The ‘filtering effects’ of ECtHR case law on religious freedoms: legal recognition and places of worship for religious minorities in Greece

ABSTRACT

Greece has received an exceptional number of convictions in religious freedoms cases by the European Court of Human Rights (ECtHR). Looking beyond the implementation/nonimplementation dimension, this study explores the ways in which ECtHR case law is diffused amongst religious minority groups ‘on the ground’ over two current debates: the legal status of religious minority groups and their right to found and run places of worship. Drawing on empirical research with a range of actors across the spectrum of religious pluralism, the original findings demonstrate that the actual groups pursuing their rights in Strasbourg, namely Jehovah’s Witnesses and the Catholic Church of Canea, enjoy the direct impact of the Court’s judgements. By contrast, the impact of such jurisprudence is more limited for other minority religious groups in the country. This contribution introduces the notion of ‘filtering effects’ of the ECtHR, whose case law influences religious minority communities through Jehovah’s Witnesses’ litigation, which acts as a source of inspiration and rights-awareness for the pursuit of their religious rights claims and mobilisations.

KEYWORDS:

• ECtHR religious freedoms jurisprudence
• religious minorities
• Greece
• Jehovah’s Witnesses
• filtering effects

Introduction

According to the latest country report of the European Court of Human Rights (henceforth ECtHR or the Court) on the statistics of violations by article and by state, Greece’s conviction record in Article 9¹ freedom of thought, conscience and religion cases is exceptional²: the country has the highest number of convictions (13), followed by Turkey (11) and the Russian Federation (nine). As the right to individual petition has been adopted by the Council of Europe (CoE) Member States, the Strasbourg Court has, since 1993, increasingly been addressing some of the key challenges that emerge out of the context of religious pluralism. Greece’s ‘exceptionalism’³ in the field of religious freedoms thus raises crucial questions of political and socio-legal concern.

In the first place, the high number of convictions by the ECtHR is suggestive of a degree of incompatibility between national practices and policies around religious freedoms on the one hand and the rights safeguarded by the European Convention on Human Rights (ECHR) for the protection and promotion of religious pluralism on the other. The literature on the ECtHR is extensive and covers the impact of the Convention and the ECtHR at the national level (Keller and Stone Sweet 2008), the implementation process of the Court’s case law on national legislation and politics in Greece, as in other CoE Member States (Anagnostou 2013; Bjorge 2015), as well as the effects of its judgements over policy formation (Helfer and Voeten 2014). A significant part of the scholarship has dealt particularly with the Court’s often controversial handling of cases pertaining to religious freedoms. Such research has focused, amongst other topics: on a lack of consistency in the Court’s jurisprudence (Evans and Thomas 2006); on its governance of religious diversity (Koenig 2012); on a reappraisal of the Court’s approach towards state religious neutrality (Ringelheim 2017); on the effects of the principles of secularisation in the Court’s jurisprudence on minority religious rights (Anagnostou 2010; Gülalp 2010) – particularly relating to Islam (Gülalp 2013; Meerschaut and Gutwirth 2008) and the question of religious manifestation (Heider 2012; Pei 2013) – and on the ‘margin of appreciation’⁴ (Arai-Takahashi 2002; Evans 2001), frequently granted to national authorities in religious freedoms-related cases.

Rather than limiting its scope within the context of such ‘direct’ effects of the ECtHR case law, this contribution forms part of a wider endeavour that is interested in the actual effects of the Court’s decisions ‘on the ground’ for the promotion of religious pluralism.⁵ The project builds on the North American socio-legal literature that argues that the direct effects of courts are suggestive of but a very small part of courts’ actual, broader potential impact. This literature shifts focus onto the ‘radiating effects’⁶ of courts’ jurisprudence, arguing that each court decision – well beyond the implementation or nonimplementation dimension – may radiate different messages to social actors, informing them of the legal and political opportunities to articulate and to claim their rights.

This contribution examines such radiating effects by focusing on the ECtHR and its religion-related jurisprudence in Greece. To do so, it adopts a grassroots perspective and explores the ways in which ECtHR case law has influenced national debates, raised actors’ awareness and even led to further mobilisations – either within the country or internationally – in the arena of religious freedoms. Its findings draw on discourse analysis of national and ECtHR case law, including empirical, qualitative research conducted in Greece in the period 2015–2017. The fieldwork entailed both in-depth interviews (approximately 50) and participant observation, covering a broad range of actors across the spectrum of religious pluralism: from representatives of religious majority groups and religious minority groups, cause lawyers, state representatives at the Ministries of Education and Justice, to NGOs and different conscience-based groups, such as the Atheist Union and Humanist Union of Greece.

This contribution begins with a presentation of the legal framework underpinning church–state relations and the legal status of religious communities and discusses the religious freedoms-related cases from Greece that have reached the ECtHR. The following sections examine the findings of the fieldwork in the light of a recent development that has significantly shaped the state of religious minority rights in the country, namely the introduction of law 4301/2014 on religious legal personality. The text then explores the impact of ECtHR case law on actors’ mobilisations around the two overarching debates that the fieldwork has shown as most salient amongst religious actors currently in Greece: (1) the legal status of religious minority groups and (2) the right of religious minority communities to establish and run places of worship.

