Published online by Cambridge University Press: 24 April 2015
Anyone engaging in proselytization shall be liable to imprisonment and a fine of between 1,000 and 50,000 drachmas; he shall, moreover, be subject to police supervision for a period of between six months and one year to be fixed by the court when convicting the offender.
By “proselytization” is meant, in particular, any direct or indirect attempt to intrude on the religious beliefs of a person of a different religious persuasion (eterodoxos), with the aim of undermining those beliefs, either by any kind of inducement or promise of an inducement or moral support or material assistance, or by fraudulent means or by taking advantage of the other person’s inexperience, trust, need, low intellect or naivete.
The commission of such an offence in a school or other educational establishment or philanthropic institution shall constitute a particularly aggravating circumstance.”
1. See the Report of the Special Rapporteur on his local visit to Greece (A/51/542/Add. 1/7-11-1996), ¶ 11.
3. It has been noted that the term “proselytization” served as a suitable means for the prosecution of both political (O.L.s 117/36, 1075/38, 509/47) and religious (O.L. 1363/38) adversaries. See Poulis, G., The Legal Good Under Protection with the Crime of Proselytization, 33 Poinika Chronika 222, 223 (1983) (in Greek)Google Scholar; Mylonas, Ipp., Translation—Comments (on the Case of Kokkinakis versus Greece), 4 Yperaspisi 158, 194 (1994) (in Greek)Google Scholar. See Philippou, D., The Constitutional Restrictions of Religious Freedom and the Crime of Proselytization (On the Occasion of the Judgment of Kokkinakis v. Greece Issued by the European Court of Human Rights 15 (1994) (in Greek)Google Scholar. O.L. 117/36 and O.L. 1075/38, in conjunction with art. 198 PL, were also utilized for the initiation of criminal prosecutions against Jehovah's Witnesses. See Crete Ct. App. Judm. No. 166/37 (in The Millenarians 66-69 (official documents and judgments of the Court of Appeal and of the Court of Cassation)) and Kalamata Crim. Ct. Or. No. 677/19382 APE 363 (1938)Google Scholar.
4. Judge S. Martens argues that the file of the Kokkinakis case suggests that the crime of proselytization has in the past been used as an instrument for repressing heterodox minorities, whilst at present such use does not seem to be wholly excluded, in an atmosphere of increased religious intolerance that is characteristic of our times (Série A: Arrêts et Décisions, vol. 260, ¶ 5, 34) 1994 (in French).
5. Yotopoulos-Marangopoulos, Alice, Interventions Relating to the Theme: Freedom of Conscience and Minority Groups, in Freedom of Conscience 193 (Council of Europe Press 1993)Google Scholar points out: “However, I have serious doubts as to whether this law (the Greek law prohibiting proselytization) is applied without discrimination.”
6. See Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE (29 ILM 1316 (1990)Google Scholar; 11 HRU 240 (1990)Google Scholar; Bloed, Arie, The Conference on Security and Cooperation in Europe: Analysis and Basic Documents 453 (Kluwer Academic Publishers 1993)Google Scholar.
7. See Tsatsos, Th., A Recommendation on Articles 1 and 2 of the Constitution, in Studies on Constitutional Law 99–100 (1958) (in Greek)Google Scholar.
8. More particularly, the decision mentions: “… proselytization … is the direct or indirect attempt of a person (in any case not belonging to the prevailing Eastern Orthodox Church of Christ) ….”
9. See Konidaris, I., Matters of Religious Discrimination, 1 Yperaspisi 405, 413 (1992) (in Greek)Google Scholar.
10. See art. 13, ¶¶ 1-2, 4, ¶ 1, 2, ¶ 1 & 7, ¶ 2 C.
11. See arts. 9 & 14 of the ECHR; arts. 18, 2, ¶¶ 2, 26 & 27 ICCPR; art. 18, ¶¶ 1 & 2 of the Universal Declaration.
12. See Manesis, A., Constitutional Rights vol. A: Individual Liberties—Lectures 252 (4th ed. 1982) (in Greek)Google Scholar.
13. See AP 480/1992 (5th Div.), 33 Elliniki Dikaiosyni 1573 (1992).
14. See Philippidis, Tel., Crimes against Religion under the Greek Penal Code, 26 Theologia 223, 252 (1955) (in Greek)Google Scholar, who indirectly yet clearly seems to recognize—obviously tracing back to the historical will of the penal legislator—the protection of the prevailing religion and public safety as secondary legal goods, arguing that “not only the Orthodox Church of Our Christ, but our very Nation itself is under the utmost danger from the daily growing proselytizing activity of the various sects and creeds, which abuse the freedom, but also the protection granted to them by the Greek State.” Id. at 258.
15. See Giakas, G., The Crime of Proselytization in Greece 24 (1956) (in Greek)Google Scholar. Giakas writes—revealing the perhaps covert intentions of the historical legislator—that “the need to maintain public cohesion and unity by any means forced the State for the sake of its own interest, to prosecute proselytization as an offense” (id. at 29), adding that “the Orthodox … Religion constitutes the foundation of national and state subsistence and one of its most fundamental components.” Id. at 25-26. He further comments that “this of course did not happen out of love for the Church, which in any case the State has not accustomed to such courtesies.” Id. at 31. See Vrontakis, E., Proselytization—Jehovah's Witnesses or Millenarians, 1 Elliniki Dikaiosyni 495, 497 (1960) (in Greek)Google Scholar.
16. See Giakas, supra n. 15, at 31.
17. See Karanikas, D., Crimes Against Religion 25 (1955) (in Greek)Google Scholar; Androulakis, N., The Punishability of Proselytization and Its Constitutionality (An Advisory Opinion), 34 Nomiko Verna 1031, 1013–1032 (1986) (in Greek)Google Scholar; Loverdos, A., Proselytization. On the Unconstitutionality of the Penal Legislation Relating to Proselytization 35–39 (Manesis, Ar., Tsatsos, D., Papadimitriou, G. & Manitakis, Ant. eds. 1986) (in Greek)Google Scholar; Konstantinidis, A., Comments (On the Order of the Magistrates' Court of Athens No. 958-1987), 35 Poinika Chronika 936, 936–937 (1987)Google Scholar.
18. Art. 1, § b′ of the Constitution of 1911.
19. See Korfiatis, N., Proselytization as a Punishable Act in Greece, 6 Archeion Nomologias 329, 329 (1955) (in Greek)Google Scholar.
20. See Poulis, supra n. 3, at 225-226; Poulis, G., Religious Penal Law “Yperaspisis” Series, n. 7, 103-105 (1996) (in Greek)Google Scholar. Poulis, supra n. 3, at 225 was right to point out that under the force of articles 198, 195 and 149 of the Penal Law of 1836, the crime of proselytization protected the legal goods of state power and the common peace.
21. For a recent treatment of issues relating to proselytization, see Ferrari, S., Globalization, Postmodernism, and Proselytism, Fides et Libertas 13–27 (1999)Google Scholar; Ciáurriz, J., El derecho de Proselitismo en el Marco de la Libertad Religiosa (2001) (in Spanish)Google Scholar. Also see Dimitropoulos, P., State and Church: a Difficult Relationship (2001) (in Greek)Google Scholar.
22. For the ideology of the Greek State historically, see Manitakis, A., The Relations of the Church with the Nation-State under the Shadow of the Identity Cards 68–69 (2000) (in Greek)Google Scholar.
23. For the concept of discriminatory preferentialism, see Durham, W. Cole, International Human Rights: The Protection of Religious Persuasion, Fides et Libertas 19 (2001)Google Scholar.
25. For the case of Manoussakis et al. v. Greece, see European Court of Human Rights <http://www.echr.coe.int> (accessed Dec. 23, 2001).
26. See CoC Judm. No. 421/1991 (6th Div.) in the case of Manoussakis [39 Nomiko Verna 1421 (1991)].
27. See the recent and still unpublished judgment of the full bench of the Greek Ct. Cassation (No. 20/2001).
28. See Montgomery, John Warwick, The Repression of Evangelism in Greece: European Litigation vis-á-vis a Closed Religious Establishment 120–121 (U. Press of Am. 2001)Google Scholar. See Kyriazopoulos, Kyriakos, Book Review of John Warwick Montgomery, The Repression of Evangelism in Greece: European Litigation vis-á-vis a Closed Religious Establishment, 44 J. Church & St. 154, 155 (2002)Google Scholar.
29. For the concept of inverse proselytization, see Stahnke, Tad, Proselytization and the Freedom to Change Religion in International Human Rights Law, 1999 BYU L. Rev. 252, 328 (1999)Google Scholar.
30. See Kyriazopoulos, , Limitations to the Freedom of Teaching of the Minority Denominations 353–388 (Sakkoula 1999)Google Scholar.
31. See Sotirelis, Georgios, Religion and Education Under the Constitution and the European Convention: From Catechism to Polyphony (1993) (in Greek)Google Scholar.
32. See Beach, Bert, Proselytization in the Context of Globalization, Religious Liberty, and Non-Discrimination, Fides et Libertas 78–88 (J. Intl. Religious Liberty Assn. 2001)Google Scholar.
33. For an interpretation of the term “prevailing” religion, see Kyriazopoulos, supra n. 24, at 524-532.
34. Art. 13, § 1, § 2 Const.
35. Art. 4, § 1 Const.
36. Art. 6, § 2 of the Treaty of the European Union.
37. Art. 26 of the International Covenant on Civil and Political Rights (1966) [hereinafter International Covenant (or ICCPR)].
38. See Papastathis, Ch. K., Lectures in Ecclesiastical Law 81–87 (2d ed. 1994) (in Greek)Google Scholar.
39. The Archbishop of Athens Christodoulos, in an interview he gave to the political newspaper Typos tis Kyriakis, made the following statements:
Furthermore, every responsible citizen of this country, before deciding what to vote for, will certainly want to know more about the positions of the parties seeking his vote—in addition to the issue of the identity cards, on issues that relate to his principles and his tradition. As an example I will mention the way in which the parties will confront the scourge of drugs, what their stance is on euthanasia, abortion and artificial insemination, as well as on transplantation, what will be their behavior towards persons of a different creed or religion, whether they are considering to change the laws that currently protect the Orthodox from proselytization.
Interview to the editor. Typos tis Kyriakis 7 (Mar. 24, 2002) (in Greek).
40. See Durham, supra n. 23, at 19.
41. See Council of State Publications, Findings from the Case Law of the Council of State, 1929-1959, at 69–70Google Scholar.
