June 10, 2010
The general rule in the Greek penal law requires witnesses to take an oath on the Gospels. Accordingly witnesses are a priori considered to be of the Orthodox Christian faith. Individuals who have another religion or who do not have a religion must declare this explicitly to the judge during the hearing. When the witness follows a religion which is recognized or tolerated by the state, he or she can follow the oath taking rules of this religion. When the religion of the witness has no oath taking rules or when the witness has no religion a solemn declaration is sufficient.
In Dimitras v. Greece the Court examines whether the Greek legislator gives the possibility to witnesses to opt for the solemn declaration instead of taking the oath, taking into account the negative aspect of the religious freedom protected by article 9 ECHR.
The first concern of the Court is that the Greek Penal legislation presumes that a witness is from Orthodox Christian faith. Consequently, when someone wants to deviate from the general rule, he has to reveal his religion to the judge, or has to reveal that he has no religion. Moreover, before the hearing takes place, all witnesses must inform the court about which religion they have. The Court further highlights the differences between the penal and civil procedures before the Greek courts. In the Civil procedures, witnesses can choose between taking a religious oath or making a solemn declaration. Since in the current Greek penal law the witnesses have to declare what their religion is so as to be able to make a solemn declaration instead of taking a religious oath, the Court found a violation of article 9 ECHR. The Court concluded that the interference was not justified in its principle and not proportionate to the legitimate aim.
The Court has previously already been confronted with religious oaths in the case of Buscarini and others v. San Marino.(1999) This case concerned the obligation for parliamentarians to take the oath on the Gospels. The Court found a violation of article 9 stating that “requiring the applicants to take the oath on the Gospels was tantamount to requiring two elected representatives of the people to swear allegiance to a particular religion”. In this case the Court condemned the taking of religious oaths for parliamentarians as such. The rationale behind this conclusion was that “it would be contradictory to make the exercise of a mandate intended to represent different views of society within parliament subject to a prior declaration of commitment to a particular set of beliefs”. Of course here the case differs with the above mentioned case Dimitras v. Greece. The oath taken in the Court is more personal, while the oath in parliament is taken in the context of a public function. In the Busacarini case the Court refused to examine if a legitimate aim was pursued, contrary to the above discussed case of Dimitras. In Dimitras the Court states that the interference pursued the legitimate aim of the protection of public order, more specifically the guarantee of the proper administration of Justice.
I fully agree with the judgment in this case. Obviously it can not be that a court presupposes witnesses to follow the religious conviction of the majority of a country. One should not have to contradict this presumption before being able to testify in a case.