Chapter VII of the Penal Code on “Offences against religious peace” deals with the offences of malicious blasphemy, common blasphemy, religious insult and disturbance of religious gatherings.
According to the definition of malicious blasphemy whoever publicly and maliciously offends God in any way whatsoever is punishable with imprisonment up to 2 years. According to the definition of common blasphemy whoever publicly manifests lack of respect for the divine is punishable with imprisonment up to 3 months. According to the definition of religious insult whoever publicly and maliciously insults the Eastern Orthodox Church in Christ or another religion tolerated in Greece in any way whatsoever is punishable with imprisonment up to 2 years. In the disturbance of religious gatherings whoever maliciously attempts to prevent or intentionally disrupts a religious worship gathering or ceremony allowed by polity as well as anyone who inside a church or a place designated for a religious gathering tolerated by polity commits insulting and offending acts is punishable with imprisonment up to two years; a different provision punishes insult against the deceased.
The development of case-law on these offences highlights their structurally ingrained problems.
To begin with, blasphemy according to firmly established case-law (Supreme Court 360/64, 666/76, 233/78, 1166/78, 820/81 928/84, 1869/84, 119/88, 422/98, Admiralty Court of Piraeus sitting as a Board 22/97, Opinion of the Public Prosecutor to the Court of First Instance of Thessaloniki 6/97) is any public manifestation whatsoever (oral, in writing, by way of images, symbols and/or gestures) involving mockery, affront, offensive or vulgar expressions against God as the Supreme Being of monotheistic religions or against the divine as anything which is considered sacred by a recognized religion. A public manifestation is any manifestation that may be perceived by an undetermined number of people irrespective of whether it took place in a public area or was actually perceived by anyone. Religious insult is any public manifestation of contempt by way of vituperative or vile utterances or the vile abuse of doctrines, symbols or customs in any form whatsoever.
The interpretation of the notion of malice, on the other hand, has evolved in case-law: at first, even the intention of derisory use of religious symbols was enough to qualify the offence as malicious. Thus in the Supreme Court decision 233/78 the derisory use of the Credo led to the condemnation of the authors of the revue “69 ways to laugh” although the target of the satire was obviously the recent junta and the role of the church during that period (mostly, the church’s indifference for the oppression and violation of human rights: God is depicted as totally oblivious of April 21 –day of the coup d’etat- because He was preparing for Easter). In contrast, according to the Supreme Court decisions 928/1984, 1869/1984 (only six years later) malicious is a vilifying act aimed directly at offending a religion for the offender’s gratification. This line of argument was used to reverse the sentence against the playwright of “The Saint of Preveza” which satirized the then recent pink scandal involving the Metropolitan of Preveza for lack of motivation on the element of malice.
This turning point in case-law significantly restricted the scope of malicious blasphemy and malicious religious insult (see Decision 2058/93 of the Magistrate’s Court of Thessaloniki sitting as a Board, Order 47/93 of the Public Prosecutor of Thessaloniki, both on the motion picture “Jesus of Montreal”, Decision 4959/94 of the Magistrate’s Court of Athens sitting as a Board on the case of “Black Hole”). But not the scope of blasphemy simpliciter which is still consistently punished by the courts even when it is obvious that the offender does not express indignation against God or religion but against a specific person (see Supreme Court 119/88, 1046/91, Appellate Court of Athens 5346α-5347/90). This turn-around led the faithful who felt scandalized by art works to redirect their efforts from the criminal to the civil courts to obtain injunctions to prevent the exhibition of such works arguing that by offending God and religion the works also offend their personality. At first, the courts upheld such motions (Court of First Instance of Athens 17115/88 in the renowned case of M. Scorsese’s motion picture “The last temptation” based on the book of N. Kazantzakis who was excommunicated by the church) arguing that religious insult (qualified as malicious by reference to case-law prior to 1978) encroaches upon the religious feelings and the religious freedom of others which are protected as moral-social values, as social and legal interests worthy of protection to the benefit of civilization and polity. According to this decision religion is not a purely personal affaire, a wholly inner relationship of the soul with God, irrelevant to the state, but the foundation of the state, a vector of spiritual civilization affecting not only the feelings and thoughts but also the actions of human beings. The same decision found also