the verification process.[37] In the same vein, the Court asserted that requiring the parents to submit a solemn declaration amounted to forcing them to adopt a behavior from which it could be inferred whether they and their children held or did not hold a specific religious affiliation, rendering the absence of an explicit obligation to declare the religious belief unavailing.[38] Eventually, the Court stressed that authorities had no right to intervene in the sphere of individual conscience and to ascertain religious beliefs of individuals or to oblige them to reveal them.

E.   Concluding Remarks

The case demonstrated the Court’s defense of two cardinal principles. First, guaranteeing that the measures are undertaken in a manner that safeguards pluralism, which is a characteristic of the democratic society and a cornerstone value of the Convention. Second, maintaining the margin of appreciation-subsidiarity dyad. The Court has not departed much from its former Article 2 of Protocol No.1 jurisprudence, yet few observations remain. First, while considering the views of all stakeholders including Greek NGOs, a major shift in this case, it seems, that the main thrust of the decision was centered on the undue burden element, without delving into the specific nature of the religious education programme in its reformed version. This could be attributed to the catechetical nature of the course when coupled with the stringent procedure, which treated those of a particular faith not as individuals but more of a monolithic group. Accordingly, parents belonging to a religious minority were forced to choose between either having their children attend a course indoctrinating them in a different faith on the one hand, or facing potential stigmatization for opting out on the other hand.[39] So, in a way, while considering the central role of religion in the Greek State, it could be inferred that the Court has gently touched upon an attempt at indoctrination without expressly spelling it out.

A second point to consider is how the Court refrained from addressing directly the data retention issue. The exemption procedure involved keeping of records containing sensitive personal data, which according to the applicants, did not fall within the ambit of the guarantees of the Directive 95/46/EC.[40] Despite being a non-binding decision, it is worth noting that the Greek Data Protection Authority already ruled last September on the illegality of the solemn declaration aspect in the exemption procedure formerly alluded to, and also on the illegality of keeping records of the religious faiths of students.[41]  Thus, whether the Court purposefully ignored to address the matter pursuant to Article 8 ECHR or even tacitly left it to the Court of Justice of the European Union to decide on it is yet to be discovered. It is certainly commendable how the Greek State embarked upon a reform process in the area of religious education, a subject by its very nature bearing a viable potential to stir political and social tension. As evident from the facts of the case however, the ‘New School Program’ and the associated exemption procedure have succeeded to provoke contention across a wide spectrum of Greek society, from the non-Greek Orthodox to the Church of Greece.[42] In all cases, State’s discretion in regulating education must never injure the substance of the right in question nor conflict with other rights enshrined in the Convention or its Protocols.[43]

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* Noureldin Abdou, LL.M., is a PhD candidate and Research Associate at the Chair for EU Law, Public International Law and Public Law of Prof. Dr. Thomas Giegerich.

[1] ECtHR, application nos. 4762/18 and 6140/18, Papageorgiou and Others v. Greece, judgment of 31/10/2019.

[2] Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on that day. Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution. Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution .

[3] ECtHR Press Release, ECHR 376 (2019), 31.10.2019 https://hudoc.echr.coe.int/eng-press#%20 (1/11/2019).

[4] (fn. 1), para. 6.

[5] Ibid. paras. 16-27.

[6] Ibid. paras. 7-8.

[7] Ibid. para. 10.

[8] Ibid. para. 11.

[9] Ibid. para. 9.

[10] Ibid. paras. 20-22 and 27. The impugned circular mandates school principals to verify the documentation supporting grounds of exemption in accordance with Sections 8 and 22(6) of the Law on relations between state and its citizens, as well as Article 37 of the Code of Criminal Procedure.

[11] Ibid. para. 36-39.

[12] Ibid. paras. 81.

[13] Ibid. para. 82.

[14] Ibid. para. 87.

[15] Ibid. para. 88.

[16] Ibid. para. 87.

[17] Ibid.

[18] Ibid.

[19] Ibid. para. 89.

[20] Ibid. para. 90.

[21] See: ECtHR, application no. 29086/12, Osmanoğlu and Kocabaş v. Switzerland, judgment of 10 January 2017, para 90; and ECtHR, application no. 30814/06, Lautsi and Others v. Italy [GC], judgment of 18 March 2011, para. 59.

[22] ECtHR, applications nos. 7511/76; 7743/76, Campbell and Cosans v. United Kingdom, judgment of 25 February 1982, para. 41.

[23] ECtHR, application nos. 5095/71; 5920/72; 5926/72, Kjeldsen, Busk Madsen and Pedersen v. Denmark judgment of 7 December 1976, paras. 50-52.

[24] ECtHR, application no. 15472/02, Folgerø and Others v. Norway [GC], judgment of 29 June 2007, para. 84.

[25] (fn. 4), para. 37.

[26] ECtHR, application no. 15472/02, Folgerø and Others v. Norway [GC], judgment of 29 June 2007, para. 96-97, and ECtHR, application nos. 5095/71; 5920/72; 5926/72, Kjeldsen, Busk Madsen and Pedersen v. Denmark judgment of 7 December 1976, paras. 57-58.

[27] ECtHR, applications nos. 7511/76; 7743/76, Campbell and Cosans v. United Kingdom, judgment of 25 February 1982, para. 41-42.

[28] ECtHR, application no. 30814/06, Lautsi and Others v. Italy [GC], judgment of 18 March 2011, para. 63.

[29] (fn. 4), para. 82.

[30] ECtHR, applications nos. 7511/76; 7743/76, Campbell and Cosans v. United Kingdom, judgment of 25 February 1982, para. 37.; and ECtHR, application no. 30814/06, Lautsi and Others v. Italy [GC], judgment of 18 March 2011, para. 61.

[31] (fn. 4), para. 76.

[32] ECtHR, application no. 21787/93, Valsamis v. Greece, judgment of 18 December 1996, para. 25; and ECtHR, applications nos. 7511/76; 7743/76, Campbell and Cosans v. United Kingdom, judgment of 25 February 1982, paras. 36-37; and see ECtHR, application no. 1448/04, Hasan and Elyem Zengin v. Turkey, judgment of 9 October 2007, who was denied an exemption from mandatory lessons in religion and morals on account of belonging to the Alevi faith.

[33] Ibid.

[34] (fn. 4), para.81.

[35] Ibid. para. 16, Article 3 of the Greek Constitution. For detailed analysis of this article see: Kryiazopoulos, The “Prevailing Religion” in Greece: Its Meaning and Implications, Journal of Church and State 2001, p. 511 et seq.

[36] (fn. 4), para.27.

[37] Ibid. para. 87; and (fn. 10).

[38] Ibid.

[39] (fn. 4), para. 74.

[40] Directive 95/46/EC, on the protection of individuals with regard to the processing of personal data and on the free movement of such data, Official Journal L 281 , 23/11/1995 P. 0031 – 0050. It was later repealed by Regulation (EU) No. 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), OJ L 119, 4.5.2016, p. 1–88, art. 94. (At the time of lodging the applications, the new regulation was not yet in force).

[41] https://greece.greekreporter.com/2019/09/05/greek-independent-authority-rules-against-recording-of-religious-faith-at-school/ and https://www.thenationalherald.com/261139/greek-students-wont-have-to-declare-their-religion-natonality/  (2/11/2019).

[42] (fn. 4), paras. 23, 29 and 32.

[43] ECtHR, applications nos. 7511/76; 7743/76, Campbell and Cosans v. United Kingdom, judgment of 25 February 1982, para. 41.