Oaths, the Greek judicial system and Article 9 – again

In January 2013 we posted on what was then the latest case in the saga of the Article 9 implications of the obligation to swear an oath in court proceedings in Greece. The case under consideration on that occasion was Dimitras & Ors v Greece (No. 3) [2013] ECHR 18 [French only]. The issue has come up yet again in Dimitras and Gilbert v Greece [2014] ECHR 1023, when the indefatigable Mr Dimitras returned to the fray.

The facts

Mr Dimitras is the Director of Greek Helsinki Monitor, an NGO working in the field of human rights, and his colleague Ms Gilbert is in charge of Antisemitism issues at the Monitor.

In August 2007 Mr Dimitras alerted the prosecutor at the Athens Criminal Court to an allegedly anti-Semitic article published in the daily extreme right-wing Alpha Ena and the editor and the writer of the offending article were duly prosecuted. At the prosecution in the Athens Criminal Court in January 2009, after confirming she was Jewish Ms Gilbert was joined as a civil party on payment of 30 euros. Mr Dimitras was not joined as a civil party but appeared as a witness. He was asked his religion, pursuant to Article 217 of the Code of Criminal Procedure, and informed the court that he was an atheist rather than an Orthodox Christian so as not to be obliged take a religious oath under Article 218 of the Code. Under Article 220, the judge allowed his application. In the event, the accused were acquitted. Mr Dimitras wrote to the prosecutor asking him to appeal the judgment but he was later told that his application had been rejected.

Before the First Section Mr Dimitras complained that at the hearing he was asked to provide the court with his personal data, including his religion, pursuant to Article 217 of the Code, which at the material time read:

“The witness before his testimony is invited to provide his name and surname, place of birth, home address, age and religion…” [my translation].

The offending Articles were subsequently amended to remove the requirement to state one’s religion and to provide a simple choice between a religious oath and a solemn declaration.

The Government argued that in a memorandum to the Juridical Council of State the applicants had used the terms “unfair” and “misleading” about the opinions expressed by a prosecutor at the Athens Criminal Court. It also said that, according to judicial practice, individuals were not required to reveal their religious beliefs each time they appeared. In short, the application should be dismissed as abusive [15]. The Court found that the expressions used by the applicants in their memorandum were value-judgments expressing their disagreement with the prosecutor and were neither offensive nor provocative: the application was not, therefore, abusive [19].

The judgment

A three-judge panel of the First Section ECtHR noted that the Court had examined three previous complaints by Mr Dimitras about swearing oaths in criminal proceedings and had concluded in all three cases that there had been an interference with his freedom of religion under Article 9 ECHR. The Court had accepted that Mr Dimitras had been considered by the Greek courts, in principle, as an Orthodox Christian and that in order to secure the deletion of the standard text in the court minutes he had had to disclose, either in court or in camera, that he was not (and in some occasions that he was an atheist).[23].

In the present case, the Government had not adduced any facts or arguments that could lead to a different conclusion about the proportionality of the interference with Mr Dimitras’s freedom of religion. Overall, the Court confirmed its previous findings, that Articles 218 and 220 of the Code of Criminal Procedure infringed his freedom of religion in a way that was neither justified in principle nor proportionate to the objective [24]. Moreover, the Government had not specified any other remedy available to Mr Dimitras for the alleged Article 9 violation; and though the relevant provisions of Code of Criminal Procedure had been amended, the amendments had been made after the disputed facts in the present case. The Court therefore concluded that Greece had failed to provide an effective remedy as required by Article 13 [25]. The Court rejected as ill-founded a complaint under Article 6 (fair trial). The Court found no violations in relation to Ms Gilbert [28].

Comment

It has taken the Greek Government a very long time to accept that the Articles of the Code of Criminal Procedure requiring witnesses to state their religion were not ECHR-compliant – but perhaps that is inherent in its prevailing attitude to religion. The Greek Constitution begins with the words “In the name of the Holy and Consubstantial and Indivisible Trinity”; and Article 3(1) declares that “The prevailing religion in Greece is that of the Eastern Orthodox Church of Christ…”. Moreover, under Article 3(3):

“The text of the Holy Scripture shall be maintained unaltered. Official translation of the text into any other form of language, without prior sanction by the Autocephalous Church of Greece and the Great Church of Christ in Constantinople, is prohibited”.

Caesaropapism or what? I can’t help wondering whether Article 3(3) is compliant with Article 10 ECHR on freedom of expression. Perhaps, one day, the ECtHR will consider the point.

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