Lina Papadopoulou, State and Church in Greece in:

Gerhard Robbers (Ed.)

State and Church in the European Union, page 171 - 194

Third Edition

3. Edition 2019, ISBN print: 978-3-8487-5472-4, ISBN online: 978-3-8452-9626-5,

Bibliographic information
State and Church in Greece Lina Papadopoulou1 Social Facts Greece’s population amounts to approximately ten million inhabitants (according to the latest census of 2011, the registered population was 9.9 million, whereas the actual number of residents was 10.8 million). The vast majority of Greeks (over 90%) are Orthodox Christians —at least they were baptised as such when they were infants— but there are no official data as to the exact numbers and percentages (no data are collected in the census). In a Special Eurobarometer report of 2010 (p. 204), 79% of those asked declared their belief in God, while 16% believed that “there is some sort of spirit or life source” and 4% declared that they did not hold any such belief. In another poll (Metron Analysis, December 2011), 1.5% declared that they belonged to a religion other than Orthodox Christian. The vast majority of Orthodox Christians have a relatively loose connection with the Church (for example, they engage in basic religious practices such as church weddings rather than civil ones, or fasting during Holy Week before Easter) but a smaller percentage are regular church-goers or follow the particular mode of life imposed by the Church (Sakellariou 2017). In another Eurobarometer survey on values (2016, 86.2), religion occupied a low position (13%). This loose connection with the Orthodox Church, combined with the recent increase in mainly non-Christian migrants, has challenged the dominance of the Greek Orthodox Church (cf Papageorgiou 2012). Most of the approximately 1.5% who are not Orthodox Christians are Muslims, including not only the religious minority of Western Thrace (amounting to approx. 100,000, which is 31% of the population of this region and protected by the Lausanne Treaty of 1923), but also newly-arrived immigrants. The minority comprises Greeks of Turkish origin (50%), Po- I. 1 Associate Professor of Constitutional Law, Jean Monnet Chair for European Constitutional Law and Culture, Law School, Academic Coordinator of the Jean Monnet Centre of Excellence “European Constitutionalism and Religion(s)”, Aristotle University of Thessaloniki, Greece. 171 maks (35%) and Roma (15%). In Greece there are also Roman Catholics, who are to be found especially on the Cyclades islands (mostly on Syros and Tinos), as well as on Corfu, while a large proportion of the new immigrants, especially those from the Philippines and Poland, belong to the same denomination. In addition, there are Protestants, Jehovah’s Witnesses, Armenians and a few Jews (the remnant of the once thriving Jewish population of Thessaloniki, which was largely exterminated during the Second World War). Historical Background It was St Paul who founded the Greek Orthodox Church when he visited a number of Greek cities. During the early Byzantine period, Christianity became the state religion of the region which is now Greece. This region constituted the Diocese of Eastern Illyricum and was self-governing. Initially it was subordinated to the Bishops of Rome, but later, by 733 AD, it had been subsumed under the jurisdiction of the Ecumenical Patriarchate of Constantinople. In the Byzantine Empire, the Orthodox Church was characterised by a form of caesaropapism (Papastathis, 2006, 115). After Constantinople was conquered by the Ottomans, Mehmet II granted the Ecumenical Patriarch the power to govern the Christian population (millet başi). The first head of state of independent Greece, Ioannis Kapodistrias, insisted on the autonomy of the Greek Church, given the fact that the Patriarchate of Constantinople was on Turkish soil and could be influenced by the Turkish government. Indeed, the Greek Orthodox Church was declared “autocephalous” (Decree of 23.07/4.8.1833), with full powers of selfgovernment and the King as its Head. This development was in accordance with the founding or recognition of “national churches”, a mainstream trend in the Balkans at that time. The result was the organisational division of the Orthodox Church into national autonomous or autocephalous Churches (Papageorgiou, 2012, 23). Such a rupture in the long tradition of unity between the Patriarchate of Constantinople and the Greek Church had a negative impact on their relationship. Consequently, it was only in 1850 that the Patriarchate of Constantinople recognised the Greek Church’s autocephalous character through a Synodal Tome, “albeit with some limitations”. It is also worth mentioning that the constitutions of the Greek state established the Eastern Orthodox faith as the prevailing religion or “religion of the state” (Papastathis 2005, 115). II. Lina Papadopoulou 172 Legal Sources The State-Church relationship in Greece, within the “state-law rule” system, derives from and is regulated by the Constitution itself, together with a series of laws. The most prominent law is L. 590/1977 on the “Constitutional Charter of the Church of Greece”, which regulates the organisation and administrative and institutional functions of this Church. Laws often provide legislative authorisation to both the President of the Republic and the Minister of Education and Religious Affairs, as well as the religious authorities themselves (on the basis of Article 43 para 2 GrConst). Religion and Church in the Greek Constitution Religious freedom and equality (Articles 2, 4, 5(2) and 13) The Greek Constitution establishes a liberal democratic state, without however a separation of state and religion. Article 13 para 1 expressly states that religious liberty is inviolable. It therefore specifies Articles 2 (human dignity) and 5 para 1 (free development of the personality), which protect the freedom of conscience in general. The freedom of religion extends to both forum internum (beliefs) and forum externum (the public manifestation of belief). It also covers the principle of non-discrimination on the grounds of religion. Article 5 para 2 guarantees that “all persons living within the Greek territory shall enjoy full protection of their life, honour and liberty, irrespective of nationality, race or language and of religious or political beliefs”. In its seminal ruling 2280/2001 (on registering religion on the identity card2), the Council of State in obiter dicta declared that Article 3 GrConst does not influence the exercise of the civil right enshrined in Art. 13, which stipulates equal treatment in the enjoyment of civil rights, independently of religion. Article 13 para 1 section b, which specifies the general provision of Article 4 para 1 regulating equality, stipulates that “the enjoyment of civil rights and liberties does not depend on the individual’s religious beliefs”. III. 1. 1.1. 