per se – not in the sense of the
creed of an actual religious community – cannot be conceived as an interest per-
taining to one person or group of persons but as pertaining to all people. These
“ecumenical goods”, however, are abstract ideological constructs and, when
placed under the protection of criminal law, lead to total aberration.
Paradoxically, a liberal view compatible with the Constitution on the materiality
of the protected legal good leads to only one – unconstitutional – conclusion: the
good protected by blasphemy can only be a particular religion which, if taken
as the foundation of the state, places non-followers outside the notion and the
capacity of citizenship. Thus, theocracy is the only foundation for penalising
blasphemy. In a theocratic regime, paternalism is a logical corollary; the state
protects its own foundations: the dominant religious community it is founded
upon and identified with. Including any religions it chooses to tolerate ….
It is not even certain that such a regime would be desirable for the dominant reli-
gious communities. Too often in Greece, the interweaving of state and Church
has proved primarily injurious to the Church because it facilitates all sorts of
state intervention in the administration and organisation of the Church. There-
fore, there is no reason to maintain it, as there is no reason to maintain the
offences of blasphemy (malicious or not) and religious insult in our penal code.
The punishment of blasphemers is not the responsibility of the state. Let them be
punished in the appropriate quarters …
I. Manoledakis, The Legal Good, Thessaloniki 1988, p. 200.
“Blasphemy is a pseudo-crime that penalizes beliefs”: G. Kalfelis, Conversion of indictment from
malicious blasphemy to insult, Armenopoulos 1987, 812; I. Manoledakis, Penal Law, Thessaloniki
1985, p. 214; D. Spatharis, Article 198 of the Penal Code, Armenopoulos, 1988, pp. 102-3.
The emphasis of interest in Greek case law on religion and freedom of speech
might seem unjustified if findings on the situation of the Greek legal system more
or less coincided with the other comparable findings. What needs to be investi-
gated, then, is whether the Greek case is a case apart – provided, of course,
this can be argued on verifiable grounds.
In the constitutional doctrine of many European countries, the criminal offence
of blasphemy resurfaces today as “an atavistic memory from outdated obscure
that regains topicality because of the rise of European Islam and that
questions the assumptions of the secular state. In contrast, the criminal treatment
of blasphemy in Greece – in quantitative-statistical terms, but also in regard to
the investigations of jurisprudence – has not waited for the emancipation, or the
sensitivities, of any minority; it has always been topical, and the majority reli-
gion has always been the one most sensitive to it.
If, temporarily and conventionally, we take the foundation of the Greek State as
the starting point of historical research, we find the 1834 Penal Law bearing the
clear and significant influence
of the Bavarian Code. This is a privilege: the
1813 Bavarian Code was heralded as the first European penal code that no
longer entertained offences against God as such, in the spirit of the Enlighten-
ment. The transition from criminal law protecting the divine to its protection of
religious peace as a form of social peace is concisely explained by its drafter,
God is not liable to offence; and even if He were offended, He would not under any
circumstances wish the punishment of His offenders.
And yet the legislator of the young Greek State chose to diverge from his model
example in this particular chapter and afforded increased protection to all
Josef Isensee, Preface, in J. Isensee (ed.), Religionsbeschimpfung, Berlin 2007, p. 5.
Theodoros Papatheodorou, “The 1834 Penal Law and Georg Ludwig von Maurer”, in
A. Papageorgiou-Venetas (ed.), Othonian Greece and the Making of the Greek State, Athens 2002,
Ludwig Feuerbach, Lehrbuch des gemeinen in Deutschland gültigen Peinlichen Rechts, 14th edition
(1847), p. 488 et seq., quoted by: Michael Pawlik, “Der strafrechtliche Schutz des Heiligen” in J. Isen-
see (ed.), Religionsbeschimpfung, Berlin 2007, fn.10.
8. Blasphemy and justice in a Greek Orthodox context
PhD in Law at the Law School of the University of Munich
Blasphemy, insult and hatred
“religions tolerated by government” “for the good of the Nation”.
