Tuesday, December 20, 2011

Analysis of the domestic law
concerning blasphemy,
religious insults
and inciting religious hatred in Greece
by the European Commission for Democracy through Law
(Venice Commission) /

Ανάλυση της εγχώριας νομολογίας
αναφορικά με τη βλασφημία,
τις θρησκευτικές προσβολές
και την υποκίνηση θρησκευτικού μίσους στην Ελλάδα
από την Ευρωπαϊκή Επιτροπή για τη Δημοκρατία μέσω του Δικαίου
(Επιτροπή Βενετίας)




GREECE (*)




1.                           Is there specific legislation prohibiting blasphemy and/or religious insult in your country ? Can this be explained on the basis of :

a)         historical grounds, and if so which ones?
b)         doctrinal grounds, and if so which ones?
c)         other grounds

The Chapter 7 of the Greek Penal Code is entitled Plots Against Religious Peace and contains four articles.

According to Article 198 “Malicious Blasphemy”:
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.”
According to Article 199 “Blasphemy Concerning Religions”:
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.”

According to Article 200 “Disturbance of a Religious Assembly”:
1. One who maliciously attempts to obstruct or intentionally disrupts a religious assembly for service or ceremony permitted under the Constitution shall be punished by imprisonment for not more than two years.
2. One who commits blasphemous, improper acts in a church or in a place devoted to a religious assembly permitted under the Constitution shall be subject to the same punishment.”

According to Article 201:
One who willfully removes a corpse, parts of a corpse or the ashes of the dead from those who wave lawful custody thereof or one who commits an offense with respect to a corpse or acts blasphemously and improperly toward a grave, shall be punished by imprisonment for not more than two years.”

Chapter 7 of the Greek Penal Code is a rather obvious indication that the Greek criminal order is a religionist one.  The Greek legal order is marked by a very high level of religious devotion, result of the particular position of the Greek Orthodox Church in the State, according to the Greek Constitution. Furthermore, 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.  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. 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”.



___________________
(*)   Reply by Mr Dimitris CHRISTOPOULOS, Associate Professor, Department of Political Science and History of the Panteion University


It should be noted finally that the target of punishing blasphemy in the Greek penal law is neither the protection of the religious feeling nor social peace as it is often alleged in parts of the doctrine. Article 198 of the Penal Code does neither refer to the victim of the insult nor the religious convictions of third individuals witnessing a blasphemous act. The object of the penal interest here is sole the concept or the existence of God, as a value per se deserving penal protection regardless of the sacred beliefs of any individual. This rather peculiar situation for penal law means that God’s protection by penal means is recognized as an independent legal value, integrated in the state’s order, regardless of the persons’ beliefs. The victim of the crime of blasphemy is not a concrete religion, an individual believer or a group of believers but the divine, as such.


2.                  Is there specific legislation prohibiting religious hatred? Is there, in addition or instead, more general legislation prohibiting hate speech and/or incitement to violence, and/or defamation, and/or discriminatory speech? Could this situation be explained on the basis of:

a)        historical grounds, and if so which ones?
b)        doctrinal grounds, and if so which ones?
c)         other grounds?

Article 192 of the Greek Penal Code reads as follows: “One who publicly and by any means causes or incites citizens to commit acts of violence upon each other or to disturb the peace through disharmony among them shall be punished by imprisonment for not more than two years unless a greater punishment is imposed by another provision.”

Furthermore, special criminal legislation - L.927/1979 amended by article 24 of the L.1419/1984 – punishes acts aiming at racial discriminations.

According to the L.927:

Article 1.
1. One who publicly, orally or through the Press or written texts, pictures or by any means intentionally incites to acts or actions potentially able to cause discrimination, hatred or violence against persons or groups of persons on the sole basis of their racial or national origin shall be punished by imprisonment for not more than two years or pecuniary penalty or both.
2. With the above mentioned penalties is punished one who constitutes or participates in organizations who intent organized propaganda or activities of any kind aiming at racial discriminations.   

Article 2.
One who publicly, orally or through the Press or written texts, pictures or by any means, expresses insulting ideas against persons or groups of persons on the sole basis of their racial or national origin, shall be punished by imprisonment for not more than one year or pecuniary penalty or both.

Article 24 of L 1419/1984 adds the word “religion” next to racial or national origin.
According to leading scholars of Greek penal law, the normative content of the articles belonging in the Chapter 6 “Plots against the public order” (where article 192 belongs) of the Greek Penal Code have been extensively used by the Greek State right after the civil war (1946-1949) against the political dissidents. After the fall of the dictatorship in 1974, they are used less and less.

The special so-called “anti racist” legislation of the late seventies should be regarded as an element of modernization of the Greek penal law, in line with other similar legislative developments aiming at amplifying the antiracist legislative arsenal in Western Europe and combating the anti-Semitic discourse.


3.                       Is there, in any of these provisions, a specific freedom of speech clause? If not, how do these provisions relate to existing (constitutional) legislative provisions concerning freedom of speech?

There is no specific freedom of speech clause in the above mentioned dispositions. Law 1419 has only been applied twice ever since its existence against actions inciting to religious violence, whereas article 192 is rather inactive the last two decades. Case law applying article 192 and punishing perpetrators is generally perceived by the doctrine as a potential threat to the constitutionally enshrined freedom of expression and article 10 of the ECHR.


4.                         Is there in your opinion/according to the leading doctrine a need for additional legislation concerning:

a)         the prohibition of blasphemy or religious insult ?
b)         incitement to religious hatred?
c)         hate speech concerning a group?
d)         speech or publication with a discriminatory effect?
e)         negationism (denial of genocide or other crimes against humanity)?

