Policing Belief: The Impact of Blasphemy Laws on Human Rights - Greece
|Publication Date||21 October 2010|
|Cite as||Freedom House, Policing Belief: The Impact of Blasphemy Laws on Human Rights - Greece, 21 October 2010, available at: http://www.refworld.org/docid/4d5a700bc.html [accessed 9 December 2016]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
Greece, an established democracy and long-standing member state of the European Union (EU),1 guarantees freedom of expression under Article 14 of its constitution.2 However, the provision imposes some limitations on this right. For example, newspapers and other print media can be seized if they are accused of insulting the Greek president, offending Christianity or any other "known religion," or "offending public decency." Greece's Penal Code also includes blasphemy and religious insult provisions under Section 7, Articles 198 and 199. The application of these laws has led to restrictions on freedom of expression that extend beyond what is permitted in international and regional agreements to which Greece is a party, most notably in the form of self-censorship by artists and others to avoid prosecution.
The country is relatively homogeneous in terms of religion, with Greek Orthodox Christians making up 98 percent of the population.3 According to the U.S. State Department, Muslims account for about 1.3 percent, and the remainder consists largely of Jews, Roman Catholics, and other Christian denominations.4
Greece gained independence from the Ottoman Empire in 1830 following a nine-year war. The country's modern history has featured many episodes of civil and political unrest, including a civil war in the aftermath of World War II. However, Greece has been a democratic republic since 1974, and in 1981 it joined the EU. The political landscape has been relatively stable in recent decades, and the country continues to meet the criteria for membership in the EU.5
During Ottoman rule, the Orthodox Church worked to preserve the Greek language and cultural identity, and served as an "important rallying point in the struggle for independence."6 The dominant role of the Church in the social, cultural, and political history of the country has led the Greek legal system to be "marked by a very high level of religious devotion."7 Article 3 of the constitution declares the Eastern Orthodox Church to be the "prevailing" religion in Greece.
As a result of its official status, the Orthodox Church enjoys certain government benefits, including financial support, that are not extended to other religions.8 For example, salaries of Orthodox clergy are paid by the government; instruction in Orthodox Christianity is mandatory in all public schools, except for students who declare adherence to other religions; and the Orthodox Church is free of the administrative obstacles that other religions face, for instance when seeking permits for maintenance or construction of religious sites.9 The Church's special status is also apparent in the influence it wields in politics, law, and society. According to a 2008 survey by the Council of Europe's Venice Commission, "the solid historical links between the Eastern Orthodox Christianity and the emergence of the Greek nation, are used in order to justify a high level of interference of the church in the state affairs, in all different levels."10 Indeed, scholars have argued that the continued prosecutions for blasphemy under Penal Code Articles 198 and 199 in recent years can be attributed to the influence of the Orthodox Church.
Greece's main blasphemy laws are found in Section 7 of the Penal Code, entitled "Offenses Against Religious Peace."11 This section contains four provisions, two of which – Articles 198 and 199 – specifically address blasphemy and religious insult. Article 198 punishes any public and malicious blasphemy against God with a maximum of two years in prison, and punishes the public "manifest[ation of] a lack of respect for the divinity" with up to three months' imprisonment.12 Article 199 is directed at established religions as opposed to God or "the divinity," and prescribes up to two years' imprisonment for "one who publicly and maliciously and by any means blasphemes the Greek Orthodox Church or any other religion tolerable in Greece."13 According to one scholar, "public" expression has been interpreted in Greek jurisprudence as "any manifestation that may be perceived by an undetermined number of people, irrespective of whether it took place in a public area or was actually perceived by anyone."14
