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THE FACTS

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. Note

A.  The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

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.

B.  Relevant domestic law

1.  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.”

2.  The Convention for the protection of individuals with regard to automatic processing of personal data

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:

Article 5

“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.”

Article 6

“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.”

COMPLAINTS

1.  Relying on Article 9 of the Convention, the applicants complained of the recording of religion, even on a voluntary basis, on identity cards.

2.  Relying on Article 6 § 1 of the Convention, they complained that the full court of the Supreme Administrative Court which ruled on their case was not impartial.

3.  Lastly, relying on Articles 1 and 53 of the Convention, they complained that the Supreme Administrative Court had made the application of the Convention in Greece nugatory by dismissing their complaint on summary grounds.

THE LAW

1.  The applicants alleged a violation of Article 9 of the Convention, which provides:

“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.”

The applicants submitted that recording religion in identity cards, whether on a voluntary or compulsory basis, as provided for in the legislation in force prior to the authority’s decision of 15 May 2000 and the joint decision of the Ministers of Economic Affairs and Public Order dated 17 July 2000, gave Greeks the right to declare their beliefs publicly. Forbidding the recording of religious beliefs, even on a voluntary basis, had deprived Greeks of that right, whatever their religion might be. Although the recording of religion had been compulsory for more than 50 years it had never been used to harass citizens or subject them to discriminatory treatment based on their religious beliefs.

An optional reference to religion would have satisfied the religious feelings of the vast majority of Greeks, 94 to 97% of whom were Orthodox. Article 3 of the Constitution proclaimed that the dominant religion in Greece was that of the Christian Eastern Orthodox Church, thus according that Church not merely declaratory but actually honorific status. Greek religious sensitivities had been expressed by demonstrations throughout Greece, articles in the press and petitions for the organisation of a referendum on the question. According to the Church of Greece, 3,008,901 Greeks had called for the organisation of such a referendum.

According to the applicants, an optional reference favoured religious pluralism and protected religious minorities, as it enabled non-Orthodox Greeks to manifest their difference if they so wished, thus acting as a counterweight to the proclamation of the Orthodox religion as the dominant religion; it also enabled them to obtain the State’s recognition of their different religious status and to re-establish religious equality, which might appear to be upset by the declaration made in Article 3 of the Constitution.

Prohibiting the recording of religion did not serve any of the aims listed in the second paragraph of Article 9. Neither the administrative authorities nor the Supreme Administrative Court had justified the prohibition by the need to protect public order, health, morals or the rights and freedoms of others. The Supreme Administrative Court had even ignored the complaint under Article 9 of the Convention.

The applicants submitted that the positive aspect of the freedom of religion, namely the right of everyone to manifest his religious beliefs, outweighed the negative aspect, or in other words the right not to manifest them. Even supposing that “the rights and freedoms of others” included the right of everyone not to manifest his religion or the need to avoid discrimination against religious minorities, prohibiting the recording of religion in identity cards, even on a voluntary basis, was not a necessary measure in a democratic society and infringed the principle of proportionality.

For the overwhelming majority of Greeks, who were Orthodox, “pressing social need” did not require the prohibition of the optional reference but rather the continued existence of that possibility. In the applicants’ submission, religion played an important role in Greece, not only in everyday life but also in public life; official events were always accompanied by religious ceremonies, the Christian cross was to be seen both on the national flag and its flagstaff and the icon of Christ was visible in all public places, notably in the lawcourts.

Moreover, a system providing for an optional reference did not in any way reveal the religious beliefs of persons who refused to allow this information to appear in their identity cards, nor did it suggest that they were atheists or agnostics. Lastly, every democratic society, they argued, guaranteed the right to difference, which was one element of freedom; respect for the State’s religious equality and religious neutrality was not to be ensured by hiding the fact that a number of different religious beliefs coexisted within any given society but by recognising it and avoiding discrimination.

The Court reiterates that, as enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it. While religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to “manifest [one’s] religion”. Bearing witness in words and deeds is bound up with the existence of religious convictions (see Kokkinakis v. Greece, judgment of 25 May 1993, Series A no. 260-A, p. 17, § 31).

The Court notes that the applicants complained that, pursuant to the joint decision of the Ministers of Economic Affairs and Public Order of 17 July 2000, identity cards to be issued thenceforth to Greek citizens were no longer to record the bearer’s religion. They saw in that aspect of the new identity cards an infringement of their right to manifest their religion.

The Court further notes the authority’s opinion that, in view of the purpose of the processing of data appearing in an identity card, namely to check the bearer’s identity, the following information was not necessary: fingerprints, spouse’s name and forename, sex, occupation, nationality, home address and religion. With regard to this last piece of information, the authority stated that it was a matter for individual conscience and was therefore not essential for the determination of identity. The authority also took the view that an individual’s consent did not necessarily legitimise the processing of all this information, since such consent could not justify processing which was illegitimate in itself or contrary to the aim pursued or to the principle of necessity.

