Stuck in the middle with Papageorgiou: Missed or new opportunities?

Effie Fokas is a political scientist and a Senior Research Fellow at the Hellenic Foundation for European and Foreign Policy, Research Associate of the London School of Economics Hellenic Observatory, and member of the Henry Luce/Leadership 100 project on Orthodoxy and Human Rights (Orthodox Christian Studies Center, Fordham University). She was also Principal Investigator of the ERC-funded Grassrootsmobilise Research Programme, which was one of three interveners in the Papageorgiou case.

Introduction

On 31 October 2019, the European Court of Human Rights delivered its judgement on the case of Papageorgiou and Others v. Greece, thus adding to its rich case law to do with religious education. Papageorgiou concerns the claim of Greek parents and students that the Greek mandatory religious education and its exemption process violate their Art.2, Protocol 1 right to education in accordance with their own religious or philosophical convictions. The exemption right was limited only to students who are not Orthodox and who submit a formal ‘solemn declaration’ to this effect to their school. On this basis both families in the case also claim violation of their Article 8 right to respect for private life, their Article 9 right to freedom of religion, and the Article 14 prohibition of discrimination.

Context

This case arose in the context of a highly politically charged environment regarding religious education in Greece specifically, and church-state relations more generally. Within this setting, the nature of religious education and the conditions under which exemption could be sought had changed significantly over the space of a few years. In terms of the latter, through a succession of 5 different circulars issued between 2002 and 2015 by the Ministry of Education, Research and Religious Affairs (let us temporarily suspend judgement on the naming of that ministry), exemption from religious education shifted from a right available only to adherents of a minority faith, to a right for anyone objecting to religious education, and back to a more restricted scope. Under the 2015 exemption regime, in effect when the Papageorgiou case was lodged, those seeking exemption from the course were required to submit a written solemn declaration indicating that the student is not an Orthodox Christian; the religious education teacher had to countersign the declaration; and the school principal was required to verify the declaration in accordance with any accompanying documentation (e.g., a birth certificate) and to caution the parents of the seriousness of the solemn declaration (under Greek legislation, ‘any person knowingly declaring false facts’ in such declarations ‘shall be punished by imprisonment of at least three months’).

Meanwhile, new content for the religious education course had been under development since 2011, aiming toward a less denominational (focused explicitly on the teaching of Orthodox Christianity) and more pluralistic course. Despite backlash from the majority Orthodox Church as well as from conservative factions of theologians, the new religious education programme was finally formally introduced into high school and primary/middle school respectively through two decisions by the then Minister of Education, Research and Religious Affairs on 13 and 16 June 2017.

Facts

On 12 July 2017, the applicants filed an application with the Supreme Administrative Court (Symvoulio tis Epikratias, henceforth StE) for annulment of those June 2017 ministry decisions, on the grounds that the new religious education was, contrary to the government’s initial aim, ‘not an objective, critical and pluralist religious education course’ and thus still required an exemption procedure. The applicants also argued that the exemption procedure was contrary to Articles 8, 9 and 14 of the ECHR. They asked that their cases be examined as a matter of urgency by the StE ‘Holidays Section’, as allowed for by Greek legislation, so that the students would enjoy exemption from religious education the next school year beginning in September 2017, under more favourable terms than those set out in the 2015 ministry circular. The court dismissed the latter request, and scheduled a hearing for 12 October 2017, which was then rescheduled a further eight times. The applicants then lodged a complaint with the ECtHR, which deemed the case admissible on the basis of exhaustion of domestic remedies, given the remedy available through the StE was rendered ineffective by the successive adjournments of the hearings.