Blasphemy cases can be brought before civil and criminal courts, and in some cases civil courts have used prior restraint to prevent the public expression of a work that is deemed blasphemous. Such interim measures have been used to prevent a work of art from being exhibited and a movie from being screened, as described below. Articles 198 and 199 are somewhat different in that for the latter, a complainant is required, whereas for the former, the state initiates prosecutions on the basis of public interest, even in the absence of an offended person. This approach has been justified by the notion that religion is the "foundation of the state" of Greece, and consequently religious feelings must be protected for the good of society. The prosecutor has discretionary powers to carry out investigations into alleged blasphemy against the divinity, reportedly with no supervision or mechanism for appealing the prosecutor's decision on whether to proceed.15 Most state-initiated cases under Article 198 come as a result of pressure from Greek Orthodox groups. One observer has described this relationship as stemming from the "atmosphere of a 'natural' alliance between justice and the Church."16
According to the jurisprudence on these articles, an expression or manifestation is "malicious" if it "incorporates a vilifying act aimed directly at offending a religion for the offender's gratification."17 Malicious intent is difficult to prove in law, but even in cases where it appears to be absent, such as the 1988 suit over an American film, The Last Temptation of Christ, injunctions have nevertheless been issued.18
The Greek judiciary has argued in case law that Articles 198 and 199 are designed to protect not religion or religious doctrine per se, but rather social and religious peace and harmony.19 However, this rationale is at odds with the laws' application in practice, which has not required an offended party or even an audience for the expression or manifestation at issue. As scholars have pointed out, Article 198 "as it stands seems to protect respect for the divine as a legal interest independent of the intermediation of an offended person as the subject of a civil right."20
Incompatibility with International Law
Greece's blasphemy and religious insult laws are contrary to international standards on freedom of opinion and expression. Greece is a state party to a range of international and regional human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR), the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), and the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), an instrument of the Council of Europe that provides for freedom of expression under Article 10. Moreover, Greece's EU membership obliges it to maintain democracy, the rule of law, human rights, and respect for and protection of minorities. In a 2008 study, the Venice Commission concluded that "the offence of blasphemy should be abolished (which is already the case in most European States) and should not be reintroduced."21
Impact on the Enjoyment of Human Rights
Freedom from Discrimination
Greece's blasphemy laws are not limited to a particular religion and formally protect the Orthodox Church as well as any other "tolerable" religion from offense. In practice, however, these laws are used only to prosecute cases of perceived blasphemy against the Orthodox Church. This de facto discrimination is indicative of the special status enjoyed by the Church within the state establishment.22
In response to the 2008 Venice Commission Survey, a Greek expert observed that "the very existence of Chapter 7 of the Greek Penal Law can be regarded as a solid material of the integration of the Orthodox religion into the penal machinery." He added, "It should not be regarded as accidental therefore, that the Greek case law related to crimes contained in the Chapter 7 of the Code is inexistent when it comes to condemnation of blasphemous acts against 'any other religion tolerable in Greece.'"23
Freedom of Expression
Blasphemy cases are reportedly rather common in Greece, with most stemming from quotidian verbal insults against "the divinity" and related figures.24 These have been described as "petty" cases, involving sensitive individuals who take offense at allegedly blasphemous expression, and they are often dismissed in the first instance due to a lack of malicious intent. However, Greece's blasphemy and religious insult laws have also been applied in several well-publicized cases involving artists using an array of media. The defendants have been criminally sanctioned for their "offensive" works, or the works themselves have been subjected to interim restrictions by civil courts in the interests of preserving social and religious peace.25 Both forms of enforcement have had negative consequences for freedom of expression in country, including self-censorship to avoid legal entanglements.