It was pre-
cisely in this context that Article 196 of the Penal Law was born, the first criminal
provision of the Greek jurisdiction punishing whoever “in public, in writing or
by way of symbolic representations attacks by scornful derisions or offending
verbalisations the doctrines, provisions and customs” of Christian Orthodoxy or
another religion. Naturally, national criminal doctrine was swift in stressing
that the object and purpose of such protection
is not religion in the literary sense of the word but the free and unhindered celebration
of creed … the harmonious co-existence of religions and the prevention of eventual
mishaps occasioned by religious followers through insults or other unbecoming ways.
Over a hundred years later, the liberal observer might be similarly reassured
by the recitals of the Greek Penal Code in force, since they refer only to “social
peace” that might be disrupted “by derision and disparagement of the con-
victions of others.”
In construing these provisions, Greek criminal doctrine
unanimously insists that the interest protected by the prohibition of blasphemy
and religious insult is social peace. As appositely pointed out,
view would only be credible if blasphemy had to be heard by at least one
believer to be indictable, whereas Article 198 of the Greek Penal Code is sat-
isfied with publicity as a requirement for indictment, even before a religiously
indifferent audience. The provision as it stands seems to protect respect for the
divine as a legal interest independent of the intermediation of an offended per-
son as the subject of a civil right. The legislator is not content with ensuring a
non-scandalised life for believing civilians and peace among them, but reveals
himself as a believer.
If it seeks to protect religion and not social peace, oblivious even to the actual
impact of the specific verbal abuse, such a provision ought not to be associated
with the system of criminal treatment of racial discourse. Therefore, any effort
to rescue the penalisation of blasphemy and religious insult by integrating them
into modern constructs of indictable hate-mongering
would be historically and
legally ill-founded. Besides, it would not make sense for religions – par excel- lence power structures characterised by innate dogmatism and intolerance for
Georg Ludwig von Maurer, Das griechische Volk, Heidelberg 1835, [Greek edition:] transl.
O. Rombaki as The Greek people, Athens 1976, p. 643.
Konstantinos Kostis, Interpretation of the Greek Penal Act in Force, Vol. 2, Athens 1877, p. 181.
Georgios Poulis, Religious Criminal Law, Athens 1996, p. 24, and the literature referred to by
Dimitris Dimoulis, “Blasphemy: a feudal remnant in religious state” in P. Dartevelle, Ph. Denis and
J. Robyn (eds), Blasphèmes et libertés, Paris 1993, in the Greek edition: D. Dimoulis (ed.), The Right to Blasphemy, Athens 2000, pp. 24-8.
Dimitris Dimoulis, Arguments in favour of the abolition of the offences against religious peace, available at: www.hlhr.gr/papers/dimoulis0.doc [in Greek].
Vasiliki Christou, Die Hassrede in der verfassungsrechtlichen Diskussion, Baden-Baden 2007.
Conference on Art and Sacred Beliefs: from Collision to Co-existence
– to seek protection in laws designed for vulnerable minorities, like
a wolf seeking protection in the laws protecting sheep.
Court practice does not appear to have contributed in any particular way to
modernising the interpretation of this obsolete formulation of the Greek Penal
Code. The Appellate Court of Thessaloniki,
in the case of the play The Saint of Preveza by Dimitris Kollatos, ruled thus:
the theatre setting arranged so as to convey to the audience the impression of a
holy place, a church in particular, in that sacred symbols and objects were placed
in it; and in this setting male actors were dressed in canonical sacerdotal vestments
and cavorted with female actresses in obscene acts accompanied by foul dialogue.
… The defendants maliciously insulted the Eastern Orthodox Church in Christ in that
their intention was not to castigate the conduct of specific priests but to attack the
above Religion as may be inferred from the fact that all the above acts took place
in a setting arranged so as to look like a church.
With arguments drawn from the scenic arrangements, the court concludes that
the purpose of the play could not have been other than insult.