42. It is worth mentioning that M. Stasinopoulos, the court rapporteur for the adjudication of CoS Judm. No. 756/1952 (en banc) 63 Themis 267 (1952)Google Scholar, put forward the very interesting opinion, which however was not accepted by the Council of State, that the provision of article 1 of O.L. 1672/1939 and the provisions of the executive decree of 20-5/2-6-1939, which are based on the aforementioned provision, all of them provisions that establish the obligation of securing a permit before constructing churches or places of worship, are unconstitutional, to the extent that they subject to a preventive permit the assembly of the followers of a religion in a specific closed space for the practice of rites of worship. See Svolos, A., A Commentary (on Judgement No. 2276/1953 of the Council of State), 10 Neon Dikaion 208 (1954) (in Greek)Google Scholar, who is in total agreement with the above mentioned view expressed by Stasinopoulos. Finally, see Vouros, N., Prevailing and Known Religion, 21 Ephimeris Ellinon Nomikon 263, 266 (1954) (in Greek)Google Scholar, who writes that it is quite surprising how certain provisions of O.L. 1672/1939 “on the amendment of Obligatory Law 1363/1938 regarding the safeguard of provisions of articles 1 and 2 of the current Constitution” and of its executive decree of 20-5/2-6-1939, which are unconstitutional, have not been amended in order to be aligned with the Constitution.
43. For the regime of the places of worship, see especially Papastathis, Ch. K., Le Régime Constitutionnel des Cultes en Grèce, in Le Statut Constitutionnel des Cultes dans les Pays de l'Union Européenne, Actes du Colloque, Université de Paris XI, 18-19/11/1994, at 155–156 (Guiffrè Editore 1995) (in Greek)Google Scholar; Papastathis, Ch. K., Tolerance and Law in Countries with an Established Church, 10 Ratio Juris 108, 111 (1997) (in Greek)CrossRefGoogle Scholar.
44. The Special Rapporteur observes that there are constitutional limitations to the freedom of worship, that are inconsistent with the internationally established rules on human rights. Art. 13, ¶ 2, §§ 1-2 C. restricts the freedom of worship to the “known” religions. However, the absence of any constitutional, legislative or other definition of the concept of known religion poses serious practical problems for religious minorities. Their legal recognition is often disputed, especially relating to the matters of granting a permit for the construction or establishment of churches or places of worship and the exemption of their ministers from the duty for military service. The aforementioned absence does not seem to be consistent with the legal limitations to the freedom to manifest a religion or belief, that are provided for by article 1, paragraph 3 of the Declaration. The same Rapporteur finally recommends that the concept of “known” religion be clearly defined in the Constitution or in ordinary legislation, in a manner that is consistent with the above-mentioned legal limitations or that this term be completely abolished, if this is deemed necessary (A/51/542/Add. 1/7.11.1996, ¶ 133). The constitutional concept of the “known” religion introduces an inherent or conceptual limitation to the protection of religious freedom. See Dagtoglou, P., Constitutional Law: Individual Rights vols. A–B, 114–118 (1991) (in Greek)Google Scholar. In other words, the Constitution does not protect the religious freedom of all religions in general, but only of the “known” religions. Indeed, this limitation is not congruent with the internationally recognized standards relating to the protection of religious freedom.
45. See Sanpolos, N.N., The System of Constitutional Law in Comparison with the Systems of Other Countries vol. C, 346 (4th ed. 1923) (in Greek)Google Scholar. See Rallis, K., Vasileiou, K. & Tsatsos, D., An Advisory Opinion, 38 J. Greek & French Case-L. 116, 116–118 (1919) (in Greek)Google Scholar; Laskaris, S. Th., The Catholic Church in Greece from the Standpoint of Public Law 21–22 (1924) (in Greek)Google Scholar; Androutsos, Ch., Gidopoulos, L. & Vamvetsos, Al., An Advisory Opinion of the Committee Apppointed by the Ministry of Education on the Status of Old Calendarists from the Aspect of Ecclesiastical Law, 5 Dikastiki 32, 32 (1933) (in Greek)Google Scholar.
47. From theory, see especially Svolos, A. & Vlachos, G., The Constitution of Greece pt. 1, vol. A, 69 (1978) (in Greek)Google Scholar; Christophilopoulos, An., Greek Ecclesiastical Law 72 (1965) (in Greek)Google Scholar; Sgouritsas, Chr. & Georgopoulos, K., Constitutional Law vol. B, pts. a & b, 152–155 (1966) (in Greek)Google Scholar; Marinos, The Religious Liberty 156–159 (1972) (in Greek)Google Scholar; Troianos, Sp., Lectures in Ecclesiastical Law 85 (2d ed. 1984) (in Greek)Google Scholar.
48. See Saripolos, supra n. 45, at 341.
49. Saripolos (id. at 363) writes:
It is true that articles 195, 197 and 198 of Penal Law and articles 14 and 17 of the Law of November 23, 1837 on defamation punish proselytization that is conducted against any religion whatsoever found in Greece (that is, not only in the cases when proselytization is conducted against the prevailing religion), but not all kinds of proselytization, but only the one conducted under the stipulations of these articles of the Penal Law and of the law on defamation of 1837 […]
On the contrary, the provision of article 1 of the Constitution refers to any and all kinds of proselytization, including proselytization committed under different terms than those stated in the penal law or the law on defamation; in addition, it does not prohibit proselytization in general, but only the one carried on “against the prevailing religion,” to which it affords special protection. Article 1 of the Constitution does not contain a penal sanction of the prohibition it establishes, and proselytization constitutes an offense only when it is committed under the terms stipulated by the aforementioned statutes of penal law and of the law on defamation. But since all kinds of proselytization against the prevailing religion are prohibited by virtue of art. 1 of the Constitution, the State is compelled, since criminal prosecution is not always possible, to prohibit, through administrative avenues, proselytization of all kinds against the prevailing religion and to protect it …
But Sgouritsas, Chr., The Freedom of Worship and Its Constitutional Limitations, 21 Ephimeris Ellinon Nomikon 1, 363 (1954) (in Greek)Google Scholar counters that
[I]t is impossible to determine beforehand that during the exercise of a particular worship, whose unhindered practice is safeguarded by the Constitution, proselytization shall be conducted, unless the act of proselytization, especially of unlawful proselytization, constitutes a component of a particular worship, in which case the determination of this fact in advance would apply.
50. See Saripolos, supra n. 45, at 296-305.
51. See CoS Judm. No. 756/1952 (en banc), 63 Themis 267 (1952)Google Scholar for the most part follows the view set forth by Saripolos in relation to the interpretation of the term “known” religion, a view under which no permit or authorization is required on the part of the administration for the attribution of this quality to the various creeds. However, it seems to “legitimize,” in a roundabout way, the administration's “right” to covertly recognize the abovementioned character of creeds. The same decision holds that the State has the jurisdiction to “preventively ascertain” the existence of the defining terms of the concept of “known” religion, as well as the non-commission of proselytization. Scholars who have advocated, either directly or indirectly, the explicit permit or authorization for the formation of the concept of “known” religion, include Papadoukas, N., Hippodamus: Principles of Constitutional Law or the Greek Constitution Annotated 136 (1848) (in Greek)Google Scholar; Idromenos, M., The Constitution of Greece 27, 72 (1908) (in Greek)Google Scholar; Vamvetsos, A., An Introduction to the Greek Ecclesiastical Law of the Orthodox 115–117 (1911) (in Greek)Google Scholar; Philippotis, Ev., The System of Ecclesiastical Law Currently in Force vols. A–B, 85 (1912–1915) (in Greek)Google Scholar. The opposite view was supported by Saripolos, supra n. 45, at 303-304 and Saripolos, N.I., The Trial of Theophilos Kairis Before the Areios Pagos on January 19, 1853, at 11–12 (1853) (in Greek)Google Scholar; Flogaitis, Th., A Manual of Constitutional Law 446, n. 1 (2d ed. 1895) (in Greek)Google Scholar.
52. When the pre-existing Constitutions were in effect, the Council of State had held that the administration can make use of any measure whatsoever in order to hinder proselytization (see CoS Judm. No. 2/1937 (en banc), in Council of State (ed.), Judgments of the Year 1937, at 5–8Google Scholar; also see Sarmas, I.D., The Constitutional and Administrative Case Law of the Council of State: A Developmental Study of the Major Issues 290 (2d ed. 1994) (in Greek)Google Scholar. In this same direction, it had also held that the administration could in every instance take the necessary administrative measures, even if there was no explicit legislative provision to this effect (see CoS Judm. No. 1661/1947 (en banc), 58 Themis 510 (1947)Google Scholar). Also see the recommendation of M. Stasinopoulos in CoS Judm. No. 756/1952 (en banc), 63 Themis 267 (1952)Google Scholar.
53. M. Stasinopoulos, the rapporteur in Council of State Judm No. 756/1952 (en banc) 63 Themis 267 (1952)Google Scholar, underlined that the provision of the Executive Decree of 20-5/2-6-1939, which stipulates that the granting of a permit for the construction of a place of worship is left to the judgment of the Minister, who makes a free evaluation of whether the substantive reasons for its granting apply, is unconstitutional. More specifically, the provision of article 1, paragraph 3, section 1 of the aforementioned Decree states:
The provisions of par. 1 sections a′ and b′ of the present decree do not apply for the granting of a permit for the construction or operation of a place of worship or a place for religious assembly, but it is left to the judgment of the Ministry of Cults and National Education to decide whether or not the substantive reasons for the granting of the said permit apply.
When the Constitution protects an individual right, even if it does not initially prohibit preventive measures, which primarily include the prior permit of the competent authority, the conditions under which the permit is granted should again be prescribed by law and in any case, this matter should not be left to the discretionary power of administration. Also see Vouros, supra n. 42, at 266.
54. See Svolos, supra n. 42, at 210 who makes the reasonable observation that
even if we assume that all those who were liable of proselytization, which was prohibited by the Constitution, it still would not be … possible not to allow, in the general sense, the “known” religion in question to practice its worship in a church, because worship concerns not only the particular and present adherent of the “known” religion, but also any other person who will appear in the future in order to exercise this very same, constitutionally safeguarded, worship.
