CASE OF VALSAMIS v. GREECE
No violation of Art. 3;No violation of Art. 9;No violation of P1-2;Violation of Art. 13+P1-2;Violation of Art. 13+9;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
John Freeland;N. Valticos
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). 11. The 1975 Constitution contains the following provisions: "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 June 1850 and the Synodical Act of 4 September 1928. 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." "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 para. 2 of the Constitution); and the official calendar follows that of the Christian Eastern Orthodox Church. 13. Circular no. C1/1/1 of 2 January 1990 issued by the Ministry of Education and Religious Affairs provides: "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." 14. The relevant Articles of Presidential Decree no. 104/1979 of 29 January and 7 February 1979 are the following: "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. "Suspended pupils may remain at school during teaching hours and take part in various activities, under the responsibility of the headmaster." 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." 16. Article 95 of the Constitution is worded as follows: "The following shall in principle lie within the jurisdiction of the Supreme Administrative Court: (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). 17. Section 105 of the Introductory Law 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 section 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 to the Civil Code, no. 23; Filios, Contract, Special Part, volume 6, Tort, 1977, para. 48 B 112; E. Spiliotopoulos, Administrative Law, 3rd edition, para. 217; Court of Cassation judgment no. 535/1971, Nomiko Vima, 19th year, p. 1414; Court of Cassation judgment no. 492/1967, Nomiko Vima, 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."