The original findings demonstrate that the direct impact of ECtHR decisions is indeed pronounced in the case of the actual groups pursuing their rights in Strasbourg, namely Jehovah’s Witnesses and the Catholic Church of Canea. By contrast, this contribution argues that the direct effects of the case law on other religious minority groups is more limited and seems to be filtered through their attention to Jehovah’s Witnesses themselves, whose ‘disciplined litigation strategy’ (Cote and Richardson 2001) at the Court acts as a source of inspiration and rights-awareness for the pursuit of their own religious rights claims and mobilisations.

Religious freedoms in Greece: the limits of national legislation and the ECtHR

The state, the ‘prevailing’ religion and religious pluralism

The legal and political frame in Greece, as dictated primarily by the Constitution of 1975, has confirmed and has helped maintain the historically established position of dominance held by the Christian Orthodox Church. The Constitution begins with an invocation of ‘the Holy, Consubstantial and Indivisible Trinity’. Article 3 asserts the ‘prevailing’ position of the Orthodox Church, while Article 13 states that freedom of religious conscience is inviolable and that all ‘known religions⁷ shall be free and their rites of worship shall be performed unhindered and under the protection of the law’. Further on, Article 16 establishes amongst the objectives of education the development of students’ ‘national and religious consciousness’.

There are no official statistics on the religious (and other) aspects of Greece’s population, but recent poll surveys conducted by private organisations indicate that, in spite of a drop in the percentage,⁸ the majority of the country’s population (81.4%) identify themselves as ‘Christian Orthodox’; 14.7% declare themselves ‘atheist’ and 2.9% as belonging to other religions.⁹ In a 2016 public attitude survey by the Pew Research Centre,¹⁰ the Greek population scores first (54%) when asked about its identification of national and religious identity, followed by Poland (34%) and the US (32%).

According to the US State Department’s 2015 religious freedom report on Greece,¹¹ in addition to the Muslim minority of western Thrace (see below), approximately 300,000 Muslim immigrants and foreign workers are located mainly in the capital region of Attica. Other religious groups that together are estimated to constitute less than 5% of the population, include Roman Catholics (around 50,000 members), 30,000 Protestants (including Evangelicals, Anglicans, Pentecostals, Methodists and others), Jehovah’s Witnesses (around 30,000 members), the Jewish community (5,000 members), Old Calendarist Orthodox (for which there are no estimates), members of polytheist Hellenic religions, Scientologists (around 400 registered members, according to their spokesperson), Baha’is (approximately 250 members), The Church of Jesus Christ of Latter-day Saints (Mormons), Sikhs, Seventh-day Adventists, Hare Krishnas and members of different Buddhist communities. At the same time, and as shown in the recent poll surveys above, atheists and agnostics, whose numbers have increased significantly, are organised and represented through recently established communities, such as the Union of Atheists (established in 2012) and the Humanist Union of Greece (founded in 2010).¹²

The interconnection between religious and national identity in Greece, together with the advantageous position of the Orthodox Church, has been translated into laws and practices that have led to a series of restrictions and discriminations on non-Orthodox communities. Until recently, of the religious communities present in the country, only three have been formally recognised as faith communities holding a legal personality under public law: the Greek Orthodox Church, Judaism and the Muslim minority of western Thrace – a remnant of the forced exchange of populations between Greece and Turkey and the signing of the Treaty of Lausanne in 1923. The fact that all other religious groups in the country could only be registered as legal entities of private law – as either associations, foundations or charitable fund-raising committees – seemed to have gravely accentuated the legal challenges and the discrimination that such groups have faced. Thus, actors belonging to either religious minority groups or secularist/atheist associations have appealed to Greek courts for, amongst other issues, cases of proselytism, conscientious objection and mandatory military service; the right to establish and run places of worship; exemption from the class of religious education; and the presence of Orthodox religious icons on courtroom walls. More than simply a matter limited to national courts, however, actors and groups from Greece have also taken their religious freedoms cases to the ECtHR.

Religious freedoms before the ECtHR

Who appeals to the ECtHR? Jehovah’s Witnesses have lodged the majority of cases in Strasbourg relating to religious freedoms in Greece. In fact, the first ever conviction issued by the ECtHR against a country for an Article 9 violation was in Kokkinakis v. Greece in 1993. In this landmark decision, the Court found that the constitutional prohibition of proselytism, though not in violation of the ECHR, was not legitimately implemented in this case, as Greek courts had not managed to show why the applicant’s conviction (who had been arrested and imprisoned over 60 times) was justified by a pressing social need. The Court thus found a breach of Article 9, arguing that the ban on proselytism¹³ did not appear to have been proportionate to the legitimate aim pursued or, consequently, ‘necessary in a democratic society […] for the protection of the rights and freedoms of others’.¹⁴

In the decade that followed the Kokkinakis decision, a number of applications reached the ECtHR from Greece on grounds of Article 9 violations – often taken in conjunction with Articles 10 (freedom of expression), 11 (freedom of assembly and association), 13 (right to an effective remedy) and 14 (prohibition of discrimination). These cases reflect some of the key challenges religious minority groups have been facing in the country. As noticed by Cooper (2014), in countries where the dominant religion and national identity are intrinsically linked, groups like the Jehovah’s Witnesses, whose doctrines advocate conscientious objection, a belief that God’s Kingdom is the only true government and proselytism, are at the centre of most religious rights disputes. Greece is no exception: the one aspect that is distinctive about these appeals in Strasbourg is the culture of litigation of Jehovah’s Witnesses, which represent the most litigious of all minority religions in Greece, as in other country contexts.¹⁵

