CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 13 décembre 2022

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Serghides,   Yonko Grozev,   Jolien Schukking,   Darian Pavli,   Peeter Roosma,   Ioannis Ktistakis , judges , and Milan Blaško, Section Registrar, Having regard to the above application lodged on 12 August 2019, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having regard to the comments submitted by the European Humanist Federation and the National Secular Society, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Ms Pelagia Papanikolaou, is a Greek national who was born in 1983 and lives in Vouliagmeni. She was represented before the Court by the Greek Helsinki Monitor, a non-governmental organisation practising in Glyka Nera, following the decision of the President of the Section on 24   February 2020 to grant the organisation leave to represent the applicant. 2.     The Government were represented by their Agent’s delegate, Mrs   O.   Patsopoulou, Senior Advisor at the State Legal Council. 3.     The facts of the case, as submitted by the parties, may be summarised as follows. 4.     The applicant is the mother of a child born in 2019. The day after the child’s birth, the father declared the birth to an employee of the maternity hospital whom he believed was a registry office employee of the Amarousio Municipality, the region in which the maternity hospital was located. 5.     According to the applicant, the employee asked the father questions and filled in a form himself, which the father subsequently signed. In particular, the father was asked to declare, inter alia , his and the applicant’s first names and surnames, their nationalities, their professions and their religions. He declared that the applicant was Orthodox Christian and he had no religion. 6.     On the form adduced before the Court that was completed by the employee of the hospital, the space reserved for the father’s religion was left blank. On the top of the form, there is a handwritten note saying “father without religion”. The entry concerning the mother’s religion indicates “O.C.”, the abbreviation for Orthodox Christian. 7.     The form was then sent to the Amarousio registry office. The birth registration act was drawn up according to the form that had been filled in by the maternity hospital. The space left for the father’s religion is blank and the entry next to the applicant’s religion indicates that she is Orthodox Christian. RELEVANT LEGAL FRAMEWORK AND PRACTICE 8.     The relevant domestic law can be found in the Court’s judgment in Stavropoulos and Others v. Greece , no. 52484/18, §§ 8-15, 25 June 2020. 9.     In addition, the following provisions are pertinent: The Constitution 10 .     The relevant Article of the Constitution provides as follows: Article 13 “1. “Freedom of religious conscience is inviolable. The enjoyment of civil rights and liberties does not depend on the individual’s religious beliefs.” Article 28 “1. The generally recognised rules of international law, as well as international conventions, from the time they are ratified by statute and become operative according to their respective conditions, shall be an integral part of domestic Greek law and shall prevail over any contrary provision of the law. The rules of international law and of international conventions shall be applicable to aliens only under the condition of reciprocity. ...” Law no. 344/1976 11.     The relevant Articles of Law no. 344/1976 provide as follows: Article 8 Registers and registration acts “1.     In order to certify the civil situation of an individual, each registry office shall keep registers of births, weddings, civil unions (of heterosexual couples), deaths, and births of children of unknown parents. 2.     Registers are public. 3.     The acts certifying the birth, wedding, or death of an individual, the validity of civil unions, as well as modifications of the content or corrections of such acts, shall be recorded in the registers. 4.     The registration or correction or modification of the content of such acts shall be made by declaration of the person authorised under the present law ...” Article 8A Information Management System for Registration Acts “1.     The Ministry of the Interior shall create an Information Management System for Registration Acts and shall keep a central record of it. Only certified users shall have access to it ... 4.     Registration acts shall be printed solely from the Information Management System for Registration Acts and shall carry a security mark generated automatically by the system.” Article 13 Correction of registration acts “1.     In order for a registration to be corrected, a final judicial decision is required. 2.     Errors that have been recorded in a register by manifest inadvertence, which do not concern the place, day, month, year and time that the registered event took place, can also be corrected by permission of the public prosecutor, or, where there is no public prosecutor, of the magistrate. Permission shall be given following investigation and verification of the real data, at the request of anyone who has a legitimate interest ...” Article 20 Birth registration acts. Deadline for declaring a birth “1. A birth shall be declared within ten days to the registrar of the place in which it took place, by providing a certificate from a doctor or a midwife who is responsible for providing it, or, if it is not possible to have the certificate issued, by a declaration of the person who is responsible for [declaring the birth] ...” Article 22 Elements of the birth registration act “1.The birth registration act, apart from the elements referred to in Article 9, shall include: (a) the name, surname, profession and place of residence of the person who makes the declaration; (b) the place, time, date, month and year of the birth; (c) the gender of the newborn and the sequence of [his or her] birth; (d) the newborn’s name, surname, municipality and, if one exists, insurance provider; (e) the parents’ name[s], surname[s], nationalit[ies], religion[s], profession[s], place[s] of residence and date[s] of registration in the municipality. [The act] shall also include their tax number[s], social insurance number[s] and, if [they] exist, insurance provider[s]. (f) the mother’s maiden name.” Domestic case-law 12 .     