A striking parallel story which makes it into the ‘circumstances of the case’ section of the ECtHR judgment is that the Greek StE also had before it another set of cases against the same ministerial decisions of 2017 regarding religious education, raised by a Greek Orthodox bishop and a union of theologians (amongst others) who had diametrically opposed claims to those of the Applicants in Papageorgiou about the changes to religious education introduced by those ministerial decisions: the course, in those claimants’ view, is (to paraphrase) too objective, critical and pluralistic and as such is contrary to the Greek constitutional provision (Article 16, p.2) according to which ‘Education constitutes a basic mission for the State and shall aim at the moral, intellectual, professional and physical training of Greeks, the development of national and religious conscience and at their formation as free and responsible citizens’. (Emphasis added; here too let us temporarily suspend judgement of the pairing of ‘national’ and ‘religious’ conscience). The Greek government defended the StE’s delays in hearing the cases of Papageorgiou and others on the basis that ‘it had anticipated the issuance of judgments’ in those two other cases. In this sense, the Greek StE was ‘stuck’ between two opposing claims rejecting the same programme of religious education.

Judgment

In Papageorgiou and Others v. Greece, the Court limits its assessments to the exemption process. It notes at para 84 that

‘what matters in respect of Article 2 of Protocol No.1 is to ascertain whether the conditions imposed by the circular setting out the exemption procedures are likely to place an undue burden on parents and require them to disclose their religious and philosophical convictions in order to have their children exempted from the religious education course’.

After two paragraphs in which it explains in detail that exemption procedure, the Court correctly and rather predictably considers, in the following paragraph, that the system of exemption is indeed capable of placing undue burden on parents. Reprimanding the State authorities for intervention in the sphere of individual conscience, the Court declares a breach of the applicants’ rights under Article 2 of Protocol No.1 as interpreted in the light of Article 9.

Comments

A cursory glance at the text of the judgement provokes an observation which is more substantive than superficial: the Court’s assessments on the merits add up to a mere four pages – around half the average length of the same section in the (differently) relevant cases of Folgero v. Norway, Grzelak v. Poland, Lautsi v. Italy, and Hasan and Eylem Zengin v. Turkey. In this way, from one perspective at least, Papageorgiou gives the sense that the Court was in a hurry to get it off its desk (or to get the [Greek political] hot potato off its hands). Another perspective though could see the Court as valiantly seeking to offer a remedy which was timely enough to be practically applicable for the students in question. Either way, it is certainly notable that the cases of Papageorgiou and others were lodged with the Court in January of 2018, the Greek government was notified of the applications in March of 2018, and the judgment was issued within the following calendar year: this is a speed for which this particular court is not reputed .

That said, this was rather a clear-cut case, in the sense that the exemption procedure entailed such a gross violation of rights regarding the processing and protection of private information such as one’s religious affiliation (or lack thereof). Thus presumably, in Papageorgiou the Court found a glaring enough problem in the exemption process which it could single out as reason enough to vindicate the Applicants. But its choice to limit itself to the exemption issue is somewhat striking from a number of perspectives.

First, the Court’s statement in para.77,

‘Although, in the past, the Convention organs have not found education providing information on religions to be contrary to the Convention, they have carefully scrutinized whether students were obliged to take part in a form of religious worship or were exposed to any religious indoctrination. In the same context, the arrangements for exemption are also a factor to be taken into account’,

sits uneasily with the Court’s declaration at para.81, that ‘[i]n the circumstances of the case, the content of religious education lessons as such is not directly connected to that of exemption from the course and the Court will not consider it separately’. In other words, the Court explains that in the past its approval of religious education has been contingent on its careful scrutiny of religious education in content and context, with exemption arrangements as ‘also a factor’ (as if of secondary importance), and then proceeds to declare the question of content of religious education in Papageorgiou as ‘not directly relevant’ and therefore not requiring further scrutiny.

Indeed, the Court’s decision to focus exclusively on the exemption regime is striking in the extent to which it seems to represent a departure from the Court’s jurisprudence on mandatory religious education. The right to exemption has tended to be linked to an examination of the content of the course in order to determine whether a right to exemption must be offered. In the case of Folgero v. Norway, the Court meticulously inspected both the content of the ‘Christianity, Religion and Philosophy’ (KRL) course provided and the other religion-related activities in which students participated in schools (and even the travaux preperatoires for the reform in religious education which led to the introduction of the KRL), before determining that ‘it does not appear that the respondent State took sufficient care that information and knowledge included in the curriculum be conveyed in an objective, critical and pluralistic manner for the purposes of Article 2 of Protocol No. 1’.  Also in the case of Hasan and Eylem Zengin v. Turkey, the Court first examined rather thoroughly whether the classes in religious culture and ethics were conducted in an objective, critical and pluralist manner, and secondly, whether the Article 2 of Protocol 1 enshrined right was respected.