2 Council of State (Plenary) 2280-2285/2001 of 27/06/2001. The Court concluded that not only was the obligatory registration of a citizen’s religious beliefs on their ID card prohibited, but it was also prohibited even if they consented to such an action. State and Church in Greece 173 Article 13 para 2 GrConst guarantees freedom of worship for known religions, as long as it does not violate public order or morals (χρηστά ήθη). Article 14 GrConst provides protection for “all known religions” against offensive publications. In order for a religion to be classified as a “known religion”, it should not have any secret doctrines or occult forms of worship. As opposed to freedom of religion, which is recognised as an absolute right, freedom of worship applies only to “known” religions: “the practice of rites of worship is not allowed to offend public order or moral principles” (Article 13§ 2 section b). As is obvious, there is a danger that the administration, in trying to define these vague terms, may unnecessarily limit religious freedom (cf Konidaris 1994: 175). Acknowledging the religious phenomenon and the prevailing status of the Greek Orthodox Church “All powers derive from the People and exist for the People and the Nation” and “shall be exercised as specified by the Constitution” (Article 1 para 3 Const), which means that Greece is a constitutional democracy and not a theocratic state. Nevertheless, the Preamble to the Constitution contains the phrase “in the name of the Holy and Consubstantial and Indivisible Trinity”; so already from the beginning the connection between a specific religion and the state is evident, at least from a symbolic and cultural point of view. Although according to legal doctrine the Preamble does not have any normative consequences, it is still sometimes evoked by both theory and the Courts, in combination with Article 3 GrConst, as a means of justifying the privileged treatment of the Greek Orthodox Church.3 Article 3 GrConst4 (an idiosyncratic detailed constitutional stipulation placed in the section “Basic Provisions”) regulates the relationship between 1.2. 3 See Council of State (Plenary) 660/2018 of 20 March 2018. 4 Article 3: “1. The prevailing religion in Greece is that of the Eastern Orthodox Church of Christ. The Orthodox Church of Greece, acknowledging our Lord Jesus Christ as its head, is inseparably united in doctrine with the Great Church of Christ in Constantinople and with every other Church of Christ of the same doctrine, observing unwaveringly, as they do, the holy apostolic and synodal canons and sacred traditions. It is autocephalous and is administered by the Holy Synod of serving Bishops and the Permanent Holy Synod originating therefrom and assembled as specified by the Statutory Charter of the Church in compliance with the provisions of the Patriarchal Tome of June 29, 1850 and the Synodal Act of September 4, 1928. Lina Papadopoulou 174 the State and the Greek Orthodox Church of Christ by declaring that the latter is the prevailing religion in Greece. The term “prevailing” is considered to be descriptive rather than normative, meaning “of the overwhelming majority of the Greek people”, according to the concurring opinions of both theory (Tsatsos 1993: 607, Alivizatos, 1999, 27-8, Venizelos 2000) and jurisprudence. The Council of State (henceforth CoS), which is the supreme administrative court of Greece and functions as a quasi constitutional court, has affirmed this in a series of rulings (3533/86, 3356/95, 2176/98). According to Papastathis (2005: 117) “prevailing” means that “(1) the Orthodox Christian faith is the official religion of the Greek State; (2) the Church, which embodies this faith, has its own legal status: it is a legal person under public law in its juridical relations, as are its various services…; and (3) it is treated by the State with special concern and in a favourable manner, which is not extended to other faiths and religions”. However, in contrast to what Papastathis himself explicitly made clear, recognising the religion of the Greek Orthodox Church as “official” (so also Manesis 1982: 247 and Spyropoulos, 1981: 340f who speaks of a ‘Staatsreligion’) is inconsistent not only with the constitutional principle of equality and, more specifically, religious equality but also with the European Convention of Human Rights (Art 9 in combination with Art 14; in the same vein of argumentation see, in greater detail, Kyriazopoulos 2001). It is more convincing to accept that the term “prevailing” should be interpreted so as to be both dogmatically and practically in harmony with Articles 4 and 13 GrConst and the ECHR so that, as a consequence, it bears minimal normative consequences. Such consequences may be only those which do not undermine either the freedom of religion or religious equality and the necessarily secular character of a liberal democratic state in which “all powers derive from the people”, not from God. Such consequences are those which serve the smooth functioning of the State when bearing in mind that the Orthodox Christian faith is, in practice, the prevalent religion in Greece. Therefore, it is normatively acceptable that Sunday is in principle a non-working day and that official holidays derive from the Orthodox Christian faith. If this were not the case, a huge number of 2. The ecclesiastical regime existing in certain districts of the State shall not be deemed contrary to the provisions of the preceding paragraph. 3. The text of the Holy Scripture shall be maintained unaltered. Official translation of the text into any other form of language, without prior sanction by the Autocephalous Church of Greece and the Great Church of Christ in Constantinople, is prohibited.”. State and Church in Greece 175 working people would be asking for religious exemption. So, the quantitative prevalence of Orthodox Christians, based on the State’s interest being the public interest, is acceptably interpreted as being normative. Article 3 GrConst also refers to the autocephalous Church of Greece, and recognises the distinct administrative status of the other Orthodox Churches on Greek territory. It is worth noting that Article 3 GrConst also refers to the Patriarchal Tome through which the Greek Church was recognised as autocephalous, due to its significance for the maintenance of spiritual unity between the Patriarchate and the Greek Church (cf Frazee, 1969). Moreover, according to Article 72 para 1 GrConst, bills relating to Articles 3 and 13 (amongst others) may only be discussed and voted upon by the Parliament in plenary session and during a summer session. Moreover, according to Article 16(2) GrConst, education, as organised by the State, aims, amongst other things, at developing “the national and religious consciousness” of the Greeks. This provision has been used by the Council of State (Greece’s supreme administrative court) as a justification for imposing a minimum number of