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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> VALSAMIS v. GREECE - 21787/93 [1996] ECHR 72 (18 December 1996) URL: http://www.bailii.org/eu/cases/ECHR/1996/72.html Cite as: [1998] ELR 430, (1997) 24 EHRR 294, [1996] ECHR 72

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In the case of Valsamis v. Greece (1),

The European Court of Human Rights, sitting, in accordance with

Article 43 (art. 43) of the Convention for the Protection of

Human Rights and Fundamental Freedoms ("the Convention") and the

relevant provisions of Rules of Court A (2), as a Chamber composed of

the following judges:

Mr R. Ryssdal, President,

Mr Thór Vilhjálmsson,

Mr N. Valticos,

Sir John Freeland,

Mr M.A. Lopes Rocha,

Mr L. Wildhaber,

Mr G. Mifsud Bonnici,

Mr D. Gotchev,

Mr P. Jambrek,

and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy

Registrar,

Having deliberated in private on 2 September and

27 November 1996,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

1. The case is numbered 74/1995/580/666. The first number is the

case's position on the list of cases referred to the Court in the

relevant year (second number). The last two numbers indicate the

case's position on the list of cases referred to the Court since its

creation and on the list of the corresponding originating applications

to the Commission.

2. Rules A apply to all cases referred to the Court before the entry

into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only

to cases concerning States not bound by that Protocol (P9). They

correspond to the Rules that came into force on 1 January 1983, as

amended several times subsequently.

_______________

PROCEDURE

1. The case was referred to the Court by the European Commission

of Human Rights ("the Commission") on 13 September 1995, within the

three-month period laid down by Article 32 para. 1 and Article 47 of

the Convention (art. 32-1, art. 47). It originated in an application

(no. 21787/93) against the Hellenic Republic lodged with the Commission

under Article 25 (art. 25) by three Greek nationals, Elias, Maria and

Victoria Valsamis, on 26 April 1993.

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby Greece recognised the

compulsory jurisdiction of the Court (Article 46) (art. 46). The

object of the request was to obtain a decision as to whether the facts

of the case disclosed a breach by the respondent State of its

obligations under Article 2 of Protocol No. 1 (P1-2) and Articles 3,

9 and 13 of the Convention (art. 3, art. 9, art. 13).

2. In response to the enquiry made in accordance with Rule 33

para. 3 (d) of Rules of Court A, the applicants stated that they wished

to take part in the proceedings and designated the lawyers who would

represent them (Rule 30).

3. The Chamber to be constituted included ex officio

Mr N. Valticos, the elected judge of Greek nationality (Article 43 of

the Convention) (art. 43), and Mr R. Ryssdal, the President of the

Court (Rule 21 para. 4 (b)). On 27 September 1995, in the presence of

the Registrar, the President drew by lot the names of the other

seven members, namely Mr Thór Vilhjálmsson, Sir John Freeland,

Mr M.A. Lopes Rocha, Mr L. Wildhaber, Mr G. Mifsud Bonnici,

Mr D. Gotchev and Mr P. Jambrek (Article 43 in fine of the Convention

and Rule 21 para. 5) (art. 43).

4. As President of the Chamber (Rule 21 para. 6), Mr Ryssdal,

acting through the Registrar, consulted the Agent of the

Greek Government ("the Government"), the applicants' lawyers and the

Delegate of the Commission on the organisation of the proceedings

(Rules 37 para. 1 and 38). Pursuant to the order made in consequence,

the Registrar received the Government's memorial on 28 May 1996 and the

applicants' memorial on 29 May.

On 10 January 1996 the Commission had produced the file on the

proceedings before it, as requested by the Registrar on the President's

instructions.

5. In accordance with the President's decision, the hearing took

place in public in the Human Rights Building, Strasbourg, on

26 August 1996. The Court had held a preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr P. Georgakopoulos, Senior Adviser,

Legal Council of State, Delegate of the Agent,

Mrs K. Grigoriou, Legal Assistant,

Legal Council of State, Counsel;

(b) for the Commission

Mr M.P. Pellonpää, Delegate;

(c) for the applicants

Mr P.E. Bitsaxis, of the Athens Bar,

Mr N. Alivizatos, Professor of Constitutional Law,

University of Athens, Advisers.

The Court heard addresses by Mr Pellonpää, Mr Alivizatos,

Mr Bitsaxis and Mr Georgakopoulos.

