FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 69333/01
by Giorgos GALANIS
against Greece
The European Court of Human Rights (First Section), sitting on 6 February 2003 as a Chamber composed of
MrsF. Tulkens, President,
MrC.L. Rozakis,
MrG. Bonello,
MrsN. Vajić,
MrE. Levits,
MrsS. Botoucharova,
MrsE. Steiner, judges,
andMrS. Nielsen, Deputy Section Registrar,
Having regard to the above application introduced on 16 April 2001,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Giorgos Galanis, is a Greek national, who was born in 1948 and lives in Athens. He was represented before the Court by Mr S. Tsakyrakis, a lawyer practising in Athens. The Government were represented by Mr V. Kyriazopoulos, Senior Adviser, State Legal Council, and Mrs M. Papida, Legal Assistant, State Legal Council.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant graduated from the Pedagogical Academy of Larissa in 1968. The Pedagogical Academies were, at the time, the only institutions training the future teachers of elementary schools and all graduates were eligible for appointment to the public school system. After graduation the applicant moved to Sweden where he worked as a teacher of Greek language at the elementary school of Stockholm from 1978 untill 1984.
In 1984 he returned with his wife and three children to live permanently in Greece. On 14 August 1984 he applied to the Ministry of National Education and Religion asking to be appointed as a teacher to a Greek public school. The appointments were made according to a seniority list comprising all persons having the necessary qualifications, mainly a degree from a Pedagogical Academy. The immediate result of his application should have been his registration in the list, so that he could be appointed when his turn would come.
On 24 September 1984 the Ministry rejected his application and returned his documents because the applicant was a Jehovah’s Witness. The Ministry indicated that according to an opinion of the State Legal Council, it was prohibited for persons believing in religions or dogmas other than the Greek Orthodox to be appointed as teachers.
Four years later Law 1771/1988 was enacted and explicitly provided in section 16 that persons believing in religions or dogmas other than the Greek Orthodox were eligible for appointment as teachers. Immediately after the enactment of that law the applicant resubmitted his application asking to be registered in the list of 1984. However, the Ministry registered him on the 1988 list.
By the end of 1990 all those who were on the 1984 list had been appointed, but not those who were on the 1988 list. By 1996 the applicant realised that, with the pace the appointments were made, he would not be appointed at all. In effect, Law 1566/1985 provided that no one over 50 years of age could be appointed as a teacher and the applicant would become 50 years old in 1998.
On 30 October 1996 he applied to the Ministry of Education asking to be considered as registered in the 1984 list, which would have resulted in his immediate appointment.
On 20 December 1996 his application was rejected on the ground that Law 1771/1988 had no retroactive effect, so the applicant was not eligible for registration on the 1984 list.
On 28 February 1997 the applicant applied to the Athens Administrative Court asking it to quash the decision rejecting his application.
By judgment 1782/1997 of 10 November 1997 the Administrative Court dismissed the application. It held that the authorities had correctly applied Law 1771/1988 which introduced an entirely new provision regarding the appointment of non-Christian Orthodox teachers. Law 1771/1988 was not intended to interfere with the seniority lists of the past. Any possible violations of the Greek Constitution or the European Convention on Human Rights on religious freedom occurred in 1984 and should have been challenged at that time.
On 29 October 1998 the applicant appealed to the Supreme Administrative Court. He maintained that Law 1771/1988 did not introduce an entirely new provision but instead tried to remedy the illegal practice of the authorities to exclude all non-Christian Orthodox Greeks from employment in the public education system. If it were to be construed as not having retroactive effect, this would constitute by itself a new and direct violation of the Constitution and the Convention.
By judgment 3390/2000 of 26 October 2000 the Supreme Administrative Court dismissed the applicant’s appeal on the ground that the refusal of the authorities in 1996 did not constitute an executory administrative act, but it was a mere repetition of the initial refusal of 1984 and the subsequent registration in the 1988 list and as such could not be subjected to judicial review. In particular, the Supreme Administrative Court held that : “Since the applicant challenged neither the initial refusal of his request nor his subsequent registration in the seniority list of 1988, which contained an omission to register him in the list of 1984, the final decision of the Minister of National Education ... has not an executory character and the applicant’s action against it must be dismissed as inadmissible ...”.