55. Siding with this view, we find Svolos, id. at 209-210 and Philippou, supra n. 3, at 17-18. Those who disagree are especially Saripolos, supra n. 45, at 300-308; Rammos, G., Sgouritsas, Chr. & Tsatsos, K., An Advisory Opinion, 28 Ekklesia 9, 10–11 (1951) (in Greek)Google Scholar; Vouros, supra n. 42, at 266; Svolos & Vlachos, supra n. 47, at 33-37; Christophilopoulos, supra n. 47, at 76-77; Sgouritsas & Georgopoulos, supra n. 47, at 152-154; Marinos, A. & Troianos, Sp., The Construction of Churches and Places of Worship, 21 Archives of Ecclesiastical and Canonical L. 47, 51–55 (1966) (in Greek)Google Scholar; Marinos, supra n. 2, at 167, n. 115; Dagtoglou, supra n. 44, at 398; Poulis, G., Legislative Texts of Ecclesiastical Law 149 (3d ed. 1999) (in Greek)Google Scholar. According to Svolos, supra n. 42, at 210, the non-commission of proselytization, as a precondition for the freedom of worship of the “known” religions, is met insofar as: (a) the exercise of the worship of a given religion does not consist of, “under all circumstances,” mainly or exclusively, the commission of proselytization, by unlawful means, especially within the places of worship, (b) the recognized ministers or authorized representatives of the religion do not conduct such proselytization in a systematic fashion and as a mission, or (c) so many of the followers or so often have not systematically resorted to acts of prohibited proselytization, that it is reasonably presumed that the particular “known” religion per se does not have the content of proselytization against the prevailing religion by unlawful means. Moreover, these factual data must be judicially affirmed. The same scholar argues that, in addition to the criminal prosecution of unlawful proselytization, administrative measures may also be adopted against its commission, insofar as these are prescribed by law and subject to the condition that they do not go as far as to abolish the freedom of worship of the “known” religion with the fulfillment of the three aforementioned requirements. Marinos, & Troianos, , The Construction of Churches and Places of Worship at 52Google Scholar propose that sanctions of an administrative nature are permissible in cases of commission of proselytization. Dagtoglou, , Constitutional Law: Individual Rights at 398Google Scholar writes that the denial or the revocation of a permit for the operation of a church or a place of worship is legitimate only in the case when they have been used exclusively for proselytizing purposes. Poulis posits that when the competent administrative organ examines a petition for the construction of a church or place of worship for persons of a different religious persuasion or religion, it is required to deny it, if it is proven that the members of the religion in question “in the vicinity of the applicants” have been irrevocably convicted of the crime of proselytization.
56. See Herakleion Dist. Ct. Judm. No. 272/84, in 36 Archeion Nomologías 678 (1985) (with comments by Paschalidis, I. & Mouratidis, K.); 24 Christianos (The Christian) 19 (1985)Google Scholar (with a note by G. Poulis); Herakleion Dist. Ct. Judm. No. 87/1986, 34 Nomiko Verna 1091 (1986) (with a note by I. Konidaris); 40 Armenopoulos 591 (1986) (with a commentary by I. Manoledakis); 37 Archeion Nomologias 470 (1986) (with comments by K. Vavouskos & G. Krippas); and finally 25 Christianos 108 (1986) (with remarks by Th. Panagopoulos). Decisions ruling to the contrary are Crete Ct. App. 509/1985, in 34 Nomiko Verna 572 (1986) (with a note by I. Konidaris); 24 Christianos 173 (1985); Crete Ct. App. 354/87, 35 Nomiko Verna 1259 (1987) (with a note by 1. Konidaris); 38 Archeion Nomologias 408 (1987) (with a comment by N.A.M. & remarks by G. Krippas); 27 Christianos 123 (1988).
57. See Herakleion Dist. Ct. Judmt. No. 230/1983, in Konidaris, I., Legal Theory and Practice Concerning “Jehovah's Witnesses” 128–129 (3d ed. 1991) (in Greek)Google Scholar.
58. Siding with this view are Svolos & Vlachos, supra n. 47, at 69, and Manoledakis, I., Comments on Judgment No. 87/1996 of the Three-Member District Court of Herakleion, 40 Armenopoulos 612, 614 (1986) (in Greek)Google Scholar. Theorists who disagree include Rammos, supra n. 55, at 11; Tsatsos, supra n. 7, at 99-100; Sgouritsas & Georgopoulos, supra n. 47, at 115-116; Papathanasopoulos, Ath., Exit from the Church and Legal Status of Old Calendarists, 30 Ephimeris Ellinon Nomikon 455, 458 (1963) (in Greek)Google Scholar; Poulis, G., Comments on Judgment No. 143/1983 of the Three-Member District Court of Samos, 39 Armenopoulos 18, 18–21 (1985) (in Greek)Google Scholar; Orfanoudakis, S., The Freedom of Association. A Contribution to the Interpretation of Article 12 Paragraphs 1-4 of the Current Constitution in the Light of the Case-Law of Greek Courts 281–282 (1996) (in Greek)Google Scholar. Poulis posits that the court deciding on the request for the founding of a religious association is obligated to reject it, if it is shown that members of the association under consideration have in the past been irrevocably convicted of the crime of proselytization. Orfanoudakis concurs with Poulis.
59. See Rammos, supra n. 55, at 12.
60. See Tsatsos, K., Amendments to Articles 1 and 2 of the Constitution Proposed by the Committee on the Revision of the Constitution, 25 Ekklesia 235, 235 (1948) (in Greek)Google Scholar.
61. See Saripolos, supra n. 45, at 334; Svolos & Vlachos, supra n. 47, at 67-68; Tsatsos, supra n. 7, at 92, 101; Christophilopoulos, supra n. 47, at 72; Sgouritsas & Georgopoulos, supra n. 47, at 112; Georgopoulos, K., Abridged Constitutional Law 506 (4th ed. 1992) (in Greek)Google Scholar; Manesis, supra n. 12, at 252; Manitakis, A., Constitutional Freedoms: Notes from Class Lectures 30 (1987) (in Greek)Google Scholar; Troianos, Sp., Church Organization and International Relations 179 (1983) (in Greek)Google Scholar; Troianos, supra n. 47, at 77; Chrysogonos, K., Individual and Social Rights 220 (1998) (in Greek)Google Scholar.
62. See the Resolution of the European Parliament of 21-1-1993 concerning religious freedom in Greece and the obligation to indicate religion on identity cards (EEC 42 of 15-2-93, at 166-167). Also see the Resolution of the European Parliament of 22-4-1993 on the compulsory mention of religion on Greek identity cards (EEC 150 of 31-5-1993, at 267). The latter Resolution characteristically mentions:
The European Parliament … calls on the Greek Government to amend the current legal provisions once and for all to abolish any mention, even optional, of religion on new Greek identity cards and not to bow to pressure currently exerted from the Orthodox hierarchy or to the overstatement of nationalism [ …]; considers that the role which religion has played or still plays in any society, however important it may be and without value judgments, in no way justifies the requirement to mention religion on an identity card.
Those who agree include Manesis, supra n. 12, at 251-252; Argyropoulos, Ch., Freedom of Religious Conscience and the Obligation to Declare One's Religious Affiliation in Public Documents, in Religious Freedom 21–27 (Beis, K. ed. 1997) (in Greek)Google Scholar; Chrysogonos, supra n. 61, at 220-221. Theorists who contest this view include Saripolos, supra n. 45, at 334; Svolos & Vlachos, supra n. 47, at 68; Christophilopoulos, supra n. 47, at 73; Marinos, supra n. 2, at 105-106; Troianos, supra n. 61, at 179; Troianos, supra n. 47, at 77-78.
63. See Saripolos, supra n. 45, at 343.
64. Id., as well as Svolos & Vlachos, supra n. 47, at 68 who point out that “a person is entitled to … manifest his religious and anti-religious and atheistic beliefs and to try, by virtue of the freedom of thought, of speech and of the Press, to disseminate them, but of course within the bounds of the laws and the non-commission of proselytization …”. Also see Sgouritsas & Georgopoulos, supra n. 47, at 114 who assert that “this freedom (of expressing thoughts) also includes the freedom of disseminating religious beliefs through purely spiritual means and through plausible teaching, but naturally to the extent that it doesn't assume the character of proselytization against the prevailing religion.” Manesis, supra n. 12, at 251-252 writes that the freedom of religious conscience includes a person's right to exercise all his or her individual rights in order to disseminate his/her beliefs that relate to beliefs (freedom of opinion, oral, written or through the Press, the right of assembly and the right to form associations for religious purposes, freedom of religious—but also non-religious education). By contrast, Dagtoglou, supra n. 44, at 379 believes that the current Constitution prohibits religious propaganda, which is essentially equivalent with the freedom of teaching religion or belief to persons of a different religious persuasion or religion, not only by unlawful means (“proselytization”), but in general.
65. Art. 13 ¶ 1, § 1 C.
66. Art. 14, ¶ 1 C.
67. See Th. Tsatsos, supra n. 7, at 94-95.
68. See A/51/542/Add. 1/7-11-1996, ¶¶ 134 & 53.
69. For the freedoms to spread and to change religion or belief under International Human Rights Law, see Lerner, Natan, Proselytization, Change of Religion, and International Human Rights, 12 Emory Int. L. Rev. 478 (1998)Google Scholar; Stahnke, supra n. 29, at 263; Hirsch, Moshe, The Freedom of Proselytization Under the Fundamental Agreement and international Law 47 Catholic U. L. Rev. 407 (Fall 1997)Google Scholar.
70. See A/51/542/Add. 1/7-11-1996, ¶¶ 52 & 31-40.
71. See the Advisory Op. of the Leg. Council of the St. No. 699/91 (en banc) concerning the issue of the constitutionality of the institution of alternative (civilian) service (18 To Syntagma 779 (1992), with comments by Euth. Antonopoulos). For a reconstruction of the arguments contained in this Advisory Op., see especially Papadimitriou, G., The Constitution and Alternative Civilian Service, 2 Yperaspisi 579, 579–582 (1991) (in Greek)Google Scholar; Anthopoulos, Chr., The Problem of the Constitutionality of Alternative Civilian Service (On the Occasion of the Recent Advisory Opinion of the Legal Council of the State), 4 Yperaspisi 1071 (1993) (in Greek)Google Scholar. On this same issue, see generally Papadamakis, Ad., Military Penal Law. Theoretical Foundations and Systematic Interpretation of the New Military Penal Code 55–71 (1997) (in Greek)Google Scholar; Alivizatos, N.Conscientious Objectors and Military Service, 36 Nomiko Verna 519–528 (1988) (in Greek)Google Scholar; Poulis, G., The Constitutional Safeguarding of the Ecclesiastical Canons and Its Significance for Imputability under Ecclesiastical Law, 5 Yperaspisi 993–995 (1997) (in Greek)Google Scholar; Krippas, G., The Constitutionality of the Exemption from Military Service on Grounds of Religious Beliefs, 46 Ephimeris Ellinon Nomikon 325–328 (1979) (in Greek)Google Scholar; Gazis, A., Conscientious Objectors and Other Ordinary Mortals, Oikonomikos Tachydromos 25–27 (1987) (in Greek)Google Scholar; Krippas, G., Conscientious Objection Does Not Constitute an Individual Right!, Oikonomikos Tachydromos 29–33 (1996) (in Greek)Google Scholar; Krippas, G., Conscientious Objection and Defense. The President of the Greek Committee of Amnesty International Kostis Papaioannou and Dr. Georgios Krippas Debate on the Issue of the Alternative Service of Objectors and Giannis Marinos Calls Attention to the Dangers Created by this Peculiar Support of a Non-Right, Oikonomikos Tachydromos 3–7 (1996) (in Greek)Google Scholar. The Law that establishes alternative civilian service is 2510/1997 (Official Government Gazette A′, 136, 27-6-1997).