At the hearing the Delegate of the Agent of the Government

filed certain documents.

AS TO THE FACTS

I. Circumstances of the case

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).

II. Relevant domestic law and practice

A. On religion

11. The 1975 Constitution contains the following provisions:

Article 3

"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."

Article 13

"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.

B. On school matters

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:

Article 2

"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.

Article 28 para. 3

"Suspended pupils may remain at school during teaching hours

and take part in various activities, under the responsibility

of the headmaster."

C. Appeals

1. The right of petition

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."

2. Judicial review

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).

3. Actions for damages

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."

PROCEEDINGS BEFORE THE COMMISSION

18. The applicants applied to the Commission on 26 April 1993.

They alleged violations of Article 2 of Protocol No. 1 (P1-2) and of

Articles 3 and 9 of the Convention (art. 3, art. 9) and of Article 13

of the Convention taken together with the aforementioned Articles

(art. 13+P1-2, art. 13+3, art. 13+9).

19. On 29 November 1994 the Commission declared the application

(no. 21787/93) admissible. In its report of 6 July 1995 (Article 31)

(art. 31), it expressed the opinion that

(a) there had been no violation of Article 2 of Protocol No. 1

(P1-2) in respect of the first two applicants (nineteen votes to ten);

(b) there had been no violation of Article 9 of the Convention

(art. 9) in respect of the third applicant (seventeen votes to twelve);

(c) there had been no violation of Article 3 of the Convention

(art. 3) in respect of the third applicant (unanimously);

(d) there had been a violation of Article 13 of the Convention

taken together with Article 2 of Protocol No. 1 (art. 13+P1-2) in

respect of the first two applicants (twenty-four votes to five);

(e) there had been a violation of Article 13 of the Convention

taken together with Article 9 of the Convention (art. 13+9) in respect

of the third applicant (twenty-six votes to three);

(f) there had been no violation of Article 13 of the Convention

taken together with Article 3 of the Convention (art. 13+3) in respect

of the third applicant (twenty-four votes to five).

The full text of the Commission's opinion and of the

four separate opinions contained in the report is reproduced as an

annex to this judgment (1).

_______________

Note by the Registrar

1. For practical reasons this annex will appear only with the printed

version of the judgment (in Reports of Judgments and

Decisions 1996-VI), but a copy of the Commission's report is obtainable

from the registry.

_______________

FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT

20. In their memorial the Government requested the Court to dismiss

the application as being unfounded.

AS TO THE LAW

21. Relying on Article 2 of Protocol No. 1 (P1-2) and Articles 3,

9 and 13 of the Convention (art. 3, art. 9, art. 13), the applicants

complained of the penalty of one day's suspension from school that was

imposed on the pupil Victoria, who had refused to take part in the

school parade on 28 October, a national day in Greece. Since, owing

to their religious beliefs, Mr and Mrs Valsamis were opposed to any

event with military overtones, they had sought an exemption for their

daughter, but in vain. They relied on the Commission's opinion in the

case of Arrowsmith v. the United Kingdom (application no. 7050/75,

Decisions and Reports 19, p. 19, para. 69), according to which pacifism

as a philosophy fell within the ambit of the right to freedom of

thought and conscience, and the attitude of pacifism could thus be seen

as a belief protected by Article 9 para. 1 (art. 9-1). They therefore

claimed recognition of their pacifism under the head of religious

beliefs, since all Jehovah's Witnesses were bound to practise pacifism

in daily life.

I. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 1 (P1-2)

22. Mr and Mrs Valsamis alleged that they were the victims of a

breach of Article 2 of Protocol No. 1 (P1-2), which provides:

"No person shall be denied the right to education. In the

exercise of any functions which it assumes in relation to

education and to teaching, the State shall respect the right

of parents to ensure such education and teaching in conformity

with their own religious and philosophical convictions."

The parents did not allege any breach of Victoria's right to

education. On the other hand, they considered that the above provision

(P1-2) prohibited requiring their daughter to take part in events

extolling patriotic ideals to which they did not subscribe; pupils'

education should be provided through history lessons rather than school

parades.

23. The Government contested the parents' submission, arguing that

the school parade on 28 October had no military overtones such as to

offend pacifist convictions.

They disputed that Mr and Mrs Valsamis's belief could count as

a conviction for the purposes of Article 2 of Protocol No. 1 (P1-2).