On 20 September 2019 the plenary of the Supreme Administrative Court rendered judgments nos. 1759/2019 and 1760/2019, by which it granted various applicants’ applications for annulment in respect of two ministerial decisions defining the features of senior and high school diplomas. The domestic court held that the recording of religion on diplomas was in breach of Article 13 of the Constitution and Article 9 of the Convention, and therefore the part of the ministerial decisions which related to that had to be annulled. 13 .     Following the Court’s judgment in Stavropoulos and Others v. Greece (no. 52484/18, 25 June 2020), the applicants in that case lodged a new application with the Supreme Administrative Court, which held a hearing on 15   June 2021. On the basis of the Court’s finding of a violation of Article   9 of the Convention, those applicants requested that their application to annul the birth registration act of their daughter be reheard. That application for annulment – on the grounds that the word “naming” on the birth registration act revealed their religious beliefs– had previously been rejected by decision no. 536/2018 of the Supreme Administrative Court for lack of legal interest (see Stavropoulos and Others , cited above, §§ 7 and 16). In particular, the Supreme Administrative Court had held that pursuant to Law no.   344/1976, a child’s first name could be registered only by the name being given, that is to say, by the parents or the child’s official guardians declaring the child’s name before the competent registry office, irrespective of whether the child would later be christened. Therefore, the note “naming” next to the third applicant’s name merely repeated the title of Article 25 of Law no.   344/1976, and was the only legal way of giving a name. It could not therefore be claimed that it constituted grounds for religious discrimination and had caused the applicants harm ( ibid .). 14.     On 19 October 2021 the Supreme Administrative Court rendered judgment no.   1670/2021. It revoked decision no. 536/2018 and reheard the parents’ application to annul the birth registration act. The domestic court considered that the word “naming” which appeared next to the parents’   daughter’s name indicated their   choice not to christen their child, and was therefore in breach of Article 9 of the Convention, as the Court had concluded in its judgment of 25 June 2020. The Supreme Administrative Court therefore annulled the relevant birth registration act, as well as its registration in the relevant register, in so far as it concerned the handwritten word “naming”. Data Protection Authority 15 .     By decisions nos. 1446/2000 and 134/2001, the Data Protection Authority expressed its view on the registration of people’s religions in registration acts. It stated, inter alia , that copies of registration acts should include only the necessary data, otherwise the inclusion of additional information would be in violation of the rules concerning the processing of personal data, and thus be illegal. Therefore, the registration of people’s religions and the recording of such data in registry offices did not necessarily mean that that information should be included in copies of the acts, unless it was needed for the exercise of a certain right. COMPLAINTS 16.     The applicant complained under Article 9 of the Convention that the legal requirement to declare her religion upon registering her child’s birth had violated her freedom of religion. She further complained under Article   13 of the lack of any effective remedy in that regard. THE LAW Alleged violation of Article 9 of the Convention 17.     The applicant complained that the requirement set out by Article   22   (e) of Law no. 344/1976 to declare her religion when registering the birth of her child had violated her right not manifest her religion, in breach of Article 9 of the Convention, which reads as follows: “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.” The parties’ submissions (a)    The Government 18.     The Government argued that the applicant had not made use of the remedies available to her under domestic law. In particular, the applicant could have applied to correct the birth registration either to the public prosecutor, under Article 13 of Law no. 344/1976, or the magistrates’ court, under Article 782 of the Code of Civil Procedure. The applicant’s declaration of religion could be replaced by one of the following choices: “refusal to declare religion”, “religion unknown”, or “without religion”. The procedure provided for by law was simple, and a positive decision would have obliged the registrar to proceed with the correction. The Government adduced some domestic judgments by which the correction of errors in birth registration acts had been ordered. 19 .     The applicant could also have lodged an application to annul the birth registration act with the Supreme Administrative Court and argued that the relevant legislative provisions were in breach of the Constitution and the Convention. If the domestic court had accepted the applicant’s argument, then it would have annulled the birth registration act and the relevant provisions would have to have been amended. The same procedure had been followed in respect of senior and high school diplomas, where the registration of students’ religions had been considered by judgments nos. 1759/2019 and 1760/2019 and had been found to be contrary to Article 13 of the Constitution and Article 9 of the Convention, which had led to the deletion of the relevant field (see paragraph 12 above). 20.     