72. See art. 28, ¶ 1 C.
73. The term “rites,” which is included in the official Greek translation of the European Convention of Human Rights, as this was ratified by Legislative Decree 53/1974 and published in the Official Government Gazette (Bulletin, A′, 256) was chosen instead of the correct term “observance of customs and practice.” For an explanation of the five internationally recognized standards justifying the legitimate limitations to the freedom to manifest one's religion or beliefs, see Nowak, M., U.N. Convenant on Civil and Political Rights, CCRP Commentary 320–322 (N.P. Engel 1993)Google Scholar.
74. The term “practice of religious duties,” which is included in the official Greek translation of the European Convention, was used instead of the correct term “religious behavior.”
75. See Jacobs, Fr. & White, R., The European Convention on Human Rights 214–215 (2d ed., Clarendon Press 1996)Google Scholar; Martinez-Torrón, J., La Libertad de Proselitismo en Europa, 1 Quaderni de Diritto e Politica Ecclesiastica 59, 59–61 (1997) (in Italian)Google Scholar; Martinez-Torrón, J., La Protección Internacional de la Libertad Religiosa, in Tratado de Derecho Eclesiástico 206-207, 216, 223, 225, 227 (Instituto Martin de Azpilcueta-Facultad de Derecho Canonico ed., Universidad de Navarra 1994) (in Spanish)Google Scholar. Also see Patron, S., La Libertad Religiosa en el Convenio Europeo de Derechos Humanos—El Derecho al Proselitismo Religioso y el Asunto Kokkinakis contra Grecia, Revista General de Derecho 1569, 1569–1571 (1996) (in Spanish)Google Scholar.
76. The term “education,” that is included in the official Greek translation of the European Convention—perhaps due to an oversight—was chosen instead of the appropriate term “teaching.” It is quite likely that this erroneous rendition constitutes one of the reasons for confusion which reigns in both theory and case law regarding the relationship between religious freedom and proselytization.
77. The term “ritual acts,” which is included in the official translation of the International Covenant, was used instead of the correct expression “observance of religious customs and religious practice.”
78. The term “practice,” as included in the official translation of the International Covenant, was used in place of the appropriate “compliance with religious conscience.”
79. Islam opposes the right of Muslims to change their religion: see e.g. Sultanhussein Tabandeh of Gunabad, A Muslim Commentary on the Universal Declaration of Human Rights 70–73 (1st Persian ed. 1970)Google Scholar.
80. See Decaux, Em., L'Institutionnalisation de la C.S.C.E. in La CSCE: Dimension Humaine et Règlement des Differends (Cahiers du Cedin, No. 8) 125–128 (1993) (in French)Google Scholar.
81. See the Final Act of Helsinki, pt. I, “Questions Relating to Security in Europe,” ch. 1, “Declaration on Principles Guiding Relations Between Participating States,” Principle VII. Respect for human rights and fundamental freedoms, including the freedom of thought, conscience, religion or belief,” ¶¶ 1-8, except ¶ 4 (Bloed, supra n. 6, at 146; for a translation into Greek, see Conference on the Security and Co-operation in Europe 12-13 (1975)); the Concluding Document of the Follow-up Meeting in Madrid (1983), pt. I, “Questions Relating to Security in Europe,” Principles, ¶ 12 (Bloed, supra n. 6, at 262); Concluding Document of the Follow-Up Conference of Vienna (1989), Principles, ¶¶ 11, 13, 7, 16.1, 17, 21, & pt. III, “Co-operation in humanitarian and other fields,” ¶ 63 ( 28 ILM (1989), p. 533, 334, 535 & 547Google Scholar; 10 HRU (1989), at 274, 275, 276-277 & 289Google Scholar; 1 RUDH (1989), 297-299 & 305Google Scholar; Bloed, supra n. 6, at 333-335, 337-338 & 366); Document of the Second Meeting in Copenhagen's Conference (1990), pt. II, ¶ 9.4, 24, 25 ( 29 ILM (1990), 1311, 1316Google Scholar; 11 HRU (1990), 236, 240–241Google Scholar; Bloed, supra n. 6, at 446, 453); Charter of Paris for a New Europe (Commission on Security and Cooperation in Europe 1990), pt. I, “A New Era of Democracy, Peace and Unity,” 1 st Ch., “Human Rights, Democracy and Rule of Law,” ¶ 5 (Bloed, supra n. 6, at 538; see also the Greek translation in Charter of Paris for a New Europe 7 (1992)); Declaration of Budapest (1994), “Towards a Genuine Partnership in a New Era,” pt. VIII, 127 ( 15 HRU 461 (1994)Google Scholar).
83. In the Kokkinakis case, Judge Valticos did not agree with the expansive—in his opinion—interpretation of the freedom to manifest religion that was adopted by the majority of the European Court, and also disapproved of the interpretation of the term “teaching.” In his view, everyone's freedom of religion must end where another person's begins, as is the case with all freedoms, and it is designed to ensure religious peace and tolerance, and not to permit religious clashes and even religious wars. He also notes that the term “teaching” in article 9 refers to religious teaching in school curricula or in religious institutions, and not to personal door-to-door canvassing as in the present case.
84. See Philippou, supra n. 3, at 16.
85. See indicatively CoC Judms. No. 1082/46 (2d Div.), 58 Themis 148 (1947)Google Scholar; 1049/47 (2d Div.), 15 Ephimeris Ellinon Nomikon 100 (1948)Google Scholar; 1212/48 (2d Div.), 16 Ephimeris Ellinon Nomikon 29 (1949)Google Scholar; 1266/93, 43 Poinika Chronika 1017 (1993)Google Scholar (the case of Larissis and others), Larissa Ct. App. Judm. No. 749/86, 41 Armenopoulos 1072 (1987)Google Scholar; Chania Crim. Ct. Or. No. 172/86, 37 Poinika Chronika 120 (1987)Google Scholar; Mytilini Crim. Ct. Or. No. 112/1982, 37 Armenopoulos 410 (1983)Google Scholar.
86. See Dagtoglou, supra n. 44, at 375-376.
87. Cf. Raikos, Ath., Lectures in Constitutional Law (Under the Constitution of 1975) vol. B: Fundamental Rights pt. b, 86 (2d ed. 1984) (in Greek)Google Scholar.
88. See Glen-How, W. & Brumley, Philip, Human Rights, Evangelism, and Proselytization—A Perspective of Jehovah's Witnesses, in Sharing the Book: Religious Perspectives on the Rights and Wrongs of Proselytization 280–283 (Witte, John & Martin, Richard eds., Orbis Books 1999)Google Scholar.
90. See Nowak, supra n. 73, at 321.
92. See Durham, W. Cole, Treatment of Religious Minorities in the United States. The Legal Status of Religious Minorities in the Countries of the European Union 348–351 (European Consortium for Church-St. Research ed. 1993)Google Scholar.
93. Judge Martens, supra n. 91, at 38-39.
94. Martens, Judge S. (Série A: Arrêts et Décisions vol. 260, ¶¶ 13 & 16, at 37, 38)Google Scholar. Judge L.E. Pettiti in essence concurs with Martens' opinion. More particularly, Pettiti argued that article 9 ECHR is violated by the very existence of a criminal provision on proselytization. Furthermore, the reasoning offered by the European Court does not seem to provide adequate interpretative criteria for the relation between a particular legislation on proselytization and article 9 ECHR, a possible consequence being that the Greek courts will in the future implement the relevant legislation in the exact same manner that was applied in the Kokkinakis case. More particularly, CoC Judm. No. 704/1988, 38 Poinika Chronika 776 (1988)Google Scholar does not delineate the boundaries between abusive proselytization i.e., the physical or psychological coercion that is applied in the context of spreading religion or belief, and the freedom to spread religion or belief (Série A: Arrêts et Décisions vol. 260, at 25, 28) (1994)Google Scholar.
95. See Scovazzi, T., Libertà di Religione e Testimoni di Geova Secondo Due Sentenze della Corte Europea dei Diritti dell' Uomo, 25 Quaderni di Diritto e Politica Ecclesiastica 719, 719–722 (1997) (in Italian)Google Scholar; Cannone, A., Gli Orientamenti della Giurisprudenza della Corte Europea dei Diritti dell' Uomo, in Minoranze, Laicità, Fattore Religioso 119–123 (Coppola, R. & Troccoli, L. eds. 1997) (in Italian)Google Scholar; de Stefano, M.G. Belgiorno, La Libertà Religiosa nelle Sentenze della Corte Europea dei Diritti dell' Uomo, 17 Quaderni di Diritto e Politica Ecclesiastica 285, 285–290 (1989) (in Italian)Google Scholar. Also see Conde, Victor H., The Frontiers of Religious Tolerance: Human Rights and Proselytization: The Case of Kokkinakis v. Greece 14-17, 41–45 (unpublished LL.M. Degree in Intl. Human Rights L. dissertation, U. Essex 1994)Google Scholar.
96. Marinos, A., Proselytization … Continued, 35 Elliniki Dikaiosyni 6 (1994) (in Greek)Google Scholar believes that the European Court held that the penal statute on proselytization does not violate article 9 ECHR. Also see Mylonas, supra n. 3, at 193. Stavrou, St., Proselytization and the Right to Religious Freedom (On the Occasion of the Judgment of the European Court of Human Rights on the Appeal of ‘Kokkinakis versus Greece’ …), 43 Poinika Chronika 964, 967 (1993) (in Greek)Google Scholar disagrees and points out that the broader issue of the congruence of Greek legislation on proselytization with article 9 of the Convention remains open. However, this same scholar's opinion that the European Court's omission to define unlawful proselytization in abstracto allows Greece to continue to maintain in force article 4 of Law 1363/1938 does not appear to be valid, because this view is expressed in a rather absolute way. Id. at 969.
