In the case of Kokkinakis v. Greece*,
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention")** and the relevant
provisions of the Rules of Court, as a Chamber composed of the
following judges: Mr R. Ryssdal, President,
Mr R. Bernhardt,
Mr L.-E. Pettiti,
Mr J. De Meyer,
Mr N. Valticos,
Mr S.K. Martens,
Mr I. Foighel,
Mr A.N. Loizou,
Mr M.A. Lopes Rocha,and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 27 November 1992 and
19 April 1993,
Delivers the following judgment, which was adopted on the
last-mentioned date:
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Notes by the Registrar
* The case is numbered 3/1992/348/421. The first number is the case's
position on the list of cases referred to the Court in the relevant
year (second number). The last two numbers indicate the case's
position on the list of cases referred to the Court since its creation
and on the list of the corresponding originating applications to the
Commission.
** As amended by Article 11 of Protocol No. 8 (P8-11), which came into
force on 1 January 1990.
_______________
PROCEDURE
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 21 February 1992, within the
three-month period laid down in Article 32 para. 1 and Article 47
(art. 32-1, art. 47) of the Convention. It originated in an
application (no. 14307/88) against the Hellenic Republic lodged with
the Commission under Article 25 (art. 25) by a Greek national,
Mr Minos Kokkinakis, on 22 August 1988. The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby Greece recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46). The
object of the request was to obtain a decision as to whether the facts
of the case disclosed a breach by the respondent State of its
obligations under Articles 7, 9 and 10 (art. 7, art. 9, art. 10).
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that
he wished to take part in the proceedings and designated the lawyer who
would represent him (Rule 30).
3. The Chamber to be constituted included ex officio
Mr N. Valticos, the elected judge of Greek nationality (Article 43 of
the Convention) (art. 43), and Mr R. Ryssdal, the President of the
Court (Rule 21 para. 3 (b)). On 27 February 1992, in the presence of
the Registrar, the President drew by lot the names of the other seven
members, namely Mr R. Bernhardt, Mr L.-E. Pettiti, Mr J. De Meyer,
Mr S.K. Martens, Mr I. Foighel, Mr A.N. Loizou and Mr M.A. Lopes Rocha
(Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5) and, through the Registrar, consulted the Agent of
the Greek Government ("the Government"), the Delegate of the Commission
and the applicant's lawyer on the organisation of the proceedings
(Rules 37 para. 1 and 38). Pursuant to the order made in consequence,
the Registrar received the applicant's and the Government's memorials
on 12 August 1992. On 17 September the Secretary to the Commission
informed the Registrar that the Delegate would submit his observations
at the hearing. On 13 August the Commission had produced various documents, as
asked by the Registrar at the Government's request.
5. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
25 November 1992. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr P. Georgakopoulos, Senior Adviser,
Legal Council of State, Delegate of the Agent,
Mr A. Marinos, Judge of the Supreme Administrative
Court, Counsel;(b) for the Commission
Mr C.L. Rozakis, Delegate;
(c) for the applicant
Mr P. Vegleris, dikigoros (lawyer) and Emeritus
Professor, University of Athens, Counsel,
Mr P. Bitsaxis, dikigoros (lawyer), Adviser. The Court heard addresses by Mr Georgakopoulos and Mr Marinos
for the Government, Mr Rozakis for the Commission and Mr Vegleris and
Mr Bitsaxis for the applicant, as well as replies to its questions.
AS TO THE FACTS
I. The circumstances of the case
6. Mr Minos Kokkinakis, a retired businessman of Greek
nationality, was born into an Orthodox family at Sitia (Crete) in 1919.
After becoming a Jehovah's Witness in 1936, he was arrested more than
sixty times for proselytism. He was also interned and imprisoned on
several occasions.
The periods of internment, which were ordered by the
administrative authorities on the grounds of his activities in
religious matters, were spent on various islands in the Aegean
(thirteen months in Amorgos in 1938, six in Milos in 1940 and twelve
in Makronisos in 1949).
The periods of imprisonment, to which he was sentenced by the
courts, were for acts of proselytism (three sentences of two and a half
months in 1939 - he was the first Jehovah's Witness to be convicted
under the Laws of the Metaxas Government (see paragraph 16 below) -,
four and a half months in 1949 and two months in 1962), conscientious
objection (eighteen and a half months in 1941) and holding a religious
meeting in a private house (six months in 1952).
Between 1960 and 1970 the applicant was arrested four times and
prosecuted but not convicted.
7. On 2 March 1986 he and his wife called at the home of
Mrs Kyriakaki in Sitia and engaged in a discussion with her.
Mrs Kyriakaki's husband, who was the cantor at a local Orthodox church,
informed the police, who arrested Mr and Mrs Kokkinakis and took them
to the local police station, where they spent the night of
2-3 March 1986.
A. Proceedings in the Lasithi Criminal Court
8. The applicant and his wife were prosecuted under section 4 of
Law no. 1363/1938 making proselytism an offence (see paragraph 16
below) and were committed for trial at the Lasithi Criminal Court
(trimeles plimmeliodikio), which heard the case on 20 March 1986.
9. After dismissing an objection that section 4 of that Law was
unconstitutional, the Criminal Court heard evidence from Mr and
Mrs Kyriakaki, a defence witness and the two defendants and gave
judgment on the same day:
"[The defendants], who belong to the Jehovah's Witnesses
sect, attempted to proselytise and, directly or indirectly, to
intrude on the religious beliefs of Orthodox Christians, with
the intention of undermining those beliefs, by taking
advantage of their inexperience, their low intellect and their
naïvety. In particular, they went to the home of
[Mrs Kyriakaki] ... and told her that they brought good news;
by insisting in a pressing manner, they gained admittance to
the house and began to read from a book on the Scriptures
which they interpreted with reference to a king of heaven, to
events which had not yet occurred but would occur, etc.,
encouraging her by means of their judicious, skilful
explanations ... to change her Orthodox Christian beliefs." The court found Mr and Mrs Kokkinakis guilty of proselytism and
sentenced each of them to four months' imprisonment, convertible (under
Article 82 of the Criminal Code) into a pecuniary penalty of
400 drachmas per day's imprisonment, and a fine of 10,000 drachmas.
Under Article 76 of the Criminal Code, it also ordered the confiscation
and destruction of four booklets which they had been hoping to sell to
Mrs Kyriakaki.
B. The proceedings in the Crete Court of Appeal
10. Mr and Mrs Kokkinakis appealed against this judgment to the
Crete Court of Appeal (Efetio). The Court of Appeal quashed
Mrs Kokkinakis's conviction and upheld her husband's but reduced his
prison sentence to three months and converted it into a pecuniary
penalty of 400 drachmas per day. The following reasons were given for
its judgment, which was delivered on 17 March 1987:
"... it was proved that, with the aim of disseminating the
articles of faith of the Jehovah's Witnesses sect (airesi), to
which the defendant adheres, he attempted, directly and
indirectly, to intrude on the religious beliefs of a person of
a different religious persuasion from his own, [namely] the
Orthodox Christian faith, with the intention of changing those
beliefs, by taking advantage of her inexperience, her low
intellect and her naïvety. More specifically, at the time and
place indicated in the operative provision, he visited
Mrs Georgia Kyriakaki and after telling her he brought good
news, pressed her to let him into the house, where he began by
telling her about the politician Olof Palme and by expounding
pacifist views. He then took out a little book containing
professions of faith by adherents of the aforementioned sect
and began to read out passages from Holy Scripture, which he
skilfully analysed in a manner that the Christian woman, for
want of adequate grounding in doctrine, could not challenge,
and at the same time offered her various similar books and
importunately tried, directly and indirectly, to undermine her
religious beliefs. He must consequently be declared guilty of
the above-mentioned offence, in accordance with the operative
provision hereinafter, while the other defendant, his wife
Elissavet, must be acquitted, seeing that there is no evidence
that she participated in the offence committed by her husband,
whom she merely accompanied ..." One of the appeal judges dissented, and his opinion, which was
appended to the judgment, read as follows:
"... the first defendant should also have been acquitted,
as none of the evidence shows that Georgia Kyriakaki ... was
particularly inexperienced in Orthodox Christian doctrine,
being married to a cantor, or of particularly low intellect or
particularly naïve, such that the defendant was able to take
advantage and ... [thus] induce her to become a member of the
Jehovah's Witnesses sect." According to the record of the hearing of 17 March 1987,
Mrs Kyriakaki had given the following evidence:
"They immediately talked to me about Olof Palme, whether he
was a pacifist or not, and other subjects that I can't
remember. They talked to me about things I did not understand
very well. It was not a discussion but a constant monologue
by them. ... If they had told me they were Jehovah's
Witnesses, I would not have let them in. I don't recall
whether they spoke to me about the Kingdom of Heaven. They
stayed in the house about ten minutes or a quarter of an hour.
What they told me was religious in nature, but I don't know
why they told it to me. I could not know at the outset what
the purpose of their visit was. They may have said something
to me at the time with a view to undermining my religious
beliefs ... . [However,] the discussion did not influence my
beliefs ..." C. The proceedings in the Court of Cassation
11. Mr Kokkinakis appealed on points of law. He maintained, inter
alia, that the provisions of Law no. 1363/1938 contravened Article 13
of the Constitution (see paragraph 13 below).