One of the more infamous blasphemy cases in Greek jurisprudence is the successful 1988 bid to ban public screenings of American director Martin Scorsese's film The Last Temptation of Christ. Though the movie was approved for distribution by a government censorship board, Orthodox Christians protested the film in the days and weeks following its release in Athens, holding demonstrations that in some instances degenerated into riots and had to be dispersed by police with tear gas.26 The demonstrations were reportedly led by Orthodox priests, who called on the faithful to protest outside cinemas.27 Orthodox groups ultimately forced the government to initiate legal proceedings to ban the movie, despite the censorship board's approval.28 The decision in the case by the Athens Court of First Instance was significant, as it stated that "protection of religious feelings is imperative because they are moral-social values...worthy of protection ... . Religion is not a purely personal affair ... but the foundation of the state, a vector of spiritual civilization."29
In February 2000, author Mimis Androulakis and his publisher, Thanasis Kastaniotis, were charged with blasphemy in the province of Thessaloniki for the novel M to the Power of N, which included references to the sexual desires of Jesus Christ. The complaint against the two men was reportedly submitted by a fundamentalist historian, Marios Pylavakis, who also allegedly orchestrated burnings of the book.30 In March, the men were formally indicted and the Thessaloniki Court of First Instance imposed an interim injunction on the distribution of the novel, effective in the northern provinces of Greece and justified as a means of "preventing outbreaks of violence."31 The March hearing was marred by intimidation and harassment of the defendants by Christian fundamentalists. According to one nongovernmental organization (NGO), "Christian zealots and black-clad monks stormed the court, chanting 'blasphemers' and 'antichrists.'"32
The temporary ban on the book was upheld in another hearing in April, but eventually lifted in September 2000. The request for a permanent injunction was denied, and charges against the author and publisher were dropped.33 Injunction requests were also submitted to the courts in Athens, at the instigation of the fundamentalist Greek Orthodox Salvation Movement,34 but the Athens Court of First Instance denied them. The court found that the novel did not constitute "malicious insult" because it was aimed at condemning misogyny rather than offending Christianity, and did not "attack religion as such."35 According to one commentator, the Holy Synod, the governing body of the Eastern Orthodox Church in Greece, had officially asked the government for bans on both the Androulakis book and the Scorsese film in the 1988 case.36
In another case, Greek art curator Christos Ioakimidis assembled an exhibition entitled Outlook in 2003. One of the paintings in the show, Asperges, by Belgian artist Thierry de Cordier, depicted a crucifix alongside male genitalia.37 The piece drew a public outcry from the Orthodox Church and some of its followers, and was consequently removed from the exhibition.38 Right-wing politician Georgios Karatzaferis reportedly submitted a formal complaint to the judiciary alleging that the artwork was blasphemous and in violation of the Penal Code.39 An investigation into the complaint was initiated by the prosecutor, much to the dismay of artists and others in Greece who argued that even an inquiry into a possible criminal violation of this kind "threatens artistic freedom of expression."40 In 2005, following a 17-month investigation, a judge concluded that there were indeed grounds for criminal prosecution under Article 198.41 The prosecutor claimed that the very display of the "despicable work" with "repulsive content" in a public exhibition was proof of the curator's "malicious will to scorn and ridicule the Eastern Orthodox Church."42 In May 2006, the Magistrate's Court of Athens acquitted Ioakimidis of all charges, finding that there had been no malice, and that the curator had not intended to offend the Orthodox Christian religion or public decency.43
In a more recent case, Austrian cartoonist Gerhard Haderer was accused of blasphemy under Article 198 for his satirical book The Life of Jesus, which depicted Christ as a heavy-drinking, marijuana-smoking hippie.44 The book was originally published in Austria, and Haderer was allegedly unaware of its publication in Greece until he received a court summons, but he was tried in absentia in January 2005 by the Magistrate's Court of Athens. He was found guilty of malicious blasphemy and received a six-month suspended prison sentence, and the court imposed an injunction on distribution of the book.45 Since he was living in Austria, Haderer fell under the jurisdiction of the European Arrest Warrant system, which obliged any EU member state to honor Greece's arrest warrant for him.46 In March 2005, Haderer went to Greece to appeal his conviction, and in April 2006 the Appellate Court of Athens acquitted him of all charges on the grounds that the humorous quality of the book precluded it from being malicious.47 The case against Haderer was heavily criticized by Greek artists and writers, European NGOs, and even the Organization for Security and Cooperation in Europe (OSCE). The OSCE sent a letter to the Greek government following the initial ruling, arguing that the criminalization of expression such as that seen in The Life of Jesus was contrary to international press freedom standards.48
The apparent pattern in Greece is that "petty" complaints of malicious blasphemy by individuals are usually dismissed by courts of first instance, while high-profile cases involving works of art lead to injunctions and convictions that are eventually overturned. The more prominent cases are almost always initiated by the Orthodox Church and related fundamentalist groups, or by the government under pressure from these entities, reflecting the Church's political influence and special status. The blasphemy laws essentially allow certain elements of society to engage in legal harassment and intimidation of those who offend them, with the blessing of the state. Even if they end in exoneration, blasphemy prosecutions impose financial and other burdens on the defendants, have a chilling effect on the broader creative community and media sector, and curtail the general public's fundamental right to have access to information and a variety of viewpoints.
