Interdisciplinary Journal of Ecclesiastical Law
Eleni M. Palioura, Lawyer (Athens Bar Association)
One could claim that: Greece is a state in which, unlike most of Europe, the major religious community is the Orthodox Christian. Therefore, the relations between the state and the church have always been influenced by the general social position of the Orthodox Church and also its position on the political scene. The Greek system of such relations has been discussed many times both positively and negatively. However, recently and under the effect of the European legal and political system, the concept of religious neutrality has emerged both under the European and national case law, but has not yet acquired any specific content under the Greek legal system. More analytically, the relationship between the secular state and the Orthodox Church in Greece is an issue included in the discussion of the concept of the principles of religious neutrality and religious pluralism. In this context, one should notice that modern society is made up of many different religious groups and entities with equal religious rights especially in the field of the freedom of exercising their religious duties (freedom of worship). However, the notion of religious neutrality does not mean that the state ignores religions that exist within its legal and social system. In addition, religious neutrality is not able to force a state to regulate its relations with religions in a specific way if this regulation doesn’t affect religious equality. Hence, church and state relations in Greece have a peculiarity. Additionally, Greece should definitely improve the regulation of the religious phenomenon within its legal system, however, this does not mean that legislation on religious neutrality should be introduced in the context of the Greek constitution.
In this context, this article deals with the concept of Church and State relations as a part of the regulation of religious phenomenon in religious neutral state. This issue contains a variety of questions, which have complicated answers, since the field of law and religion or religion and law is not technical. A religious freedom lawyer for example has to deal with an interpretation of the secular law, which contains a whole political and social system. Therefore, such an interpretation is not a matter of finding out the correct answer, but it’s a matter of suggesting “social structures”. More specifically, while examining issues of law and religion (Ecclesiastical law is of course included, but its regulations are more technical when the Church is organized legally such as the Church of Greece), one has to deal with the fact that there is not a correct answer at all.
At this point and regarding Greece, i would like to give few basic information about the legislative framework of the religious phenomenon within the state legal system. Firstly there are the articles of the Greek Constitution connected with the religious phenomenon. The main articles are Article 3 of the Greek Constitution, which regulates relations between the state and the Greek Orthodox Church. This article also recognizes the canon law and the main structure of the Orthodox Church. Additionally, Article 13 guarantees the recognition of the right to religious freedom. Within this article one can also note how religions and their associations exist in Greece under the right of religious freedom and its restrictions. Consequently, in Greece religious communities have the right to exist within the state under the concept of the known religion. Furthermore, Article 16 claims that the aim of education contains the development of the religious consciousness of the students. In addition, Article 105 regulates the special status of Mount Athos, which is a self-governing part of Greece and is governed by its 20 Dominant Monasteries. The main regulation for religious communities and their entities is the Law no 4301/2014. This law in its first part regulates the legal status of religious denominations except the Greek Orthodox Church, the Jewish communities and the Muslim minority of Thrace, which is divided into three Mufti Offices. The exemption above is based on the legal personality of those denominations, which is totally different from the two new forms that the law no 4301 introduces in the Greek legal system.
Some remarks on the issue of regulating the religious phenomenon in the Greek legal system in relation to the right of religious freedom and self-organization:
Firstly: What exactly is the right to religious freedom within the Greek legal system? This question is not so complicated, since this right applies to the secular law, although it regulates both the secular and the internal operation of the religious phenomenon. More specifically, regarding the right to religious autonomy, as analyzed in the case law of the European Court of Human Rights, is precisely the right of a religious community to organize its internal affairs in accordance with its own legal system. Religious autonomy is also the right of members of a religious community to be or not to be members of it and to define themselves by their affiliation to the internal legislation of this particular community. In Greece, one of the most distinctive decisions of the Council of State regarding this right is a decision of the year 2014 in a case of a cleric of the Orthodox Church, who along with other charges, was charged with homosexual relations. The decision specifically states that the Eastern Orthodox Church clergy have accepted obedience to its fundamental spiritual principles and sacred traditions, and because of their role in the public sphere, they have the obligation to accept restrictions and particular obligations in their private life. Consequently, they live under special obligations, which allow the Church to intervene in the exercising of a part of their individual rights and freedoms as citizens of the state, such as the right to respect their personal and family life, which also includes sex preferences. The intervention above is accepted and based on the autonomy of the Orthodox Church of Greece especially under Article 3 paragraph 1 of the Greek Constitution, as well as Article 9 of the ECHR, interpreted in light of Article 11. The Church while defending its beliefs and internal regulations, which may be quite different from the States, has the right to demand from its religious leaders a particular behavior, since they chose to have a primarily spiritual relationship with it.