hours for religious education lessons and –more recently- for a religious education of a catechetical kind (see judgment 660/2018 of the State of Council). Article 33 GrConst (concerning the oath for the elected President of the Republic) and Article 59 GrConst (concerning the oath for the elected Members of Parliament) impose an Orthodox Christian or generally religious oath for state officials. Finally, the Constitution declares “the special regime” of the territory of Mount Athos, through which any person who resides there is automatically granted Greek citizenship (Article 105 Gr- Const). Laws The general legal framework As has already been mentioned, in order for a religion to be classified as a “known religion”, it needs to be pre-registered (see CoS rulings 310/1997 and 493/1997). According to Law 4301/2014 (“Organisation of the Legal Form of Religious Communities and their Organisations in Greece”), and specifically Article 1 of this law, a religious community is constituted by “a sufficient number of individuals with a specific confession of faith in a ‘known’ religion who are permanent residents of a specified geographical region and whose aim is to carry out collectively the duties of worship and observance required by their religion”. Article 2 of the same law provides 2. 2.1. Lina Papadopoulou 176 for the possibility of recognising “Religious Legal Persons” by stipulating that: An association of persons of the same religious community, which seeks the systematic and organised practice of their religion and the collective expression of the religious beliefs of its members, acquires a legal personality when it is registered in a special register (for Religious Legal Persons) kept in the Court of First Instance where the association has its seat. In order for a religious legal person to be established, a minimum of 300 persons is required, of whom at least one should be a religious worker, member of the clergy or the pastor of the religious community, to whom the performance of religious services has been assigned and who must be Greek or a citizen of a Member State of the European Union or an alien legally residing in Greece. Furthermore, Article 9 stipulates that religious legal persons – and not religious communities – may establish places of worship in accordance with the prescribed procedure. An electronic register has also been established in the Ministry of Education, Research and Religious Affairs in which the judicial rulings pertaining to the recognition of religious and ecclesiastical legal persons are recorded. The principle of non-discrimination on the basis of religion Law 927/1979, as amended by Law 1419/1984, L 2910/2001 and L 4285/2014 (the latter being the national instrument implementing European Council Framework Decision 2008/913/JHA), provides for protection against discrimination based, among other things, on religious grounds.5 This law aims at preventing racist speech based — amongst other grounds — on religion with instruments of criminal law. Direct and indirect discrimination based on religion, amongst other things, are also prohibited by Law 3304/2005, which implemented EU Directive 2000/78/EC.6 In the same vein, there is provision for disciplinary measures against civil servants who, in the exercise of their duties, discriminate on the grounds of politi- 2.2. 5 Law 1419/1984, Article 24, supplemented the earlier Law 927/1979 adding religion as a ground for non-discrimination, to those of race and nationality. 6 Council Directive 2000/78/EC of 27 November 2000 which established a general framework for equal treatment in employment and occupation. Official Journal L 303, 02/12/2000, pp 0016 – 0022. State and Church in Greece 177 cal, philosophical or religious beliefs (Article 27 para 3 of the Civil Servants’ Code, L 2683/1999). Basic Categories of the System The self-administration of every religious community, according to its internal canon law, derives from the right to associate with others for religious purposes (Maghioros, 2003). However, there are specific provisions concerning the Orthodox Church of Greece: the latter is recognised (Article 3 GrConst) as autocephalous, although doctrinally inseparably united with the Ecumenical Patriarchate of Constantinople and with all other Orthodox Churches. The vast majority of the latter are autocephalous, meaning both spiritually self-sufficient and administratively independent, while a few others (the Churches of Finland and Estonia) are autonomous, meaning independent in administrative terms only. At present, the territory of Greece is divided into five ecclesiastical provinces: a) the autocephalous Orthodox Church of Greece; b) the metropolitan sees of the New Lands; c) the semi-autonomous Church of Crete; d) the Dodecanesian metropolitan sees, and e) the self-administered monastic state of Mount Athos. Lastly, the Greek Orthodox Diaspora comes under the spiritual authority of the Ecumenical Patriarchate (Papastathis, 2005, 122-4, Papageorgiou, 2012, 24). More specifically, the so-called “New Lands” (Macedonia, Epirus, Western Thrace and the Aegean Islands) are the regions which were annexed to Greece after the Balkan Wars. Initially they remained dependent upon the Ecumenical Patriarchate and only through Law 3615/1928 and the Patriarchal and Synodal Act of 1928, which has also constitutional status, (as is explicitly stated in Article 3 Gr- Const) did they become part of the autocephalous Church of Greece. As an exception, the Church of Crete still has its own semi-autonomous administration and its own “Charter” (Law 4149/1961; see Papageorgiou, 2012, 163ff). Moreover, four metropolitan sees of the Dodecanese Islands and the Exarchy of Patmos are under the administrative jurisdiction of the Ecumenical Patriarchate. All these Churches (New Lands, Crete and the Dodecanese), as well as Mount Athos, are still under the spiritual jurisdiction of the Ecumenical Patriarchate. IV. Lina Papadopoulou 178 Legal Status of Religious Communities Religious communities in Greece are recognised as holders of the fundamental right to religious freedom against the State, even when organised as legal persons of public law. The principle of (religious) equality extends the privileges enjoyed by the Greek Orthodox Church to all religious communities, at least those belonging to a “known religion”. The previous legal status Until the promulgation of Law 4301/2014, a series of legal persons, over 10,000 in number, most notably the Greek Orthodox Church and its divisions and manifestations (such as the Archbishopric and the metropolitan sees, the parishes, churches and monasteries, according to Article 1 para 4 of L 590/1977), as well as the Jewish communities, have been recognised as legal persons of public law. The ECtHR had recognised7 the “sui generis legal personality” of the organisational subdivisions of the Catholic Church, even if they have not acquired a legal personality under Greek law. Their status was then recognised by Article 33 of L 2731/1999 (Psychogiopoulou 2010: 130). It was debated whether the Roman Catholic Church itself was a legal person of public or private law. If recognised as a public entity, the Catholic Church could then accordingly act as agents of public administration (Papastathis 2005: 118). However, most non-Orthodox religious communities (Protestants, Evangelicals, Armenians etc) constitute legal entities of private law. The legal status of the Jewish communities in Greece has been regulated by a series of laws (e.g. L 2456/1920, ML 367/1945, L 1657/1951, RD of 25/06/1951, DL 01/1969). The foundation of a Jewish (or Israelite) community as a legal entity of public law is effected by means of a presidential decree and presupposes the existence of at least twenty families and the operation of a synagogue. Such Jewish communities may operate religious schools. V. 1. 