12. The Court of Cassation (Arios Pagos) dismissed the appeal on
22 April 1988. It rejected the plea of unconstitutionality for the
following reasons:
"Section 4 of Law no. 1363/1938, substituted by section 2
of Law no. 1672/1939 providing for the implementation of
Articles 1 and 2 of the Constitution and enacted under the
1911 Constitution then in force, Article 1 of which prohibited
proselytism and any other interference with the dominant
religion in Greece, namely the Christian Eastern Orthodox
Church, not only does not contravene Article 13 of the 1975
Constitution but is fully compatible with the Constitution,
which recognises the inviolability of freedom of conscience in
religious matters and provides for freedom to practise any
known religion, subject to a formal provision in the same
Constitution prohibiting proselytism in that proselytism is
forbidden in general whatever the religion against which it is
directed, including therefore the dominant religion in Greece,
in accordance with Article 3 of the 1975 Constitution, namely
the Christian Eastern Orthodox Church." It also noted that the Crete Court of Appeal had given detailed
reasons for its judgment and had complied with the 1975 Constitution
in applying the impugned provisions.
In the opinion of a dissenting member, the Court of Cassation
should have quashed the judgment of the court below for having wrongly
applied section 4 of Law no. 1363/1938 in that it had made no mention
of the promises whereby the defendant had allegedly attempted to
intrude on Mrs Kyriakaki's religious beliefs and had given no
particulars of Mrs Kyriakaki's inexperience and low intellect.
II. Relevant domestic law and practice
A. Statutory provisions
1. The Constitution
13. The relevant Articles of the 1975 Constitution read as follows:
Article 3
"1. The dominant religion in Greece is that of the
Christian Eastern Orthodox Church. The Greek Orthodox Church,
which recognises as its head Our Lord Jesus Christ, is
indissolubly united, doctrinally, with the Great Church of
Constantinople and with any other Christian Church in
communion with it (omodoxi), immutably observing, like the
other Churches, the holy apostolic and synodical canons and
the holy traditions. It is autocephalous and is administered
by the Holy Synod, composed of all the bishops in office, and
by the standing Holy Synod, which is an emanation of it
constituted as laid down in the Charter of the Church and in
accordance with the provisions of the Patriarchal Tome of
29 June 1850 and the Synodical Act of 4 September 1928. 2. The ecclesiastical regime in certain regions of the
State shall not be deemed contrary to the provisions of the
foregoing paragraph. 3. The text of the Holy Scriptures is unalterable. No
official translation into any other form of language may be
made without the prior consent of the autocephalous Greek
Church and the Great Christian Church at Constantinople." Article 13
"1. Freedom of conscience in religious matters is
inviolable. The enjoyment of personal and political rights
shall not depend on an individual's religious beliefs. 2. There shall be freedom to practise any known religion;
individuals shall be free to perform their rites of worship
without hindrance and under the protection of the law. The
performance of rites of worship must not prejudice public
order or public morals. Proselytism is prohibited. 3. The ministers of all known religions shall be subject to
the same supervision by the State and to the same obligations
to it as those of the dominant religion. 4. No one may be exempted from discharging his obligations
to the State or refuse to comply with the law by reason of his
religious convictions. 5. No oath may be required other than under a law which
also determines the form of it."14. The Christian Eastern Orthodox Church, which during nearly four
centuries of foreign occupation symbolised the maintenance of Greek
culture and the Greek language, took an active part in the Greek
people's struggle for emancipation, to such an extent that Hellenism
is to some extent identified with the Orthodox faith.
A royal decree of 23 July 1833 entitled "Proclamation of the
Independence of the Greek Church" described the Orthodox Church as
"autocephalous". Greece's successive Constitutions have referred to
the Church as being "dominant". The overwhelming majority of the
population are members of it, and, according to Greek conceptions, it
represents de jure and de facto the religion of the State itself, a
good number of whose administrative and educational functions (marriage
and family law, compulsory religious instruction, oaths sworn by
members of the Government, etc.) it moreover carries out. Its role in
public life is reflected by, among other things, the presence of the
Minister of Education and Religious Affairs at the sessions of the
Church hierarchy at which the Archbishop of Athens is elected and by
the participation of the Church authorities in all official State
events; the President of the Republic takes his oath of office
according to Orthodox ritual (Article 33 para. 2 of the Constitution);
and the official calendar follows that of the Christian Eastern
Orthodox Church.
15. Under the reign of Otto I (1832-62), the Orthodox Church, which
had long complained of a Bible society's propaganda directed at young
Orthodox schoolchildren on behalf of the Evangelical Church, managed
to get a clause added to the first Constitution (1844) forbidding
"proselytism and any other action against the dominant religion". The
Constitutions of 1864, 1911 and 1952 reproduced the same clause. The
1975 Constitution prohibits proselytism in general (Article 13 para. 2
in fine - see paragraph 13 above): the ban covers all "known
religions", meaning those whose doctrines are not apocryphal and in
which no secret initiation is required of neophytes.
2. Laws nos. 1363/1938 and 1672/1939
16. During the dictatorship of Metaxas (1936-40) proselytism was
made a criminal offence for the first time by section 4 of Law
(anagastikos nomos) no. 1363/1938. The following year that section was
amended by section 2 of Law no. 1672/1939, in which the meaning of the
term "proselytism" was clarified:
"1. Anyone engaging in proselytism 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. The term of imprisonment may not be commuted to a fine.
2. By 'proselytism' 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 his inexperience, trust, need, low intellect or
naïvety. 3. The commission of such an offence in a school or other
educational establishment or a philanthropic institution shall
constitute a particularly aggravating circumstance." B. Case-law
17. In a judgment numbered 2276/1953 a full court of the Supreme
Administrative Court (Symvoulio tis Epikratias) gave the following
definition of proselytism:
"Article 1 of the Constitution, which establishes the
freedom to practise any known religion and to perform rites of
worship without hindrance and prohibits proselytism and all
other activities directed against the dominant religion, that
of the Christian Eastern Orthodox Church, means that purely
spiritual teaching does not amount to proselytism, even if it
demonstrates the errors of other religions and entices
possible disciples away from them, who abandon their original
religions of their own free will; this is because spiritual
teaching is in the nature of a rite of worship performed
freely and without hindrance. Outside such spiritual
teaching, which may be freely given, any determined,
importunate attempt to entice disciples away from the dominant
religion by means that are unlawful or morally reprehensible
constitutes proselytism as prohibited by the aforementioned
provision of the Constitution."18. The Greek courts have held that persons were guilty of
proselytism who had: likened the saints to "figures adorning the wall",
St Gerasimos to "a body stuffed with cotton" and the Church to "a
theatre, a market, a cinema"; preached, while displaying a painting
showing a crowd of wretched people in rags, that "such are all those
who do not embrace my faith" (Court of Cassation, judgment
no. 271/1932, Themis XVII, p. 19); promised Orthodox refugees housing
on specially favourable terms if they adhered to the Uniate faith
(Court of Appeal of the Aegean, judgment no. 2950/1930, Themis B,
p. 103); offered a scholarship for study abroad (Court of Cassation,
judgment no. 2276/1953); sent Orthodox priests booklets with the
recommendation that they should study them and apply their content
(Court of Cassation, judgment no. 59/1956, Nomiko Vima, 1956, no. 4,
p. 736); distributed "so-called religious" books and booklets free to
"illiterate peasants" or to "young schoolchildren" (Court of Cassation,
judgment no. 201/1961, Criminal Annals XI, p. 472); or promised a young
seamstress an improvement in her position if she left the Orthodox
Church, whose priests were alleged to be "exploiters of society" (Court
of Cassation, judgment no. 498/1961, Criminal Annals XII, p. 212).
The Court of Cassation has ruled that the definition of
proselytism in section 4 of Law no. 1363/1938 does not contravene the
principle that only the law can define a crime and prescribe a penalty.
The Piraeus Criminal Court followed it in an order (voulevma)
numbered 36/1962 (Greek Lawyers' Journal, 1962, p. 421), adding that
the expression "in particular" in section 4 of Law no. 1363/1938 (see
paragraph 16 above) referred to the means used by the person committing
the offence and not to the description of the actus reus.
19. Until 1975 the Court of Cassation held that the list in
section 4 was not exhaustive. In a judgment numbered 997/1975
(Criminal Annals XXVI, p. 380) it added the following clarification:
"... it follows from the provisions of section 4 ... that
proselytism consists in a direct or indirect attempt to
impinge on religious beliefs by any of the means separately
listed in the Law."20. More recently courts have convicted Jehovah's Witnesses for
professing the sect's doctrine "importunately" and accusing the
Orthodox Church of being a "source of suffering for the world"
(Salonika Court of Appeal, judgment no. 2567/1988); for entering other
people's homes in the guise of Christians wishing to spread the New
Testament (Florina Court of First Instance, judgment no. 128/1989); and
for attempting to give books and booklets to an Orthodox priest at the
wheel of his car after stopping him (Lasithi Court of First Instance,
judgment no. 357/1990).
