Might the obligation to swear an oath in court proceedings be a breach of one’s Article 9 rights? The issue came up yet again this week when Strasbourg handed down judgment in Dimitras & Ors v Greece (No. 3) 44077/09 HEJUD  ECHR 18 (French text only – but Google Translate is improving by leaps and bounds.)
The applicants, members of Greek Helsinki Monitor, a human rights NGO, do court work in criminal proceedings that engage human rights. In the course of this they keep being invited to take the oath on the Gospels in accordance with Article 218 of the Greek Code of Criminal Procedure – and in order not to have to swear, they then have to tell the court that they are not Orthodox Christians and/or that they do not want to reveal their religious beliefs and wish to make a solemn declaration instead, as provided by Article 220 of the Code. In addition, on some occasions they have been obliged to declare themselves atheists or non-Orthodox in order to request correction of the words “Orthodox Christian” in the standard minutes of the hearing.
Before the First Section they complained that because this procedure forced them to reveal their religious beliefs (or lack of them) it violated Article 9 ECHR (thought, conscience and religion) and, in addition, because they had no legal recourse under which they could raise their grievances alleging violation of their freedom of religion there had also been a violation of Article 13 (effective remedy). They also made complaints under Articles 8 (private and family life) and 14 (discrimination).
The Government contended that the choice between different types of oaths or affirmations under Article 220 § 2 of the Code of Criminal Procedure did not necessarily imply that the competent judicial authority required the applicants to disclose on each occasion whether or not they were Orthodox Christians. The criminal court did not invite applicants to explain why they did not wish to swear; all that was required was to choose between swearing and making an affirmation.
The First Section considered the complaint only in terms of Articles 9 and 13 (effective remedy). In previous cases on similar facts it had been concluded that the applicants’ freedom of religion under Article 9 had been violated because the Greek courts simply assume as a matter of principle that the people appearing before them are Orthodox Christians; and the applicants in previous cases had had to indicate, either in open court or in camera, that they were not. Article 220 of the Code of Criminal Procedure does not allow people simply to opt to make an affirmation because its wording requires the production of more detailed information about religious beliefs in order to be exempt from the presumption under Article 218 – in contrast to the position under Article 408 of the Code of Civil Procedure which gives witnesses the simple right to affirm without further ado.
Following previous findings, the Court held that there had been a violation of Articles 9 and 13. The applicants’ further complaint that the presence of religious symbols in courtrooms and the fact that the judges were Greek Orthodox Christians gave to rise doubts as to the courts’ impartiality, contrary to Article 6 § 1 (fair and public hearing), was rejected as manifestly ill-founded.
Comment: As indicated above, we have been here before. The Court itself referred to two previous cases on swearing oaths in criminal proceedings: Dimitras & Ors v Greece  ECHR (Nos 42837/06, 3237/07, 3269/07, 35793/07 and 6099/08) and Dimitras & Ors v Greece (No. 2)  ECHR (Nos. 34207/08 and 6365/09). In addition, there was Alexandridis v Greece  ECHR (No 19516/06). Alexandridis, an advocate at the Athens Court of First Instance, went to court to be sworn on taking office as required by articles 1 and 22 of the statute governing the legal profession. Not being an Orthodox Christian, he affirmed instead of the taking the oath then went to the clerk’s office to sign the form attesting that he had made the affirmation. But there were two different forms: one for the oath and the other for the affirmation – and he filled in the wrong one.
After unsuccessful attempts to extricate himself from the resulting mess, he then complained before the ECtHR that in order to affirm rather than swear he had been obliged to reveal his religious convictions, contrary to Articles 8 and 9, and that the domestic law did not provide a means of rectifying his situation, contrary to Article 13. The Government rejoinder was that it was his fault that he filled in the wrong form and, in any case, he could have had the report corrected.
The Court was unimpressed by the Government’s arguments. The provision of a request for correction did not meet the conditions of accessibility and effectiveness required by Article 13. Moreover, the prerequisite of an oath or affirmation before practising as a lawyer was not merely an abstraction but a practical issue: it assumed that all lawyers were Orthodox Christians who would wish to swear the religious oath; therefore, in order to make the solemn affirmation, Alexandridis had been obliged to reveal his religious convictions by declaring that he was not Orthodox. And the relevant national law supported that conclusion: Article 19(1) of the Civil Service Code obliged a civil servant who wished to make a solemn affirmation to declare that he or she was an atheist or of a religion that did not allow adherents to swear an oath. There had therefore been violations of Article 9 and Article 13.
In short, said the Court, the freedom to express one’s religious convictions includes the negative right not to be obliged to express them or to be obliged to act in a way that enables others to draw conclusions about them.
But the Greek Government still doesn’t seem to get it…
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