that the projection of the motion picture inspired strong protests, demonstrations and discontent which threatened order and peace among civilians. The decision proceeded to a flawed balancing exercise between artistic creation and religious feeling clearly taking a stance in favour of the latter as an obvious limit to freedom of art whereas arguing that cinematographic representation is perceived as “another reality”. By contrast, in its decision 5208/00 in the case of the book “M to the power of n”, the Court of First Instance of Athens found that this allegorical work of literature does not qualify as malicious insult against religion because its target is something else (the condemnation of misogyny in general) not attacking religion as such; therefore, it cannot be considered that the personality of the complainants as reflected in their religious feelings is offended. Besides, works of literature are protected by the Constitution as works of art and since freedom of art seeks to protect overriding social considerations it can accommodate offences against personality insofar as they do not infringe upon human value. Now, in our opinion, it is questionable whether a work of art can infringe upon human value at all. But there is no doubt that personality cannot possibly be infringed upon when the abuse or derision is not directed against a specific person and such person is deemed to be offended indirectly and by reflex (see Supreme Court 1298/2002). And even in the event of a direct offence of personality it must be investigated whether freedom of art through satire or criticism prevails (both for the artist and for the public enjoying the work). But our intention is not to dwell on this point[i] but to reflect more systematically on the problems arising from including these offences in our legal system. And, regrettably, this reflexion has become very topical lately as the judiciary reverted all too easily into bringing the offences of malicious blasphemy and religious insult to the forefront again (a sign of our times). On the occasion of the presentation of the painting “Asperges me’ by Thierry de Cordier in the Outlook exhibition, the A΄ Magistrate’s Court of Athens in its decision 44540/06 found no malice in compliance with the aforementioned case-law of the Supreme Court. This case left us a pinnacle of judicial art criticism in the committal which characterized the work as despicable, offending public decorum, “an alleged work of art” which is not part of humanity’s artistic creation and does not contribute to promoting human knowledge and propriety. Gerhard Haderer’s cartoon on the life of Jesus, initially the object of a confiscation order, was qualified as malicious religious insult by the Three-Member Magistrates Court of Athens mainly due to the chemical constitution of incense which proved that it does not contain any ingredient similar to hashish (as against a footnote to that effect by the cartoonist). The Athens Appellate Court in its decision 4532/05 spared the cartoon because of its humoristic nature that excluded malice on part of the cartoonist.
A first problem that can be identified is the motivation of related decisions: although the notion of malice is adequately discussed, no consideration is given to what can qualify as blasphemous. All derisions, scornful remarks, manifestations of “ill-will” are taken as blasphemous per se. Even if we were to assume that what is blasphemous is to be decided each time according to the limits set by the religious community involved, one would still expect the motivation to make reference to theological texts (the issue is not only theoretical taking into account St Matthews 12, 31-32: “and whosoever speaketh a word against the Son of man, it shall be forgiven him”). And yet, it does not. For although the normative scope of the provision encompasses all religions, all court decrees so far were issued for blasphemy against the dominant religion (no-one has been prosecuted for blasphemy, for instance, for comparing Mohammad or the Pope with Satan among the representatives of the dominant religion or old calendar monks) and what counts as blasphemy is taken as self-evident. Self-evident, of course, to the faithful of the majority that usually includes the judge making the judgment.
More critical, however, is to identify the legal good protected by the above provisions. It is acknowledged, and rightly so, both by case-law and jurisprudence, that these provisions do not protect God since God does not need protection[ii]. Therefore, the protected legal good is to be looked for in the religious feelings of believers, in religious piece as a particular aspect of social peace, in public order and good conduct, and in religion as such[iii]. As the recitals of the 1933 draft PC (recital 203) typically point out, it is irrelevant whether the persons who become aware of the affront are scandalized or experience any reaction whatsoever because the overriding public interest here lies in fortifying religious feeling among the people. However, the reason for punishing the act in question is the undermining of religious peace.