The Athens Court of First Instance
ruling in the affair of the film The Last Tempta- tion by Martin Scorsese further clarified its interpretative choices:
Protection of religious feelings is imperative because they are moral-social values,
social and legal interests worthy of protection to the benefit of civilization and pol-
ity. Religion is not a purely personal affair, a wholly inner relationship of the soul
with God, irrelevant to the state, but the foundation of the state, a vector of spir-
itual civilization affecting not only the feelings and thoughts but also the actions of
So feelings are protected objectively, not necessarily in association with actual
persons. In the same ruling, the discourse on cinematographic method is equally
Interspersed with all this and reinforced with the help and force of cinema art as
to motion, expression and, generally, photographic representation and mise en scène, to the extent that the public accept the motion picture at issue as another real-
ity, Jesus Christ is depicted as weak, a liar, a hypocrite, a magician, inconsistent,
sometimes talking about love, sometimes talking about fear or about axe and fire,
doubting his mission, indulging in erotic fantasies, unavowed desires and longings,
[He] is parodied, vilified and ridiculed in public with intention to express contempt,
hence maliciously blasphemed. And all that, even if on this particular occasion the
director was driven by artistic creation, contravenes morality which springs from
Dimitris Dimoulis, “Religious freedom as a rule of differentiation and notion of exclusion” in
D. Christopoulos (ed.), Legal Issues of Religious Otherness in Greece, Athens 1999, pp. 149-155;
Laurent Jézéquel, Liberté de croire – liberté de penser, Paris 1999, in the Greek edition (translated by
A. Keramida): Freedom of Belief – Freedom of Thought, Athens 2006, pp. 10-44.
As quoted in the Supreme Court Decision 928/1984: Poinika Chronica [Criminal Annals],
Vol. 35/1985, pp. 134-5.
Ruling 17115/1988: Epharmoges Dimosiou Dikaiou [Public Law Applications], Vol. 2/1989,
pp. 216-35, with commentary by Georgios Kaminis; also Gerasimos Thedosis, Freedom of Art, Athens 2000, p. 125.
Blasphemy, insult and hatred
the fundamental political, social and moral principles and precepts that prevail in
Greek polity and represent the popular sense of decency.
So here, not only is the mediation of cinematographic art not taken into consid-
eration in favour of the defendant, as a presumption of the exclusion of “malice”
or as a pursuit which enjoys constitutional protection in itself but, on the contrary,
it counts as an element against the defendant, a misleading, almost satanic,
medium by definition. Not even deigning to go through the other legal pre-
requisites for indictment, the judge is content with establishing the “falseness”,
the insulting function and verisimilitude of the proffered interjections, as well
as their potential to be believable, as if the judge were called upon to defend a
living person who was a victim of insult or libel.
The choice of the above quotations might be accused of arbitrariness and pos-
sessing an intention to mislead. True, the verbal aberrations encountered in
these, as well as in other court decrees, are the exception in the system of Greek
case law as epitomised in the level of last-resort rulings. By entertaining a more
systematic and attentive contact with criminal doctrine, the Supreme Court has
never deviated into directly questioning the view that the object of protection
here is religious peace and not God Himself. However, to restrict ourselves only
to the choices of the summit of the judicature would only make sense in the con-
text of a purely legalistic approach where positions and trends are defined and
codified only on the basis of last-resort judgments. If, by contrast, we investigate
the prevalent ideology of the judiciary, the spontaneous and legally uninformed
judgments of trial judges, who are closer in terms of time and merits to both the
dispute and the insatiable public opinion, may prove equally, if not more, impor-
tant. In first and second instance trials adherence to the pre-modern definition of
blasphemy remains the rule.
Besides, even if we judge by their impact on the freedom of litigants, trial court
decisions are by no means less important. Thus, for instance, the mere commit-
tal of a “heretic” work of art to a criminal trial, even if it does not end in a con-
viction, is a public act that upsets the lives of people and indirectly leads them
to self-censure, if not self-exile, as in the case of Andreas Laskaratos, who was
tried in 1869 by the Appellate Court of Corfu
for The Mysteries of Cephalonia. Zealotical and moralistic, this pervasive ideology redesigns the grammatical
dimensions of the applicable provision, which ceases to be a formal rule of
“abstract endangerment offences”
and becomes itself an actual endangerment
of every free intellectual activity.