98. Such acts are brainwashing, breaches of labor law, endangering of public health and incitement to immorality, which should be punished in positive law as ordinary criminal offences (Pettiti, L.E., Série A: Arrêts et Décisions vol. 260, at 26) (1994)Google Scholar. Pettiti expresses the reasonable opinion that it would be possible for the European Court to define the concept of the abuse of the freedom to disseminate, that is, the concept of physical or psychological coercion in relation to this dissemination, so that the full protective range of the said freedom can be defined in the abstract. Id. at 25, 28.
99. See Durham, supra n. 23, at 27.
101. See indicatively Le Petit Robert, vol. I. P. 1552 (1992)Google Scholar, which is cited by the judges Meyer, J. De and Valticos, N. (Série A: Arrêts et Décisions vol. 260, at 29, 31) (1994)Google Scholar. The definition of proselytization, according to the Petit Robert, is as follows: “Proselytization is the zeal that is developed in spreading the faith and consequently for the creation of proselytes, for the incitement of adherents.” Valticos moreover repeats the quotation from Paul Valéry, which accompanies the definition contained in Petit Robert and which states: “I consider it unworthy to want others to be of one's own opinion. Proselytization astonishes me.” Valery's opinion may be cogent on a philosophical level, but on the level of religions, which are customarily interested in their dissemination, it usually does not apply.
102. See Marinos, supra n. 96, at 6.
103. Pettiti, Judge L.E. (Série A: Arrêts et Décisions vol. 260, at 27) (1994)Google Scholar, who notes that attempting to make converts is not in itself an attack on the freedom and beliefs of others or an infringement of their rights.
104. Id. at 26.
105. See Valticos, Judges, Foighel, I. & Loizou, A. (Série A: Arrêts et Décisions vol. 260, at 31, 40) (1994)Google Scholar. By contrast, Valticos claims that the definition of proselytization protects the freedom of religious conscience, without developing further argumentation. Judges Foighel and Loizou agree that only when it takes this kind of intrusive form, as opposed to genuine, open and straightforward teaching of a religion, is proselytization a criminal offence.
106. Id. at 30, 40.
107. See Papadoukas, supra n. 51, at 135-139; Saripolos, supra n. 45, at 307. Also see Svolos & Vlachos, supra n. 47, at 33 who clarify that the constitutional prohibition covers proselytization that is conducted not only by persons of another religion or of a different religious persuasion, but also by heretics, schismatics, or any persons whatsoever. Consequently, these two scholars accept, with their expression “any persons whatsoever,” that the teaching of non-religious beliefs also falls under the concept of proselytization. Finally, see Panagopoulos, I., Religious Tolerance and Proselytization 32 (1960) (in Greek)Google Scholar, Sgouritsas & Georgopoulos, supra n. 47, at 123-124.
108. See Marinos, supra n. 42, at 236-238.
109. See Saripolos, N.I., A Treatise on Constitutional Law vol. III, 311 (2d ed. 1874)Google Scholar.
110. Flogaitis, supra n. 51, at 446-447 writes characteristically:
[T]he prohibition of proselytization is obviously a scandalous violation of the principles of freedom and a despicable obstacle to scientific progress. The Eastern Orthodox Church of Our Christ, or more generally, the Christian faith, either is true or it isn't. In the first case, not even the wisest man's proselytizing act may in any way unsettle its holy and immovable foundations. To quote from the Bible, “And I tell you that you are Peter, and on this rock I will build my church, and the gates of Hades will not overcome it.” (Matthew 16:18). But if the second case is true, then the Constitution, in prohibiting proselytization against the Eastern Orthodox Church, prohibits no less than the war against lies, in other words, it blocks the entrance to the truth, despite the precepts of morality, philosophy and the Great Church of Christ itself. The great founder of our new faith not only did not obstruct the entrance to the truth, but on the contrary said: “the truth shall save us,” pursuing the prevalence of truth. Besides, He who was crucified on the Mount for the salvation of humanity and the subversion of false beliefs, explicitly allowed free inquiry and the unhindered dissemination of its findings, when He said: “Study diligently the Scriptures.” (John 5: 38-40). Therefore, by what right is the freedom of research and teaching, namely proselytization, hindered on the pretext of protecting the very religion of Christ?
(All Biblical citations are taken from New Intl Version.).
111. See Manesis, supra n. 12, at 255-256; Marinos, A., The Concept of Religious Proselytization Under the New Constitution, 25 Elliniki Dikaiosyni 4, 10 (1984) (in Greek)Google Scholar; Poulis, supra n. 20, at 98; Philippou, supra n. 3, at 19.
112. See especially Loverdos, supra n. 17, at 22.
113. See Dagtoglou, supra n. 44, at 398-400.
114. See art. 385 PC.
115. See art. 386 PC.
116. See Krippas, G., The Crime of Proselytization, Especially fom the Standpoint of Instigation, 30 Poinika Chronika 313, 315 (1980) (in Greek)Google Scholar; Krippas, G., Some Remarks on Proselytization from the Standpoint of Constitutional and Criminal Law, 22 Elliniki Dikaiosyni 204, 315 (1981) (in Greek)Google Scholar; Christoforidis, Chr., Proselytization in Favor of the Prevailing Religion, 22 Elliniki Dikaiosyni 10, 13 (1981) (in Greek)Google Scholar. Contra see Katras, G., Proselytization and Missionary Work, 21 Elliniki Dikaiosyni 690, 692–694 (1980) (in Greek)Google Scholar.
117. See arts. 13 & 4, ¶ 1 C., 9 & 14 ECHR, and 18, 2, 11 & 26 ICCPR. Also see arts. 18, ¶ 1, 29, ¶ 2 & 2 of the Universal Declaration, as well as arts. 1 & 2-4 of the 1981 Declaration.
118. See art. 4, ¶ 1 C. & 26 ICCPR.
119. See art. 2, ¶ 1 C. Also see 5, ¶¶ 1 & 7, ¶ 2 C.
120. See arts. 2-4 of the 1981 Declaration.
121. See Vavouskos, K., A Manual of Ecclesiastical Law 288 (5th ed. 1989) (in Greek)Google Scholar; Katras, supra n. 116, at 601, who unfoundedly distinguishes proselytization, which he connects with the element of importunity and persistence, from the lawful dissemination of religious ideas. Also see Rigatos, P., Orthodoxy and Proselytization 12 (1986) (in Greek)Google Scholar, who at the same time adopts the view that the constitutional prohibition refers only to unlawful proselytization.
122. The term “abusive proselytization” is also used by Durham, supra n. 23, at 18. The same author uses the term “improper proselytization” interchangeably. Edge, supra n. 100, at 8 also uses the term “improper proselytization.”
123. See Manesis, supra n. 12, at 83; Raikos, Ath., Lectures in Constitutional Law (Under the Constitution of 1975) vol. B: Fundamental Rights pt. a, 168 (3d ed. 1984) (in Greek)Google Scholar; Pantelis, Ant., Matters of Constitutional Reservations 225–226 (Veglens, Ph. ed. 1984) (in Greek)Google Scholar; Litzeropoulos, Al., The Abuse of General Individual Freedom in Relations Under Private Law (Anicie 281 of the Civil Code and 25 para. 3 of the 1975 Constitution). A Tribute to Alexandres Tsirintanis 436 (1980) (in Greek)Google Scholar.
124. The contrary view is supported by Vouzikas, Emm., The Provision on Abuse of a Right of Article 281 of the Civil Code and Public Law. Review of Public Administrative Law 127 (1968) (in Greek)Google Scholar; Leventis, G., The Abusive Strke Under the Constitution and Ordinary Law, 32 Nomiko Verna 236, 237 (1984) (in Greek)Google Scholar; Tsatsos, D., Constitutional Law vol. C: Fundamental Rights I. General Part, 280, 229–230 (1988) (in Greek)Google Scholar; Dagtoglou, P., The Abuseof Individual Rights, 38 Nomiko Verna 225, 227 (1990 (in Greek)Google Scholar; Dagtoglou, supra n. 44, at 136. The proponents of this opinion add that the enactment of the provision of article 25, paragraph 3 C. was not necessary, because the prohibition of the said exercise of the individual right outside the scope of freedom that is protected by the Constitution, arises from its content.
125. See Dagtoglou, supra n. 44, at 114-118.
126. The concept of the abuse of a right in article 25, paragraph 3 C., as well as in article 281 of the Civil Code, is objective, that is, no intent (animus nocendi) is required. See Dagtoglou, supra n. 44, at 136; Kourakis, N., The Abuse of a Right Under Private and Public Law 174–175 (1978) (in Greek)Google Scholar.
128. See Manesis, supra n. 12, at 88-89; Vegleris, Ph., The Convention on Human Rights and the Constitution 64 (1977) (in Greek)Google Scholar; Vegleris, Ph., Human Rights and Their Limitations, 5 To Syntagma 25, 43–44 (1979) (in Greek)Google Scholar. Also see Vegleris, Ph., Limitations to Human Rights 27 (1982) (in Greek)Google Scholar; Vlachos, G., The Constitution of Greece: Fundamental Rights and Freedoms, Addendum 73–76 (1979) (in Greek)Google Scholar.
129. See Roukounas, Emm., The International Protection of Human Rights 31–32 (“Hestia” Publishers 1995) (in Greek)Google Scholar.
130. See Koukiadis, I., Labor Law: Collective Labor Relations, in Dikaio kai Politiki vol. 5, 514 (1981) (in Greek)Google Scholar, who points out that the prohibition of the abusive exercise of a right does not constitute a positive precondition for the legitimization to exercise a right, but a negative one. It is in fact useful for excluding the exercise of a right in exceptional cases. Furthermore, see Venizelos, E., Article 25 para. 3 of the Constitution (Abusive Exercise of a Right) in Case-Law. Six Observations and One Suggestion for Interpretation, in Constitutional Freedoms in Practice 104-106, 110–111 (1986) (in Greek)Google Scholar, who argues that the invocation of article 25, paragraph 3 C. should not permissibly multiply the limitations of constitutional rights and reverse the safeguarding function of the Constitution by introducing, by circuitous means, a general preventive control in the exercise of these rights. He reveals the relevant sophistry of case-law, by writing (CoC 289/1981) as follows: para. 3 of art. 25 C. is interpretatively linked with paragraphs 1 and 2 of this same article and the non-violation of the third paragraph is set as a requirement for the implementation of the first two paragraphs. He thus accurately concludes that the aforementioned constitutional provision depicts a general principle of our legal system and more particularly of the system for the protection of constitutional rights, which is particularized in the limitations of individual constitutional rights. Also see Tsatsos, supra n. 124, at 281-282. Cf. Alivizatos, N., Comments (to EfDodek 30/1981), 30 Nomiko Verna 484, 484–486 (1982) (in Greek)Google Scholar.
