SOFIANOPOULOS, SPAÏDIOTIS, METALLINOS and KONTOGIANNIS v. GREECE
Inadmissible
The applicants, Mr Vassilios Sofianopoulos, Mr Konstantinos Spaïdiotis, Mr Georgios Metallinos and Mr Spyridon Kontogiannis, are Greek nationals who were born in 1942, 1964, 1940 and 1938 respectively and live in Athens and in Thebes. They were represented before the Court by Mr G. Mavros, a lawyer practising in Athens. Law no. 87/1945, on the compulsory production of identity cards, provided that in order to facilitate identity checks identity cards must record the bearer’s religion. Article 2 of Legislative Decree no. 127/1969, on the evidential value of identity cards, required identity cards to record the bearer’s religion, among other information. The situation was changed by Law no. 1599/1986, which concerned relations between the State and its citizens, the introduction of a new type of identity card and other measures; section 3 provided that it was not compulsory to record a person’s religion on his or her identity card, this being done only at the bearer’s request. However, Law no. 1599/1986 was never applied, as the Minister of the Interior extended the application of Legislative Decree no. 127/1969. Law no. 1988/1991 once again made it compulsory to record religion on identity cards. By its decision no. 510 of 15 May 2000 the authority responsible for personal data protection (“the authority”) ruled that recording certain information, including the bearer’s religion, on identity cards constituted processing of personal data which was incompatible with Law no. 2472/1997 on the protection of individuals with regard to processing of personal data (epexergasia dedomenon prosopikou charactira). The authority then invited the Ministry of Public Order to take the necessary steps to ensure that a note indicating the bearer’s religion would be neither requested nor authorised by the services responsible for issuing new identity cards. It referred to the European Convention on Human Rights and the Council of Europe’s Convention for the protection of individuals with regard to automatic processing of personal data. It expressed the view that, regard being had to the purpose of data processing, namely, in the present instance, checking people’s identities, the following information was not necessary: fingerprints, the name and forename of the spouse, sex, occupation, nationality, home address and religion. With regard to religion, the authority pointed out that this information concerned a matter of individual conscience and was therefore not indispensable for establishing identity. It also took the view that the individual’s consent did not necessarily make the processing of all this information legitimate, since such consent could not have the effect of authorising processing which was illegitimate in itself or contrary to the aim pursued or the principle of necessity. On 9 June 2000 an association, the Society of Judges for Democracy and Freedoms, stated in the press: “Recording religion on identity cards, even on a voluntary basis, is contrary to the fundamental provisions of the Constitution, which guarantee freedom of religion”. By a joint decision of 17 July 2000 the Ministers of Economic Affairs and Public Order established the type of the new identity card and the information it should contain, which no longer included religion. On 31 July, 22 August and 12 September 2000 the applicants asked the Supreme Administrative Court to set aside the joint decision of 17 July 2000 on the ground that it did not include religion in the information to be recorded in identity cards; they alleged an infringement of the freedom of religion, guaranteed by Article 13 of the Constitution. The hearing in the case, and in a number of similar cases, took place on 1 December 2000 before the Supreme Administrative Court sitting as a full court. At the beginning of the hearing the applicants challenged for bias those judges who, as members of the Society of Judges for Democracy and Freedoms, had publicly spoken out against recording religion on identity cards. Nine judges declared that they were members of the association and two others pointed out that Law no. 2472/1997 barred judges from revealing, even of their own accord, whether they belonged to it. By its interlocutory decision no. 152/2000 the full court of the Supreme Administrative Court dismissed the challenge for bias. It noted that the judges in question had not taken any part in publication of the declaration by the association’s executive committee and had accordingly not adopted any position on the matter. Furthermore, the declaration had been published in the press during the judicial vacation and without the knowledge of the judges challenged. On the other hand, by its decision no. 151/2000, the full court ruled that the president of the association, who was a member of the Supreme Administrative Court, should be excluded from the hearing. In its judgment no. 2285/2001 the Supreme Administrative Court held by a majority that, whether it was voluntary or compulsory, recording religion in identity cards would breach Article 13 of the Constitution. It ruled in the following terms: “Freedom of religious conscience, which protects the individual’s religious beliefs against any state interference, includes, among other things, 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 is possible to conclude that he has such beliefs. No state authority or organisation has the right to interfere in the field of an individual’s conscience, which is inviolable, according to the Constitution, or seek to discover his religious beliefs, or oblige him to reveal his religious beliefs through external signs. An individual’s voluntary disclosure of his beliefs to the authorities with a view to the exercise of certain specific rights conferred by law for the purposes of protecting freedom of religion (for example, the right to be exempted from military service as a conscientious objector, or from religious education lessons or other obligations imposed on schoolchildren, such as attending mass or prayers, or to establish a place of worship or religious association) is another matter. Consequently, the obligation to record religion on identity cards ... would breach Article 13 of the Constitution... The positive aspect of freedom of religion (manifestation of beliefs) consists in the right for everybody to manifest his religion or beliefs without hindrance either alone or in community with others and in public or private in so far as he does not offend against public order or morals and subject to the restrictions laid down in the fourth paragraph of Article 13 of the Constitution. However, that freedom does not include the right for individuals to manifest their religion or their religious beliefs by recording them, if they wish to do so, in public documents such as identity cards. Not only does Article 13 of the Constitution not confer such a right on persons entitled to freedom of religion ..., but it prohibits the recording, even on a voluntary basis, of religion or religious beliefs in identity cards as a means of manifesting or proving them. The effect of any other interpretation would be to infringe the freedom of religion ... of those Greeks who do not wish to manifest their religious beliefs in that manner and to do away with the State’s religious neutrality with regard to exercise of that individual right... When Greeks refuse to record their religion or religious beliefs in their identity cards their refusal is noted by a public authority in a public document which can be shown to any authority or service or to private individuals for the identification of the bearer, and they are obliged to reveal, indirectly and almost publicly, one aspect of their thoughts on religious matters. At the same time, they distinguish themselves, against their will and by interference of the public authorities, from those Greeks who disclose their religious beliefs by recording them in their identity cards. Moreover, the recording of religion in identity cards opens the way to positive or negative discrimination and thus creates the risk of interference with religious equality, guaranteed by Article 13 § 1 of the Constitution.” As regards the complaint of a violation of Article 9 of the Convention, the Supreme Administrative Court held that, because recording religion was contrary to Article 13 of the Constitution, it should be rejected, since international conventions ratified by law prevailed over legislation but not the Constitution. Article 3 of the Constitution provides: “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. ...” Article 13 of the Constitution provides: “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.” Articles 5 and 6 of the Council of Europe’s Convention for the protection of individuals with regard to automatic processing of personal data, adopted in Strasbourg on 28 January 1981 and ratified by Greece through Law no. 2062/1992, provide: “Quality of data Personal data undergoing automatic processing shall be: a. obtained and processed fairly and lawfully; b. stored for specified and legitimate purposes and not used in a way incompatible with those purposes; c. adequate, relevant and not excessive in relation to the purposes for which they are stored; d. accurate and, where necessary, kept up to date; e. preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored.” “Special categories of data Personal data revealing racial origin, political opinions or religious or other beliefs ... may not be processed automatically unless domestic law provides appropriate safeguards. The same shall apply to personal data relating to criminal convictions.”