7 ECtHR, The Canea Catholic Church v. Greece (Application no. 25528/94), 16 December 1997. State and Church in Greece 179 The changes brought about by Law 4301/2014 Law 4301/2014, which has already been mentioned (under III.B), aimed at rationalising the status of religions and denominations and has thus introduced a distinct legal type, the “religious legal person”, a new type of legal person of private law. The practice of the rites of worship of any religious legal person should not contravene public order and morals, a restriction which, according to Article 13 para 2 GrConst, pertains to religious worship and not religious freedom as such. All “religious legal persons” are administered by their religious minister or a body of more persons including the former (Article 8 of L 4301/2014) or by the Assembly of all its members. “Religious legal persons” have the right to organise, as their branches, places of worship, schools, NGO’s etc., in order to promote their faith (Article 9). According to Article 12 of L 4301/2014, at least three “religious legal persons” may found an “ecclesiastical legal person”, which has a centralised structure, administered by a single-member or multiple-member organ. A judicial decision is also required for its establishment. Religious communities which do not qualify may use the word “Church” in their name only if they do not usurp the name of an existent “ecclesiastical legal person”. Such religious communities without legal personality have standing before the Courts, as explicitly stipulated by Article 15, as was already the case in the past, on the basis of Article 62 para 2 of the Code of Civil Procedure. Article 13 introduces a wide-ranging exception concerning all the existent Churches (including the Anglican, Evangelical and German Evangelical Churches, the Armenians et al) and their own legal persons. More specifically, the Catholic Church and its (over 240) branches all over Greece are recognised without the need to fulfil the whole list of procedural requirements set out in L 4301/2014. Needless to say, the Greek Orthodox Church and all its branches (including parish churches), as well as all Orthodox Churches doctrinally connected with the Constantinopolitan Church, the Jewish communities and the Muftiships (see below) retain their legal status as legal persons of public law (Article 16 of L 4301/2014). The special status of the Muslim minority in Western Thrace A special Greek case is the religious community of the only officially recognised religious minority in Greece, the Muslim minority of Western Thrace. The Treaty of Lausanne (1923) guarantees its status, state-funded 2. 3. Lina Papadopoulou 180 bilingual education and the existence of religious ministers, as well as the operation of mosques. The muftiship in Western Thrace is divided into three territories: Xanthi, Komotini and Didymoteicho. Muftis are appointed by the government and also exercise judicial duties. The muftiates of Western Thrace are recognised as public services, under the jurisdiction of the Ministry of Education, Research and Religious Affairs. The waqfs in the same region are regulated by L 3647/2008, Article 4 of which stipulates that the existing waqfs are legal persons of private law. There is constant tension between the Greek government and the Muslim community because the latter claims it has the right to elect its own muftis. This claim is legitimate but is undermined by the fact that the muftis exercise not only religious and spiritual duties but also judicial ones, due to the application of Sharia law in family and inheritance matters in Western Thrace. In addition, there are three mosques with two imams and one mufti on the islands of Rhodes and Cos. There are also another six official mosques, of small size, functioning in Attica (cf Tsitselikis 2004: 91, Farooq 2016). The establishment and operation of a large mosque in Athens has been widely and passionately debated in the public sphere. Its construction has been affirmed by the Council of State (plenary ruling 2399/2014). The special regime of Mount Athos Mount Athos became part of Greece in 1912. It is under the spiritual jurisdiction of the Ecumenical Patriarchate and still retains its ancient privileged regime of self-government. This status, the twenty monasteries established there and their hierarchical order are enshrined in the Constitution (Article 105). These privileges (which, for example, relate to customs franchise, tax exemptions and the right of establishment) have even been enshrined in Joint Declaration No 4 of the Final Act (1979) of the Agreement on Greece’s accession to the European Communities.8 Within the framework of self-governance the monasteries agreed upon a charter regulating their administration, which was ratified by the Legislative Decree of 10/16.9.1926 and came into force in 1927. Its most unusual characteristic is the so-called abaton, a centuries-old rule which is still in force and prohibits all women from entering the 4. 