In a judgment numbered 1304/1982 (Criminal Annals XXXII,
p. 502), on the other hand, the Court of Cassation quashed a judgment
of the Athens Court of Appeal (no. 5434/1981) as having no basis in law
because, when convicting a Jehovah's Witness, the Court of Appeal had
merely reiterated the words of the indictment and had thus not
explained how "the importunate teaching of the doctrines of the
Jehovah's Witnesses sect" or "distribution of the sect's booklets at
a minimal price" had amounted to an attempt to intrude on the
complainants' religious beliefs, or shown how the defendant had taken
advantage of their "inexperience" and "low intellect". The Court of
Cassation remitted the case to a differently constituted bench of the
Court of Appeal, which acquitted the defendant.
Similarly, it has been held in several court decisions that the
offence of proselytism was not made out where there had merely been a
discussion about the beliefs of the Jehovah's Witnesses, where booklets
had been distributed from door to door (Patras Court of Appeal,
judgment no. 137/1988) or in the street (Larissa Court of Appeal,
judgment no. 749/1986) or where the tenets of the sect had been
explained without any deception to an Orthodox Christian (Trikkala
Criminal Court, judgment no. 186/1986). Lastly, it has been held that
being an "illiterate peasant" is not sufficient to establish the
"naïvety", referred to in section 4, of the person whom the alleged
proselytiser is addressing (Court of Cassation, judgment
no. 1155/1978).
21. After the revision of the Constitution in 1975, the Jehovah's
Witnesses brought legal proceedings to challenge the constitutionality
of section 4 of Law no. 1363/1938. They complained that the
description of the offence was vague, but above all they objected to
the actual title of the Law, which indicated that the Law was designed
to preserve Articles 1 and 2 of the Constitution in force at the time
(the 1911 Constitution - see paragraph 12 above), which prohibited
proselytism directed against the dominant religion. In the current
Constitution this prohibition is extended to all religions and
furthermore is no longer included in the chapter concerning religion
but in the one dealing with civil and social rights, and more
particularly in Article 13, which guarantees freedom of conscience in
religious matters.
The courts have always dismissed such objections of
unconstitutionality, although they have been widely supported in legal
literature.
III. The Jehovah's Witnesses in Greece
22. The Jehovah's Witnesses movement appeared in Greece at the
beginning of the twentieth century. Estimates of its membership today
vary between 25,000 and 70,000. Members belong to one of 338
congregations, the first of which was formed in Athens in 1922.
23. Since the revision of the Constitution in 1975 the Supreme
Administrative Court has held on several occasions that the Jehovah's
Witnesses come within the definition of a "known religion" (judgments
nos. 2105 and 2106/1975, 4635/1977, 2484/1980, 4620/1985, 790 and
3533/1986 and 3601/1990). Some first-instance courts, however,
continue to rule to the contrary (Heraklion Court of First Instance,
judgments nos. 272/1984 and 87/1986). In 1986 the Supreme
Administrative Court held (in judgment no. 3533/1986) that a
ministerial decision refusing the appointment of a Jehovah's Witness
as a literature teacher was contrary to freedom of conscience in
religious matters and hence to the Greek Constitution.
24. According to statistics provided by the applicant,
4,400 Jehovah's Witnesses were arrested between 1975 (when democracy
was restored) and 1992, and 1,233 of these were committed for trial and
208 convicted. Earlier, several Jehovah's Witnesses had been convicted
under Law no. 117/1936 for the prevention of communism and its effects
and Law no. 1075/1938 on preserving the social order.
The Government have not challenged the applicant's figures.
They have, however, pointed out that there have been signs of a decline
in the frequency of convictions of Jehovah's Witnesses, only 7 out of
a total of 260 people arrested having been convicted in 1991 and 1992.
PROCEEDINGS BEFORE THE COMMISSION
25. Mr Kokkinakis applied to the Commission on 22 August 1988. He
claimed that his conviction for proselytism was in breach of the rights
secured in Articles 7, 9 and 10 (art. 7, art. 9, art. 10) of the
Convention. He also relied on Article 5 para. 1 and Article 6
paras. 1 and 2 (art. 5-1, art. 6-1, art. 6-2).
26. The Commission declared the application (no. 14307/88)
admissible on 7 December 1990 except for the complaints based on
Articles 5 and 6 (art. 5, art. 6), which it declared inadmissible as
being manifestly ill-founded. In its report of 3 December 1991 (made
under Article 31) (art. 31), the Commission expressed the opinion that
(a) there had been no violation of Article 7 (art. 7) (by
eleven votes to two); (b) there had been a violation of Article 9 (art. 9)
(unanimously); and (c) no separate issue arose under Article 10 (art. 10) (by
twelve votes to one). The full text of the Commission's opinion and of the two
separate opinions contained in the report is reproduced as an annex to
this judgment*.
_______________
* Note by the Registrar: for practical reasons this annex will appear
only with the printed version of the judgment (volume 260-A of Series
A of the Publications of the Court), but a copy of the Commission's
report is available from the registry.
_______________
AS TO THE LAW
27. Mr Kokkinakis complained of his conviction for proselytism; he
considered it contrary to Articles 7, 9 and 10 (art. 7, art. 9,
art. 10) of the Convention, and to Article 14 taken together with
Article 9 (art. 14+9).
I. ALLEGED VIOLATION OF ARTICLE 9 (art. 9)
28. The applicant's complaints mainly concerned a restriction on
the exercise of his freedom of religion. The Court will accordingly
begin by looking at the issues relating to Article 9 (art. 9), which
provides:
"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."29. The applicant did not only challenge what he claimed to be the
wrongful application to him of section 4 of Law no. 1363/1938. His
submission concentrated on the broader problem of whether that
enactment was compatible with the right enshrined in Article 9
(art. 9) of the Convention, which, he argued, having been part of Greek
law since 1953, took precedence under the Constitution over any
contrary statute. He pointed to the logical and legal difficulty of
drawing any even remotely clear dividing-line between proselytism and
freedom to change one's religion or belief and, either alone or in
community with others, in public and in private, to manifest it, which
encompassed all forms of teaching, publication and preaching between
people.
The ban on proselytism, which was made a criminal offence
during the Metaxas dictatorship, was not only unconstitutional,
Mr Kokkinakis submitted, but it also formed, together with the other
clauses of Law no. 1363/1938, "an arsenal of prohibitions and threats
of punishment" hanging over the adherents of all beliefs and all
creeds.
Mr Kokkinakis complained, lastly, of the selective application
of this Law by the administrative and judicial authorities; it would
surpass "even the wildest academic hypothesis" to imagine, for example,
the possibility of a complaint being made by a Catholic priest or by
a Protestant clergyman against an Orthodox Christian who had attempted
to entice one of his flock away from him. It was even less likely that
an Orthodox Christian would be prosecuted for proselytising on behalf
of the "dominant religion".
30. In the Government's submission, there was freedom to practise
all religions in Greece; religious adherents enjoyed the right both to
express their beliefs freely and to try to influence the beliefs of
others, Christian witness being a duty of all Churches and all
Christians. There was, however, a radical difference between bearing
witness and "proselytism that is not respectable", the kind that
consists in using deceitful, unworthy and immoral means, such as
exploiting the destitution, low intellect and inexperience of one's
fellow beings. Section 4 prohibited this kind of proselytism - the
"misplaced" proselytism to which the European Court referred in its
Kjeldsen, Busk Madsen and Pedersen v. Denmark judgment of
7 December 1976 (Series A no. 23, p. 28, para. 54) - and not
straightforward religious teaching. Furthermore, it was precisely this
definition of proselytism that had been adopted by the Greek courts.
A. General principles
31. As enshrined in Article 9 (art. 9), freedom of thought,
conscience and religion is one of the foundations of a "democratic
society" within the meaning of the Convention. It is, in its religious
dimension, one of the most vital elements that go to make up the
identity of believers and their conception of life, but it is also a
precious asset for atheists, agnostics, sceptics and the unconcerned.
The pluralism indissociable from a democratic society, which has been
dearly won over the centuries, depends on it.
While religious freedom is primarily a matter of individual
conscience, it also implies, inter alia, freedom to "manifest [one's]
religion". Bearing witness in words and deeds is bound up with the
existence of religious convictions.
According to Article 9 (art. 9), freedom to manifest one's
religion is not only exercisable in community with others, "in public"
and within the circle of those whose faith one shares, but can also be
asserted "alone" and "in private"; furthermore, it includes in
principle the right to try to convince one's neighbour, for example
through "teaching", failing which, moreover, "freedom to change [one's]
religion or belief", enshrined in Article 9 (art. 9), would be likely
to remain a dead letter.
32. The requirements of Article 9 (art. 9) are reflected in the
Greek Constitution in so far as Article 13 of the latter declares that
freedom of conscience in religious matters is inviolable and that there
shall be freedom to practise any known religion (see paragraph 13
above). Jehovah's Witnesses accordingly enjoy both the status of a
"known religion" and the advantages flowing from that as regards
observance (see paragraphs 22-23 above).