Although there are conflicting views in the doctrine of penal law, one could generally give “no” as a general answer to the above. Very few scholars advocate the need for additional legislation concerning negationism especially in the light of the procedural and substantial developments regarding the crime of “incitement to genocide” before the International Criminal Court. On the contrary, there is a tendency toward the abolition of the crime of blasphemy advocated by some senior scholars of criminal law and parts of the civil society. 


5.                           Is there any case-law concerning blasphemy, religious insult and/or incitement to religious hatred? If so, are there cases which resulted in the conviction of the perpetrator?

Trials related to the crime of blasphemy are rather frequent in Greece. The most famous among them of them concern spectacles, works of art, films and books which general address the divine in a humiliating way in order to provoke the public’s sacred beliefs. In general terms, these cases become very popular, they create scandals and are followed intensively by the media and the public opinion. However, they are rather exceptional in our days and occur less and less. Such examples are the M. Scorceze’s film “The last temptation”, a novel by M. Androulakis (Μν), Haderer’s comic “The life of Jesus Christ”, a painting by a Belgian painter Tierry de Cordier. On the contrary, the majority of trials against blasphemy remain far from public visibility since they are not related to works of art but to ordinary verbal insults to God, Christ or Madonna, very frequent in the Greek daily life. In these cases, ordinary linguistic forms of modern Greek are used in order to insult a specific individual through insulting his sacred beliefs. Most of these “anonymous” trials lead to the acquittal of the accused.


6.                        What is in such cases the procedural status of the victim(s)?

The ordinary status that the Greek penal procedure accords to any accused individual.


7.                           Did the distinction between “blasphemy”, “religious insult”, “incitement to religious – or racial - hatred”, “defamation” or “discriminatory speech” play a role in the case-law, and was it pertinent to the outcome of the case?

What is the leading opinion in legal doctrine about the current relevance of this distinction?

All cases that have been brought before the Greek judicial authorities for blasphemy (art. 198 an 199 of the Penal Code) concern insults against the Eastern Orthodox Christian religion whereas, as stressed above, the so-called ‘anti-racist’ legislation of 1979 has been applied twice against anti-Semitic speech. Therefore, one could convincingly argue that the distinction in question plays a role in the case-law since there has never been any incident in Greek jurisprudence where the term “blasphemy” was used in order to prescribe insulting acts against any other “tolerable” religion. Additionally, it should not be consider accidental that the use of terms such as “religious insult”, “incitement to religious – or racial - hatred”, “defamation” or “discriminatory speech” is not frequent and, when used, they concern minority religious dogmas rather that the “dominant” religion (the term “dominant” is used in the Greek Constitution). The whole issue has not considerably attracted the attention of the leading opinion of the legal doctrine in the country.


8.                        What role does the intention of the perpetrator and/or the foreseeability of the (discriminatory) effects play in the formulation of the legal prohibition, and/or in the prospect of a conviction?

The Code uses the term “maliciously” in order to put emphasis on the intention of the perpetrator. First instance criminal courts, when condemn perpetrators always refer to their “malicious intention”. However, as it is indicated by the case law and the relevant doctrine, the “intention” is always obscure and therefore hard, not to say impossible, to identify: how can one presume the “malicious” intention of a work of art and prove it in the framework of a judicial procedure?


9.                        Is the prosecution of the suspect of an act of blasphemy, religious insult or incitement to religious hatred at the discretion of the prosecutor?

Yes.


10.                    Is there any superior supervisor? Is there any appeal to a court against non-prosecution?

No.


11.                    Does prosecution of these acts depend on a complaint by the victim(s)?

No, it can equally result from an ex officio investigation carried out by the prosecutor.


12.                     Have there recently been important incidents of alleged blasphemy, religious insult and/or incitement to religious hatred in your country that caused a lot of public indignation and debate but were not prosecuted or not convicted? What was the reason for non-prosecution/non-conviction? What role did freedom of speech play in that case?

As a rule, incidents of alleged blasphemy (cf. answer 5) are sent before the first instance criminal court which regularly punishes the perpetrator, whether this could be the artist, the novelist or the artistic director. Interim measures have equally been imposed in few occasions these last years in order to ban the circulation of a book or forbid a movie. However, it must be noted that the appeal courts have always acquitted the perpetrators in the name of the constitutionally enshrined principles of freedom of speech or freedom of art, offering liberal answers to blasphemy in the Greek jurisprudence. Of course, the acquittal of the accused some months or even a year later cannot do much in order to bring thinks in their previous state of affairs. The censorship damage is already done. As a rule, these cases provoked tensions within the Greek society and attract the interest of electronic media. In such cases, private TV channels always find a good occasion to see their viewing figures rising by triggering of the religious feelings of the public opinion.

On the contrary, an ongoing case of incitement to religious hatred against a novelist of a negationist book (the only such case pending before the Greek judiciary) has not attracted equal interest of the public or the press.


13.                    What is the attitude of the press in relation to such cases? Do they report with restraint in order not to aggravate the effects? Or do they purport to compensate by publicity for the non-prosecution?

The Greek press does not have a uniform position vis-à-vis such cases. One could argue that populist right-wing papers and tabloids always report in order to aggravate the feelings of religious sensitivity of the religious majority whereas, on the contrary, most of the papers report with restraint trying to balance between the two values in cause. A considerable part of the Greek press addresses cases of prosecution of blasphemous acts with indignation against censorship. These last are the only newspapers that also report the few judicial cases of incitement to religious hatred.  In general terms, the reporting problem has more to do with the private TV coverage than the press one, which has proven to be much more responsible.


* Source: Venice Commission (10 October 2008) /
Πηγή: Επιτροπή Βενετίας (10 Οκτωβρίου 2008)
.

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