8 See Greece's EU accession treaty of 28/05/1979 and the joint declaration concerning Mount Athos which was annexed to the Final Act. State and Church in Greece 181 Mount Athos peninsula. Having been first proclaimed by the Byzantine emperor Constantine Monomachus in 1046, the abaton was formalised by Article 186 of the Constitutional Charter of Mount Athos and Legislative Decree 2623/1953. Its violation leads to a penalty of imprisonment for between two and twelve months, although now, according to the general provisions of the Penal Code (PC), this may now be commuted to a pecuniary penalty (Konidaris 2003). Religious Communities within the Political System Factually speaking, the umbilical cord between nation state and national church in Greece has never been cut. In some respects, the Greek state seems to be acting as if it were a confessional state (cf Papastathis, 2001, 425; Papastathis, 1996, 815ff). This is also reflected in Article 3 and in the entire “state-law rule” system that applies to the relationship between State and Church in Greece. Within the framework of “State-law rule”, the State regulates ecclesiastical matters that do not pertain to spiritual issues. This system survives despite the Church’s preference for a different one, the Synallilia (also called parallilia) system, meaning co-ordination and mutual assistance between two equal partners regulating their affairs independently. (Spyropoulos, 1981, 19f). This legal system has its corollary in the extensive interventions by the Church in State affairs and vice versa, a phenomenon which undermines the Greek Church’s self-governance and imposes clerical views on state policies (cf Papageorgiou, 2012, 73). Right-wing political parties in particular seem to have a very close relationship with the Greek Orthodox Church and its ministers, legislating either in favour of (see the re-introduction of tax exemptions for the Church, below) or in accordance with the religious teaching of Orthodox Christianity. Social conservatism in Greece prevails and can undoubtedly be attributed to a large extent to the influence exercised by the Greek Orthodox Church, which is a markedly traditionalist one. A recurring debate concerns the teaching of religious education in schools. The Greek Orthodox Church insists that it should have a catechetical character. In order to achieve this, the Church uses both political interventions and strategic litigation. Recently, the Council of State accepted9 an application submitted by the Metropolis and Metropolitan of Piraeus VI. 9 CoS (Plenary) 660/2018 of 20 March 2018. Lina Papadopoulou 182 and a student’s parent concerning the new RE syllabus taught at primary and secondary schools. The Court, by a majority of 12 against five members, adopted a very restrictive stance, declaring that (para 14 of the ruling) according to Article 16 para 2 GrConst, in combination with Article 13 paras 1 and 2 and Article 2 of the First Protocol of the ECHR, the development of religious consciousness, stipulated by the Constitution as an educational mission, means that the State, through its schools, has to promote the development of an Orthodox Christian consciousness. This in turn can be achieved only through the teaching of the doctrines, morals and traditions of the Orthodox Church. It thus concerns only students who belong to this religionOther students should be able to claim exemption by declaring that they do not hold Orthodox beliefs. Culture General Given that the vast majority of the Greek population subscribes to the Orthodox Christian faith, everyday culture in Greece is heavily influenced by this religion. Not only are state holidays defined in accordance with it, but also on many state occasions, high-ranking officials of the Greek Orthodox Church appear and give their blessing, for example at the beginning of the school year or at the opening or inauguration of a public monument or project. Religious sacraments, such as marriage and the baptism of infants, are considered almost natural and a Greek is socially expected to give an explanation should they deviate from these cultural traditions. In fact, civil marriage was only introduced in 1982 and even today the vast majority of weddings that take place are of the religious variety. The recent decline in the number of church weddings is mainly due to their cost, as they are usually accompanied by higher expenses than the more modest civil wedding ceremonies that take place at municipal register offices. An improvement in the couple’s financial situation often leads to a church wedding after their civil marriage. Crucifixes and icons of Jesus Christ are present in court rooms and public and private schools. Daily prayers are held every morning in public schools for all students, and occasionally students go to an Orthodox church within the framework of their curriculum. In such cases non-believers may remain in their classrooms and wait for their classmates to return. VII. 1. State and Church in Greece 183 Education Religious education in schools All religious denominations have the right to found their own schools. Most notably, however, Article 16 para 2 GrConst declares that education is a mission of the state which, among other things, includes the development of the “religious consciousness” of students. In primary and secondary schools, courses in religious education are mandatory, and must be taught by regular teachers and theologians respectively;the content concerns Orthodox Christian doctrine and practice. There is a debate here as to whether the notion of “religious consciousness” refers to a general awareness of the religious phenomenon and the notion of the sacred, or to the Greek Orthodox faith. The latter interpretation has been adopted by the Council of State in its ruling 660/2018 (plenary ruling of 20/03/2018). The judges, in accordance with the preamble to the Constitution and Article 3 GrConst on the prevailing religion, declared unconstitutional a ministerial decision which had slightly altered the absolute catechetical character of the RE syllabus. They ruled that the latter has to conform with the Orthodox Church’s beliefs, given the fact that the vast majority of students belong to this denomination. Non-Orthodox students, after a relevant declaration by their parents, have the right to be exempted from RE lessons. A small minority of the CoS (five out of 17 members) adopted the more liberal view of the notion of “religious consciousness”. The same Court had previously (2176/1998) declared unconstitutional the restriction of teaching hours devoted to religious instruction. Education of the Muslim minority The children of the Muslim minority in Western Thrace have the right to attend special schools where lessons are taught in Greek and Turkish. There are also two Islamic theological seminaries (madrasas), i.e. private Muslim hieratic schools supervised by the mufti, which also serve as “minority schools” of secondary education along with other bilingual secondary schools. These institutions are all publicly funded. 2. 2.1. 