33. The fundamental nature of the rights guaranteed in
Article 9 para. 1 (art. 9-1) is also reflected in the wording of the
paragraph providing for limitations on them. Unlike the second
paragraphs of Articles 8, 10 and 11 (art. 8-2, art. 10-2, art, 11-2)
which cover all the rights mentioned in the first paragraphs of those
Articles (art. 8-1, art. 10-1, art. 11-1), that of Article 9 (art. 9-1)
refers only to "freedom to manifest one's religion or belief". In so
doing, it recognises that in democratic societies, in which several
religions coexist within one and the same population, it may be
necessary to place restrictions on this freedom in order to reconcile
the interests of the various groups and ensure that everyone's beliefs
are respected.
34. According to the Government, such restrictions were to be found
in the Greek legal system. Article 13 of the 1975 Constitution forbade
proselytism in respect of all religions without distinction; and
section 4 of Law no. 1363/1938, which attached a criminal penalty to
this prohibition, had been upheld by several successive democratic
governments notwithstanding its historical and political origins. The
sole aim of section 4 was to protect the beliefs of others from
activities which undermined their dignity and personality.
35. The Court will confine its attention as far as possible to the
issue raised by the specific case before it. It must nevertheless look
at the foregoing provisions, since the action complained of by the
applicant arose from the application of them (see, mutatis mutandis,
the de Geouffre de la Pradelle v. France judgment of 16 December 1992,
Series A no. 253-B, p. 42, para. 31).
B. Application of the principles
36. The sentence passed by the Lasithi Criminal Court and
subsequently reduced by the Crete Court of Appeal (see paragraphs 9-10
above) amounts to an interference with the exercise of Mr Kokkinakis's
right to "freedom to manifest [his] religion or belief". Such an
interference is contrary to Article 9 (art. 9) unless it is "prescribed
by law", directed at one or more of the legitimate aims in
paragraph 2 (art. 9-2) and "necessary in a democratic society" for
achieving them.
1. "Prescribed by law"
37. The applicant said that his submissions relating to Article 7
(art. 7) also applied to the phrase "prescribed by law". The Court
will therefore examine them from this point of view.
38. Mr Kokkinakis impugned the very wording of section 4 of Law
no. 1363/1938. He criticised the absence of any description of the
"objective substance" of the offence of proselytism. He thought this
deliberate, as it would tend to make it possible for any kind of
religious conversation or communication to be caught by the provision.
He referred to the risk of "extendibility" by the police and often by
the courts too of the vague terms of the section, such as "in
particular" and "indirect attempt" to intrude on the religious beliefs
of others. Punishing a non-Orthodox Christian even when he was
offering "moral support or material assistance" was tantamount to
punishing an act that any religion would prescribe and that the
Criminal Code required in certain emergencies. Law no. 1672/1939
(see paragraph 16 above) had, without more, stripped the initial
wording of section 4 of its "repetitive verbiage"; it had retained all
the "extendible, catch-all" expressions, merely using a more concise
but equally "pedantic" style designed to ensure that non-Orthodox
Christians were permanently gagged. Consequently, no citizen could
regulate his conduct on the basis of this enactment.
Furthermore, section 4 of Law no. 1363/1938 was incompatible
with Article 13 of the Constitution.
39. The Government, on the other hand, maintained that section 4
defined proselytism precisely and specifically; it listed all the
ingredients of the offence. The use of the adverbial phrase "in
particular" was of no importance, as it related only to the means by
which the offence could be committed; indicative lists of this kind
were, moreover, commonly included in criminal statutes.
Lastly, the objective substance of the offence was not lacking
but consisted in the attempt to change the essentials of the religious
beliefs of others.
40. The Court has already noted that the wording of many statutes
is not absolutely precise. The need to avoid excessive rigidity and
to keep pace with changing circumstances means that many laws are
inevitably couched in terms which, to a greater or lesser extent, are
vague (see, for example and mutatis mutandis, the Müller and Others v.
Switzerland judgment of 24 May 1988, Series A no. 133, p. 20,
para. 29). Criminal-law provisions on proselytism fall within this
category. The interpretation and application of such enactments depend
on practice.
In this instance there existed a body of settled national
case-law (see paragraphs 17-20 above). This case-law, which had been
published and was accessible, supplemented the letter of section 4 and
was such as to enable Mr Kokkinakis to regulate his conduct in the
matter.
As to the constitutionality of section 4 of Law no. 1363/1938,
the Court reiterates that it is, in the first instance, for the
national authorities, and in particular the courts, to interpret and
apply domestic law (see, as the most recent authority, the
Hadjianastassiou v. Greece judgment of 16 December 1992, Series A
no. 252, p. 18, para. 42). And the Greek courts that have had to deal
with the issue have ruled that there is no incompatibility (see
paragraph 21 above).
41. The measure complained of was therefore "prescribed by law"
within the meaning of Article 9 para. 2 (art. 9-2) of the Convention.
2. Legitimate aim
42. The Government contended that a democratic State had to ensure
the peaceful enjoyment of the personal freedoms of all those living on
its territory. If, in particular, it was not vigilant to protect a
person's religious beliefs and dignity from attempts to influence them
by immoral and deceitful means, Article 9 para. 2 (art. 9-2) would in
practice be rendered wholly nugatory.
43. In the applicant's submission, religion was part of the
"constantly renewable flow of human thought" and it was impossible to
conceive of its being excluded from public debate. A fair balance of
personal rights made it necessary to accept that others' thought should
be subject to a minimum of influence, otherwise the result would be a
"strange society of silent animals that [would] think but ... not
express themselves, that [would] talk but ... not communicate, and that
[would] exist but ... not coexist".
44. Having regard to the circumstances of the case and the actual
terms of the relevant courts' decisions, the Court considers that the
impugned measure was in pursuit of a legitimate aim under
Article 9 para. 2 (art. 9-2), namely the protection of the rights and
freedoms of others, relied on by the Government.
3. "Necessary in a democratic society"
45. Mr Kokkinakis did not consider it necessary in a democratic
society to prohibit a fellow citizen's right to speak when he came to
discuss religion with his neighbour. He was curious to know how a
discourse delivered with conviction and based on holy books common to
all Christians could infringe the rights of others. Mrs Kyriakaki was
an experienced adult woman with intellectual abilities; it was not
possible, without flouting fundamental human rights, to make it a
criminal offence for a Jehovah's Witness to have a conversation with
a cantor's wife. Moreover, the Crete Court of Appeal, although the
facts before it were precise and absolutely clear, had not managed to
determine the direct or indirect nature of the applicant's attempt to
intrude on the complainant's religious beliefs; its reasoning showed
that it had convicted the applicant "not for something he had done but
for what he was".
The Commission accepted this argument in substance.
46. The Government maintained, on the contrary, that the Greek
courts had based themselves on plain facts which amounted to the
offence of proselytism: Mr Kokkinakis's insistence on entering
Mrs Kyriakaki's home on a false pretext; the way in which he had
approached her in order to gain her trust; and his "skilful" analysis
of the Holy Scriptures calculated to "delude" the complainant, who did
not possess any "adequate grounding in doctrine" (see paragraphs 9-10
above). They pointed out that if the State remained indifferent to
attacks on freedom of religious belief, major unrest would be caused
that would probably disturb the social peace.
47. The Court has consistently held that a certain margin of
appreciation is to be left to the Contracting States in assessing the
existence and extent of the necessity of an interference, but this
margin is subject to European supervision, embracing both the
legislation and the decisions applying it, even those given by an
independent court. The Court's task is to determine whether the
measures taken at national level were justified in principle and
proportionate.
In order to rule on this latter point, the Court must weigh the
requirements of the protection of the rights and liberties of others
against the conduct of which the applicant stood accused. In
exercising its supervisory jurisdiction, the Court must look at the
impugned judicial decisions against the background of the case as a
whole (see, inter alia and mutatis mutandis, the Barfod v. Denmark
judgment of 22 February 1989, Series A no. 149, p. 12, para. 28).
48. First of all, a distinction has to be made between bearing
Christian witness and improper proselytism. The former corresponds to
true evangelism, which a report drawn up in 1956 under the auspices of
the World Council of Churches describes as an essential mission and a
responsibility of every Christian and every Church. The latter
represents a corruption or deformation of it. It may, according to the
same report, take the form of activities offering material or social
advantages with a view to gaining new members for a Church or exerting
improper pressure on people in distress or in need; it may even entail
the use of violence or brainwashing; more generally, it is not
compatible with respect for the freedom of thought, conscience and
religion of others.
Scrutiny of section 4 of Law no. 1363/1938 shows that the
relevant criteria adopted by the Greek legislature are reconcilable
with the foregoing if and in so far as they are designed only to punish
improper proselytism, which the Court does not have to define in the
abstract in the present case.
49. The Court notes, however, that in their reasoning the Greek
courts established the applicant's liability by merely reproducing the
wording of section 4 and did not sufficiently specify in what way the
accused had attempted to convince his neighbour by improper means.
None of the facts they set out warrants that finding.
That being so, it has not been shown that the applicant's
conviction was justified in the circumstances of the case by a pressing
social need. The contested measure therefore does 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".