1 One of the criteria for a state to join the EU is "stability of institutions guaranteeing democracy, the rule of Law, human rights and respect for and protection of minorities." see EUROPA, "Glossary – Accession Criteria (Copenhagen Criteria)," European Union, http://europa.eu/scadplus/glossary/accession_criteria_copenhague_en.htm.
2 Article 14, Constitution of Greece, available at http://www.ministryofjustice.gr/eu2003/constitution.pdf.
3 Bureau of Democracy, Human Rights, and Labor, "Greece," in International Religious Freedom Report 2009 (Washington, DC: U.S. Department of State, October 2009), http://www.state.gov/g/drl/rls/irf/2009/127313.htm.
5 U.S. Department of State, "Background note: Greece," April 28, 2010, http://www.state.gov/r/pa/ei/bgn/3395.htm.
7 European Commission for Democracy Through Law (Venice Commission), Annexe II: Analysis of the Domestic Law Concerning Blasphemy, Religious Insults and Inciting Religious Hatred in Albania, Austria, Belgium, Denmark, France, Greece, Ireland, the Netherlands, Poland, Romania, Turkey, United Kingdom, on the basis of replies to a questionnaire (Strasbourg: Council of Europe, October 2008), http://www.venice.coe.int/docs/2008/CDl-AD%282008%29026add2-bil.asp. [Hereafter: Venice Commission Survey]
8 Bureau of Democracy, Human Rights, and Labor, "Greece," in International Religious Freedom Report 2009.
10 Venice Commission Survey.
11 Dimitris Sarafianos, "Blasphemy in the Greek Orthodox Legal Tradition," in Blasphemy, Insult and Hatred: Finding Answers in a Democratic Society (Strasbourg: Council of Europe, 2010), 105.
12 Greek Penal Code, Article 198: 1. One who publicly and maliciously and by any means blasphemes God shall be punished by imprisonment for not more than two years. 2. Except for cases under paragraph 1, one who by blasphemy publicly manifests a lack of respect for the divinity shall be punished by imprisonment for not more than three months." see Venice Commission Survey.
13 Greek Penal Code, Article 199: One who publicly and maliciously and by any means blasphemes the Greek Orthodox Church or any other religion tolerable in Greece shall be punished by imprisonment for not more than two years." see Venice Commission Survey.
14 Sarafianos, "Blasphemy in the Greek Orthodox Legal Tradition," 108.
15 Venice Commission Survey.
16 Venice Commission Survey.
17 Ibid., 106.
18 Venice Commission Survey.
19 Michael Tsapogas, "Blasphemy and Justice in a Greek Orthodox Context," in Blasphemy, Insult and Hatred, 114.
20 Sarafianos, "Blasphemy in the Greek Orthodox Legal Tradition," 106.
21 Venice Commission, Report on the Relationship Between Freedom of Expression and Freedom of Religion: The Issue of Regulation and Prosecution of Blasphemy, Religious Insult and Incitement to Religious Hatred (Strasbourg: Council of Europe, October 2008), http://www.venice.coe.int/docs/2008/CDl-AD%282008%29026-e.asp.
22 Jeroen Temperman, "Blasphemy, Defamation of Religions and Human Rights Law," Netherlands Quarterly of Human Rights 26/4 (2008): 529; Venice Commission Survey.