If we proceed to examine the above legal goods we will conclude the following:
First, religious feeling does not consist in the actual feelings of any particular believer as a reflection of his/her personality. Blasphemy and insult are treated as distinct offences and the former is prosecuted ex officio (there is a direct public interest in prosecuting these offences as the recitals of the 1933 draft PC put it) whereas insult is prosecuted only upon complaint. As a consequence, indictment for the one cannot be converted into indictment for the other (Supreme Court 1112/86) and it is not possible to join the proceedings as a civil party (Supreme Court 1298/2002, Appellate Court of Piraeus 92/2001, Three-Member Magistrates Court of Athens 18518/97). This view is correct also for the particular reason that for an act to qualify as the offence in question it is not required that an actual person be offended. The public utterance of the blasphemous words or commission of the blasphemous acts in such a way as may be perceived by persons lying outside the immediate surroundings of the defendant suffices. In this way, (religious) feeling is reified. It is immanent in the public domain and can be infringed upon without the intervention of actual people. It is as if there were a legal fiction to the effect that the state itself has religious feelings. This is a blatantly ideological construct and cannot offer sufficient grounds for criminal punishment, as is the case for all non-personalized “feelings” (citizens’ sense of security, etc.)
On the other hand, the protection of religious peace seems to have a more substantive basis to it: it can be readily understood that blasphemy creates a risk of arousing passions that may lead the faithful to acts that disrupt public order and good conduct[iv]. The same point can, of course, be made about arousing political or football passions. The difference is that the notion of religious peace does not require that violent acts be committed in advance as in the case of article 192 of the Penal Code (causing or inciting citizens to acts of violence) according to its correct interpretation. It is not even necessary that the offender intended to arouse citizens or that the offender were aware that his/her acts were capable of arousing citizens. Here again, religious peace is construed as an independent intangible good that may be harmed by the mere utterance of the blasphemous words or the commission of the blasphemous act. As a kind of religious appeasement, a religious calmness that is not to be disrupted. Obviously, this ideological construct is no more able to offer legitimate grounds for specific criminal offences. But something else needs to be underlined: all crimes of “arousing” citizens that do not fall within the scope of instigating crimes against specific material goods (life, physical integrity, property), namely that do not aim at convincing others to commit acts they would not have committed otherwise, but incite to acts of violence indirectly and by reflex (in the sense that a violent act is the reflex response to such incitement) contain an oxymoron: their punishment leads to the satisfaction of the perpetrators of violent acts. So this is how the law seems to understand the request of a religious community or, respectively, the request of the members of a political party or a football team: do not provoke us or we will attack you or, even worse, we will resort to generalized violence. Thus, the protected legal good behind public order (which can be disrupted by acts of violence – and only by such) seems to be the intolerance of others, and in its more vicious form. How such a view might be accepted in the context of a liberal constitution desirous to promote pluralism through freedom of expression, freedom of artistic and scientific endeavour, is utterly baffling. Worse still, if these offences were meant to protect religious peace, the law seems to consider religious communities much more willing to resort to acts offending public order as compared with other communities (political, football) since their peace can be disrupted by blasphemy which seems to be considered by definition capable of inciting violence. Clearly, this view is not particularly flattering for religious communities and one might expect them to demand the abolition of these offences. It implies a paternalistic logic that sees the state as a protector taking the faithful (independently of creed) under its wing and punishing whoever by word or symbolic act instils hatred and discord in their hearts or, worse still, activates triggers of immanent hatred (it was with that very same logic that the Supreme Court decision 208/1991 upheld as complete and legitimate the motivation of the Appellate Court which convicted candidate MPs who had circulated a memo characterising the Muslim minority of Western Thrace as Turkish for disturbance of the social peace on grounds that in this way they consciously sought to instil and sow the seeds of discord, hatred and animosity in the hearts of Greek Muslims against Greek Christians which soon led to acts of violence – by Christians for what is worth…).