A civil court decision, issued in relation to the procedure for interim measures
or a prosecutor’s confiscation order, can have even more direct implications
Pantelis Ravdas, “With a book in the face of God” in M. Loukidis, V. Papadopoulos and
P. Ravdas, Trials of the Word, Athens 2002, pp. 216-17.
Alexandros Kostaras, “Freedom of art and criminal law” in Democracy – Freedom – Security: Festschrift for Ioannis Manoledakis, Vol. 1, Thessaloniki 2005, pp. 427-9.
Conference on Art and Sacred Beliefs: from Collision to Co-existence
for actual freedom of speech, as is evident in the case of Gerhard Haderer’s
cartoons called The Life of Jesus, which according to the prosecutor’s office
“constitute a gross and vulgar manifestation of contempt and affront against
the person of Jesus Christ … with the ultimate goal to earn money”. But, in the
context of a sober valuation of legal texts, the indictment preceding an acquit-
tal may prove just as interesting, like the committal to trial of the curator of the
an obscene and despicable painting … the product of a perverted artistic mind …
although aware of the repulsive content of the despicable work, he presented it in
a public event directly expressing a malicious will to scorn and ridicule the Eastern
If this and other disquisitions by judges or prosecutors point to an endemic confu-
sion between the purpose of the law and the protected legal interest in relation
to blasphemy and religious insult, it would be unfair to blame it on the inade-
quate legal training of responsible officials and it would be sloppy to explain it
in terms of less-than-perfect drafting of the relevant law.
To explore the deeper causes, we must take an even greater leap into the past
than the one that took us back to 1834. This anachronism is inspired by some
of the court decisions in question, which attempt to identify the historic basis of
the applicable provisions, referring explicitly to the Byzantine Empire: “whereas
under Article 200 of the Penal Code, first introduced by Byzantine Law …”.
If this reference back makes sense in matters of civil law, which were governed
by the Roman Pandects until 1946, such a reference is paradoxical, to say the
least, in matters of Greek criminal law, which were regulated by a modern code
right from the start.
And yet the Greek judge is not mistaken in his sense of continuity. However mod-
ern on the surface, the penal treatment of blasphemy and religious insult dates
back to a clearly discernible legal lore that is nothing other than the articulation
of State and Church. A brief kaleidoscopic view into the history of this relation-
ship may prove edifying, even if it does not go back as far as the burning of
Jewish books by the emperor Theodosius. As in the medieval west, so too in
this part of the world, beginning with a novel of the emperor Justinian in 538,
blasphemy was for centuries a crime certified by the Church and punished by
the state on ground of the social need to placate divine wrath in order to ward
off imminent famines and earthquakes.
In those times, the scope of the offence
was far-reaching and included even the violation of the Biblical commandment
Quoted in decision 882/2003 of the Magistrates’ Court sitting as a Board; see Stavros Tsakyrakis,
Religion v. Art, Athens 2005, p. 71.
Arraignment by Prosecutor, Magistrates’ Court of Athens, quoted by Tsakyrakis, Religion v. Art, pp. 66-8.
Decision 95/1971 of the Magistrates Court of Herakleion sitting as a Board: Poinika Chronica [Criminal Annals], Vol. 21/1971, p. 498.
Pawlik, “Der strafrechtliche Schutz des Heiligen”, p. 31.
Arnold Angenedt, “Gottesfrevel” in J. Isensee (ed.), Religionsbeschimpfung, Berlin 2007, p. 22.
Blasphemy, insult and hatred
“Thou shalt not take the name of the Lord Thy God in vain.”
But, whereas else-
where the Enlightenment gradually permeated the organisation of societies and
secularised criminal repression, the Orthodox corner of Europe succeeded in
escaping infiltration by Satan. Pre-modern theoretical schemes, like the scheme
to ward off famines and earthquakes, have already disappeared from German
treatises of criminal law by the late 18th century.