50. In conclusion, there has been a breach of Article 9 (art. 9)
of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 7 (art. 7)
51. Mr Kokkinakis also relied on Article 7 (art. 7), which
provides:
"1. No one shall be held guilty of any criminal offence on
account of any act or omission which did not constitute a
criminal offence under national or international law at the
time when it was committed. Nor shall a heavier penalty be
imposed than the one that was applicable at the time the
criminal offence was committed. 2. This Article shall not prejudice the trial and punishment
of any person for any act or omission which, at the time when
it was committed, was criminal according to the general
principles of law recognised by civilised nations." In his submission, for a criminal provision to be compatible
with this Article (art. 7) it must be sufficiently precise and clear
(see paragraphs 37-38 above). This was not the case, he said, with
section 4 of Law no. 1363/1938.
52. The Court points out that Article 7 para. 1 (art. 7-1) of the
Convention is not confined to prohibiting the retrospective application
of the criminal law to an accused's disadvantage. It also embodies,
more generally, the principle that only the law can define a crime and
prescribe a penalty (nullum crimen, nulla poena sine lege) and the
principle that the criminal law must not be extensively construed to
an accused's detriment, for instance by analogy; it follows from this
that an offence must be clearly defined in law. This condition is
satisfied where the individual can know from the wording of the
relevant provision and, if need be, with the assistance of the courts'
interpretation of it, what acts and omissions will make him liable.
It appears that this was indeed so in the present case; on this
point the Court refers to paragraphs 40-41 of this judgment.
53. In conclusion, there has been no breach of Article 7 (art. 7)
of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 10 (art. 10)
54. The applicant further relied on his freedom of expression, as
secured in Article 10 (art. 10). His conviction, he said, struck not
only at the dissemination of his religious opinions but also at that
of general socio-philosophical opinions, since the Crete Court of
Appeal had noted that he had talked to Mrs Kyriakaki about the
politician Olof Palme and had expounded pacifist views.
55. Having regard to its decision on Article 9 (art. 9) (see
paragraph 50 above), the Court, like the Commission, considers it
unnecessary to examine this complaint.
IV. ALLEGED VIOLATION OF ARTICLE 14 TAKEN TOGETHER WITH ARTICLE 9
(art. 14+9)
56. In his memorial of 5 August 1992 the applicant also claimed to
be the victim of discrimination contrary to Article 14 taken together
with Article 9 (art. 14+9). He submitted that discrimination arose
from the defects in section 4 of Law no. 1363/1938 or from the use made
of it.
57. Although not raised before the Commission, this complaint
relates to the same facts as do those made under Articles 7 and 9
(art. 7, art. 9); having regard to the conclusion in paragraph 50
above, however, the Court holds that it is unnecessary to deal with it.
V. APPLICATION OF ARTICLE 50 (art. 50)
58. Under Article 50 (art. 50) of the Convention,
"If the Court finds that a decision or a measure taken by a
legal authority or any other authority of a High Contracting
Party is completely or partially in conflict with the
obligations arising from the ... Convention, and if the
internal law of the said Party allows only partial reparation
to be made for the consequences of this decision or measure,
the decision of the Court shall, if necessary, afford just
satisfaction to the injured party."59. At the hearing the applicant sought, firstly, compensation in
the amount of 500,000 drachmas (GRD) for non-pecuniary damage.
The Court considers that he has sustained such damage and that,
notwithstanding the Government's opinion to the contrary, a finding of
a breach is not sufficient to compensate him for it. Making its
assessment on an equitable basis as required by Article 50 (art. 50),
it awards him GRD 400,000 under this head.
60. For costs and expenses relating to the proceedings in Greece
and before the Convention institutions Mr Kokkinakis sought the sum of
GRD 2,789,500, of which he provided particulars.
The Government judged this amount to be excessive. More
especially, they contested the need (a) for the applicant to be
represented by two lawyers in the Greek courts and before the European
Court and for him to be defended by Athenian lawyers in the Cretan
courts; and (b) for Mr Kokkinakis to have attended the Court of
Cassation hearing.
Like the Delegate of the Commission, the Court nevertheless
finds the claim reasonable, and consequently allows it in full.
FOR THESE REASONS, THE COURT
1. Holds by six votes to three that there has been a breach of
Article 9 (art. 9);2. Holds by eight votes to one that there has been no breach of
Article 7 (art. 7);3. Holds unanimously that it is unnecessary to examine the case
under Article 10 (art. 10) or under Article 14 taken together
with Article 9 (art. 14+9);4. Holds unanimously that the respondent State is to pay the
applicant, within three months, 400,000 (four hundred
thousand) drachmas in respect of non-pecuniary damage and
2,789,500 (two million seven hundred and eighty-nine thousand
five hundred) drachmas in respect of costs and expenses. Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 25 May 1993.
Signed: Rolv RYSSDAL
PresidentSigned: Marc-André EISSEN
Registrar In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of the Rules of Court, the following
separate opinions are annexed to this judgment:
(a) partly concurring opinion of Mr Pettiti;
(b) concurring opinion of Mr De Meyer;
(c) dissenting opinion of Mr Valticos;
(d) partly dissenting opinion of Mr Martens;
(e) joint dissenting opinion of Mr Foighel and Mr Loizou.Initialled: R.R.
Initialled: M.-A.E.
PARTLY CONCURRING OPINION OF JUDGE PETTITI
(Translation)
I was in the majority which voted that there had been a breach
of Article 9 (art. 9) but I considered that the reasoning given in the
judgment could usefully have been expanded.
Furthermore, I parted company with the majority in that I also
took the view that the current criminal legislation in Greece on
proselytism was in itself contrary to Article 9 (art. 9).
The Kokkinakis case is of particular importance. It is the
first real case concerning freedom of religion to have come before the
European Court since it was set up and it has come up for decision at
a time when the United Nations and Unesco are preparing a World Year
for Tolerance, which is to give further effect to the 1981 United
Nations Declaration against all forms of intolerance, which was adopted
after twenty years of negotiations.
In the first place, I take the view that what contravenes
Article 9 (art. 9) is the Law. I agree with acknowledging its
foreseeability. But the definition is such as to make it possible at
any moment to punish the slightest attempt by anyone to convince a
person he is addressing.
The reasoning adopted by the majority with the intention of
confining themselves to the particular case is tantamount to
supervising the national court in respect of the degree of severity of
the sentence passed, whereas what is in issue is the very principle of
the punishment and it is not the European Court's function to rule on
the degree of severity of sentences in domestic law. The Court must
abide by its decisions in the cases of Dudgeon v. the United Kingdom
(judgment of 22 October 1981, Series A no. 45, pp. 18-19, para. 41) and
Norris v. Ireland (judgment of 26 October 1988, Series A no. 142,
p. 16, para. 33): the mere threat of applying a provision, even one
that has fallen into disuse, is sufficient to constitute a breach.
The expression "proselytism that is not respectable", which is
a criterion used by the Greek courts when applying the Law, is
sufficient for the enactment and the case-law applying it to be
regarded as contrary to Article 9 (art. 9).
The Government themselves recognised that the applicant had
been prosecuted because he had tried to influence the person he was
talking to by taking advantage of her inexperience in matters of
doctrine and by exploiting her low intellect. It was therefore not a
question of protecting others against physical or psychological
coercion but of giving the State the possibility of arrogating to
itself the right to assess a person's weakness in order to punish a
proselytiser, an interference that could become dangerous if resorted
to by an authoritarian State.
The vagueness of the charge and the lack of any clear
definition of proselytism increase the misgivings to which the Greek
Law gives rise. Even if it is accepted that the foreseeability of the
law in Greece as it might apply to proselytes was sufficient, the fact
remains that the haziness of the definition leaves too wide a margin
of interpretation for determining criminal penalties.
It may be asked whether the very principle of applying a
criminal statute to proselytism is compatible with Article 9 (art. 9)
of the Convention.
Criminal policy could be implemented by means of the technique
of creating specific criminal offences covering coercive acts and the
activities of certain sects which truly attack human freedom and
dignity. Minors can be protected by means of precise criminal
provisions. The protection of adults can be achieved by fiscal and
welfare legislation and by the ordinary law on misrepresentation,
failure to assist persons in danger and intentional or negligent injury
(even physical).
At all events, even if the principle is accepted, it should not
lead to the retention of legislation that provides for vague criminal
offences which leave it to the court's subjective assessment whether
a defendant is convicted or acquitted. In its judgment in the Lingens
v. Austria case (8 July 1986, Series A no. 103) concerning freedom of
expression the European Court noted its misgivings about the freedom
left to the courts to assess the concept of truth.
Interpretation criteria in relation to proselytism that are as
unverifiable as "respectable or not respectable" and "misplaced" cannot
guarantee legal certainty.
Proselytism is linked to freedom of religion; a believer must
be able to communicate his faith and his beliefs in the religious
sphere as in the philosophical sphere. Freedom of religion and
conscience is a fundamental right and this freedom must be able to be
exercised for the benefit of all religions and not for the benefit of
a single Church, even if this has traditionally been the established
Church or "dominant religion".
Freedom of religion and conscience certainly entails accepting
proselytism, even where it is "not respectable". Believers and
agnostic philosophers have a right to expound their beliefs, to try to
get other people to share them and even to try to convert those whom
they are addressing.
The only limits on the exercise of this right are those
dictated by respect for the rights of others where there is an attempt
to coerce the person into consenting or to use manipulative techniques.
