| HDPA - 32/2020 | |
|---|---|
 | |
| Authority: | HDPA (Greece) |
| Jurisdiction: | Greece |
| Relevant Law: | Article 5(1) GDPR Article 9 GDPR [%22001-197254%22} ECHR Decision : PAPAGEORGIOU AND OTHERS v. GREECE] Article 8 ECHR Article 9(1) ECHR Article 2(2) 1st Additional Protocol to the ECHR HDPA Decision 28/2019 Council of State (Greece) Plenary Decision 660/2018 Council of State (Greece) Plenary Decision 1749/2019 Articles 2(1), 5(1), 9A, 13(1), 16(2) of the Greek Constitution Article 5 Law 4692/2020 Ministry of Education and Religion Order 12773/Δ2/23.01.2015 Ministry of Education and Religion Order 104795/ΓΔ4/10.08.2020 |
| Type: | Complaint |
| Outcome: | Upheld |
| Started: | |
| Decided: | 07.09.2020 |
| Published: | |
| Fine: | None |
| Parties: | n/a |
| National Case Number/Name: | 32/2020 |
| European Case Law Identifier: | n/a |
| Appeal: | n/a |
| Original Language(s): | Greek |
| Original Source: | HDPA (in EL) |
| Initial Contributor: | Fotini Zarogianni |
The HDPA of Greece examined the complaint for the violation of GDPR against the Greek Ministry of Education and Religion of a parent who had filed a request in order for their son to be exempted from the participation in the religious education course and generally from any religious activity at their high school, due to religious conscience related reasons. The parent's request was rejected and they had to provide the school with an additional form underlining the fact that their son was not Orthodox Christian, but their request was again rejected this time as overdue. Τhe parent's additional request for the school to erase their son's personal data pertaining to his religious beliefs was also rejected, while the complainant also complained about the issue of the inscription on school leaving certificates of the conduct of the respective student.
English Summary
Facts
The complainant, making use of the Greek Ministry of Education and Religion's Order 12773/Δ2/23.01.2015, filed in the name of their son an exemption request from the participation in the religious education course, from praying, from church attendance and generally from any religious activity at their high school due to religious conscience related reasons. The high school rejected the complainant's request with the argument that the application did not include a solemn statement that the son was not Orthodox Christian. The complainant then provided the school with this solemn statement, but their request was again rejected this time as overdue and their son had to continue attending the religious education course. Furthermore, the complainant claimed that, based on a court decision, they requested by the school the erasing of all data pertaining to their son's religious beliefs (presence/absence log, grades, evaluation of all kinds), an event that the high school itself denied that ever happened. The complainant added that even though the school allowed to the student to stop attending the religious education course and despite the right to erase data entertained by the parent, it did include a grade of 18/20 for the religious education course on the pupil's grade certificate for the first four-month term, an event that the school again completely denied. In addition, the complainant claimed that the inscription of the pupils' conduct on school leaving certificates based on Law 4692/2020 does not serve any specific purposes and results to the unnecessary inclusion in an official document of the pupils' personal data, something that might lead to negative evaluation, stigma or even negative differential treatment of the pupil concerned in the future. The complainant also claimed that the respective Ministry had not proceeded with any measures regarding the process of the exemption despite the ECHR's Decision of the case Papageorgiou and Others v. Greece that convicted the latter for the violation of the right to education in light of the right to religious freedom. On its part, the Ministry contested the fact that no measures have been taken whatsoever, while it underlined that the inscription of the pupils' conduct on school leaving certificates is absolutely in accordance with the core of education's purpose as found in Article 16(2) of the Greek Constitution and sees to the forming of free and responsible citizens. The Ministry also highlighted that under the new Ministry of Education and Religion Order 104795/ΓΔ4/10.08.2020, the exemption from the religious education course requires a solemn statement from the pupil themselves, if they are an adult, or from their parents that states the necessity of the exemption due to religious conscience related reasons.