2.2. Lina Papadopoulou 184 Education for religious personnel The State also operates and finances the ecclesiastical education system which aims at educating Orthodox Christian ministers, through a complicated and constantly changing system. According to Law 3236/2006 on “the Structure and Function of Ecclesiastical Education”, religious education for Orthodox students should be provided by ecclesiastical schools (secondary and higher), the “Supreme Ecclesiastical Academies” (which now constitute a part of the state tertiary education system), the “Ecclesiastical Institutes of Vocational Training” (which provide non-compulsory, post-secondary, non-tertiary vocational ecclesiastical training of two semesters’ duration), “Second Chance Hieratic Schools” (institutions of life-long learning offering two-year programmes followed by members of the clergy or laity over the age of 18), and a School for Church Ministry (Diakonia), which aims to provide lifelong learning and further education for Church personnel, either clergy or lay people (cf Papadopoulou, 2013). Two Schools of Theology (at the Universities of Athens and Thessaloniki) operate in Greece, both state-run and without a formally confessional character, though in practice they are orientated mainly but not exclusively to (Orthodox) Christian teaching. They accept graduates from senior secondary schools (lycea), based on their performance in the generally applicable pan-Hellenic university entrance exams and independently of their own religious beliefs. Labour Law within the Religious Communities In order to fulfil its mission, the Church of Greece (in the broader sense, including all relevant bodies) employs both paid and voluntary staff. The latter have no contractual relationship with the Church. The former consists of a) administrative, and b) parish priests, deacons, church cantors and the auxiliary staff of parish churches (Koukiadis and Papastathis 1993: 116). Within the framework of “State-law rule”, the legal status applicable to both the voluntary and paid staff of the legal entities of public law of the Greek Orthodox Church is regulated by Article 42 of the Charter (L 590/1977), through Ordinances of the Permanent Holy Synod of the Church of Greece. Since the Synod is authorised by the Charter, which has the status of a statute, these Ordinances also constitute laws of the State. More specifically, the status of priests is provided for by Article 33 of Ordi- 2.3. VIII. State and Church in Greece 185 nance 2/1969 (GG Β’ 193) “On holy temples, parishes and priests”. The qualifications, appointment procedures, assessment,10 promotion, transfer, granting of permits, disciplinary proceedings, positions, insurance issues, and any other matter concerning the status of the employees of the Church of Greece, its parish churches, the Apostolic Diaconate of the Inter-Orthodox Centre of the monasteries, as well as any other ecclesiastical public law entities, are regulated by Ordinances of the Permanent Holy Synod (which are published in the Government Gazette), in a similar way to the provisions of the Civil Servants’ Code. Although they are on the State payroll11, parish priests are not considered to be civil servants but “religious ministers” (CoS 507/1983, 315/1989). Church employees are employed by the Legal Entities of Public Law established by the Church itself and paid by the latter.12 Some of these employees have permanent contracts, while others have fixed-term contracts. In this way they are not subject to the general code for civil servants but their legal status is provided for by Articles 37-38 of the Charter and Ordinance 230/2012. A smaller number have private law contracts, as provided for in Article 103 paras 2 & 3 GrConst (for example, for administrative and secretarial duties, as well as cleaning and maintenance of buildings etc.) and are covered by Ordinance No 5/1978 “Code for Ecclesiastical Servants” (cf Papageorgiou 2014: 155ff). This Code is applied as lex specialis alongside the general Civil Servants’ Code (see, in greater detail, Papadopoulou 2016). Legal Status of Clergy and Members of Religious Orders According to Article 13 para 3 GrConst, “ministers of all known religions shall be subject to the same supervision by the State and to the same obligations towards it as those of the prevailing religion”. Given the “State-lawsystem” described above, the general Code for Employees of the Public Sector (L 3528/2007) is applicable to the clergy of the Greek Orthodox Church, unless otherwise provided for by the “Code for Ecclesiastical Employees” (Holy Synod Regulation 5/1978). Muftis (appointed by president- IX. 10 See Presidential Decree 53/2012 (GG Α’ 105/30.4.2012) “Retention of a special evaluation system of the clergy of the Orthodox Church of Greece”. 11 CL 536/1945 (GG Α’ 226); CL 469/1968 (GG Α’ 162). 12 Council of State ruling 2919/1987. Lina Papadopoulou 186 ial decree) are also civil servants, while the muftiates are considered public services (L 1920/1991). Priests are allowed to marry before their ordination. Married priests, however, cannot be elected as bishops, although divorced priests may. Ministers of religion no longer enjoy exemption from military service, with the exception of monks or novices of Mount Athos, as long as they wish to be exempted and retain their status until the age of 45 (Article 13 L3421/2005, as modified by Article 77§ 2 of L 3883/2010). After a three-year probationary period, a novice may become a monk. The latter‘s estate is transferred to his monastery and to his family, if he is married. After his death, his estate is divided between the monastery and the Church. Finances of Religious Communities Religious communities, as holders of fundamental rights, even if recognised as legal persons of public law, hold the fundamental right of property, including movable and immovable property. The Greek Orthodox Church in particular and the monasteries own a significant number of “ecclesiastical properties”, often inherited from the Ottoman Empire on the basis of specific agreements. Moreover, as a legal person of public law, the Greek Orthodox Church, as the prevailing religion, is the recipient of large amounts of public funding: the salaries and pensions of the prelates, parish priests, deacons, preachers and other employees of the Orthodox Church are paid by the State (CL 536/1945, Article 8 L 1041/1980). The same applies to the pensions and health insurance of the monks, although it does not apply to precentors and sacristans who are not employees according to labour law, since they are considered to be inferior clergy (Papastathis 2005: 130). Last but not least, the Apostoliki Diakonia, an official institution of the Church endowed with educational and missionary tasks, also receives public funds (Papastathis, 1992, 1ff). Tax exemptions of various kinds were granted to all churches, although most of them were abolished by Law 2459/1997, only to be reintroduced by Law 3296/2004 (of 14/12/2004). Moreover, real property which belongs to the Orthodox Patriarchates and the monasteries of the Ecumenical Patriarchate is inalienable and cannot be taken over by third parties through acquisitive prescription. Based on the principle of (religious) equality, the same applies to the real estate of the Roman Catholic monasteries (see decision 1161/1983 of the Thessaloniki Court of Appeal). X. State and Church in Greece 187 As a transitional stipulation, Article 18 of Law 4301/2014 regulates the issue of property succession, enabling religious communities existing at the time this law was promulgated (07/10/2014) to transfer their immovable property to “religious legal persons” as long as the relevant decision is taken unanimously by their