Secondly: What about the law no 4301/2014? This law is the most significant example of the integration of the European principles on religious freedom into the Greek legal system. Additionally, this law is a specific part of Greek legislation with a long pre-parliamentary dialogue, which regulates for the first time in Greece the legal status of the religious communities. It should be noted that Law no 4301 exists in the context of the right to religious autonomy of religious communities, because it introduces two forms of legal personality with a clearly religious character, without removing the possibility for religious associations to choose a form of legal personality included in the civil code. It was highlighted in the Greek Parliament that the right of religious autonomy also includes the right of the religious communities to exercise the collective expression of their beliefs in accordance with the possibility of an effective one for this scope legal personality. In particular, the law expresses the claim of religious communities for recognition of legal personality within the state in which they operate, and at this point one can clearly understand the difference in the provisions of 4301 from other aspects of the right to religious freedom, such as the freedom of worship in its general context. The religious legal personality corresponds to the nature and the internal scopes of religious communities and their entities. At this point one should remark on the notion of known religion as contained in the law no 4301. The concept of known religion in Greece is very different from the concept of recognized religion in the other European Regions. More analytically, a religious community in Greece, can exist and own a worship center with or without legal personality. However, in order to be protected by the provisions on religious freedom, it must be considered a known religion, which means that it must has obvious doctrines and teaching. Finally, the law no 4301 is related to a particularly important right, the right to self-identification of both religious communities and their members. The important issue at this point is the name of the religious or the ecclesiastical legal person.
Thirdly: What is ultimately the system of state and religion relations in Greece? In Europe, each state has its own distinct model of state and religion relations. Therefore, in Greece, one can mention that the relationship between the state and the church is very close, since is a form of a state church, but of course not such as the Church of England. In particular, in Greece, the Greek Orthodox Church is the “prevailing religion”, which means that it is the religion that is followed by the majority of the citizens of the state. Important issues, however, are the varieties of the public sphere and the legal position of the religious phenomenon within it according to the Greek social, political an ecclesiastical reality.
1. The internal legal system of a religious denomination is part of any pluralist society. This fact is obvious, since a religious community is a living organism that evolves through the change of society and human needs.
2. Relations between the state and religious communities are also a matter of Theology and the internal legal system of each religious denomination: Indeed, the regulation of the relations of the state and religious communities is based on theological, sociological and philosophical principles, since a member of a religious community is also a citizen of a state and in general member of the society (hence, religious communities are more than theological communities, since they exist through the whole spectrum of society). For example, according to Greek law on the regulation of religious communities within the state (law no 4301/2014) one can distinguish a significant number of provisions related to religious law. Secular law is independent of religious law. However, when secular law regulates the operation of religious law within the state, it is necessary not to intemperate (and to avoid the direct implementation) religious law in the wrong way, as is often the case in Greek laws.
3. The examination of texts which are part of the internal legal system of a religious community, such as holy canons, requires knowledge of the basic theological principles and how these exist both within the society and the community. Canon law for example is a legal system that depends on the Catholic, the Anglican, or the Orthodox Theology. Consequently, in cases of implementation of canon law in the secular legal system, it is necessary for the secular law to be familiar with the Theology of the community to which one belongs. It is also even more important to be familiar with the practical experience of faith in the community to be able to interpret the canons correctly.
4. When the right to religious freedom is guaranteed, one has the option to be a member of a religion, to believe in God without being a member of a religious community, or not to deal with the religious phenomenon at all. In this context, religious communities exist and operate in each state, as well as associations of atheists or agnostics. Both sides have a claim to the protection of their right to religious freedom. The real function, however, of this right also comes from the full understanding of who has chosen not to believe in God and who has chosen to turn against the religious phenomenon. The second is mostly a political attitude and not a manifestation of religious or non-religious beliefs. For example, in Greece, the association of atheists used to organize a kind of reaction to the fasting obligation of a Christian every Good Friday. This type of reaction is called “Supper in the Open” and of course it is not a kind of expression of non-religious beliefs, but a critique of the practices of Christian communities. Hence, this practice should be examined under the provisions of the right of expression and not under the provisions of the right to freedom of religion. In addition, in such cases very often one has to deal with the concept of hate speech and the intervention on the right to religious freedom of the other religious communities.
In conclusion, Church and State relations in Greece indeed have a peculiarity. This peculiarity characterizes Church and State relations in each state, since such issue is in the context of the right of freedom of religion, which is based on political, philosophical, theological and social principles and values. In addition, Church and State relations in Greece are also a matter of a “neutral” choice, since the secular state is “neutral” itself.
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