They added that the State's educational function, which had to be

understood in a broad sense, allowed it to include in pupils'

school curriculum the requirement to parade on 28 October.

The National Day commemorated Greece's attachment to the values

of democracy, liberty and human rights which had provided the

foundation for the post-war legal order. It was not an expression of

bellicose feelings, nor did it glorify military conflict. Communal

celebration of it retained today an idealistic and pacifist character

that was strengthened by the presence of school parades.

Lastly, a pupil's temporary suspension had a negligible effect

on the annual programme of study and could not be regarded as a denial

of the right to education.

24. In the Commission's view, the convictions of

Jehovah's Witnesses were protected by Article 2 of Protocol No. 1

(P1-2) and the school parade in question was not of a military

character incompatible with pacifist convictions.

At the hearing the Delegate added that the scope of Article 2

of Protocol No. 1 (P1-2) was limited; the provision (P1-2) must enable

parents to obtain exemption from religious-education lessons if the

religious instruction was contrary to their convictions, but it did not

require the State to guarantee that all their wishes, even if they were

founded on their convictions, should be acceded to in educational and

related matters. In this instance, the pupil had not been refused the

right to education by being suspended for only a short time.

25. The Court does not consider that it must rule of its own motion

on the question whether the pupil Victoria's right to education was

respected.

It reiterates that "the two sentences of Article 2 [of

Protocol No. 1] (P1-2) must be read not only in the light of each other

but also, in particular, of Articles 8, 9 and 10 of the Convention

(art. 8, art. 9, art. 10)" (see the Kjeldsen, Busk Madsen and Pedersen

v. Denmark judgment of 7 December 1976, Series A no. 23, p. 26,

para. 52).

The term "belief" ("conviction") appears in Article 9 (art. 9)

in the context of the right to freedom of thought, conscience and

religion. The concept of "religious and philosophical convictions"

appears in Article 2 of Protocol No. 1 (P1-2). When applying that

provision (P1-2), the Court has held that in its ordinary meaning

"convictions", taken on its own, is not synonymous with the words

"opinions" and "ideas". It denotes "views that attain a certain level

of cogency, seriousness, cohesion and importance" (see the

Campbell and Cosans v. the United Kingdom judgment of 25 February 1982,

Series A no. 48, p. 16, para. 36).

26. As the Court observed in its judgment of 25 May 1993 in the

case of Kokkinakis v. Greece (Series A no. 260-A, p. 18, para. 32),

Jehovah's Witnesses enjoy both the status of a "known religion" and the

advantages flowing from that as regards observance.

Mr and Mrs Valsamis were accordingly entitled to rely on the right to

respect for their religious convictions within the meaning of this

provision (P1-2). It remains to be ascertained whether the State

failed to discharge its obligations to respect those convictions in the

applicants' case.

27. The Court reiterates that Article 2 of Protocol No. 1 (P1-2)

enjoins the State to respect parents' convictions, be they religious

or philosophical, throughout the entire State education programme

(see the Kjeldsen, Busk Madsen and Pedersen judgment cited above,

p. 25, para. 51). That duty is broad in its extent as it applies not

only to the content of education and the manner of its provision but

also to the performance of all the "functions" assumed by the State.

The verb "respect" means more than "acknowledge" or "take into

account". In addition to a primarily negative undertaking, it implies

some positive obligation on the part of the State (see the

Campbell and Cosans judgment cited above, p. 17, para. 37).

The Court has also held that "although individual interests

must on occasion be subordinated to those of a group, democracy does

not simply mean that the views of a majority must always prevail: a

balance must be achieved which ensures the fair and proper treatment

of minorities and avoids any abuse of a dominant position"

(Young, James and Webster v. the United Kingdom judgment of

13 August 1981, Series A no. 44, p. 25, para. 63).

28. However, "the setting and planning of the curriculum fall in

principle within the competence of the Contracting States. This mainly

involves questions of expediency on which it is not for the Court to

rule and whose solution may legitimately vary according to the country

and the era" (see the Kjeldsen, Busk Madsen and Pedersen judgment cited

above, p. 26, para. 53). Given that discretion, the Court has held

that the second sentence of Article 2 of Protocol No. 1 (P1-2) forbids

the State "to pursue an aim of indoctrination that might be regarded

as not respecting parents' religious and philosophical convictions.

That is the limit that must not be exceeded" (ibid.).