Three years after Kokkinakis, in 1996, the Court ruled in the case of Manoussakis and Others v. Greece, in which the applicants, all Jehovah’s Witnesses, complained that the restrictions imposed upon them by the Greek government effectively prevented them from exercising their right to freedom of religion and to run their place of worship.¹⁶ The government, on the other hand, accused the applicants of having

[…] established and operated a place of worship for religious meetings and ceremonies of followers of another denomination and, in particular, of the Jehovah’s Witnesses’ denomination without authorisation from the recognised ecclesiastical authorities and the Minister of Education and Religious Affairs, such authorisation being required for the construction and operation of a church of any faith.¹⁷

The ECtHR noted that law 1363/1938 and the decree of 20 May/2 June 1939 – which concerned churches and places of worship that are not part of the Greek Orthodox Church – allowed far-reaching interference by the political, administrative and ecclesiastical authorities with the exercise of religious freedom. In its ruling, the Court thus stated that the impugned conviction by Greek courts had such a direct effect on the applicants’ freedom of religion that it constituted a breach of Article 9 of the Convention.

Alongside questions of proselytism and places of worship, the Jehovah’s Witnesses’ legal mobilisation in Strasbourg has also concerned the issues of students’ forced participation in school parades (Valsamis v. Greece and Efstratiou v. Greece); conscientious objection and compulsory military service (Papavasilakis v. Greece); refusal by the authorities to appoint the applicant to a post of charter accountant on account of his criminal record, as he had not enlisted in the army for religious reasons (Thlimmenos v. Greece); applicant’s surveillance on account of his religious beliefs (Tsavachidis v. Greece); and the convictions of Jehovah’s Witnesses ministers for insubordination by a military tribunal and their imprisonment for refusing to perform military service (Tsirlis and Kouloumpas v. Greece). Jehovah’s Witnesses did not win all these cases before the ECtHR, which either ended with Greece’s conviction or with friendly settlement. Yet, this study presents evidence that their mobilisation led to the creation of a national platform within which religious freedoms are discussed and claimed, particularly concerning discriminatory laws that appear to favour the position of the Orthodox Church at the expense of minority religions.

Of the remaining applications to the Strasbourg Court, an important case originated from the Canea Catholic Church: following a property dispute with one of its neighbours in Canea, Crete, over a surrounding wall in its Capuchin convent, which it has used as a place of worship continuously since 1879,¹⁸ the Roman Catholic Church appealed to the ECtHR on 28 October 1996 claiming that it was unable to take legal proceedings in Greece in order to protect its centuries-owned land and buildings, as a result of the civil and national courts’ refusal to acknowledge its legal personality. Finally, other applications involved Pentecostal Christians and questions of proselytism (Larissis and Others v. Greece); authorisation to build a place of worship to a member of the Genuine Greek Orthodox Church – Old Calendarists (Vergos v. Greece); the election procedure of the Muftis in western Thrace (Serif v. Greece and Agga v. Greece); and the secularist claim against religious oaths and the revelation of one’s religious identity before testifying in national courts, submitted by the members of the Greek Helsinki Monitor (Dimitras and Others v. Greece).

The ECtHR and religious freedom claims on the ground: who profits and how?

Such a synopsis of national actors’ complaints before the Strasbourg Court serves as a highly indicative guide of the crucial challenges faced by minority religions and other groups ‘on the ground’. Indeed, the fieldwork has conveyed that the two overarching debates currently discussed amongst religious communities and other conscience-based associations in Greece centre around some of the main themes of the ECtHR Article 9 jurisprudence: (1) the legal recognition of religious communities and (2) their right to establish and run places of worship.

Based on the interviews and discourse analysis, three ECtHR cases have gained momentum in the social actors’ understanding of and mobilisations around these two debates in Greece: Kokkinakis, Manoussakis and Canea Catholic Church.¹⁹ These legal cases are used as a guide and reference point for national actors in their gaining awareness of and in claiming their rights. The findings in particular demonstrate that, while those religious communities that litigate in Strasbourg, such as the Jehovah’s Witnesses and the Catholic Church, directly benefit from the Court’s decisions, other religious minority communities gain in different ways from the successful mobilisation of such litigant groups: on the one hand, Christian minorities tend to enjoy the direct benefits of the outcome of the Canea Catholic Church v Greece decision and, on the other, non-Christian religious groups with a more recent presence in Greece turn for support to Jehovah’s Witnesses mobilisations. The following sections discuss the ways in which this ‘filtering effect’ of the ECtHR case law is instrumental for the guarantee of religious freedoms ‘bottom-up’ and for the promotion of religious pluralism ‘on the ground’.

Legal recognition: the ECtHR and the law on religious legal personality

Under international human rights law, the right to legal personality status is vital to the full realisation of the right to freedom of religion or belief. According to the OSCE Guidelines on the Legal Personality of Religious or Belief Communities²⁰ and to the ECtHR jurisprudence, a refusal by the state to accord legal personality status to an association of individuals based on a religion or belief amounts to an interference with the exercise of the right to freedom of religion or belief under Article 9 of the ECHR.²¹ Legal scholar Theodosios Tsivolas (2016) explains the specific advantages of legal recognition for a religious community: from the creation of a certain framework within which such a community may appear and act co-ordinately in the public sphere, to the enjoyment of subsequent rights – as the autonomous capacity to enter into contract, own property, act as an employer – and the potential fiscal benefits, such as exemption from income and land tax.