members. This transfer would be exempt from tax if it took place within one year after the acquisition of legal personality, and in any case no later than three years after this same law came into force. Religious Assistance in Public Institutions The State stricto sensu does not make provision for chaplaincies but gives religious denominations the freedom to provide them if they so wish. Chaplaincy services are in fact offered by the Orthodox and Catholic Churches, Islam, the Jews and the Armenians (Papageorgiou 2016). Services are offered at cemeteries by a number of (mainly Orthodox) priests, who are paid by local municipalities. There are no specific legislative regulations concerning chaplaincy services in hospitals. Hospitals, which are generally state-owned, pay for their own priests. Nevertheless, the activities of these priests are regulated by the Greek Orthodox Church. Hospitals also allow the provision of this service by other denominations on an ad hoc basis, when necessary (Papageorgiou 2016). Priests are also allowed to hold posts in the public or private sector – usually as teachers – and are paid accordingly (Papastathis 2010: 359).Those serving in the army and police hold officer rank and receive the respective salary and pension. A special Religious Body of the Armed Forces exists, which was established by Legislative Decree 90/1973. This Religious Body is staffed by Orthodox military priests and has a purely Orthodox Christian character. It operates under the Headquarters of the Armed Forces and is tasked with ensuring the “Christian and moral edification of the troops”. Military priests come under the Directorate of the Religious Service of the Hellenic Army General Staff (HAGS), and, as officers, come under the directorates of the units they serve. As clerics, however, they come under the jurisdiction of the local archbishops of the areas in which they are based13 (Papageorgiou 2016). XI. 13 See L. 2439/1996 on the “Hierarchy and Development of Armed Forces Officers”. Lina Papadopoulou 188 Spiritual/pastoral assistance is also offered by the Greek Orthodox Church to prison inmates. Priests offering pastoral services to prisoners are paid by the State under the auspices of the local Metropolis. The Church offers specialised seminars to those serving in prisons (Papageorgiou 2016). Matrimonial and Family Law The State recognises weddings celebrated according to the rites of any known religion and regards them as being equivalent to civil marriage, as long as the religious marriage is not contrary to public order (see Article 1367 para 1 of the Civil Code). The same is not true in the case of divorce, however. The State recognises divorces only after a judicial decision, while the Orthodox Church follows in spiritually dissolving the marriage (Deliyannis 1993: 121ff). A church wedding presupposes a licence of the local Metropolitan, which is the equivalent of what the authorities would ask for in the case of a civil marriage. The Greek government permits the application of sacred Islamic law (the Sharia) in family law matters. The Sharia is applied to Greek Muslims and regulates their personal status and family relations, especially in respect of marriage, divorce and inheritance, and, in the case of divorce, issues of custody and the awarding of parental responsibility. In this sphere the application of the Sharia does not touch upon private international law, as happens in many European countries; rather, it is applied by the mufti as an internal Greek law on Greek citizens (Papadopoulou 2010). Article 8 of the Constitution enables Greek Muslims to opt out of the Sharia law and have recourse to their “natural judge” (Tsaoussi and Zervogianni 2008: 214). While the application of Sharia law had always been considered to be optional, allowing Muslim Greek citizens to be subject to the Greek Civil Code, a ruling by the Areios Pagos, the Supreme Civil and Penal Court, (1370/2014) came to the conclusion — which has been much criticised — that Sharia is obligatory for all Muslims in Western Thrace. While the case is pending before the ECtHR, the Greek Parliament has passed a law (L 4511/2018) stipulating that the application of Sharia law is optional for Muslim Greek citizens. Non-Greek Muslims, on the other hand, bring their cases before the civil courts, which have the discretion to decide according to Islamic law, based on international private law provisions. XII. State and Church in Greece 189 Criminal Law and Religious Communities Protection of religion in the Penal Code The Greek Penal Code (PC) includes a special chapter on “disturbance of religious peace”. This chapter enumerates four distinct offences: a) malicious blasphemy (Article 198), which consists in any manifestation of offensive behaviour against God and the Church; b) insulting religion (Article 199); c) disturbance of religious congregations (Article 200), and d) insulting the deceased (Article 201). Assuming the duties of a religious minister of any known religion under false pretences (Article 175 § 2 PC) is punishable by a sentence of up to one year’s imprisonment or a fine. Article 176 of the Penal Code provides for a penalty of up to six months’ imprisonment or a fine for those who publicly bear the sacerdotal vestments or other insignia of a religious minister of any known religion. On this point, in the Serif case14 the ECtHR found that the applicant’s conviction (based on Articles 175 & 176 Penal Code), on the ground that he had acted as an imam towards a community who had accepted him as such, was not in harmony with religious pluralism in a democratic society, guaranteed by the Convention. For that reason, this same conviction was not justified by a “pressing social need” and thus it was not “necessary in a democratic society for the protection of public order” under Article 9 § 2 of the Convention.15 The internal dimension The Greek Orthodox Church enjoys jurisdiction in penal matters (Law 5383/1932) over clergy and monks, this power being exercised by “Ecclesiastical Courts”. The latter comprise: a) episcopal courts (for priests, deacons and monks); b) the First- and Second-Instance Synodal Courts; c) the First- and Second-Instance Courts for Bishops, and d) a special court for members of the Permanent Holy Synod. Any bishop found guilty by the Second-Instance Court has the right to appeal to the Ecumenical Patriarchate. Ecclesiastical Courts may impose penalties for misdemeanors such as demotion, suspension, dethronement (only for bishops), fines, internment XIII. 1. 2. 14 Serif v. Greece, no. 38178/97, ECHR 1999-IX, 13 July 2006. 