23 Venice Commission Survey.
25 Sarafianos, "Blasphemy in the Greek Orthodox Legal Tradition," 106.
26 Ralph Joseph, "Crowds Rampage at Screening of 'Last Temptation,'" United Press International, October 13, 1988.
27 Ibid. According to this report, prior to the demonstrations, "churchmen drove through the city streets with loudspeakers calling on people to rally against the screening" of the film.
28 Final approval reportedly came from the Press and Information secretariat. Joseph, "Crowds Rampage at Screening of 'Last Temptation'"; see also Eddie Koch, "Religion: Greek Government On the Ropes in Orthodox Church Dispute," Inter Press Service, July 23, 1993.
29 Athens Court of First Instance, Ruling 17115/1988: Public Law Applications, Vol. 2/1989, 134-5, as cited in Sarafianos, "Blasphemy in the Greek Orthodox Legal Tradition," 115. see also Margaret Moore, "Sex and Violence: European Censorship of American Films," Entertainment and Sports Lawyer 11 (1994): 21; John Voland, "Morning Report: Movies," Los Angeles Times, November 16, 1988; Nicos C. Alivizatos, "Art and Religious Beliefs: The Limits of Liberalism," in Blasphemy, Insult and Hatred: Finding Answers in a Democratic Society (Strasbourg: Council of Europe, 2010), 75.
30 Brian Murphy, "Battle Over Book in Greece," Associated Press, March 8, 2000.
31 Helena Smith, "Greeks Accuse Writer of Blasphemy; Book Alluding to Jesus' Sexual Wants is Banned," San Diego Union-Tribune, March 18, 2000.
32 International Helsinki Federation for Human Rights (IHF), International Helsinki Federation Annual Report on Human Rights Violations 2001: Greece (Vienna: IHF, June 2001), 149, available at http://www.unhcr.org/docid/4692427f0.html.
35 Sarafianos, "Blasphemy in the Greek Orthodox Legal Tradition," 107.
36 Tsapogas, "Blasphemy and Justice in a Greek Orthodox Context," 118.
37 Elinda Labropoulou, "Curator on Trial for 'Obscene' Art," Independent (London), June 4, 2005.
38 Alivizatos, "Art and Religious Beliefs: The Limits of Liberalism," 75.
39 "Greek Exhibitor of 'Obscene' Art to Face Court," Agence France-Presse, June 2, 2005.
40 "Trial Delayed of Greek Accused of Exhibiting 'Blasphemous' Painting," Agence France-Presse, June 3, 2005.
41 Labropoulou, "Curator on Trial for 'Obscene' Art."
42 Tsapogas, "Blasphemy and Justice in a Greek Orthodox Context," 117.
43 "Greek Art Curator Cleared of Obscenity over Crucifix Painting," Associated Press, May 10, 2006.
44 Krysia Diver, "Cartoonist Faces Greek Jail for Blasphemy," Guardian, March 3, 2005.
45 Sarafianos, "Blasphemy in the Greek Orthodox Legal Tradition," 107; Eoin O'Carroll, "How European states Export Censorship," in Reflections, ed. Eoin O'Carroll (Vienna: Institute for the Human Sciences [IWM], 2006), http://www.iwm.at/index.php?option=com_content&task=view&id=243&Itemid=125; Alivizatos, "Art and Religious Beliefs: The Limits of Liberalism," 75.
46 The European Arrest warrant system was established by the EU through a December 2001 framework agreement. It was implemented in 2002 to replace the traditional extradition system. For more information, see Directorate-general for Justice and Home Affairs, "European Arrest Warrant to Replace Extradition," European Commission, September 2002, available at http://www.justice.org.uk/images/pdfs/eurschmidt.pdf.
47 "Greek Court Acquits Austrian Cartoonist of Blasphemy," Agence France-Presse, April 13, 2005.
48 Miron Varouhakis, "'Hippy Jesus' Cartoonist Faces Blasphemy Appeal in Greece," Associated Press, April 11, 2005.