131. See Manesis, supra n. 12, at 86, who posits that article 25, paragraph 3 C. constitutes a defensive clause that expresses the suspicion of the State against its citizens and aims to be the guardian of the exercise of their individual freedoms.
132. See art. 17 ECHR.
133. Raikos, supra n. 123, at 177.
134. See Dagtoglou, supra n. 124, at 226; Dagtoglou, supra n. 44, at 134.
135. See Katranis, A., The Theory of Externality of Human Rights, 3 To Syntagma 237, 261 (1978) (in Greek)Google Scholar; Psomas, I., The Abusive Exercise of the Right to Strike, 38 Labor L. Rev. 617, 618–610 (1979) (in Greek)Google Scholar; Raikos, supra n. 123, at 179); Leventis, supra n. 124, at 237, 238; Lipovats, A., The Prohibition of the Abuse of a Right: A Basic Principle of Law with Constitutional Force and International Recognition, 37 Nomiko Verna 1009, 1014–1015 (1989) (in Greek)Google Scholar; Tsatsos, supra n. 124, at 280.
136. See Leventis, supra n. 124, at 237, 238; Lipovats, supra n. 135, at 1015.
137. See Dagtoglou, supra n. 44, at 135.
138. See Katranis, supra n. 135, at 261; Psomas, supra n. 135, at 618-619; Leventis, supra n. 124, at 237; Tsatsos, supra n. 124, at 280.
139. See Iliopoulou-Stranga, J., The Abuse of Fundamental Rights and Democracy (A Comparative Review), 56 Ephimeris Ellinon Nomikon 85, 88 (1989) (in Greek)Google Scholar.
140. See Raikos, supra n. 123, at 179.
141. See Lipovats, supra n. 135, at 1014-1015.
142. See Raikos, supra n. 123, at 178-179.
143. According to Dagtoglou, supra n. 44, at 126, the general social restraint of individual rights, which arises from article 25 C., signifies that their exercise in a manner that creates a direct and grave damage to society is not allowed. This same scholar concurrently underlines that the content of the general “social standards” is equated with the totality of the particular social restraints of particular individual rights. That is, the Constitution limits an individual right in favor of society, insofar and to the extent that it subjects it to limitations, which it mentions specifically. Id. at 125. Cf. Koukiadis, supra n. 130, at 513-517, 565.
144. See Tsatsos, supra n. 124, at 280.
145. See Katranis, supra n. 135, at 261; Psomas, supra n. 135, at 618-619.
146. See Manesis, A., Constitutional Law as a Technique of Political Freedom, in Constitutional Theory and Practice vol. 1, 38 (1980) (in Greek)Google Scholar; Manesis, supra n. 12, at 84; as well as Leventis, G., The Social Rights of the Citizen, 2 To Syntagma 121, 124–125 (1976) (in Greek)Google Scholar.
147. See Tsatsos, supra n. 124, at 169-173; Manitakis, A., The Subject of Constitutional Rights Under Article 25 par. 1 of the Constitution 20–28 (Manesis, Ar., Tsatsos, D., Papadimitriou, G. & Manitakis, Ant. eds. 1981) (in Greek)Google Scholar.
148. See especially Vouzikas, supra n. 124, at 122, and later Vouzikas, Emm., The Implementation of the Statute on Abuse of a Right of Article 281 of the Civil Code in Public Law (and a Critique of Judgment No. 8/1985 of the Supreme Special Court), 56 Ephimeris Ellinon Nomikon 565, 571 (1989) (in Greek)Google Scholar. This scholar correctly laid down his proposition, aiming primarily at a law-giving treatment of the abuse of public power, with the introduction of its objective meaning. Indeed, he writes that the expansion of 281 CC to public law by analogy should seriously take into account the peculiarities of the legal relations of this field of law and especially the limitations imposed by the public interest. Id. at 133.
149. See Raikos, supra n. 123, at 177-178, who advocates a direct implementation of art. 281 CC in public law, with the rationale that this provision contains a general principle of law. Also see Raikos, Ath., The Problem of the Implementation of the Rules of Private Law in Public Law (A Comment on Judgment No. 233/1967 of Areios Pagos), 12 Rev. Pub. 9, 9–12 (1968) (in Greek)Google Scholar.
150. See Kordogiannopoulos, P., Views on the Implementation of Article 281 of the Civil Code n Public Law, 24 Labor L. Rev. 513, 514 (1965) (in Greek)Google Scholar. Also see Vegleris, Ph., The Convention on Human Rights and the Constitution 77–78 (1977) (in Greek)Google Scholar, who views the implementation of article 281 CC on individual and social rights as a means of overturning the system of constitutional protection by way of a statute which would make them depend on the “condition of inactivity.” See Manesis, supra n. 12, at 88, who argues that article 281 CC should not be implemented by analogy, as a quasi general standard, because we are dealing with two completely dissimilar cases. In other words, this particular provision of the Civil Code aims at protecting private rights, whereas article 25, paragraph 3 C. aims at protecting state power from the exercise of individual rights. See Vlachos, supra n. 128, at 73-75, who asserts that the theory of abuse is a contradictio in terminis, since it constitutes a negation of the “sanctity” of fundamental rights and freedoms, that is of their “inviolability.” See further Dagtoglou, supra n. 124, at 225, 227-228; Dagtoglou, supra n. 44, at 132 & 136. This scholar believes that article 281 CC, as a simple legislative provision, would not suffice for the prohibition of the abusive exercise of individual and social rights. See Lipovats, supra n. 135, at 1013-1014, who does not believe that the limits set by article 25, paragraph 3 C. to the exercise of individual rights, cannot possibly be ipso jure or by analogy identical with those of article 281 CC, despite the fact that the general principle of the prohibition of the abusive exercise of a right has acquired an increased legal force, by virtue of article 25, paragraph 3 C. Finally, see Tsatsos, supra n. 124, at 279.
151. Venizelos, supra n. 130, at 102 points out that the views favoring the implementation of article 281 of the Civil Code in public law, give rise to a dual interpretative problem; first, they confuse the field of implementation of the aforementioned Civil Code provision with that of article 25, paragraph 3 C.; and second, they carry out an interpretation of the Constitution that is congruous with the law.
152. See Koukiadis, supra n. 130, at 514, n. 227, who calls attention to the need for an appropriate particularization of the principle of the non-abusive exercise of a right of article. 281 CC. See Kazakos, A., The Political Strike, in Labor Law in Practice. Studies in Collective and Individual Labor Law 226 (1998)Google Scholar (in Greek), who points out that when there is a marked disproportion between the utilized means and the pursued purpose, then the judicial review of the abusive exercise (of the right to strike, article 281 CC) remains as a safety device. Also see Kazakos, A., The Foundations of Collective Labor Law, in Labor Law Practice. Studies in Collective and Individual Labor Law 47 (1998) (in Greek)Google Scholar; Psomas, supra n. 135, at 618-619. Also see Leventis, supra n. 124, at 239-240, who although initially embraces the view that rejects the implementation of article 281 CC in individual rights, however cannot hide his preference for such implementation (and indeed for the direct implementation) in the abusive exercise of the right to strike. In fact, he writes that although the abusive exercise of constitutional rights brings forth a special problematic, the criteria set in the aforementioned provision do not differ substantially from the criteria of abusive exercise on a constitutional level. Lastly, see Vouzikas, supra n. 148, at 571, who emphasizes that the implementation of article 281 CC in individual and social rights should take place in such a way that the essential content of a fundamental right is in no way infringed upon.
154. See Papasteriou, supra n. 153, at 258-260; Balis, supra n. 153, at 428-429.
155. See Manesis, supra n. 12, at 62.
156. See Ladas, P., The Nullity of a Juridical Act Because of Its Conflict With Conventional Morality 41–52 (1979) (in Greek)Google Scholar; Papasteriou, supra n. 153, at 48-49; Balis, supra n. 153, at 182, 427; Papantoniou, N., General Principles of Civil Law pt. b, 170–171 (2d ed. 1982) (in Greek)Google Scholar; Simantiras, K., General Principles of Civil Law vol. B, 795–796 (3d ed. 1980) (in Greek)Google Scholar. Also see Tsatsos, supra n. 7, at 94, who argues that morals are the prevalent customs and usages in accordance with the “common moral conscience of the nation,” a conscience which is “ratified” by the law. Also see Raikos, supra n. 87, at 162-168; Pantelis, supra n. 123, at 180-183.
157. See arts. 9, ¶ 2 ECHR, 18 ¶ 3 ICCPR, 14 ¶ 3 of the International Convention on the Rights of the Child, 29 ¶ 2 of the Universal Declaration and 1 ¶ 3 of the Declaration of 1981. Cf. art. 12, ¶ 3 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (G.A. Res. 45/158/18-12-1990, Annex, U.N.Doc.A/RES/45/158/25-2-1991).
158. Venizelos, supra n. 130, at 98-99 cites an impressive body of case-law relating to article 25, paragraph 3 C. and points out that from all the published decisions about article 25, paragraph 3 C., more than half concern strikes, a large number refers to the founding of professional associations in a location covered by a preceding association of the same kind and only the rest of them concern various other issues, such as the freedom of the press, individual property, and social security.