29. The imposition of disciplinary penalties is an integral part

of the process whereby a school seeks to achieve the object for which

it was established, including the development and moulding of the

character and mental powers of its pupils (see the

Campbell and Cosans judgment cited above, p. 14, para. 33).

30. In the first place, the Court notes that Miss Valsamis was

exempted from religious-education lessons and the Orthodox Mass, as had

been requested by her parents. The latter also wished to have her

exempted from having to parade during the national commemoration on

28 October.

31. While it is not for the Court to rule on the Greek State's

decisions as regards the setting and planning of the school curriculum,

it is surprised that pupils can be required on pain of suspension from

school - even if only for a day - to parade outside the

school precincts on a holiday.

Nevertheless, it can discern nothing, either in the purpose of

the parade or in the arrangements for it, which could offend the

applicants' pacifist convictions to an extent prohibited by the

second sentence of Article 2 of Protocol No. 1 (P1-2).

Such commemorations of national events serve, in their way,

both pacifist objectives and the public interest. The presence of

military representatives at some of the parades which take place in

Greece on the day in question does not in itself alter the nature of

the parades.

Furthermore, the obligation on the pupil does not deprive her

parents of their right "to enlighten and advise their children, to

exercise with regard to their children natural parental functions as

educators, or to guide their children on a path in line with the

parents' own religious or philosophical convictions"

(see, mutatis mutandis, the Kjeldsen, Busk Madsen and Pedersen judgment

cited above, p. 28, para. 54).

32. It is not for the Court to rule on the expediency of other

educational methods which, in the applicants' view, would be better

suited to the aim of perpetuating historical memory among the

younger generation. It notes, however, that the penalty of suspension,

which cannot be regarded as an exclusively educational measure and may

have some psychological impact on the pupil on whom it is imposed, is

nevertheless of limited duration and does not require the exclusion of

the pupil from the school premises (Article 28 para. 3 of

Decree no. 104/1979 - see paragraph 14 above).

33. In conclusion, there has not been a breach of Article 2 of

Protocol No. 1 (P1-2).

II. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION (art. 9)

34. Miss Valsamis relied on Article 9 of the Convention (art. 9),

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."

She asserted that the provision (art. 9) guaranteed her right

to the negative freedom not to manifest, by gestures of support, any

convictions or opinions contrary to her own. She disputed both the

necessity and the proportionality of the interference, having regard

to the seriousness of the penalty, which stigmatised her and

marginalised her.

35. In the Government's submission, Article 9 (art. 9) protected

only aspects of religious practice in a generally recognised form that

were strictly a matter of conscience. The State was not under an

obligation to take positive measures to adapt its activities to the

various manifestations of its citizens' philosophical or

religious beliefs.

36. The Commission considered that Article 9 (art. 9) did not

confer a right to exemption from disciplinary rules which applied

generally and in a neutral manner and that in the instant case there

had been no interference with the applicant's right to freedom to

manifest her religion or belief.

37. The Court notes at the outset that Miss Valsamis was exempted

from religious education and the Orthodox Mass, as she had requested

on the grounds of her own religious beliefs. It has already held, in

paragraphs 31-33 above, that the obligation to take part in the

school parade was not such as to offend her parents' religious

convictions. The impugned measure therefore did not amount to an

interference with her right to freedom of religion either (see, in

particular, the Johnston and Others v. Ireland judgment of

18 December 1986, Series A no. 112, p. 27, para. 63).

38. There has consequently not been a breach of Article 9 of the

Convention (art. 9).

III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION (art. 3)

39. Miss Valsamis went on to allege, without giving any

particulars, that her suspension from school was contrary to Article 3

of the Convention (art. 3), which provides:

"No one shall be subjected to torture or to inhuman or

degrading treatment or punishment."

40. The Government did not express a view.

41. The Court reiterates that ill-treatment must attain a minimum

level of severity if it is to fall within the scope of Article 3

(art. 3) (see, in particular, the Ireland v. the United Kingdom

judgment of 18 January 1978, Series A no. 25, p. 65, para. 162, and the

Campbell and Cosans judgment cited above, pp. 12-13, paras. 27-28).

Like the Commission, it perceives no infringement of this provision

(art. 3).

42. In conclusion, there has been no breach of Article 3 of the

Convention (art. 3).

IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION (art. 13)

43. The three applicants also complained of a breach of Article 13

of the Convention (art. 13), which provides:

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy before

a national authority notwithstanding that the violation has

been committed by persons acting in an official capacity."

They asserted that no effective remedy was available to them

for submitting their complaints and having the disciplinary penalty set

aside.

44. The Government accepted that it was not possible to apply to

the Supreme Administrative Court to have the disciplinary measure -

which was purely educational - set aside. Apart from the general

remedies provided in the Constitution, the applicants could, however,

avail themselves of those provided by Article 57 of the Civil Code, for

infringement of personal rights, and section 105 of the

Introductory Law to the Civil Code, for compensation for damage

sustained as a result of an unlawful act by a public authority. The

protection guaranteed by the courts therefore satisfied the

requirements of Article 13 (art. 13).

45. The Delegate of the Commission pointed out at the hearing that

the remedies were inadequate as they presupposed a finding that the

public authority's act complained of was unlawful.

46. The Court reiterates that Article 13 (art. 13) secures to

anyone claiming on arguable grounds to be the victim of a violation of

his rights and freedoms as protected in the Convention an effective

remedy before a national authority in order both to have his claim

decided and, if appropriate, to obtain redress (see, in particular, the

following judgments: Klass and Others v. Germany, 6 September 1978,

Series A no. 28, p. 29, para. 64; Plattform "Ärzte für das Leben"

v. Austria, 21 June 1988, Series A no. 139, p. 11, para. 25; and

Vilvarajah and Others v. the United Kingdom, 30 October 1991, Series A

no. 215, p. 39, para. 122).

47. The conclusions in paragraphs 33 and 38 above do not mean that

the allegations of failure to comply with Article 2 of Protocol No. 1

(P1-2) and Article 9 of the Convention (art. 9) were not arguable. The

Court accepts that they were. The applicants were therefore entitled

to have a remedy in order to raise their allegations. On the other

hand, as regards the complaint under Article 3 of the Convention

(art. 3), on which Miss Valsamis did not expand, the Court considers

that it contains no arguable allegation of a breach

(see, mutatis mutandis, the Powell and Rayner v. the United Kingdom

judgment of 21 February 1990, Series A no. 172, pp. 14-15,

paras. 31-33).

48. It must accordingly be determined whether Greece's legal order

afforded the applicants an effective remedy within the meaning of

Article 13 of the Convention (art. 13) that enabled them to put forward

their arguable complaints and obtain redress.

It was common ground that it was not possible to apply to the

administrative courts for judicial review. That being so, the

applicants could not obtain a judicial decision that the disciplinary

measure of suspension from school was unlawful. Such a decision,

however, is a prerequisite for submitting a claim for compensation

(see paragraph 17 above). The actions for damages referred to in

Article 57 of the Civil Code and section 105 of the Introductory Law

to the Civil Code were therefore of no avail to them. As to the other

remedies relied on, the Government cited no instance of their use

similar to the present case, and their effectiveness has accordingly

not been established.

49. Like the Commission, the Court thus finds, having regard to all

the circumstances of the case, that the applicants did not have an

effective remedy before a national authority in order to raise the

complaints they later submitted at Strasbourg. There has consequently

been a breach of Article 13 of the Convention taken together with

Article 2 of Protocol No. 1 and Article 9 of the Convention

(art. 13+P1-2, art. 13+9), but not taken together with Article 3 of the

Convention (art. 13+3).

V. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)

50. By Article 50 of the Convention (art. 50),

"If the Court finds that a decision or a measure taken by a

legal authority or any other authority of a High Contracting

Party is completely or partially in conflict with the

obligations arising from the ... Convention, and if the

internal law of the said Party allows only partial reparation

to be made for the consequences of this decision or measure,

the decision of the Court shall, if necessary, afford just

satisfaction to the injured party."

A. Non-pecuniary damage

51. Mr and Mrs Valsamis and their daughter each sought compensation

in the amount of 1,000 drachmas.

52. The Government found the applicants' attitude "remarkable".

The Delegate of the Commission did not express a view.

53. The Court considers that the applicants have sustained

non-pecuniary damage but that the finding of a breach of Article 13 of

the Convention taken together with Article 2 of Protocol No. 1 and

Article 9 of the Convention (art. 13+P1-2, art. 13+9) is sufficient to

compensate them for it.