The other types of unacceptable behaviour - such as
brainwashing, breaches of labour law, endangering of public health and
incitement to immorality, which are found in the practices of certain
pseudo-religious groups - must be punished in positive law as ordinary
criminal offences. Proselytism cannot be forbidden under cover of
punishing such activities.
Certainly proselytism must not be carried on by coercion or by
unfair means that take advantage of minors or persons legally
incapacitated under civil law, but such lapses can be alleviated by the
ordinary civil and criminal law.
In the second place, even if the Court had not found a breach
in respect of the statute, it could, in my opinion, have worded its
decision differently by adding a few definitions so that the scope of
the decision would be properly understood.
Commentators and the member States may regret that, on such a
serious matter, on the eve of the United Nations World Year for
Tolerance, and given the United Nations Declaration against religious
intolerance, the Court has failed to make explicit its interpretation
of proselytism in relation to freedom of religion under Article 9
(art. 9).
The reasoning could also have better reflected the fact that
Article 9 (art. 9) applies also to non-religious philosophical beliefs
and that the application of it must protect people from abuses by
certain sects; but here it is for the States to legislate so that any
deviation leading to attempts at brainwashing are regulated by the
ordinary law. Non-criminal proselytism remains the main expression of
freedom of religion. Attempting to make converts is not in itself an
attack on the freedom and beliefs of others or an infringement of their
rights.
The Government admitted that Law no. 1363/1938 had not been
repealed after the adoption of the 1975 Constitution. They argued that
several judgments of the Supreme Administrative Court had afforded
religious freedom effective protection, but the fact remains that the
courts can always apply the Law in the same way as it was applied in
the Kokkinakis case. The Strasbourg institutions cannot, however,
monitor compatibility with Article 9 (art. 9) on the basis of the
degree of severity and the proportionality of the penalty.
Even without criticising the Greek courts' decision in itself,
in respect of the content of the conversation and the verification of
the evidence, one may note that in the decisions no dividing line is
drawn, in terms of the law or the Constitution, between bearing
witness, proclaiming one's faith or religious persuasion, and coercion.
The two dissenting judges in the Greek courts drew attention to the
thinness of the reasons given for the decisions.
In his memorial in reply in the proceedings before the
Commission, the applicant made two significant points:
"1. The formal proclamation of freedom of conscience in
religious matters and its manifestations dates from after the
prohibition of 'proselytism' in the various Constitutions. It
was introduced in the Constitution of 3 June 1927
(Article 1 para. 1 (c)) and is included today among the
'personal and social' fundamental rights listed and, as in the
Universal Declaration and the European Convention,
specifically described as 'human rights' (Constitution of
9 June 1975, Articles 13 para. 1, 25 and 28. There is
therefore an anomaly, if not a flagrant contradiction, in the
actual text of the Constitution. While the decrees of 1938-39
issued under the dictatorship aggravated matters by making
convictions and the purely verbal exercise of a religion a
criminal offence - for which no provision has ever been made
in criminal law (as already noted) -, there are cogent reasons
for at last acknowledging that these provisions are
incompatible with the letter and spirit of the Constitution in
force: the exercise or harmless expression or even the
suspicion of a sentiment which discloses a religious
conviction - as in the Kokkinakis case - cannot amount to an
offence! This is how the Constitution should have been
applied by the legislature and the administrative and judicial
authorities. And this, without any doubt, is above all how
the European Convention must be obeyed, and applied by its own
institutions. 2. The respondent Government point to certain judicial
decisions which they claim show toleration of the existence
and religious activities of believers other than those of the
Orthodox Church and, in an isolated case which is ultimately
of secondary importance, of an adherent of the religion
professed by the applicant. It will be noted, firstly, that
the existence of such judgments in itself demonstrates that
there are intolerant administrative practices; secondly, that
the cases in point and the solutions adopted under
liberal-sounding recitals are not identified; and thirdly,
that no decision has been cited which repudiates this
parasitic criminal legislation that allows of sporadic but
none the less virulent persecution of non-Orthodox Christians,
since unfortunately no such decision has ever been given. All
the decisions have recognised the validity and applicability
of the 1938 decrees. There is no question of embarking here on a discussion of the
Constitutional merits of 'proselytism' in Greece as
tendentiously defined in the emergency Laws of 1938/39, since
the only issue arising before the European Convention
institutions is whether the provisions of these enactments and
the application made of them to the detriment of the
applicant, until domestic remedies were exhausted, amount to
breaches of the Convention for which the Greek Government are
responsible." The Greek Government relied on statements of principle
supporting freedom of religion.
On this point the European Court's reasoning does not seem to
me to provide sufficient criteria for assessing the relationship
between legislation on proselytism and Article 9 (art. 9).
Spiritual, religious and philosophical convictions belong to
the private sphere of beliefs and call into play the right to express
and manifest them. Setting up a system of criminal prosecution and
punishment without safeguards is a perilous undertaking, and the
authoritarian regimes which, while proclaiming freedom of religion in
their Constitutions, have restricted it by means of criminal offences
of parasitism, subversion or proselytism have given rise to abuses with
which we are all too familiar.
The wording adopted by the majority of the Court in finding a
breach, namely that the applicant's conviction was not justified in the
circumstances of the case, leaves too much room for a repressive
interpretation by the Greek courts in the future, whereas public
prosecution must likewise be monitored. In my view, it would have been
possible to define impropriety, coercion and duress more clearly and
to describe more satisfactorily, in the abstract, the full scope of
religious freedom and bearing witness.
The forms of words used by the World Council of Churches, the
Second Vatican Council, philosophers and sociologists when referring
to coercion, abuse of one's own rights which infringes the rights of
others and the manipulation of people by methods which lead to a
violation of conscience, all make it possible to define any permissible
limits of proselytism. They can provide the member States with
positive material for giving effect to the Court's judgment in future
and fully implementing the principle and standards of religious freedom
under Article 9 (art. 9) of the European Convention.
CONCURRING OPINION OF JUDGE DE MEYER
(Translation)
Proselytism, defined as "zeal in spreading the faith"*, cannot
be punishable as such: it is a way - perfectly legitimate in itself -
of "manifesting [one's] religion".
In the instant case the applicant was convicted only for having
shown such zeal, without any impropriety on his part**.
All that he could be accused of was that he had tried to get
Mrs Kyriakaki to share his religious beliefs. Mrs Kyriakaki had let
him into her house and there is nothing to show that she asked him at
any point to leave; she preferred to listen to what he had to say***
while awaiting the arrival of the police, who had been alerted by her
husband, the cantor****.
_______________
* Le Petit Robert, vol. 1, 1992 edition, p. 1552.
** Paragraph 49 of the judgment; paragraphs 71 and 73 of the
Commission's report.*** Paragraphs 9 and 10 of the judgment; paragraphs 22-25 of the
Commission's report.**** Paragraph 7 of the judgment; paragraph 21 of the Commission's
report.
_______________ DISSENTING OPINION OF JUDGE VALTICOS
(Translation)
I regret that I cannot share the opinion of the majority of the
Court and I regret just as much that they could not accept my view.
My disagreement concerns both the scope of Article 9 (art. 9) and the
assessment of the facts in this case.
As regards the scope of Article 9 (art. 9), I am unable to
interpret the words "freedom, either alone or in community with others
and in public or private, to manifest [one's] religion or belief, in
worship, teaching, practice, and observance" as broadly as the majority
do. As with all freedoms, everyone's freedom of religion must end
where another person's begins. Freedom "either alone or in community
with others and in public or private, to manifest [one's] religion",
certainly means freedom to practise and manifest it, but not to attempt
persistently to combat and alter the religion of others, to influence
minds by active and often unreasonable propaganda. It is designed to
ensure religious peace and tolerance, not to permit religious clashes
and even wars, particularly at a time when many sects manage to entice
simple, naïve souls by doubtful means. But even if the Chamber
considers that such is not its purpose, that is, at all events, the
direction in which its conception may lead.
At this stage a misunderstanding must be removed: it has been
maintained that conversations during which a person merely sets out his
religious beliefs cannot constitute an attack on the religion of
others. In reality, the position in the instant case is quite
different. In another case being heard by another Chamber (the
Hoffmann case*) the Commission states in its report (paragraph 27) that
the complainant, who is also a Jehovah's Witness, made visits once a
week to spread her faith. In the case of this sect, therefore, what
is involved is indeed a systematic attempt at conversion, and
consequently an attack on the religious beliefs of others. That has
nothing to do with Article 9 (art. 9), which is designed solely to
protect the religion of individuals and not their right to attack that
of others.
_______________
* Note by the Registrar: Hoffmann v. Austria judgment of 23 June 1993,
Series A no. 255-C.
_______________
I may add that the term "teaching" in Article 9 (art. 9)
undoubtedly refers to religious teaching in school curricula or in
religious institutions, and not to personal door-to-door canvassing as
in the present case.
This brings me to the present case.
There are three aspects to it: national law, the facts properly
speaking and the court decisions.
First of all, the Law: is it precise or does it contain an
element of ambiguity, of excessive generality, which might allow of
arbitrariness in the application of it as a criminal statute? In my
view, there is no room for doubt. The Law deals with, as an offence,
"proselytism", which is of course a Greek word and, like so many
others, has passed into English and also into French, and which the
Petit Robert dictionary defines as "zeal in spreading the faith, and
by extension in making converts, winning adherents". This is a far cry
from merely manifesting one's belief, as covered by Article 9 (art. 9).