One of the direct and significant effects of a specific ECtHR ruling in Greece has been the change of legislation on the legal status of religions. Some years after the country’s conviction in Canea Catholic Church v. Greece (1997), the Ministry of Education, Research and Religious Affairs (henceforth Ministry of Education) began preparatory works on a bill that was meant to introduce the notion of ‘religious legal personality’. The Secretary General of Religions²² at the Ministry of Education presented this bill as a direct outcome of the Court’s decision in Canea Catholic Church and highlighted the latter’s overall positive impact:

[This bill] is in essence a response to this specific ECtHR decision in Canea Catholic Church. Had it not been for the ECtHR, the new law wouldn’t have existed, and you can see that written in the explanatory report²³ […]. This law constitutes a historic breakthrough, as it allows religious communities – meaning, those communities who have serious arguments to present – to stop being recognised in the form of unions.²⁴

Law 4301 on the ‘organisation of the legal form of religious communities and their associations in Greece’ was eventually approved by the Greek parliament in October 2014. It established an organised framework for the legal form of religious communities in Greece and enacted the creation of a coherent official registration system. A crucial distinction is made by the law: the Greek Orthodox Church, the Mufti Offices of Thrace and the Jewish Communities all retain their already acknowledged status as legal entities of public law, while other religious communities can acquire the state of private law.²⁴ The explanatory report, in line with the ‘serious arguments’ mentioned by the Secretary-General above, set out two criteria that determine whether and how a religious community will enjoy the benefits of the new law: historic presence and size.

Specifically, law 4301/2014 sets out certain conditions that religious communities must meet in order to acquire the status of a Religious Legal Person: a minimum of 300 individuals is required, at least one of them being the religious minister of the community, who must be a Greek citizen or a citizen of a Member State of the European Union or a non-national legal resident of Greece. With regard to the registration process, the law stipulates that the request must be submitted to the First Instance Court of the community’s seat, it should be signed by all of the community’s founding members, indicating their identity and residency, the names of the members of the administrative board, the name of the religious minister, including the latter’s curriculum vitae comprising any religious studies, and a list of places of worship. The Court then orders a hearing for the request to be discussed, while the applicants must also submit the same file of request to the Minister of Education and Religious Affairs. For the statute to be valid, the law states that the religion should not offend public order or the good usages and sets out a list of further criteria to be considered, such as the religious teaching and worship events of the community, as well as the holy texts and rules which set up its religious and organisational framework.

So, who benefits from the introduction of law 4301/2014? The findings of this research indicate that this law seems to address primarily the concerns of the larger, historically established²⁵ Christian communities in the country, namely the Catholic, the Evangelical and the Armenian Orthodox Churches,²⁶ all of which have been present since the nineteenth and early twentieth centuries. At the same time, however, this study argues that one of the indirect effects of this legislative development has been the creation of a platform in Greece within which smaller religious minority groups get informed about their legal rights and seek to mobilise in different ways. Indeed, and considering its synchronicity with the empirical research, law 4301/2014 predominated in most interviews conducted with social actors in the country. Whether aware of the fact that the law was a result of an ECtHR conviction or not, religious groups that have not been recognised under Greek public law found themselves exploring the advantages and the potential traps of this new legal framework. This, then, is a significant indirect effect of a particular religion-related ECtHR case.

The degree of awareness of legal matters varied amongst the religious actors consulted and depended on a number of factors, such as their legal knowledge (particularly whether they are lawyers or not), their resources and their personal involvement and interest in this kind of activism. Members and legal representatives of smaller religious groups consulted alluded to the respective problems that the preconditions that they have to satisfy for their inclusion into law 4301/2014 raised in their cases. A pastor of a small branch of the Evangelical Church called ‘New Life’ claimed that it would be impossible for their community to be able to provide names of 300 of its members living in a specific area. This uncertainty over the geographical limitations from which the 300 signatures must be gathered was also of concern to a representative of the Bahá'í community, who raised the question of where these 300 individuals should come from and, in case the community does acquire the religious legal personality, whether it will then be able to function at a national level or whether other, local associations ought to apply for recognition under the law as well.

The same representative of the Bahá’í community pointed to the incompatibility of law 4301/2014 and its precondition of presenting a ‘pastor’ with the norms and practices of their faith, which does not entail any kind of hierarchy amongst its members. He emphasised moreover the discrimination this law creates, which, in his view, further widens the legal gap between the Orthodox Church and other religious communities:

The 2014 law and the changes it brings are problematic to us, as they still do not allow the community to function according to its own regulations. We would have expected (a law) that would allow the community to gain legal standing but that could still function the way it wishes. But the law says that 300 individuals should bring the necessary information and supporting documents that prove that they are members of the community. While this is not an issue (with this very condition), this provision is discriminatory. For instance, would a Christian Orthodox have to prove somehow that he is indeed Christian Orthodox? So why do I have to prove that I am a member of Bahá’í – and have another 300 people do this? This shows that there’s no logic, there’s no equity.²⁷