The applicant could also have made use of the possibilities offered by Articles 57 and 59 of the Civil Code, which provided that anyone who was subjected to personal harm was entitled to seek financial compensation and “enforce cessation of the infringement and restraint of any future infringement”, and the possibility offered by Article 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. Lastly, the applicant could have made a complaint to the Data Protection Authority. 21.     Turning to the merits, the Government submitted that the religion field on the birth registration form could have been completed with the entry “unknown”, or the applicant could have refused to declare her religion, as her husband had done, which could not have led anyone to make conclusions about her religious beliefs. In any event, even if one considered that there had been an interference with the applicant’s freedom of religion, such an interference was prescribed by Article 22 of Law no. 344/1976 and was necessary in a democratic society. Registration in municipality registries was based on birth registration acts, which included, in principle, the parents’   religion. However, declaration of a religion was not obligatory, nor were registry records available to everyone. The reasons for the collection of such data were historical and statistical, and served the better administrative organisation of the State, which would facilitate citizens exercising their legal rights. Copies and excerpts of birth registration acts could be produced with or without reference to religion, so those data were only sent if the applicant wished them to be. (b)    The applicant 22.     The applicant disputed the Government’s assertion that she had had an effective remedy at her disposal. As regards the procedure before the public prosecutor or the magistrates’ court, the applicant could not have requested the correction of the entry concerning her religion, as the data registered were not fake or erroneous, similarly to the applicants in Stavropoulos . 23.     As regards an application to the Supreme Administrative Court for annulment, the applicant emphasised that the Government had not adduced any relevant example where a registration act had been annulled. In her view, the Supreme Administrative Court was not competent to annul a registration act that had been issued in accordance with the law, unlike senior and high school diplomas that had been issued pursuant to a discriminatory ministerial decision and thus fell under that court’s jurisdiction. 24.     In addition, the remedies provided for by Articles 57 and 59 of the Civil Code and Article 105 of the Introductory Law to the Civil Code were not effective remedies, as they required an unlawful act by the authorities. However, in the present case, the registration of the applicant’s religion in the birth registration act was not unlawful but prescribed by law. It was in fact the law that was in breach of the Convention, and thus any compensation that she would hypothetically be awarded by using those remedies would not change the law or the official document that had been drawn up in violation of Article 9 of the Convention. The applicant thus asserted that, having regard to the fact that there was no Constitutional Court in Greece, no effective remedy existed to modify the impugned legislative provision. 25.     As regards the merits, the applicant argued that the mere fact that there was an entry concerning religion in birth registration acts itself constituted a violation of Article 9 of the Convention, as was the case with national identity cards and senior and high school diplomas which had eventually been annulled by the Supreme Administrative Court. In the applicant’s view, her situation was similar to that of witnesses in Greek courts who had been required to declare their religion when swearing before testifying (see Dimitras and Others v.   Greece , nos. 42837/06 and 4 others, §   88, 3 June 2010), a requirement that had been changed following the Court’s judgment. Lastly, the Data Protection Authority, by decision no. 134/2001, had expressed the view that copies of birth registration acts should mention religion only when this was necessary for the exercise of one’s rights. (c)    Third-party interveners 26.     The National Secular Society (based in the United Kingdom) submitted that the obligation imposed on parents to declare their religion in order to register their child’s birth was unnecessary and forced individuals to declare their religion and have such special data on public record. That requirement entailed a risk of true religious or philosophical beliefs not being reflected and Articles 8 and 9 of the Convention being breached. 27.     The European Humanist Federation referred to the Court’s case-law under Article 8 of the Convention concerning the retention of sensitive personal data. It expressed its disagreement with the Data Protection Authority’s decision (see paragraph 15 above), stating that the collection and retention of data relating to the religious affiliation of millions of citizens was not proportionate to the aims mentioned by that authority. The legislative framework in Greece as interpreted by the Data Protection Authority was contrary to Article 9 of the Convention, because it did not include an exhaustive list of purposes for which the retention of data relating to religious affiliation was possible. In addition, the declaration had initially been made to a person who was not a public official, namely the maternity hospital employee. The data were retained forever, even after one’s death, which further indicated the non-proportionate character of the interference. In any event, an individual’s consent to revealing his or her religious affiliation was not pertinent, as the requirement was contrary to the principle of necessity. The European Humanist Federation additionally argued that there was a sort of consensus between the member States of the Council of Europe that the religious affiliation of a new-born or his or her parents should not be registered upon the birth of a child; forty-one member States did not register such data in birth registration acts, the only exceptions being Greece and Cyprus (for the rest of the States it had not been possible to find out their practice on the matter within the time-limit set for their observations). The Court’s assessment 28.     