Someone who proselytises seeks to convert others; he does not confine
himself to affirming his faith but seeks to change that of others to
his own. And the Petit Robert clarifies its explanation by giving the
following quotation from Paul Valéry: "I consider it unworthy to want
others to be of one's own opinion. Proselytism astonishes me."
Whereas the term "proselytism" would, in my view, have sufficed
to define the offence and to satisfy the principle that an offence must
be defined in law, Greek criminal law, for the avoidance of any
ambiguity, gives an illustration of it which, while intended as an
explanation and an example (no doubt the commonest one), none the less
constitutes a meaningful definition, and that is: "By `proselytism' is
meant, in particular, any direct or indirect attempt to intrude on the
religious beliefs of a person of a different religious persuasion, 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 his inexperience,
trust, need, low intellect or naïvety."
This definition of, if one may so term it, rape of the beliefs
of others cannot in any way be regarded as contrary to Article 9
(art. 9) of the Convention. On the contrary, it is such as to protect
individuals' freedom of religious belief.
Let us look now at the facts of the case. On the one hand, we
have a militant Jehovah's Witness, a hardbitten adept of proselytism,
a specialist in conversion, a martyr of the criminal courts whose
earlier convictions have served only to harden him in his militancy,
and, on the other hand, the ideal victim, a naïve woman, the wife of
a cantor in the Orthodox Church (if he manages to convert her, what a
triumph!). He swoops on her, trumpets that he has good news for her
(the play on words is obvious, but no doubt not to her), manages to get
himself let in and, as an experienced commercial traveller and cunning
purveyor of a faith he wants to spread, expounds to her his
intellectual wares cunningly wrapped up in a mantle of universal peace
and radiant happiness. Who, indeed, would not like peace and
happiness? But is this the mere exposition of Mr Kokkinakis's beliefs
or is it not rather an attempt to beguile the simple soul of the
cantor's wife? Does the Convention afford its protection to such
undertakings? Certainly not.
One further detail must be provided. The Greek Law does not
in any way restrict the concept of proselytism to attempts at the
intellectual corruption of Orthodox Christians but applies irrespective
of the religion concerned. Admittedly, the Government's representative
was not able to give concrete examples concerning other religions, but
that is not surprising since the Orthodox religion is the religion of
nearly the whole population and sects are going to fish for followers
in the best-stocked waters.
Probably in recent years there have been rather too many
prosecutions and the police have been rather too active, but more
recently there has been a substantial drop in the number of such
prosecutions, and in the present case there was no official
prosecution - it was the victim's husband who, on returning home and
discovering what the home preacher was up to, raised his voice, which
was a strong one, to call the police.
I should certainly be inclined to recommend the Government to
give instructions that prosecutions should be avoided where harmless
conversations are involved, but not in the case of systematic,
persistent campaigns entailing actions bordering on unlawful entry.
That having been said, I do not consider in any way that there
has been a breach of the Convention.
PS. Having read certain separate opinions annexed to the judgment,
I must express my regret at a number of exaggerations which go so far
as to make reference to totalitarian regimes.
I should also like to sound a note of caution with regard to
the opinion that "attempting to make converts is not in itself an
attack on the freedom and beliefs of others or an infringement of their
rights". Certainly that is an expression of moderation and common
sense and the Chamber (perhaps even the plenary Court should have dealt
with it) very rightly warned against abuses where proselytism is
concerned. But faith can sometimes be blind and attempts to spread it
can be overzealous. Acts of faith have sometimes culminated in autos-
da-fé and questioning on the subject has led to inquisitions, while the
names of certain saints have remained associated with excesses
committed on their feast days. In matters of faith as in so many other
matters, respect for the human person must always be upheld.
At a time when sects enjoying varying degrees of recognition
and, sometimes, even adherents of recognised religions resort, under
the influence of fanaticism, to all kinds of tactics to obtain
conversions, sometimes with tragic results, as has been seen again
recently, it is regrettable that the above judgment should allow
proselytising activities on condition only that they should not be
"improper". Can a convention on human rights really authorise such an
intrusion on people's beliefs, even where it is not a forceful one?
PARTLY DISSENTING OPINION OF JUDGE MARTENS
INTRODUCTION
1. I concur with the Court that there has been a breach of
Article 9 (art. 9), but for reasons other than those relied on by the
Court. I moreover differ from the Court in that I consider that there
has been a breach of Article 7 (art. 7) as well.
2. I likewise agree with the Court that the Article 9 (art. 9)
issue is by far the more important one, and I would have welcomed it
if the Court had held - as, in my judgment, it could very well have
done - that in view of its findings with respect to Article 9 (art. 9)
it was not necessary to examine the applicant's complaints under
Article 7 (art. 7).
I would have preferred the Court to have chosen that course,
since that would have enabled me to follow suit; whereas now, being
unable to agree with the Court's findings with respect to Article 7
(art. 7), I am bound to discuss whether that Article has been violated
by the wording or the application of a criminal provision the very
existence of which, in my opinion, violates Article 9 (art. 9).
However theoretical such an exercise may seem, it cannot be
escaped. And since it may serve as an introduction to my discussion
of the Article 9 (art. 9) issue, I will start with explaining my
position with regard to Article 7 (art. 7).
3. Before doing so I would, however, point out that although both
parties have - rightly - elevated the debate to the plane of important
principle, it should not be forgotten that what occasioned this debate
was a normal and perfectly inoffensive call by two elderly Jehovah's
Witnesses (the applicant was 77 at the time) trying to sell some of the
sect's booklets to a lady who, instead of closing the door, allowed the
old couple entry, either because she was no match for their insistence
or because she believed them to be bringing tidings from relatives on
the mainland. There is no trace of violence or of anything that could
properly be styled "coercion"; at the worst there was a trivial lie.
If resort to criminal law was at all warranted, a prosecution for
disturbance of domestic peace would seem the severest possible
response.
HAS ARTICLE 7 (art. 7) BEEN VIOLATED?
4. In general I subscribe to what the Court says about Article 7
(art. 7) in the first part of paragraph 50 of its judgment, albeit
that, unlike the Court, I think that the requirement that a legal
definition of a crime be drafted as precisely as possible is not a
consequence but part and parcel of the principle enshrined in
Article 7 para. 1 (art. 7-1).
I am, furthermore, convinced that this requirement serves not
only (as the Court suggests in the second part of paragraph 50) the aim
of enabling the individual to know "what acts and omissions will make
him liable", but is intended - in accordance with its historical
origin - also and primarily to secure the individual adequate
protection against arbitrary prosecution and conviction: Article 7
para. 1 (art. 7-1) demands that criminal law should be compatible with
the rule of law.
5. The more I have thought about it, the less I have remained
satisfied that section 4 of Law no. 1363/1938 defines the offence of
proselytism with the degree of precision required by Article 7
(art. 7) thus understood.
The first - and, as regards protection against arbitrariness,
the most suspect - imprecision lies in the words "in particular": those
words virtually permit prosecution for acts that fall outside the
definition given. Secondly, the punishable act (as defined) is not
"intrusion on the religious beliefs" (whatever that may be), but "any
direct or indirect attempt" at such intrusion, which not only
considerably broadens the definition but also greatly enhances its
essential vagueness. A final point to note is the dangerous ambiguity
of the requirement "with the aim of undermining those beliefs": is it
at all possible to distinguish between proclaiming one's own faith to
others and trying to convince those others that their tenets are
"wrong"?
These deficiencies are such that, in an atmosphere of religious
intolerance, section 4 of Law no. 1363/1938 provides a perfect and
dangerous instrument for repressing heterodox minorities. The file
suggests that in the past it has indeed been used for this purpose,
whilst at present such use, to put it mildly, does not seem to be
wholly excluded. This aspect is all the more serious as the present
situation in the south-eastern part of Europe shows that the region is
not at all immune to the rise of fierce religious intolerance which is
sweeping over our modern world.
This is why I am not impressed by the argument that the above
deficiencies of the text are "cured" by case-law, especially of the
highest Greek courts. It may be, for instance, that since 1975 the
Court of Cassation, reversing its former case-law, has eliminated the
consequence of the words "in particular" and that the Supreme
Administrative Court's definition at least endeavours to take into
account the above distinction between proclaiming one's religion and
trying to convince another of the shallowness of his own tenets.
However, recent history has taught us that if the political or
religious atmosphere in a country changes, the case-law of even the
highest courts may change too. Such case-law cannot, therefore,
supplement guarantees against arbitrariness which the text of the law
does not provide.
6. As the Court points out, Article 7 para. 1 (art. 7-1) also
enshrines the principle that criminal law should be restrictively
interpreted. This principle fulfils the role of a secondary safeguard
against arbitrariness. Accordingly, the broader and vaguer the text
of the relevant provision, the more important this secondary safeguard.
The more important also the supervision by the Convention institutions.