A member of the Church of Scientology in Athens also shares this view. She explained to me that, though their community did seek legal advice from their lawyers over the possibility of their inclusion into law 4301/2014, they ‘soon realised that this law had been drafted to improve the situation and solve certain problems faced by the Catholic, the Evangelical and the Armenian Churches’.²⁷ A human rights activist and prominent NGO lawyer with much experience at the ECtHR noted in our interview that, ‘(though) in theory, the law (was) addressed to other communities as well, things turned out differently in practice’. Indeed, members and legal advisors of these Christian communities consulted, such as the Evangelical Church, the Armenian Orthodox Church and the Catholic Church,²⁸ share this view and argue that the outcome of the legal mobilisation of the Catholic Church of Canea in Strasbourg opened the way for their rightful and long-awaited legal recognition. In contrast to the complaints raised by the smaller and primarily non-Christian religious communities, they view the preconditions as ‘reasonable and minor, bureaucratic requirements’.²⁹

‘What did the Jehovah’s Witnesses say?’

Regardless of the Catholic Church’s pivotal role in the introduction of law 4301/2014 on ‘religious legal personality’, this research demonstrates that, with the exception of the Christian communities discussed above, religious minority groups turn instead to the Jehovah’s Witnesses, whom they consider as the hegemonic actor in religious rights mobilisation in the country. The Bahá’í legal advisor’s initial reaction as soon as our interview turned to the issue of the introduction of this new law is telling of this tendency: ‘What did the Jehovah’s Witnesses say?’. A representative of a Buddhist community called Saka Gakkai International (SGI) made a distinction between his community’s failed legal struggles in the early 1990s and the change brought about in the decade that followed. He explained that these initial attempts were unsuccessful because they came before the Jehovah’s Witnesses’ mobilisation: ‘The most crucial of these developments were the nine or eleven sentences by Jehovah’s Witnesses. The Court would then issue one sentence after the other [against the Greek state].’³⁰ Though unaware of the fact that the 2014 law on religious legal personality emerged out of the Catholic Church’s mobilisation in Strasbourg, he further expressed his initial enthusiasm, as he had hoped that such a development would help his community improve its legal personality. His primary concern with the conditions to satisfy for inclusion in law 4301/2014 had to do with the potential exposure of their beliefs in a country like Greece, which he described as ‘suspicious of anything new that shows up, no matter how good or positive it may be’. He specifically explained:

We also did some research on this, but then we stopped for the following reason: the law requires 300 names, including the names, signatures and the tax registration numbers of these people. We live in a democracy, so to speak. Meaning that some people would not like to project themselves in such a way. Say if we lived in Switzerland: these names would be submitted but no one would find out about them. Whereas here, our names may be put online the day after. This is a prohibiting factor and that’s what primarily made my enthusiasm fade away.

The above statement is telling of a very specific concern amongst such more recent, non-Christian religious minority communities in Greece, namely their fear not to provoke. Two factors thus help explain the constant recourse of such groups to Jehovah’s Witnesses and, subsequently, the notion of the ‘filtering effects’ of the ECtHR case law introduced in this study: the first, as mentioned above, has to do with the actual outcome of law 4301/2014, which ended up directly addressing the legal status concerns of specific, larger Christian communities with a longer presence in the country, while making it harder for other groups to satisfy its requirements and enjoy its benefits. The second is that such latter groups prefer to place themselves ‘under the safety net’ of the Jehovah’s Witnesses, as they consciously avoid litigation. Members of different Buddhist schools in Athens and Thessaloniki as well as of the Bahá’í community described litigation as contrary to their very doctrines and beliefs. Though concerned in different ways about their legal status or authorisation for their place of worship, these communities choose to rather gain and learn from the litigation of other groups, primarily the Jehovah’s Witnesses, in whom they see an ally against the laws that promote the interests of Christian churches. Other groups are either suspicious of litigation before national courts, largely due to the prosecutions that they have experienced – as with the cases of Hare Krishna and Scientology, both of which faced prosecutions in the 1980s and 1990s, respectively – or seek instead to make their claims heard through different means, either through the mass media or by approaching the Secretary General of Religions and other politicians, as with the members of the Polytheistic, Ethnic Hellenic religion.³⁰

But what do Jehovah’s Witnesses have to say about their legal activism? Their embedded culture of litigation was one of the aspects that their legal advisor emphasised, claiming that ‘[they] choose to speak out and cannot keep [their] mouths shut’.³¹ He described how religious minority groups often contact them to seek advice on legal matters, considering that ‘Jehovah’s Witnesses represent about 90% of religious freedoms cases in Greece’. When asked specifically about their view of law 4301/2014, their representatives informed me that they do consider that it may indeed constitute a step ahead; but they remain overall suspicious. Their reasoning is the following: considering that they have suffered much discrimination and persecution in the past, they are sceptical each time the Greek state, and in particular the Ministry of Education which has been hostile towards them, seeks to bring things under its control in such a way. They do not oppose the law and they see no reason to litigate for now. Rather, their main criticism is based on the law’s special treatment of certain (Christian) communities. Moreover, while the explanatory report states that inclusion in the new law is not compulsory for a community, it does not explain what the consequences of noninclusion would be, for instance, regarding the question of exemption from taxation.