Further, in both these cases the Court determined that Article 2 of Protocol 1 does not entail a right for parents ‘that their child be kept ignorant about religion and philosophy in their education’ (Folgero para. 89; in so doing the Court echoes the earlier case of, Kjeldsen, Busk Madsen and Pedersen v. Denmark in which the criterion of ‘critical, objective and pluralistic’ was first introduced by the Court).

The exemption-only focus is also striking because the Papageorgiou case started in reaction to a new program in religious education introduced in 2017 which was new in content, but not in exemption procedure (in place since 2015). The applicants’ submissions claimed that the course was confessional in nature and had the ultimate aim of forming religious students. According to the judgment’s presentation of the submissions, the question of the course’s content was very much central to the claim at hand.

As has been observed in scholarship on the Court’s religious education jurisprudence, the Court has tended to examine religious education programs in detail and find them insufficient in protecting Article 2 of Protocol 1, whilst at the same time maintaining that mandatory religious education is in principle acceptable. But the Court has failed to articulate clear guidelines as to how religious education could be carried out in an Article 2 of Protocol 1-acceptable manner, thus leading to ‘the prospect of a series of cases challenging syllabuses in different European countries entailing fact-sensitive analysis of the context, the legal provisions and the specific syllabus by the Court’[1].

Papageorgiou is one such case, and in one sense, it entails a missed opportunity for the Court to finally close open questions left by these preceding cases and to deliver a more definitive statement on what, exactly, a mandatory (without exemption possibility) course in religious education which is sufficiently critical, objective and pluralistic might look like. Such an engagement in Papageorgiou with the content of the course and the context in which it is presented would have undoubtedly also been useful in the Greek milieu, to help a state with a ministry called ‘Education, Research and Religious Affairs’, and whose education system is charged by the constitution to develop ‘national and religious conscience’ [emphases added], potentially get ‘unstuck’, as it were, from its difficult position defending a religious education system on two opposing fronts. With a religious education program redesigned, as was examined in Folgero, with the intention of being sufficiently critical, objective and pluralistic as to be mandatory for all, yet being taught in a far more confessional broader context than was the case in Norway (or, for that matter, than was the crucifix displayed in Italian schools[2]), Papageorgiou presented a perfect opportunity for providing greater clarity on mandatory religious education in the Greek context and beyond.

In an alternative reading though, a new opportunity might be identified in Papageorgiou, if in fact through its refusal to engage with the content and context of the religious education provided, the Court is opening a path to examining the exemption process in its own right. On the one hand, this would be a welcome development, because exemption procedures entail a socio-legal conundrum facing many states in designing religious education. But on the other hand, if this was the Court’s intention, it would have been wise for the Court to have been more explicit in this regard, because in reality the Court would also be opening a new path to challenging mandatory religious education per se, regardless of its content.

[1] Ian Leigh, ‘Objective, Critical and Pluralistic?’ in eds. Lorenzo Zucca and Camil Ungureanu Law, State and Religion in the New Europe. Debates and Dilemmas, Cambridge: Cambridge Univ. Press, 2012, pp. 192-214, at 206. See also Eugenia Relano, ‘Educational pluralism and freedom of religion: recent decisions of the European Court of Human Rights’, in British Journal of Religious Education, Vol.32, No.1, 2019, pp.19-29.

[2] In Lautsi v. Italy, the Grand Chamber overruled a chamber judgment based in part on the argument that the Italian school was sufficiently neutral in general (allowing religious dress of any faith, marking Ramadan, offering kosher meals) so as to counter interpretations of the presence of the crucifix on school walls as a marker of the school’s Catholic identity.

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