Ioannis M. Konidaris
The Mount Athos Avaton
From: The Mount Athos Avaton, εκδ. Εκδόσεις Α. Σάκκουλας, Athens 2003.
The author is Prof. of Ecclesiastical Law at Athens Univ., and Secretary General for Religious Affairs at the Ministry of Education and Religious Affairs of Greece.
I
During the 15 September 1997 meeting of the EC Council of Ministers for Foreign Affairs, the then Greek Minister for Foreign Affairs Th. Pangalos, responding to the expressed wish of the Athonite monks, attempted to have the unilateral "Declaration by Greece concerning the Declaration on the status of churches and non-confessional organisations", annexed to the final Act of the Amsterdam Treaty, adopted as a Joint Declaration by all 15 member-states. By virtue of the 1997 Declaration, the content of the joint declaration on Mount Athos annexed to the Final Act of the Treaty of Accession of the Hellenic Republic (1979) to the European Communities is recalled and renewed.
[...]
This occasion provides a good opportunity for a comprehensive overview of the issue of the Mount Athos avaton, a subject often debated without due scrutiny and consideration.
II
a. […] Τhe prohibition of men's entry and sojourn in convents and the prohibition of women's entry and sojourn in monasteries, that is, the avaton in its strict sense, is a very old concept deriving from the very essence of the monastic movement, especially since the abandonment of every material pleasure by the first anchorites included sexual continence in the broadest sense.
[…]
III
The avaton principle has been faithfully observed by all the Monasteries of Mount Athos without exception ever since they were founded. Α brief introduction to the status of Mount Athos would perhaps be useful at this point.
Pursuant to Article 105 of the 1975/1986/2001 Greek Constitution, the Athos peninsula, beyond Megali Vigla, and constituting the region of Mount Athos (Holy Mountain/ Άγιον 'Ορος), is, in accordance with its ancient privileged status, a self-governed part of the Greek State, whose sovereignty thereon remains intact.
On Mount Athos there exist a total of twenty sovereign Monasteries, which are legal entities of public law. Attached to them, as dependencies are other monastic establishments, such as sketes, kellia, kalyves etc., with no separate legal personality.
The Monasteries of Mount Athos, which are all coenobitic again today, are directly subject to the spiritual jurisdiction of the Oecumenical Patriarchate of Constantinople. Mount Athos is also supervised by the Greek State through the Governor of Mount Athos, appointed by presidential decree on a recommendation from the Minister for Foreign Affairs and having, according to the new Internal Regulation of the Ministry for Foreign Affairs, the rank and remuneration of the Secretary General of a Region.
Within Mount Athos, there is a clear distinction between the administration of the monastic community of the twenty Monasteries and the administration of each Monastery.
The administration of the entire Mount Athos is exercised by the Holy Community, which consists of twenty members representatives of the twenty Monasteries, with its seat at the capital municipality of Karyes. These representatives are elected pursuant to each Monastery's By-Law and hold office for one year. The executive authority is exercised by the four-member Holy Epistasia, i.e. representatives chosen by rotation on the basis of a tetrad system: the twenty Monasteries are divided into five tetrads, with one of the five senior Athonite Monasteries as the first member of each tetrad. Each tetrad in turn takes over the Holy Epistasia for a year, headed by a member of the senior monastery of the tetrad as chief monk, the Protepistates (or Protos, i.e. first elder).
The supreme administrative organ, meeting twice a year, namely fifteen days after Easter and on 20 August, is the extraordinary twenty-member Holy Assembly, consisting of the Abbots of the twenty Monasteries.
Each one of the Holy Monasteries of Mount Athos is administered by the Abbot, the Assembly of the Elders and the Abbot's Council. The abbot is elected by secret ballot for a life term of office by all the members of the brotherhood, who have completed at least six years after their tonsure. The Assembly of Elders is elected for a life term of office according to the provisions of the internal organisation of each Monastery. Finally, the Abbot's Council consists of two or three members, depending on the provisions of each Monastery's internal organisation, and is elected every year by the Assembly of Elders from among its members.
Within the Mount Athos territory, only the twenty Holy Monasteries have the right of ownership. The entire peninsula of Athos is divided among them and its territory is exempt from expropriation, according to express constitutional provision (Article 105 of the Constitution). The monastic brotherhood attends to the administration of the movable and immovable property of the Monasteries, which is, however, exercised by the Abbot and the Abbot's Council.
IV
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b. The customary origin of the avaton is also confirmed in the legislation in force, namely Article 186 of the Constitutional Charter of Mount Athos (1924), effective since 1926 through its ratification by the Greek State by the Legislative Decree of 10/16 September 1926. According to this provision of the Constitutional Charter, the entry of females in the Athos peninsula is, according to the ancient custom, forbidden. However, from the point of view of public law, this provision was a lex imperfecta, since it did not provide for sanctions in the event of violation. Only the measure of deportation from the Mount Athos territory could be taken against a woman violating the avaton.
However, this provision was subsequently complemented by a law penalising the violation of the avaton, as a result of the disembarkation of several ladies on the Mount Athos territory during the 9th International Congress of Byzantine Studies, convened in April 1953 in Thessalonica. Legislation Decree 2623/1953 stipulated that the violation of the avaton incurs a penalty of imprisonment for a period between two months to one year, which, according to the general provisions of the Penal Code, can now be commuted into a pecuniary penalty.
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V
We shall now proceed with the discussion of the possible reservations that have been raised from time to time as to constitutionality of the legal provision establishing the Mount Athos avaton. […].
A first superficial approach might lead to the conclusion that the prohibition of women's entry into the Mount Athos territory contravenes the principle of equality and/or constitutes a restriction of personal freedom. Both the principle of freedom and free movement of persons are enshrined not only in the Constitution of Greece, but also in many international treaties that have been ratified by Greece and constitute an integral part of Greek law and, what is more, prevail over any opposite provision of law as prescribed by the Constitution.
a. The principle of equality, enshrined in Article 4 of the Constitution, obligates the legislator to treat in an equal or similar manner all Greek citizens under the same or similar conditions and prohibits any favourable or unfavourable treatment of the same by way of exception from the general rule.
However, the principle of equality does not preclude the different statutory regulation of dissimilar or different cases, or cases occurring under different or special conditions. On the contrary, in such cases different treatment is imperative, because various special reasons, social, economic, religious etc., fully justify different treatment, provided that such different treatment is objective and is based on general and impersonal criteria.
Such is the case with the avaton. All women are forbidden entry in Mount Athos, without any exception. There would be a case of violation of the principle of equality, only if specific categories of women or only women meeting some specific criteria were allowed entry.
b. Personal freedom, which according to Article 5 paragraph 3 of the Constitution is inviolable, is not unlimited - as indeed is the case with any other individual right. The Constitution expressly mentions that freedom of movement may be restricted, when and as stipulated by law.
Naturally, such restrictions on personal freedom and particularly the free movement of any person cannot be arbitrary. They should be justified by sufficient reasons serving the general public or social interest and it is up to the courts to examine whether such conditions concur.
So, as none has ever thought of contesting the constitutionality of other restrictions on the free movement of persons, such as the prohibition of entry into military areas or the prohibition of hunting or fishing in several areas or during certain seasons etc., for the same legal reason there is no violation of the Constitution in the case of the avaton.
[…]