Places of worship: Manoussakis as a guide and the exception of the mosque

As we have seen, the ‘wait and see’ approach of the Jehovah’s Witnesses towards law 4301/2014 seems to also influence other religious groups’ reluctance to possibly seek the new legal status under the new legislation. Recourse to the Jehovah’s Witnesses’ activism is similarly pronounced in cases concerning the rights of religious groups to establish and run their places of worship. Though the Secretary General of Religions was quick to emphasise that law 4301/2014 does not concern places of worship, the law does in fact include an article which links the concept of ‘known religion’ (as stated in the Constitution) to a religion or denomination which, in order to practice its rites of public worship, has acquired a valid permit enabling it to establish and operate its church building or house of prayer.

This uncertainty over the necessity of establishing a place of worship was widespread amongst the interviewees. In the first place, a number of them explained how, though their faith did not prescribe the establishment of an official place of worship, they nonetheless had to create one for them to then be able to claim their legal rights. The Bahá’í spokesperson explained:

What we have been doing for many years, so that we have some kind of legal standing as a religion, was to establish places of worship, even though we do not need them as a religion, not in the least. Our religion does not require some kind of temple to hold meetings; we can have these meetings wherever we want. So now we have places of worship in four cities in Greece and, in that sense, the Greek state recognised us as a ‘known religion’.

Other religious groups point to a further dimension in the challenges of establishing place of worship, namely party politics and the differences that come with the changes in government. For instance, the members of a Buddhist centre in Thessaloniki called Karma Gyaltsen Ling were not as concerned about the prerequisite of having actually to establish a place of worship (or a centre, as they call it) for them to function as a ‘known religion’. Rather, their frustration had to do with the difficulties in acquiring permission for such a centre during the coalition government, led by the right-wing New Democracy, between 2012 and 2014. They explained how they finally managed to receive authorisation following the January 2015 elections and the formation of the coalition government under the leadership of the left-wing party, Syriza.

A human rights activist and lawyer, who had represented another Buddhist community in its legal struggle before national courts, also highlighted the significance of political opportunity structures and of the change of government in 2015. In her case, however, the struggle to obtain authorisation for the specific Buddhist Centre house of worship was exceptionally long and tumultuous: it began in 1991 and was only concluded in 2015. The specific case concerned the establishment of a Buddhist centre of monasticism in Chalkidiki, northern Greece, in which believers were meant to reside. It is for this reason, the lawyer explained, that they wished to acquire the type of authorisation similar to that of Jehovah’s Witness and their bethel in Athens. After the local Orthodox priest brought charges against the Buddhist centre for establishing and running a place of worship without permission, and even though law 1363/1938 that provided for the Orthodox Church’s interference in such affairs was in the meantime amended,³¹ there followed a long battle in a number of courts of different levels that was finally resolved with their obtaining authorisation. When asked about whether the Jehovah’s Witnesses’ mobilisation was helpful in their own litigation, she directly referred to the legal opportunity structure that such litigation had offered them in their own legal case before national courts. In her own words: ‘(We) were always carrying Kokkinakis and Manoussakis in our files, carrying them like flags and threatening them that we would go to the ECtHR.’

The SGI representative also shared this notion of Jehovah’s Witnesses cases acting as shields of protection. Their representative was particularly perplexed by a situation in which their community first had to establish a place of worship in order to then apply for permission, even with no legal standing. Though, as he explained, litigation runs the risk of creating friction and contradicts the principles of this specific Buddhist school, he spoke about a potential mobilisation in cooperation with other religious minority groups – Buddhist or not – as a means to put pressure on national authorities with the objective of amending the requirements set out by law 4301/2014. He added, moreover: ‘we should make sure to always have a Jehovah’s Witness in the front line when claiming our rights’.

Finally, the empirical research has further brought to the surface an important exception to the national debate on the establishment of places of worship, which falls outside the scope of this contribution. This exception concerns the Muslim communities spread throughout the country and particularly those residing in Athens, which, unlike the Muslims in western Thrace, are not recognised under public law. In spite of law 3512/2006 that authorises the construction of a mosque on public land in Athens that will be provided by the Greek state, different obstacles have arisen and plans for the building of such an official mosque only began in 2016.³² In the meantime, of the approximately 80 makeshift mosques in the capital, four asked for authorisation and received it in 2016 (three in Athens and one in the city of Thebes). While both national and international developments and political opportunity structures influence discussions in Greece on the ‘mosque debate’, the question on the construction of a mosque in Athens is virtually absent in any discussions on the direct or indirect effects of the Strasbourg Court.

A human rights lawyer and NGO activist juxtaposes the struggle of Jehovah’s Witnesses for their places of worship with what he considers the lack of state intervention in the building of a mosque in Athens:

What did the Greek state do with the Jehovah’s Witnesses? They would not receive authorisation [for places of worship], which means that their places of worship were seen as illegal and then (the state) would also activate the law banning proselytism, etc. All unofficial mosques, around 200 or so, fall in exactly the same context [as Jehovah’s Witnesses’ places of worship]. But the Greek state is deliberately absent [from this debate]. Only four mosques asked for permission and they received it, the famous ‘3 + 1’. Overall, the Greek state, by showing certain respect towards the spirit of ECtHR Article 9 decisions for Jehovah’s Witnesses, accepts de facto places of worship until it turns them into de jure, which is not the case for those places of worship which it cannot easily turn to de jure – as with the innumerable mosques.