B. Relevant domestic law
Article 16 of Law 1771/1988 provides as follows:
“1. Primary education and kindergarten teachers of another dogma or religion who are candidates for appointment will be appointed and placed in public primary schools with more than one teaching posts ... as the case may be, provided that they meet the qualifications of Articles 12 and 13 of Law 1566/1985.
2. In the cases of the above-mentioned paragraph, these teachers will not teach the course of religion, except to students believing in the same dogma or religion, provided that the said course is included in the curriculum.
3. The teachers of paragraph 1 may also be appointed to primary schools and kindergartens with one teaching post, if they are students of the same dogma or religion attending that school or kindergarten.”
COMPLAINT
The applicant complains under Article 9 of the Convention taken in conjunction with Article 14 that he was not appointed as an elementary school teacher because of his religious beliefs. The applicant maintains that had he been a Christian Orthodox and not a Jehovah’s Witness he would have been registered in the 1984 list and he would have been appointed long ago; the only impediment to his appointment was his religion.
THE LAW
The applicant alleges a violation of Articles 9 and 14 of the Convention, which provide:
Article 9
“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.”
Article 14
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
The Government submit that the applicant did not exhaust domestic remedies because he failed to challenge both his registration on the 1988 list and the refusal of the Minister to register him in 1984. His recourse against the decision of 20 December 1996 did not comply with the requirements of Article 35 § 1 because it was directed against a non-executory act. In the alternative, the Government maintains that the application is manifestly ill‑founded.
The applicant alleges that the Greek authorities were very reluctant to apply Law 1771/1988. At that time challenging the registration seemed meaningless not only because the result was very uncertain but also because it would have taken the courts 3 or 4 years to reach a judgment and he reasonably believed that within the same time he would have been appointed. The applicant asks the Court to accept that in 1996 he found himself in an entirely new situation, which is certainly related with the events of 1984 and 1988 but has its own autonomous and distinct existence. This new situation is characterised by the changes in the appointment system, the gravity of the consequences of these changes for the applicant and his inability to foresee them. In 1996, the applicant did not merely repeat the complaint made in 1988 but he introduced a new one, which, he believes, the Government should have entertained.
The applicant alleges that even after the enactment of this law, which made non-Orthodox Christians eligible for appointment in public schools, the authorities insisted on their discriminatory practice against Jehovah’s Witnesses. He mentions the example of Mr Theofilos Tzenos, who, in 1991, applied for a permit, which is necessary under Greek law, in order to teach English at a private school. The Ministry of Education refused to grant it referring to an opinion of a group of members of the State Legal Council issued on 20 October 1989 and asserting that Law 1771/1988 is unconstitutional and that non-Orthodox Christians are barred from getting employment in Greek schools. Mr Tzenos was obliged to apply to the Patras Administrative Court of Appeal, which in 1994 found in his favour. A similar case was that of Mrs Vassiliki Pilaftsoglou, another Jehovah’s Witness, asking for a permit to teach French and Biology, who had to struggle for a long period of time to convince the Ministry of Education to apply Law 1771/1988.
The Court has first examined whether the applicant has complied with the requirements of the exhaustion of domestic remedies. It notes that the applicant, in order to justify his omission to challenge the Minister’s decision to register him on the 1988 list, attempts to assert that any recourse was bound to fail, because the reform introduced by Law 1771/1988 was not immediately enforced and, in particular, the administration, even after the enactment of Law 1771/1988, still opposed the reform and refused to deliver permits to teach to certain Jehovah’s Witnesses. However, the applicant does not produce any judicial decision which would have refused to apply Law 1771/1988. All the examples mentioned by the applicant, not only are subsequent to the applicant’s situation (that is that the applicant was not aware of these developments at the time at which he had to decide to challenge the Minister’s decision in 1988) but they reflect the attitude of the Administration and not that of the domestic courts. The applicant himself admits that one of the two persons who lodged an application with the domestic courts obtained a favourable judgment. In this connection the Court reiterates that a mere doubt as to the prospects of success of a remedy does not, of itself, absolve an applicant from attempting it.
The Court considers that any possible violation of the Convention occurred in 1984 and should have been challenged at that time or at the latest in 1988, when the Minister of Education registered him on the 1988 list. As the Supreme Administrative Court stressed, the decision of 20 December 1996 which the applicant challenged before the administrative courts simply reiterated the initial refusal of 1984 and the subsequent registration in the 1988 list and as such could not be subjected to judicial review.
It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren NielsenFrançoise Tulkens
Deputy RegistrarPresident
Full & Egal Universal Law Academy