The Court notes that the Government have put forward an objection of non-exhaustion of domestic remedies, referring to several remedies that were available to the applicant in order to secure her rights under the Convention. The Court does not find it necessary to examine all the arguments raised by the parties as regards non-exhaustion of domestic remedies, because the present case is in any event inadmissible for the reasons set out below. 29.     The relevant part of Article 35 § 1 of the Convention reads as follows: “The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law ...” 30.     The obligation to exhaust domestic remedies requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the complaints intended to be made subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law, and further, that any procedural means that might prevent a breach of the Convention should have been used. Where an applicant has failed to comply with these requirements, his or her application should in principle be declared inadmissible for failure to exhaust domestic remedies (see, inter alia , Vučković and Others v. Serbia (preliminary objection) [GC], nos.   17153/11 and 29 others, §§   71-72, 25   March 2014). 31.     In this regard, the Court observes that according to the Government, the applicant should have lodged an application for annulment with the Supreme Administrative Court, requesting the annulment of the birth registration act for breach of Article 13 of the Constitution and Article 9 of the Convention. The Government adduced a relevant example of two domestic judgments annulling ministerial decisions providing for the features of senior and high school diplomas as regards the registration of religion; the decisions had been annulled on the grounds that that legal requirement had been in violation of Article 13 of the Constitution and Article 9 of the Convention (see paragraph 12 above). 32.     The Court further observes that in the case of Stavropoulos and Others (cited above), the applicants had lodged an application for annulment of the birth registration act with the Supreme Administrative Court, arguing that the word “naming” next to their child’s first name revealed their choice not to christen their daughter and thus their religious beliefs. The Court, when examining the Government’s objection of non-exhaustion of domestic remedies, noted that the Supreme Administrative Court had examined the substance of the applicants’ complaint and rejected it for lack of legal interest on the grounds that naming was the only legal way of giving a name pursuant to Article   25 of Law no. 344/1976, and thus it could not be claimed that this had indicated the applicants’ religion. The Supreme Administrative Court had not rejected their application for lack of jurisdiction (see paragraph 13 above). The Court thus concluded that the applicants had made normal use of domestic remedies and had not needed to pursue another remedy (see Stavropoulos , cited above, § 26). 33.     In view of the above, the Court considers that the applicant in the instant case could have lodged an application for annulment with the Supreme Administrative Court, relying on Article 13 of the Constitution or directly on the Convention, which, pursuant to Article 28 of the Constitution, prevails over any contrary provision of law (see paragraph 10 above and Perlala v.   Greece , no.   17721/04, § 27, 22 February 2007). 34.     It follows from the above-mentioned information that, contrary to the applicant’s arguments that she could not have lodged an application for annulment because the Supreme Administrative Court could not annul an act that had been drawn up in accordance with legal requirements, the Supreme Administrative Court was competent to annul an administrative act such as a registration act which it considered to be in breach of the Convention. The Court observes that the applicant has failed to show that the remedy could not afford adequate redress for any violation of her Convention rights. Furthermore, it finds no exceptional circumstances capable of exempting the applicant from the obligation to exhaust domestic remedies. In this connection, the Court reiterates that   the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust that avenue of redress (see, among many other authorities, Selahattin Demirtaş v. Turkey (no. 2) [GC], no.   14305/17, § 206, 22 December 2020), and that the “effectiveness” of a “remedy” within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant (see, among many other authorities, Mugemangango v. Belgium [GC], no. 310/15, § 131, 10 July 2020). In view of the foregoing considerations, the Court concludes that the applicant had to have recourse to the Supreme Administrative Court in order to comply with the requirement of exhaustion of domestic remedies. 35.     Therefore, this complaint must be rejected under Article 35 §§ 1 and   4 of the Convention for non-exhaustion of domestic remedies. Alleged violation of Article 13 of the Convention 36.     The applicant complained under Article 13 of the Convention that no effective remedy existed to enable her to make a complaint about the registration of her religion in her daughter’s birth registration act. 37.     The Court notes that the Government were not given notice of that complaint, therefore the parties did not submit any observations in this regard. 38.     The Court has found above that the applicant had an effective remedy at her disposal which she was required to use for the purpose of Article 35   §   1 of the Convention. Accordingly, her complaint under Article 13 of the Convention must be rejected as manifestly ill‑founded within the meaning of Article 35 §§ 3 (a) and 4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 19 January 2023.     Milan Blaško   Pere Pastor Vilanova   Section Regisrar   President