The above comment highlights a specific aspect that sets the mosque issue apart from the Jehovah’s Witnesses’ places of worship, namely that, with the exception of the ‘3 + 1’ unofficial mosques that did gain authorisation, the larger part of the Muslim community has not mobilised to that end. The fieldwork has shown that this is essentially due to the fact that, in the light of the securitisation issues and increasing terrorist threats in Europe, including the heterogeneity of the Muslim community itself, these actors either have different priorities or seek to avoid any kind of mobilisation that may put their often-precarious position at risk. As such, the ‘mosque debate’, more than simply an issue of human rights violation, seems to have wider repercussions and, hence falls, for the time being, outside the scope of ECtHR effects.

Conclusion

This research has shown that the effects of ECtHR case law are significantly well beyond the direct legal changes they may instigate. Adopting a grassroots, ‘bottom-up’ perspective, this contribution has argued that ECtHR Article 9 judgements become infiltrated in Greek society and influence, to different degrees, both the debates and the different types of mobilisations around actors’ religious rights claims.

The examples of religious minorities’ legal recognition and the authorisation for their places of worship are highly indicative of such radiating effects of the Court’s jurisprudence. In the first place, law 4301/2014 on religious legal personality constitutes a breakthrough and, indeed, a direct effect of ECtHR case law on the legal recognition of certain Christian religious minorities in Greece that claim reasons of both size and historic presence for the legal recognition. This legal change has subsequently inspired discussions and has raised social actors’ awareness of their own situation and objectives. Whether aware of the Catholic Church’s role in this legal change or not, actors belonging to other, predominantly non-Christian religious communities do not, however, turn to this specific church for support. The findings have shown that this is due to the fact that the eventual outcome of law 4301/2014 seems to thus far benefit the position of specific groups of Christian communities present in the country. It is for this very reason that such communities identify, instead, with the Jehovah’s Witnesses’ mobilisation, turning to them for guidance and support. The same applies to the challenges these minority religious groups have been facing in terms of establishing their places of worship: here, too, the Jehovah’s Witnesses’ past litigation has, to a great extent, provided other religious minority groups with the legal opportunity structures to help them frame their rights and claim them accordingly.

Both the direct and indirect effects of the ECtHR case law have been exposed and diffused in Greek society through the activism of Jehovah’s Witnesses. Similar to the patterns and impact of Jehovah’s Witnesses litigation in other countries, this contribution has demonstrated that one of the indirect effects of the judgements issued by the Strasbourg Court has been the creation of a framework, inspired primarily by Jehovah’s Witnesses mobilisation, within which religious minority actors learn and discuss about their rights and decide on the strategies they wish to adopt for their legal or other types of mobilisation. Through such a ‘filtering effect’ of its jurisprudence, the ECtHR thus becomes relevant to grassroots actors and contributes to the promotion of religious pluralism ‘on the ground’.

Acknowledgment

This work was supported by the FP7 Ideas: European Research Council (ERC) under Grant 338463.

Disclosure statement

No potential conflict of interest was reported by the author.

Additional information

Funding

This work was supported by the FP7 Ideas: European Research Council under Grant 338463.

Notes on contributors

Margarita Markoviti

Margarita Markoviti is a political scientist, currently Visiting Assistant Professor at the IE School of International Relations (Madrid) and Postdoctoral Research Fellow at the European Research Council project titled ‘Grassrootsmobilise’, based at the Hellenic Foundation for European and Foreign Policy (ELIAMEP – Athens). She received her PhD, entitled ‘Education and the Europeanisation of religious freedom: France and Greece in comparative perspective’ from the London School of Economics and Political Science. She completed her BA in History at King’s College London and her MSc in European Studies at the Institut d’Etudes Politiques, Sciences Po, Paris and at the European Institute of the LSE. Her teaching and publications centre around politics and religion; religion and national identity; the European Court of Human Rights and the challenges of religious pluralism; Europeanisation and comparative European politics.

Notes

1. Article 9 of the ECHR on Freedom of Thought, Conscience and Religion includes the following provisions: (1) everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance; (2) freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others. Because of the different provisions included in Article 9, and in line with the project’s choice of terminology, Freedom of Thought, Conscience and Religion is hereinafter referred to as ‘religious freedoms’.

2. Violation by Article and by State (1959–2016): http://www.echr.coe.int/Documents/Stats_violation_1959_2016_ENG.pdf.

3. ‘Exceptionalism’ is here used to refer exclusively to the country’s high conviction record in Article 9 cases at the ECtHR. For more on ‘exceptionalism’ in relation to Greece’s European counterparts, see Oxford and Princeton Universities’ public forum on Greek exceptionalism: http://www.mod-langs.ox.ac.uk/files/exceptionalism/. See also Pollis (1992).

4. The ECtHR’s first ever use of the doctrine of the ‘margin of appreciation’ was in Handyside v. United Kingdom (Application no. 5493/1972).

5. The research cited in this contribution was conducted under the auspices of the European Research Council-funded Grassrootsmobilise research program (ERC grant agreement no 338463).

6. See Galanter (1983), McCann (2006), Rosenberg (1991) and Fokas (2015).

7. According to the Ministry of Education, a religion is ‘known’ when it ‘has no hidden beliefs and dogmas and when its worship is free and accessible to everyone’ (Organization of the Legal Form of Religious Communities and their Organisations in Greece. Law 4301/2014).