The Court considers that an identity card cannot be regarded as a means intended to ensure that the adherents of any religion or faith whatsoever should have the right to exercise or manifest their religion. It acknowledges that an identity card, as such, is not essential for civil life or the functioning of the State, as evidenced by the fact that a number of States have chosen not to introduce a system of identification of citizens but to use other official documents such as passports or driving licences. However, where a State decides to introduce a system of identification by identity cards it should be accepted that these are merely official documents whereby persons may be identified and distinguished in their status as citizens and in their relations with the State’s legal system. Religious beliefs, as the authority rightly pointed out, do not constitute information that can be used to distinguish an individual citizen in his relations with the State. Not only are they a matter of individual conscience, they may also, like other information, change over a person’s lifetime. Moreover, recording them in a document exposed the bearers to the risk of discriminatory situations in their relations with the administrative authorities or even in their professional relations.

As to the assertion that a reference to religion could be optional, the Court reiterates that identity cards are official documents whose content cannot be determined by the wishes of each bearer. Once the authority had indicated, in a reasoned decision, which information was unnecessary, identity cards all had to be established on the same model, both for technical reasons and on account of legal considerations. If every individual could remove or add at his pleasure the information he considered important or relevant, the uniformity required for such an administrative document and its underlying philosophy would be impaired.

Lastly, the fact that the Orthodox Church is the dominant religion in Greece and that official events are accompanied in part by religious ceremonies, as the applicants asserted, cannot justify recording religion in identity cards. Besides, the purpose of an identity card is not to bolster its bearer’s religious feelings or to reflect the religion of a particular society at a particular time.

In conclusion, the Court considers that in the present case there has been no interference with the applicants’ right to manifest their religion.

It follows that this complaint must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

2.  The applicants further alleged a violation of Article 6 § 1 of the Convention, the relevant part of which provides:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

They submitted that the Society of Judges for Democracy and Freedoms should have refrained from making any comment about an issue on which those of its members who were judges of the Supreme Administrative Court were to rule. They asserted that the association’s declaration had raised doubts in their minds about the impartiality of the judges in question. The reasoning given by the Supreme Administrative Court in dismissing their challenge for bias had been unpersuasive, since the decisions of an association’s executive committee expressed its members’ opinions. The Supreme Administrative Court’s interlocutory decision dismissing their challenge had therefore infringed their right to a hearing by an impartial tribunal.

The Court reiterates that when the impartiality of a tribunal for the purposes of Article 6 § 1 is being determined, regard must be had not only to the personal conviction and behaviour of a particular judge in a given case – the subjective approach – but also to whether it afforded sufficient guarantees to exclude any legitimate doubts in this respect (see Thomann v. Switzerland, judgment of 10 June 1996, Reports of Judgments and Decisions 1996-III, p. 815, § 30).

The Court notes that the declaration published in the press was produced by an association to which a large number of judges from all types of court belong. The members of the Supreme Administrative Court challenged by the applicants had not as individuals adopted a position on the question of recording religion in identity cards. As the Supreme Administrative Court observed, the declaration in question was published during the judicial vacation without the judges concerned being aware of it. By allowing the challenge the Supreme Administrative Court would have given too much play to excessive formalism, which not only could not be justified in the circumstances of the case but would also have paralysed the system, as the case had to be tried by the full court of the Supreme Administrative Court (see, mutatis mutandis, Debled v. Belgium, judgment of 22 September 1994, Series A no. 292-B, p. 43, § 37). Moreover, the Court notes that the Supreme Administrative Court allowed the challenge concerning the judge of the Supreme Administrative Court who was at the same time the association’s president

It follows that this complaint must likewise be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

3.  Lastly, the applicants alleged a violation of Articles 1 and 53 of the Convention. They complained that the Supreme Administrative Court had ignored their complaint under Article 9 of the Convention and had thus made application of the Convention ineffective in Greece. They submitted that Greek judges were under an obligation to review the compatibility of domestic law with the Convention, even if they felt obliged, in the event of conflict, to apply the domestic provision.

The Court considers that the applicants’ complaints are not pertinent. It notes that although the Supreme Administrative Court did indeed make only very brief remarks about Article 9 of the Convention, it centred the reasoning of its judgment on freedom of religion as enshrined in Article 13 of the Greek Constitution, whose content is identical, for the purposes of the case, with that of Article 9 of the Convention.

It follows that this complaint too must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to join the applications;

Declares the applications inadmissible.

Check with original text. If the applicant’s name is not mentioned in the original, put his name in square brackets without commas (e.g. The applicant [Mr John Bloggs] is an Irish national…).


SOFIANOPOULOS v. GREECE DECISION


SOFIANOPOULOS v. GREECE DECISION