Dispute
Holding
The HDPA underlined that Article 13(1) of the Greek Constitution guarantees the freedom of religious conscience, including the negative side of religious freedom, meaning the right for someone to be an atheist or not belong to any religion (according to Article 9 ECHR as well). Article 13(1) is inextricably linked with the general freedom of thought, while they both constitute crucial elements pertaining to human dignity (Article 2(1) Greek Constitution) and to the right to freely form one's personality (Article 5(1) Greek Constitution). The HDPA focused on the aspect of freedom of thought and freedom of religious conscience that has to do with a person's right to not disclose their thoughts and beliefs, a right closely linked to the right to protect one's personal data (Article 9A Greek Constitution, Article 9 GDPR). All these rights, combined with the right to respect the beliefs of the parents during the education of their children (Article 2(2) 1st Additional Protocol to the ECHR), leads to the right of exemption from the religious education course for every student whose parents have different beliefs, religious, philosophical or others, in comparison to those found in the religious education course's contents, while this right can be exercised by the student themselves provided that they have the necessary maturity to proceed with such a decision. The HDPA pointed out that during the exemption procedure the principle of data minimisation applies (Article 5(1)c GDPR), so as for the parents and their children to not have to disclose, either directly or indirectly, their religious or non-religious beliefs. The HDPA referred to its own past Decision 28/2019, where it held that the disclosure of the fact that a student is not Orthodox Christian in order to apply for an exemption was not in accordance with the negative religious freedom, meaning the right of parents and children to not disclose their religious beliefs as this right was explained above, while it also was not in accordance with the principle of the necessity for the processing of personal data, since the invocation of conscience reasons in general should have been enough (without the need of further referring to the belief or non-belief in a certain religion). The same line of thought was followed by the ECHR in the Papageorgiou and Others v. Greece Case, where the Court held that the Order 12773/Δ2/23.01.2015 was indeed violating the right of a person to not disclose their religion or religious beliefs and to not be directed towards a behaviour that may lead to assumptions as to whether this person has or has not certain beliefs. Thus, in the ECHR's opinion a simple statement of exemption should be enough, without any reference to religious conscience reasons or even to conscience reasons in general. The HDPA also referred to the Council Of State's Plenary Decisions 660/2018 and 1749/2019 where the same conclusion was in fact reached as regards the existence of the right to exemption due to religious conscience reasons, without the Council of State excluding the possibility of exemption with the invocation of conscience reasons in general. Having noted all that, the HDPA held that reasons supporting the right to exemption do not only include religious beliefs, but also non-religious beliefs. More precisely, the HDPA held that in this particular case there indeed was a violation of Articles 13(1) & 9A of the Greek Constitution, as well as of Article 2(2) of the 1st Additional Protocol to the ECHR, since the school did not have the right to deny the exemption from the religious education course with the argument that the application lacked a solemn statement that the pupil was not Orthodox Christian. Additionally, the HDPA held that there was also a violation of Article 9A of the Greek Constitution per se due to the school's denial to erase from their records the pupil's personal data that pointed out he was not Orthodox Christian. Regarding the issue of the pupils' conduct, the HDPA held that the classification of pupils' conduct indeed serves an educational purpose, while the inclusion of this classification in school records does not violate the legal framework pertaining to the protection of personal data. But, the inscription of the pupils' conduct on their school leaving certificates violates the principle of proportionality of Article 5 GDPR, since third persons and entities can be authorised access to these documents, since such an inscription does not serve the purpose of the certificate which is to clarify the performance of the pupils and to prove the completion of their studies, and since such an inscription may indeed lead to stigma and negative differential treatment of the pupils in the future. All in all, the HDPA held that the invocation of conscience reasons is enough for the exemption to take place, it called upon the school and the respective Ministry to erase all data pertaining to the pupil's religious beliefs, and held that the inscription of the pupils' conduct on their school leaving certificates was illegal.
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English Machine Translation of the Decision
The decision below is a machine translation of the Greek original. Please refer to the Greek original for more details.