8. According to the World Factbook of the Central intelligence Agency, 98% of the Greek population is Christian Orthodox: https://www.cia.gov/library/publications/the-world-factbook/geos/gr.html.

9. Kapa Research S.A., To Vima, Nationwide Survey: Easter, Religious attitudes, Church, Faith & Social Perceptions, April 2015.

10. Pew Research Center, Global Attitudes & Trends. ‘Relatively few say religion essential to national identity’, January 31 2017: http://www.pewglobal.org/2017/02/01/faith-few-strong-links-to-national-identity/pg-02-01-17_national-identity-4-02/.

11. Embassy of the United States, Athens, Greece. 2015 Religious Freedom Report on Greece: http://www.state.gov/documents/organization/256407.pdf .

12. Though the mobilisations of the secularist/atheist groups are examined in the wider frame of the project – building on the literature that studies the nonreligious claims to religious freedoms and human rights (see Beaman, Steele, and Pringnitz forthcoming) – these fall outside the scope of this contribution, as the interests of such groups centre primarily on questions of church-state separation.

13. During the dictatorship of General Metaxas (1936–1940), proselytism was made a criminal offence under section 4 of the Obligatory Law 1363/1938. The current constitution, Article 13 (2), also mandates the prohibition of proselytism, without providing a clear definition of the concept.

14. Kokkinakis v. Greece (Application no. 14307/1988), para. 49.

15. See Richardson (2015) for Jehovah’s Witnesses legal cases around the world.

16. In Manoussakis and Others v. Greece (Application no 18748/91), the applicants were Jehovah’s Witnesses. In 1990, the Court of Cassation dismissed their appeal after the Heraklion Criminal Court had found them guilty of having converted the room that they had rented into a place of worship without the authorisation of the recognised ecclesiastical authority and of the Ministry of Education and Religious Affairs. The applicants complained that their conviction constituted a violation of Articles 3, 5, Articles 14 + 6, and Articles 8, 9, 10 and 11 of the Convention and of Article 1 of Protocol No. 1. On 10 October 1994, the Commission declared their application admissible as regards the complaint based on Article 9, but inadmissible for the rest.

17. Manoussakis and Others v. Greece para. 12.

18. See para. 6, Canea Catholic Church v Greece (143/1996/762/963)

19. Note that ECtHR Article 9 cases from other countries that also emerged in the interviews – such as Lautsi v. Italy, Şahin v. Turkey and S.A.S. v. France – are not discussed here, as they are not directly relevant to the legal status and place of worship concerns in Greece.

20. OSCE/ODIHR 2014, Guidelines on the Legal Personality of Religious or Belief Communities: http://www.osce.org/odihr/139046?download=true.

21. A nonexhaustive list of examples includes Kimlya and Others v. Russia, Application nos. 76836/01 and 32782/03, para. 84; Jehova’s Witnesses of Moscow and others v. Russia, Application no. 302/02, para. 101; Gorzelik and Others v. Poland, Application no. 44158/98, para. 52 and Sidiropoulos and Others v. Greece, Application no. 26695/95, para. 31.

22. According to the Ministry of Education website, the role of the Secretariat-General of Religions entails the following: the supervision of the religious education system, establishing the links between religion and culture, and the promotion of activities to fight against intolerance and in support of inter-religious relations.

23. The Secretariat-General of Religions of the Ministry of Education published an explanatory report, listing the reasons for the drafting as well as the objectives of the bill on ‘The organization of the legal status of religious communities and their associations in Greece’.

24. See Scharbrodt, O. (ed.). 2016. Yearbook of Muslims in Europe, 7. Leiden: Koninklijke Brill, p. 294.

25. This ‘historical presence’ argument was mentioned in the interviews with both the lawyer of the Evangelical Church of Greece (May 2016) and the president of the Central Council of the Armenian Orthodox Church (September 2016).

26. According to Tsivolas (2016, 53–54), law 4301/2014 recognised as ‘religious legal persons’, regardless of the number of adherents and without the obligation to follow the general registration procedure, the following communities: The Anglican Church, the Ethiopian Orthodox Church, the Coptic Orthodox Church, the Church of Orthodox Armenians, the German speaking Evangelical Church, the Greek Evangelical and Assyrian Orthodox Churches and the Armenian Evangelical Church. The same law moreover recognised the Catholic Church in Greece as an ‘ecclesiastical legal person’, henceforth acknowledged as an autonomous religious legal entity, with no further formalities and with no need to follow the procedures imposed by the law, regardless of the number of its adherents.

27. In our interview, the lawyer of the Church of Scientology also confirmed this argument.

28. Note that the Old Calendarists (consisting of two churches) and the Pentecostal Church have also been included in the new law. The Egyptian Coptic Orthodox Church missed the deadline for the submission to be included in law 4301/2014.

29. Lawyer of the Evangelical Church of Greece.

30. Note that the Supreme Council of Ethnic Hellenes had submitted their application for inclusion into law 4301/2014, which, according to the Secretary General of Religions, was rejected because of the title (‘Ethnic Hellenic Religion’) that they wished to acquire.

31. See Council of State (Symvoulio tis Epikratias) decision 2188/2010 on ‘Authorization of Worship Places’.

32. See ‘A century in the making, Athens set for first mosque since Ottoman times’: http://www.ekathimerini.com/216185/article/ekathimerini/community/a-century-in-the-making-athens-set-for-first-mosque-since-ottoman-times.