159. See id. at 100.
160. See Manesis, supra n. 12, at 89.
161. The aforementioned attempt to interpret the term “public morality” clearly constitutes an interpretative approach and not a pre-interpretative choice. For the view that it constitutes legal interpretation, see mainly Stamatis, K., The Substantiation of Legal Judgments. An Introduction of Methodology of Law 86–89 (3d ed. 1997) (in Greek)Google Scholar. The main advocate of the opinion that it is a pre-interpretative choice is Tsatsos, D., Constitutional Law vol. A: Theoretical Foundations 278–285 (4th ed. 1994) (in Greek)Google Scholar. Agreeing with Tsatsos for the most part one finds Venizelos, E., The Interpretation of the Constitution Between Legal Dogmatic and Epistemological Honesty, 34 Nomiko Verna 1529, 1529–1531 (1986) (in Greek)Google Scholar; Venizelos, E., The Stance of Greek Case-Law Vis-à-vis the Interpretation of the Constitution, 15 To Syntagma 425, 425–428 (1989) (in Greek)Google Scholar; Venizelos, E., Lessons in Constitution Law vol. 1, 196–202 (1991) (in Greek)Google Scholar; Venizelos, E., The Problem of the Interpretation of the Constitution, in The Interpretation of the Constitution 77–96 (Tsatsos, D. ed. 1995) (in Greek)Google Scholar; Venizelos, E., The Constant Search for Limits, in The Interpretation of the Constitution 99–116 (Tsatsos, D. ed. 1995) (in Greek)Google Scholar; Mavrias, K., The Interpretation of the Constitution Between Political Evaluation and Legal Doctrine, in The Interpretation of the Constitution 239–251 (Tsatsos, D. ed. 1995) (in Greek)Google Scholar. Scholars who disagree with Tsatsos include Manitakis, A., The Legal Nature and the Political Character of the Interpretation of the Constitution, 11 To Syntagma 476, 476–477 (1985) (in Greek)Google Scholar; Manitakis, supra n. 61, at 30-33; Manitakis, A., Judgment and Critique of Methods in Constitutional Law, in The Collective Works of Phaedon Vegleris vol. 1, at 585–587 (1988) (in Greek)Google Scholar; Manitakis, A., Legal Constraints and Criteria for the Accuracy of Constitutional Interpretation, 16 To Syntagma 363, 363–395 (1990) (in Greek) G.Google Scholar; Papadimitriou, , The Methodological Construct of the Interpretation of the Constitution, 17 To Syntagma 201, 201–212 (1991) (in Greek)Google Scholar; Alivizatos, , An Introductory Note to the Translation of R. Dworkin's Article on the Bork Case, 14 To Syntagma 266–269 (1988) (in Greek)Google Scholar; Alvizatos, N., The Interpretation of the Constitution and Legal Reasoning, in The Interpretation of the Constitution 63–74 (Tsatsos, D. ed. 1995) (in Greek)Google Scholar; Sourlas, P., The Intertwining of Law and Politics and the Substantiation of Legal Judgments (1989) (in Greek)Google Scholar.
162. See Scovazzi, T., Diritti dell' Uomo e protezione della Morale nella Giurisprudenza della Corte Europea in La Tutela della Libertà di Religione. Ordinamento Internazionale e Nonnative Confessionali S. 83–105 (Ferrari, & TScovazzi, . eds. 1988) (in Italian)Google Scholar; Morange, J., Éthique et Droits de l'Homme (Mélanges Offerts à J. Velu: Collection de la Faculté de Droit de l'Université Ubre de Bruxelles vol. 2) 1153–1166 (1992) (in French)Google Scholar.
163. Para. 8 (CCPR/C/21/Rev.1/Add.4/27-9-1993, at 3).
164. See Vavouskos, supra n. 121, at 281 -283.
165. Para. 10 (CCPR/C/21/Rev.1/Add.4/27-9-1993, at 4).
166. The opinion that the primal criterion for the specification of morals is the morality of the prevailing religion (from which the vast majority of the Greek people is presumed to be influenced) does not appear to be valid (see Raikos, supra n. 87, at 165; Philippou, supra n. 3, at 12). Cf. Tachos, An., Contemporary Trends in the Principle of Legitimacy in Administrative Law 155–156, n. 24 (1973) (in Greek)Google Scholar.
167. Art. 2, ¶ 1 C.
168. See thedecision of 8-11-1960 of the F. Constitutional Ct. Germany (BverfGE 12, p. 1sq.), which refers ad hoc to the abusive exercise of the freedom to disseminate a religion or belief. More particularly, the case mentions:
… Under no circumstances can the person who exceeds the limits established by the evaluative order of the Grundnorm invoke religious freedom. …. The State, which is neutral vis-à-vis worldviews, cannot and is undoubtedly not permitted to make a closer specification of the content of this freedom, because it is not allowed to evaluate the faith or infidelity of its citizens; nevertheless, the abuse of this freedom must in all cases be impeded. From the structure of the constitutional evaluative order, and especially from the dignity of a person, it follows that abuse occurs especially when there is a violation of the dignity of others' personhood. The permissible propaganda in favor or against a religion per se, there is an abuse of the fundamental right, when one attempts by unlawful methods or immoral means to incite other persons to abandon their faith or to leave the church. The person who, by exploiting the special circumstances of serving a sentence in jail, and in view of leading someone away from his faith, promises or provides him with means of enjoyment (it is noted that the applicant promised his fellow prisoners in jail tobacco, in order to achieve their exit from the church), does not enjoy the protection of article 4 par. 1 of the Grundnorm.
See Raikos, supra n. 123, at 170.
169. See Eurigenis, D. & Manitakis, A., The Constitutional Protection of Private Professional or Other Special Education (An Advisory Opinion), 6 Hellenic Rev. European L. 931, 934 (1986) (in Greek)Google Scholar.
170. See Saripolos, supra n. 45, at 343. Contra see Tsatsos, supra n. 7, at 94, n. 1, who argues that the freedom of religious teaching is derived only from the current article 13, paragraph 1, section 1 C. (then article 1 of the 1864/1911 Constitution).
171. See Eurigenis & Manitakis, supra n. 169, at 933.
172. See id. at 934.
174. Para. 5 (CCPR/C/21/Rev.1/Add.4/27.9.1993, at 2).
175. Kyriakos, D., Constitutional Law 11–12 (1904) (in Greek)Google Scholar writes:
Because the adherents of any religion believe that theirs is the only one which is true, because a basic commandment of any religion is the dissemination of the particular faith through teaching and the justification of its validity through the refutation of other sects, it follows that any recognized Church is entitled to teach its doctrines, to condemn contrary doctrines, to exclude from its community the unfaithful members and to accept new ones, who have forsaken their previous religion. However, proselytization, which is mainly the importunate attempt of attracting into our sect the members of another religious community (projecting the idea that those belonging to a different doctrine are disillusioned and are incapable of understanding their disillusion on their own) violates the natural right inherent in every person to remain free of harassment from any intentional disturbance of his or her religious beliefs …. Moreover, proselytism which is carried on by unlawful means, such as violence, fraud, bribery, etc. should be punishable by the State with specific penalties. Further, proselytization conducted by means which are morally reprehensible should also be prohibited by the State administration. Hence, it is necessary to distinguish between proselytism conducted by purely spiritual means from proselytization which is committed by unlawful or immoral means, because proselytism conducted merely through the appropriate teaching and not through importunate persuasion, is in the nature of any rite of worship performed freely and without hindrance. Nor should the State impede the religious teaching of a recognized Church, even if this teaching demonstrates the errors of other religions and entices possible disciples away from them, who abandon their original religions of their own free will.
Also see Papadoukas, supra n. 51, at 135-137; Saripolos, supra n. 45, at 307, n. 2, who points out that “as regards ‘proselytization,’ one should not confuse it with the freedom of teaching the doctrines of other religions, which is enshrined in the Constitution, and is carried on without ‘proselytism,’ under the constitution and the laws.”
176. See CoS Judm. No. 756/1952 (en banc), 63 Themis 267 (1952)Google Scholar. Also see the report of the Rapporteur M. Stasinopoulos in that case, 63 Themis 265 (1952)Google Scholar; CoS Judm. No. 2276/195 310 Neon Kikaion 208 (1954)Google Scholar (with comments by Al. Svolos). Lastly, see Larissa Ct. App. Judm. No. 749/198641 Armenopoulos 1072 (1987).
177. See CoS Judm. No. 2276/195310 Neon Dikaion 208 (1954).
179. See Beach, supra n. 32, at 81, 84-85.
183. See CoC Judm. No. 441/19523 Poinika Chronika 19 (1953).
184. See CoC Judm. No. 137/19533 Poinika Chronika 316 (1953).
185. See CoC Judm. No. 289/19533 Poinika Chronika 494 (1953).
186. See CoC Judm. No. 528/1950 Bakkoulas (1974: 234–235)Google Scholar. Cf. Edessa Crim. Ct. Or. No. 184/195917 AEKD 63 (1962) (concerning the distribution of pamphlets, discussions and promises) and Athens Crim. Ct. Or. No. 51487/198637 Poinika Chronika 342 (1987) (for the distribution of Jehovah's Witnesses pamphlets by a minor with the “deceitful” statement that they are advertising material).
187. See CoC Judm. No. 997/197526 Poinika Chronika 380 (1976).
188. See CoC Judm. No. 54/19588 Poinika Chronika 273 (1958).
189. See CoC Or. No. 396/197424 Poinika Chronika 675 (1974).
190. See CoC No. 840/1986 (5th Div.), 34 Nomiko Verna 1269 (1986)Google Scholar. Cf. Katerini Crim. Ct. Or. No. 309/197312 Christianos 73 (1973).
191. See CoC No. 59/19564 Nomika Vima 737 (1956).
192. See CoC No. 126/195777 Poinika Chronika 297 (1957).
193. See CoC No. 55/19588 Poinika Chronika 274 (1958).
194. See CoC No 165/19566 Poinika Chronika 374 (1956).
195. See CoC No. 1035/197526 Poinika Chronika 391 (1976).
197. See CoC No. 704/198838 Poinika Chronika 776 (1988).
198. See CoS Judm. No. 2276/195310 Neon Kikaion 208 (1954).
203. Id. The Council of State limited itself to merely ruling that cases (r) to (w) constituted proselytism, because the applicants (who were Evangelists) did not submit any contrary evidence concerning the truth of the particular facts.
204. See CoC No. 728/198333 Poinika Chronika 937 (1983)Google Scholar (adjudicating the case of another parent, who conducted teaching, distribution of booklets of her “sect,” who prohibited the children's participation in Orthodox assemblies and their kissing the Orthodox icons, and who “derided” the Christian Orthodox religion). Also see CoC Judm. No. 137/19533 Poinika Chronika 316 (1953) (trying the case of a third party, involving the “appropriate” teaching and the “crafty” explanation of the books and magazines of his “sect”). Cf. Athens Crim. Ct. Or. No. 1996/195910 Poinika Chronika 102 (1960).
205. Cour Européenne des Droits de l'Homme, Affaire Larissis et autres c. Grèce (140/1996/759/958-960), at 11–16Google Scholar.
206. See Loverdos, App., On Proselytization, in Religious Freedom 132 (Beis, K. ed. 1997) (in Greek)Google Scholar astutely observes that CoC Judm. No. 1266/1993 is insufficiently substantiated, for the reason that the minor premise of the legal syllogism is erroneously subjected to the major premiss. Also see the decision delivered by the first-instance court, Dec. No. 155/1991 of the Athens Permanent Air Force Ct. (42 Poinika Chronika 80 (1992)) on this same case.