Here, by contrast, a court in
the late 20th century finds that “religion is the foundation of the state”.
A token of the perpetual interweaving of secular and ecclesiastical jurisdiction is
the inclusion of the penalty of excommunication into the public arsenal of repres-
sion. This post-Byzantine building block survived not only through the long years
of the Ottoman Empire, which might be considered reasonable, but even into
the modern Greek State – in an irrational fusion of responsibilities or, as it has
been brilliantly called,
in an exchange of services, whereby the Church submits
excommunication to public approval and avails it for extra-religious uses, whilst
the state integrates purely religious offences, like blasphemy or proselytism, into
the Penal Code.
Thus, in 1837, in response to a government appeal for assistance in the preven-
tion and punishment of animal theft, the Church excommunicated those arrested.
Eight years later, responding to a request by the Mayor of Piraeus, the local
Bishop of Attica excommunicated those who felled trees in the city garden.
less than one hundred and fifty years later, the Holy Synod officially asks the
government to ban The Last Temptation by Nikos Kazantzakis and M v (M to the power of n) by Mimis Androulakis.
So, if one may speak of Greek peculiarity in the matter at hand, this cannot
be explained except by going back to the relationships between the state and
the Church, the origins of these relationships and the continuing recognition of
a “dominant” religion – that is, a state religion – and to the atmosphere of a
“natural” alliance between justice and the Church in view of their supposed
common moral pursuits. Besides, the taxonomic criterion of state-Church rela-
tionships lends itself as the most apposite standard for any typology of criminal
treatment of blasphemy throughout the world over, with typical examples found
in a series of Islamic countries, at the one end, and of the United States, at the
Bernard Lauret, “Thou shalt not take the name of Lord Thy God in vain” in P. Dartevelle, Ph. Denis
and J. Robyn (eds), Blasphèmes et libertés, Paris 1993; [Greek edition:] D. Dimoulis (ed.), The Right to Blasphemy, Athens 2000, p. 81.
Pawlik, “Der strafrechtliche Schutz des Heiligen”, fn. 13.
Ravdas, “With a book in the face of God”, p. 207.
Panagiotis Michaelaris, Excommunication: the Adaptation of a Sanction to the Necessities of the Ottoman Empire, Athens 1997, pp. 441-2.
Ravdas, “With a book in the face of God”, pp. 242, 259; Nikos Alivizatos, Uncertain Modern- ization and Murky Constitutional Revision, Athens 2001, p. 293.
Tsakyrakis, Religion v. Art, pp. 154-68; Stefan Mückl, “Meinungsäußerungsfreiheit versus
Religionsfreiheit: Anforderungen aus menschenrechtlicher Sicht” in E. Klein (ed.), Meinungsäuße- rungsfreiheit versus Religions- und Glaubensfreiheit, Berlin 2007, p. 86.
Conference on Art and Sacred Beliefs: from Collision to Co-existence
Echoing these comments, the Hellenic League of Human Rights graphically
describes the characteristics of the Greek case in a recent announcement:
when entire regiments of the judiciary secretly march through the offices of prelates,
the suspicions of those who entrusted the protection of their religious freedom in
Greek justice become reasonable … this consorting of judicial officials with clergy-
men from the dominant religion is still seen as the corollary of an allegedly natural
alliance between these two domains in their assumed attachment to the common
pursuits of justice and morality … the separation of the church from the state is an
indispensable prerequisite for gradually instilling religious neutrality into judicial
and other public officials.
Nowadays, the penal protection of God in Himself is imaginable only in those
countries that place one religion at the foundation of their existence.
trast, in countries not identified with a specific confession, this protection is
unthinkable. Indeed, to a good Christian it would perhaps be more satisfactory
to abolish criminal protection rather than maintain it: in the parable of the wheat
when the servants ask their master if they must uproot the weeds he
answers: “Nay, lest while ye gather up the tares, ye root up also the wheat with
them. Let them grow together until the harvest”.
Josef Isensee, “Blasphemie im Koordinatensystem des säkularen Staates” in J. Isensee (ed.),