Comment on the decision to place Elder Efraim in preventative detention
3 January 2012
Friday, 23 December 2011
Christoforos Kosmidis
Now that the media have announced the decision of the Athens Council of Appeals regarding the resolution of the disagreement between the Investigator and the Prosecutor over the temporary detention of the Abbot of the Holy Monastery of Vatopaidi, and, always provided these reports represent the truth of the matter, I believe it is within the rules of judicial etiquette to present the thoughts below in order to ease the sadness of those who have been shocked by this development:
1) Temporary detention, according to the law and modern legal culture, is the most onerous and hence the most extreme measure which may be imposed on any person concerning whom, while not yet found guilty, there is serious proof that he or she has committed a crime.
This means that, for temporary detention to be imposed, more lenient measures of judicial enforcement (e.g. bail, or required residence at a specified location) should have been shown to be insufficient to ensure the presence of the accused at the investigation or trial and the imposition of the penalty resulting from a verdict of guilty against him or her which may arise after due process.
2) For temporary detention to be applied, no particular role is played either by the gravity of the punishable action attributed to the accused, nor the recognition of serious evidence of guilt, although both these conditions must be in place.
Any one of these other four factors is also critical: he or she must a) have no known place of residence in the country; or b) have taken preparatory actions to facilitate flight from the country; or c) have, in the past, been a fugitive from justice or have been found guilty of assisting an escape from custody or breaking a restriction order concerning residence; or d) be judged likely to commit further offences if set free, a supposition which must be based on specific mention of events in the person’s previous life or arise from the particular nature of the action attributed to him or her.
These instances are not the inspired interpretation of the writer of this article, but are defined by law.
3) We shall await with interest the full text of the opinion of the Appeals Council in order to ascertain which of these instances was considered applicable to the case of Elder Efraim.
Irrespective of the gravity of the actions attributed and the soundness of the evidence of guilt, concerning which it is not yet possible to form an impartial opinion, from articles circulating in the printed and electronic media so far, it would appear that the case revolves around a certain monk who has been living for decades on the Holy Mountain, who, together with others, administers a very large Holy Monastery which is a legal entity in public law and which promotes Orthodoxy in Greece and abroad, who has no personal wealth and who, although he was recently and for several weeks in a large Orthodox country in north-eastern Europe, where he had meetings of a religious content with the General Prosecutor and the Prime Minister, made no effort to avoid returning to Greece and placing himself at the disposal of the investigation.
This is why there is such intense curiosity to see the full and detailed reasoning of the opinion: so that ordinary people may be convinced of the necessity for imposing temporary detention on this particular accused person.
4) Temporary detention is served in the prison of detainees. So the question of whether Abbot Efraim was to be held under restriction in his monastery or taken to prison would seem to be weighted in favour of the latter solution.
Of course, for a hieromonk to be imprisoned without the basic pre-conditions for his detention being in place is a blessing and an opportunity to take up the Cross of Christ in a manner in which he can have had no experience so far.
However, for all those who contributed to this, with a light heart and in whatever way, there is still a problem.
It is to be hoped that the spiritual benefit derived by the Abbot from the tribulations awaiting him will prevent the spiritual law from applying in this case…