207. Cf. CoS Judms. No. 711/1952 (1st Div.), 63 Themis 521 (1952)Google Scholar and 1487/1952 (2d Div.), 63 Themis 668 (1952)Google Scholar. The first judgment found that the development of the principles of the Jehovah's Witnesses on the part of a police officer, combined with his neglect of duty because of this same reason, constituted a disciplinary offense. The second judgment held that the commission of “propaganda” in favor of the Jehovah's Witnesses constitutes a disciplinary offense, on grounds that it is incompatible with one's capacity as officer.
208. The European Court clarifies that not every discussion about religion or other sensitive matters between individuals of unequal rank will fall within the category of harassment or the application of undue pressure in abuse of power.
209. See Montgomery, supra n. 28, at 77-85; Kyriazopoulos, supra n. 28, at 154.
210. See CoC Judm. No. 1084/197425 Poinika Chronika 316 ( 1975).
211. See CoC Judm. No. 1304/198233 Poinika Chronika 502 (1983).
212. See CoC Judm. No. 1043/1946 (unpublished), in Konidaris, supra n. 57, at 44. Also see CoS Judm. No. 1151/1949 (1st Div.) (unpublished).
213. See CoC Judm. No. 1943/1946 (unpublished). Cf. Edessa Crim. Ct. Or. No. 184/195917 AEKD 63 (1962).
214. See CoC Judm. No. 1155/1978 (4th Div.), 29 Poinika Chronika 264 (1979)Google Scholar. Cf. Athens Crim. Ct. Or. No. 3720/196112 Poinika Chronika 43 (1962); Mytilini Crim. Ct. Or. No. 364/19679 Ellinika Dikaiosyni 636 (1968); Edessa Crim. Ct. Or. No. 25/198439 Armenopoulos 56 (1985); Larissa Ct. App. 749/198641 Armenopoulos 1072 (1987); Trikala Crim. Ct. Or. No. 186/198640 Armenopoulos 1000 (1986) (the distribution of Jehovah's Witnesses booklets free of charge or at a minimal price does not constitute proselytization). Also see Chania Crim. Ct. Or. No. 172/198637 Poinika Chronika 120 (1987).
216. See CoS Judm. No. 34/1958 (unpublished). Also see CoS Judms. No. 2275/1962 (unpublished); 824/1963 (unpublished); 1811/1964 (unpublished); 1533/1965 (unpublished); 1351/1979 (unpublished). The second judgment correctly held that the “detachment” into the doctrine of the Free Evangelical Church of two Orthodox did not constitute proselytism, insofar as it wasn't mentioned, with the invocation of specific facts, that the indoctrination had been conducted not by purely spiritual teaching, but through the exercise of coercion or fraud or by other unlawful acts. The third judgment held that the incitement on the part of a follower of “Christian Brothers” of his wife and son, could not as an event comprise proselytism, to the extent that it was not mentioned, with the invocation of particular facts, that such indoctrination had taken place not by purely spiritual teaching, but through the exercise of coercion or by fraudulent means or by some other unlawful act. The fourth judgment concluded that the change of religion of formerly Orthodox persons, who converted to Lutheranism, did not constitute proselytization, based only on the suspicion that, because they had a “low level of education,” they were susceptible to proselytization; hence, they had indeed been proselytized. The fifth and sixth judgments move in the same direction.
217. See CoS Judm. No. 1991/1960 (unpublished).
218. See CoS Judm. No. 2226/1969 (unpublished).
219. See CoS Judm. No. 4260/1985 (4th Div.), 34 Nomiko Verna 604 (1986) (with a note by Konidaris)Google Scholar.
220. See Svolos & Vlachos, supra n. 47, at 34; Fragistas, Ch., Elements of Ecclesiastical Law 101 (1968) (in Greek)Google Scholar; Karanikas, supra n. 17, at 23-24; Philippidis, supra n. 14, at 248, 253-254; Giakas, supra n. 15, at 38-39; Panagopoulos, supra n. 107, at 32-33; Panagiotakos, P., The System of Ecclesiastical Law During Its Enforcement in Greece vol. C: The Penal Law of the Church 390–391 (2d ed. 1999) (in Greek)Google Scholar; Sgouritsas, Chr., Constitutional Law vol. B, pt. a, 124 (1964) (in Greek)Google Scholar; Marinos, supra n. 2, at 233-234; Vavouskos, supra n. 121, at 287-288; Manesis, supra n. 12, at 255-256; Krippas, supra n. 116, at 311-312; Troianos, supra n. 47, at 91, 98-99; Dagtoglou, supra n. 44, at 399-400; Poulis, supra n. 20, at 98; Philippou, supra n. 3, at 19.
221. See CoC Judms. Nos. 1082/1946 (2d Div.), 58 Themis 148 (1947)Google Scholar; 222/1947 Bakoulas (1974: 228–229)Google Scholar; 1049/1947 (2d Div.), 15 Ephimeris Ellinon Nomikon 100 (1948)Google Scholar; 836/1948 Bakoulas (1974: 241)Google Scholar; 1212/1948 (2d Div.), 16 Ephimeris Ellinon Nomikon 29 (1949)Google Scholar; 528/1950 Bakoulas (1974).
222. Art. 1 C. (1952).
223. See especially CoC Judm. No. 441/19523 Poinika Chronika 19 (1953).
224. See CoC Judm. No. 309/19578 Poinika Chronika 18 (1958).
225. See CoC Judms. No. 997/197526 Poinika Chronika 380 (1976); 1035/197526 Poinika Chronika 391 (1976); 704/198838 Poinika Chronika 776 (1988) (the Kokkinakis case).
226. See Mytilini Crim. Ct. Or. No. 112/198237 Armenopoulos 410 (2983). This order pointed out that the expansion of the concept of proselytization in the direction of the mere expression of a religious view that is different from another's beliefs, would lead the penal statute on proselytism to conflict with articles 13, paragraph 1, and 14, paragraph 1 C.
227. See CoC Judm. No. 840/1986 (5th Div.), 34 Nomiko Verna 1269 (1986)Google Scholar. This decision—apparently following the objective interpretative theory of penal law (see Katsantonis, Al., Penal Law gen. pt., vol. A: Teaching on Crime and Its Forms of Manifestation 44 (1972) (in Greek)Google Scholar—did not accept the arguments developed by Androulakis, supra n. 17, at 1031-1032; Loverdos, supra n. 17, at 31-52 regarding the grounds for the unconstitutionality of article 4, paragraph 2 of O.L. 1363/1938, as it was amended by article 2 of O.L. 1672/1939. The rejection of the aforementioned arguments by the Court of Cassation does not appear to be based on a specific reasoning. Nevertheless, we should emphasize the opinion set forth by the highest court, according to which the penal offense of proselytization protects the religious conscience of all “heterodox” persons, that is, of all those belonging to a religion that is different from that of the subject of the crime, and not only of the Orthodox.
228. See Philippou, supra n. 3, at 14.
229. See Tsatsos, D., An Advisory Opinion (unpublished 1985) (in Greek)Google Scholar; Karakostas, B., Orthodox Constitutional Reasoning and the Penal Treatment of Proselytization, 54 Ephimeris Ellinon Nomikon 53, 54, 63 (1987) (in Greek)Google Scholar; Androulakis, supra n. 17, n. at 1031-1032; Loverdos, supra n. 17, at 31-52; Konstantinidis, A., Comments (On the Order of the Magistrates' Court of Athens No. 958/1987), 35 Poinika Chronika 936–937 (1987) (in Greek)Google Scholar; Tsatsos, D., Two Advisory Notes on Church-State Relations and on Religious Freedom, 15 Dikaio kai Politiki 195, 197 (1987) (in Greek)Google Scholar.
230. See Horafas, N., Penal Law vol. A, 63–64 (9th ed. 1978) (in Greek)Google Scholar; Katsantonis, supra n. 227, at 44; Tsatsos, K., The Problem of Legal Interpretation 113–115 (2d ed. 1978) (in Greek)Google Scholar; Aravantinos, I., An Introduction to Legal Science 138–141 (2d ed. 1981) (in Greek)Google Scholar; Michelakis, E., The Will of the Legislator and the Meaning of Law. A Tribute to G. Maridakis vol. B, 93–95 (1963) (in Greek)Google Scholar; Dagtoglou, supra n. 44, at 265; Stamatis, supra n. 161, at 245-248.
231. See Kasimatis, G., The Constitution and Ordinary Law, in The Influence of the Constitution of 1975 on Private and Public Law (Publications of the Hellenic Institute of International and Foreign Law No. 9) 130 (1976) (in Greek)Google Scholar; Dagtoglou, P., General Administrative Law 99–103 (2d ed. 1984) (in Greek)Google Scholar; Doris, F., Comment (to the Athens Court of Appeals Judgment No. 6761/1984), 32 Nomiko Verna 1557, 1557–1559 (1984) (in Greek)Google Scholar; Chrysogonos, K., Legal Interpretation in Accordance With the Constitution in the Case-Law of the Council of State, 20 To Syntagma 223, 229–231 (1994) (in Greek)Google Scholar. Also see Gerontas, A., The Interpretation According to the Constitution and the Review of the Constitutionality of Laws in West Germany, 8 To Syntagma 1, 1–6 (1982) (in Greek)Google Scholar.
232. See Poulis, supra n. 20, at 98-100.
233. See arts. 198, 195, 149 of the Penal Law, and arts. 14, 17 of the law on defamation in general and the Press of 23-11-1837.
234. See Saripolos, supra n. 45, at 284; Kyriakos, supra n. 175, at 12-14; Kostis, K., An Interpretation of the Penal Law in Effect in Greece vol. B, 101–102 (3d ed. 1906) (in Greek)Google Scholar; Rallis, K., The Penal Law of the Orthodox Eastern Church 368–371 (1985 (1907) (in Greek)Google Scholar. Also see Rammos, supra n. 55, at 10, who point out that “the … Penal Law views proselytism as punishable only if it is effected by coercion, threat or by unlawful means (arts. 195, 198), regardless if it is committed against the prevailing religion or another known religion.”
235. See Tsatsos, supra n. 7, at 95; Philippidis, supra n. 14, at 257; Panagiotakos, supra n. 220, at 393; Fragistas, supra n. 220, at 103; Marinos, supra n. 2, at 206; Salachas, D., The Legal Status of the Catholic Church in the Greek Territory 98 (1978) (in Greek)Google Scholar; Troianos, supra n. 47, at 99; Poulis, supra n. 20, at 100-103.