B. Costs and expenses

54. For the costs and expenses relating to the proceedings at

Strasbourg the applicants claimed a sum of 5,250,000 drachmas.

55. The Government questioned the amounts sought in respect of

lawyers' fees and sundry expenses and disputed the need for the

applicants to attend the hearing. The Delegate of the Commission

expressed no view.

56. Having regard to the breach of Article 13 of the Convention

(art. 13), the Court, making its assessment on an equitable basis as

required by Article 50 (art. 50), awards the applicants

600,000 drachmas in respect of costs and expenses.

C. Default interest

57. According to the information available to the Court, the

statutory rate of interest applicable in Greece at the date of adoption

of the present judgment is 6% per annum.

FOR THESE REASONS, THE COURT

1. Holds by seven votes to two that there has not been a breach

of Article 2 of Protocol No. 1 (P1-2);

2. Holds by seven votes to two that there has not been a breach

of Article 9 of the Convention (art. 9);

3. Holds unanimously that there has not been a breach of

Article 3 of the Convention (art. 3);

4. Holds unanimously that there has been a breach of Article 13

of the Convention taken together with Article 2 of

Protocol No. 1 and Article 9 of the Convention (art. 13+P1-2,

art. 13+9), but not taken together with Article 3 of the

Convention (art. 13+3);

5. Holds unanimously that this judgment in itself constitutes

sufficient just satisfaction for the alleged non-pecuniary

damage;

6. Holds unanimously that the respondent State is to pay the

applicants, within three months,

600,000 (six hundred thousand) drachmas for costs and

expenses, on which sum simple interest at an annual rate of 6%

shall be payable from the expiry of the above-mentioned

three months until settlement.

Done in English and in French, and delivered at a public

hearing in the Human Rights Building, Strasbourg, on 18 December 1996.

Signed: Rolv RYSSDAL

President

Signed: Herbert PETZOLD

Registrar

In accordance with Article 51 para. 2 of the Convention

(art. 51-2) and Rule 53 para. 2 of Rules of Court A, the joint

dissenting opinion of Mr Thór Vilhjálmsson and Mr Jambrek is annexed

to this judgment.

Initialled: R.R.

Initialled: H.P.

JOINT DISSENTING OPINION OF JUDGES THÓR VILHJÁLMSSON AND JAMBREK

In this case we find a violation both of Article 2 of

Protocol No. 1 to the Convention (P1-2) and of Article 9 of the

Convention (art. 9). In this we disagree with the judgment. On the

other points set out in the operative provisions of the judgment we

voted in the same way as the majority of the judges.

Article 2 of Protocol No. 1 (P1-2)

Mr and Mrs Valsamis alleged that there is a breach of this

Article (P1-2) where pupils, like their daughter Victoria, are forced

as part of their school duties to take part in organised events imbued

with a symbolism that is contrary to the most deeply held religious and

philosophical convictions of their parents. This applies even more

where the events are held in a public place, outside school, on a

national holiday with the intention of delivering a message to the

community concerned. According to Mr and Mrs Valsamis, the pupils are

thus obliged to show publicly, by their acts, that they adhere to

beliefs contrary to those of their parents.

In our opinion, Mr and Mrs Valsamis's perception of the

symbolism of the school parade and its religious and philosophical

connotations has to be accepted by the Court unless it is obviously

unfounded and unreasonable.

We do not think that the opinions of Mr and Mrs Valsamis were

obviously unfounded and unreasonable. Even if their daughter's

participation in the parade would only have taken up part of one day

and the punishment for not attending was, in objective terms, not

severe, the episode was capable of disturbing both the parents and the

girl and humiliating Victoria. Commemorations of national events are

valuable to most people, but the Valsamis family was under no

obligation to hold that opinion with regard to the parade at issue in

this case. Neither is it an argument against finding a violation that

the participation was part of Victoria's education, because the nature

of such school activities is not neutral and they do not form part of

the usual school curriculum.

For these reasons we find a violation of Article 2 of

Protocol No. 1 (P1-2).

Article 9 (art. 9)

Victoria Valsamis stated that the parade she did not

participate in had a character and symbolism that were clearly contrary

to her neutralist, pacifist, and thus religious, beliefs. We are of

the opinion that the Court has to accept that and we find no basis for

seeing Victoria's participation in this parade as necessary in a

democratic society, even if this public event clearly was for most

people an expression of national values and unity.

We therefore find a violation of Article 9 (art. 9).