The only provision that could find justification in the protection of religious peace construed as protection of the right to the unhindered and active celebration of religious convictions is the offence of disturbing religious gatherings.
How then is the relationship between blasphemy and art to be perceived in the context of criminal law? Jurisprudence is met with strong criticism for failing to consider the perpetration of these offences in the light of the constitutionally embedded freedom of art. It is argued, moreover, that freedom of art is safeguarded without reservations in the constitution and in case of conflict between the two injured rights freedom of art should prevail[v]. Indeed, this argument is not without foundation[vi]. However, in order to proceed to a balancing exercise, there must be a conflict of rights which emanate from constitutionally protected legal goods. Freedom of art and religious freedom can be weighed against each other in the context of criminal law only in case the exercise of artistic activity disrupts a religious gathering. It is in this context that an eventually extreme aggressive behaviour of artistic activity might be found punishable and the interpreter of the law would then be obliged to balance the two rights. Such a balancing exercise has no place on any other occasion as it would involve a conflict between a constitutionally protected right and legal good (artistic activity) and a non-protected and constitutionally disapproved practice: the intolerant request to ban the exercise of a constitutionally protected right.
But let us consider the event of religion itself being the interest which is protected by the offences of blasphemy and religious insult. As decision 17115/88 of the Court of First Instance of Athens typically expounds, religion is the foundation of the state. If this is true, then indeed these offences acquire a peculiar materiality: no-one questions the power of the state to protect itself from internal or external threats against the integrity of the country, its political organization, the ability of efficient enforcement of state will: if by protecting religion the state ultimately protects itself then the materiality of the protected good becomes crystal-clear. This, however, would entail that irreligious people (and more so atheists) cannot be citizens of such a state. Moreover, religion per se, not in the sense of the creed of an actual religious community, cannot be conceived as an interest pertaining 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[vii]. Paradoxically, a liberal view compatible with the Constitution on the materiality of the protected legal good leads to one and only – 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 penalizing 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, at the most.
It is not even certain that such a regime would be desirable for the dominant religious communities. Too often in Greece the interweaving of state and church has proved injurious primarily to the church (as it facilitates all sorts of state intervention in the administration and organization of the church). Therefore, 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[viii]. The punishment of blasphemers is not the responsibility of the state. Let them be punished in the appropriate quarters…
[i] as it is thoroughly discussed in Prof. S. Tsakyrakes’ book, Religion vs Art, Athens 2006
[ii] I.Gafos, Offences against religious peace in our Penal Code, Penal Chronicles 1958, 513, G.Krippas, The crime of malicious blasphemy, Penal Chronicles 1975, 459, M.Albanou, The crime of malicious blasphemy according to art. 198 PC, Penal Justice, 2001, 878
[iii] Gafos, op.cit., 515, Αth.Kontaxis, Penal Code, Athens 1991, 1251
[v] Tsakyrakes, op.cit, 187f. contra P.Dagtoglou, Civic Rights, Athens 1991, 924, Albanou, op.cit., 880
[vi] considering of course that the unity of Constitution calls for a practical harmonization of all rights; G.Theodosis, Freedom of art, Athens 2000, 142f., Tsakyrakes, op.cit, 199f.
[vii] Ι.Manoledakis, The legal Good, Thessaloniki 1988, 200
[viii] “Blasphemy is a pseudo-crime who penalizes beliefs” G.Kalfelis, Conversion of indictment from malicious blasphemy to insult, Armenopoulos 1987, 812, I.Manoledakis, Penal Law, Thessaloniki 1985, 214, D.Spatharis, Art. 198 of the Penal Code, Armenopoulos, 1988, 102-103