15 See also ECtHR, Aga v Greece, nos. 50776/99 and 52912/99, 17/01/2003. Lina Papadopoulou 190 and unfrocking. Their decisions resemble those of disciplinary boards. Although they do not fulfill all the requirements of the notion of “courts”, they need to comply with the obligations deriving from Article 6 ECHR (see also CoS ruling 825/1988). However, for penalties which are not purely of a spiritual nature, the State courts have jurisdiction and judicial review is possible when the clergyman’s rights (deprivation of salary, suspension etc.) are at stake. In the event of a lay person committing a crime of faith (e.g. heresy or schism), the Holy Synod may impose an aphorism (anathema) or excommunication (Papastathis, 2005, 129). Major Developments and Trends In the traditionalist and socially conservative Greek society, things change very slowly both within the Church and in its relationship to the State. While there has long been a debate in the public domain on the need to proceed with a constitutional revision in order to bring about the so-called “separation of Church and State”, this scenario does not seem at all likely, even if such a constitutional revision takes place. The strength of the Greek Orthodox Church, as already described above, is massive and any politicians acting against its interests have to face the political cost of their decisions. The only major factor in this equation is the European Court of Human Rights. With the Greek courts being strongly influenced by the Greek Orthodox Church, this transnational institution is apparently the major counter-majoritarian institution that can play a decisive role as far as the “checks and balances” are concerned in the protection of religious minorities. Major changes in the past, especially in favour of a more just, if not equal, treatment of minority religions in Greece have been prompted by its decisions, with the legislator following suit. This was the case, for example, in the issue of conscientious objection to military service, establishment of places of worship and the taking of oaths (Anthopoulos, 2003, GR93; Papageorgiou 2011). In the unending debate on the character of religious education courses in public schools, for example, it will come as no surprise if this Court’s rulings facilitate the changes desired by many. XIV. State and Church in Greece 191 XV. 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Konidaris Ioannis, “The Mount Athos Avaton”, The Mount Athos Avaton, Athens: Ant Sakkoulas 2003, Konidaris John, “Legal status of minority churches and religious communities in Greece”, in: European Consortium for Church-State Research, The Legal Status of Religious Minorities in the Countries of the European Union, Proceedings of the Meeting, Thessaloniki, November 1993, Thessaloniki: Sakkoulas / Milano: Giuffrè 1994, pp. 171-181 Koukiadis Ioannis & Charalampos Papastathis, “Droit du travail et religion en Grèce”, in A Dott (ed.), Churches and Labor Law in the EC Countries, European Consortium for Church and State Research, Proceedings of the Conference, Madrid 27-28/11/1992, Milano: Giufrè 1993, pp. 115-125 Kyriazopoulos Kyriakos, “The ‘Prevailing Religion’ in Greece: its Meaning and Implications”, (43) Journal of Church and State 2001, pp 511-538 Maghioros Nikolaos, “L’Église Catholique Romaine et l’état en Grèce: une approche juridico-canonique”, L’Année Canonique 45 (2003), 177-190 Manesis Aristovoulos, Constitutional Rights, A’ Civil Rights, 4th edn, 1982 (in Greek) Lina Papadopoulou 192 Papadopoulou Lina, “Public authorities and the training of religious personnel in Europe, Report: Greece” in: European Consortium for Church and State Research Symposium, Strasbourg, 22-23 November 2013 Papadopoulou Lina, “Report: Greece” in: Miguel Rodríguez Blanco (ed.), Law and Religion in the Workplace, Comares, Granada, 2016, pp. 207-220 Papadopoulou Lina, “Trapped in history: Greek Muslim Women under the Sacred Islamic Law” in: Annuaire International des Droits de l’homme (AIDH), Vol. V, 2010, Religions et droits de l’ homme, Athènes / Bruxelles: Ant. 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Boele-Woelki / T. Sverdrup, European Challenges in Contemporary Family Law, Antwerp / Oxford / Portland: Intersentia 2008, pp. 209ff. Tsatsos Dimitrios, Constitutional Law, Volume B, Athens-Komotini: Ant. Sakoulas Pubs. 1993 (in Greek) Tsitselikis Konstantinos, “Muslims in Greece” in R. Potz / W. Wieshaider, Islam and the European Union (Belgium: Peeters, 2004) p. 91 Venizelos Evangelos, The relationship between State and Church as a constitutionally regulated relationship, Thessaloniki: Paratiritis 2000 (in Greek) Lina Papadopoulou 194

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Churches as essential components of European culture have major significance for European integration. A Europe, bound by common constitutional traditions, cultures and traditions of its Member States, their national identity and the principle of subsidiarity, will have to respect the deep-rooted systems of State and Church relationships in its Member States.

The volume presents in its second edition a broad comparison of different systems of State and Church relationships in the Member States of the European Union. It includes the new Member States and gives an account of the new developments throughout Europe. The volume shows the implications of European integration on the position of the Churches. It is of interest to all working in the field of State-Church relationship as well as to public and church institutions.

The volume has been produced in association with the European Consortium for State-Church Research. The authors are experts in the field from the different Member States of the European Union, presenting the relevant systems of their home countries. The editor is professor for public law at the University of Trier and head of the Research Centre for European Constitutional Law.


Im Prozess der europäischen Einigung kommt den Kirchen als wesentlicher Bestandteil der europäischen Kultur eine besondere Bedeutung zu. Ein Europa, das den gemeinsamen Verfassungsüberlieferungen, den Traditionen und Kulturen der Mitgliedstaaten, ihrer nationalen Identität und dem Grundsatz der Subsidiarität verpflichtet ist, wird das gewachsene Staatskirchenrecht seiner Mitgliedstaaten zu respektieren haben.

Die 2. Auflage bietet einen umfassenden Vergleich der unterschiedlichen staatskirchenrechtlichen Systeme in den Mitgliedstaaten der Europäischen Union. Der Sammelband berücksichtigt auch die neuen Mitgliedsländer und beschreibt europaweite Entwicklungen. Er macht deutlich, wie sich die europäische Integration auf die Stellung der Kirchen auswirkt. Das Werk ist für jeden, der im Staatskirchenrecht arbeitet, aber auch für staatliche und kirchliche Institutionen von Interesse.

Das Buch ist in Zusammenarbeit mit dem Europäischen Konsortium für Staat-Kirche-Forschung entstanden. Die Autoren, führende Staatskirchenrechtler aus den verschiedenen Mitgliedstaaten der EU, erläutern die religionsverfassungsrechtlichen Systeme ihrer Heimatländer. Der Herausgeber ist Professor für öffentliches Recht an der Universität Trier und Leiter der Forschungsstelle für Europäisches Verfassungsrecht.