As the Commission has consistently stated, the Convention
institutions are empowered under Article 7 para. 1 (art. 7-1) to verify
whether, on the facts of the case, the national courts could reasonably
have arrived at a conviction under the applicable rule of municipal
law: the Convention bodies have to be satisfied that the conviction not
only was based on a pre-existing (and sufficiently precisely worded)
provision of criminal law but also was compatible with the principle
of restrictive interpretation of criminal legislation. The greater the
doubt of the Convention institutions as to whether the provision
applied meets the requirement of precision, the stricter should be
their supervision of its application.
7. In the present case the applicant complained of "what he
claimed to be the wrongful application to him of section 4 of Law
no. 1363/1938". One of the points in issue was whether the facts
established against the applicant justified a conviction under that
section (see paragraph 60 of the Commission's report). It is true that
this issue was addressed mainly in the context of Article 9 (art. 9),
but, the Court being master of the legal characterisation to be given
to the facts before it, there is room for scrutinising whether or not
the Greek courts did respect the principle of restrictive
interpretation of criminal legislation.
8. Let me say at once that upon examination of (the translations
of) the full texts of the judgments of the Greek courts submitted by
the parties, I have come to the conclusion that this question must be
answered in the negative.
Before developing the three grounds on which my conclusion is
mainly based, I cannot help noting one telling, but in the present
context immaterial, feature of the file: although both the applicant
and his wife have consistently denied the version of the facts given
by Mrs Kyriakaki, his conviction was primarily, and without more, based
on that version and consequently rests for all practical purposes on
the testimony of one sole witness.
9. The first ground referred to above concerns the following.
Section 4 of Law no. 1363/1938 requires an intention to convert
the victim to the perpetrator's beliefs (as the word "proselytism"
implies), or at least to undermine the victim's beliefs. The
applicant, however, denied having had that intention. He pointed out
that his intention was merely to "witness", that is to proclaim the
gospel as understood by his sect. There is, of course, a fundamental
and in the present context crucial difference between, on the one hand,
acquainting someone with an opinion or a belief and, on the other hand,
trying to convince him of its truth. The Greek courts simply ignored
this difference, not even troubling to state on what evidence they
based their opinion - which is necessarily implied in their finding the
applicant guilty of "proselytism" - that he intended to convince
Mrs Kyriakaki of the rightness of his beliefs and of the wrongness of
hers.
The inevitable conclusion must therefore be that the
applicant's conviction was based on the view that the mere proclaiming
of religious beliefs differing from those of the person addressed
implies intention to convert within the meaning of section 4. This is,
however, clearly incompatible with the principle of restrictive
interpretation of criminal legislation.
10. My second ground concerns a related point. The relevant
judgments reveal that the Greek courts had no more than an extremely
vague notion of what the applicant exactly had said to Mrs Kyriakaki.
From what both Mrs Kyriakaki and her eavesdropping husband
testified before the magistrates at first instance it might be inferred
that the applicant had somehow referred to the coming of the heavenly
kingdom. On appeal, however, Mrs Kyriakaki could not remember whether
this was mentioned and neither did her husband give any particulars
about what he had overheard. The evidence included an equally vague
reference to the paradise story and Mrs Kyriakaki's testimony that
"they talked to me about Christ".
One is forced to question how the Greek courts were able to
conclude, as they did, that the applicant (intentionally) attempted to
make Mrs Kyriakaki change her beliefs without establishing - at the
very least - what exactly he had said to her and that what he had told
her was incompatible with what she believed.
Here again I find that in juxtaposing the facts with the text
of section 4 one cannot but conclude that the applicant's conviction
is incompatible with the principle of restrictive interpretation of
criminal legislation.
11. My third and final ground corresponds to the criticism
expressed by the anonymous dissenters in the Greek courts: the sole
evidence for the applicant's (intentionally) taking advantage of
Mrs Kyriakaki's "inexperience, her low intellect and her naïvety" (as
the Crete Court of Appeal put it) was her testimony that she did not
fully understand everything that the applicant read to her and told
her. On appeal she even said in so many words: "They talked to me
about things I did not understand very well."
This sufficed for the Greek courts to hold that the applicant
had (intentionally) "abused" Mrs Kyriakaki's "inexperience in doctrine"
and "exploited" "her spiritual naïvety" (as the Court of Cassation put
it). That can only mean that the applicant's conviction was based on
the view that the mere proclaiming of one's faith to a heterodox person
whose experience in religious matters or whose mental capacities are
less than those of the proclaimer makes the latter guilty under
section 4. Again one is forced to conclude that the manner in which
the Greek courts applied section 4 was incompatible with the principle
of restrictive interpretation of criminal legislation.
12. My conclusion is that section 4 of Law no. 1363/1938 is per se
incompatible with Article 7 para. 1 (art. 7-1) of the Convention and
that its application in the present case has given rise to a further
violation of that Article.
HAS ARTICLE 9 (art. 9) BEEN VIOLATED?
13. The Court's judgment touches only incidentally on the question
which, in my opinion, is the crucial one in this case: does Article 9
(art. 9) allow member States to make it a criminal offence to attempt
to induce somebody to change his religion? From what it said in
paragraphs 40-42 and 46 it is clear that the Court answers this
question in the affirmative. My answer is in the negative.
14. The basic principle in human rights is respect for human
dignity and human freedom. Essential for that dignity and that freedom
are the freedoms of thought, conscience and religion enshrined in
Article 9 para. 1 (art. 9-1). Accordingly, they are absolute. The
Convention leaves no room whatsoever for interference by the State.
These absolute freedoms explicitly include freedom to change
one's religion and beliefs. Whether or not somebody intends to change
religion is no concern of the State's and, consequently, neither in
principle should it be the State's concern if somebody attempts to
induce another to change his religion.
15. There were good reasons for laying down in Article 9 (art. 9)
that freedom of religion includes freedom to teach one's religion: many
religious faiths count teaching the faith amongst the principal duties
of believers. Admittedly, such teaching may gradually shade off into
proselytising. It is true, furthermore, that proselytising creates a
possible "conflict" between two subjects of the right to freedom of
religion: it sets the rights of those whose religious faith encourages
or requires such activity against the rights of those targeted to
maintain their beliefs.
In principle, however, it is not within the province of the
State to interfere in this "conflict" between proselytiser and
proselytised. Firstly, because - since respect for human dignity and
human freedom implies that the State is bound to accept that in
principle everybody is capable of determining his fate in the way that
he deems best - there is no justification for the State to use its
power "to protect" the proselytised (it may be otherwise in very
special situations in which the State has a particular duty of care,
but such situations fall outside the present issue). Secondly, because
even the "public order" argument cannot left use of coercive State
power in a field where tolerance demands that "free argument and
debate" should be decisive. And thirdly, because under the Convention
all religions and beliefs should, as far as the State is concerned, be
equal.
That is also true in a State where, as in the present case, one
particular religion has a dominant position: as the drafting history
of Article 9 (art. 9) confirms (see, for example, La Convention
européenne des Droits de l'Homme, by J. Velu and R. Ergec, Bruylant,
1990, p. 581, para. 708), the fact of one religion having a special
position under national law is immaterial to the State's obligation
under that Article.
To allow States to interfere in the "conflict" implied in
proselytising by making proselytising a criminal offence would not only
run counter to the strict neutrality which the State is required to
maintain in this field but also create the danger of discrimination
when there is one dominant religion. The latter point is tellingly
illustrated by the file that was before the Court.
16. In this context the Court suggests that some forms of
proselytism are "proper" while others are "improper" and therefore may
be criminalised (paragraph 48).
Admittedly, the freedom to proselytise may be abused, but the
crucial question is whether that justifies enacting a criminal-law
provision generally making punishable what the State considers improper
proselytism. There are at least two reasons for answering that
question in the negative. The first is that the State, being bound to
strict neutrality in religious matters, lacks the necessary touchstone
and therefore should not set itself up as the arbiter for assessing
whether particular religious behaviour is "proper" or "improper". The
absence of such a touchstone cannot be made good (as the Court attempts
to do) by resorting to the quasi-neutral test whether or not the
proselytism in question is "compatible with respect for the freedom of
thought, conscience and religion of others". This is because that very
absence implies that the State is lacking intrinsic justification for
attributing greater value to the freedom not to be proselytised than
to the right to proselytise and, consequently, for introducing a
criminal-law provision protecting the former at the cost of the latter.
The second reason is that the rising tide of religious intolerance
makes it imperative to keep the State's powers in this field within the
strictest possible boundaries. However, the Court achieves quite the
reverse in attempting to settle those boundaries by means of so elusive
a notion as "improper proselytism", a definition of which the Court
does not even attempt to give.
17. Should the judgment be otherwise where proselytism is combined
with "coercion"? I do not think so.
Coercion in the present context does not refer to conversion
by coercion, for people who truly believe do not change their beliefs
as a result of coercion; what we are really contemplating is coercion
in order to make somebody join a denomination and its counterpart,
coercion to prevent somebody from leaving a denomination. Even in such
a case of "coercion for religious purposes" it is in principle for
those concerned to help themselves. Accordingly, if there is to be a
legal remedy, it should be a civil-law remedy. The strict neutrality
which the State is bound to observe in religious matters excludes
interference in this conflict by means of criminal law. Unless, of
course, the coercion, apart from its purpose, constitutes an ordinary
crime, such as physical assault. In such cases the State may, of
course, prosecute under the applicable provision of (ordinary) criminal
law and a defence based on freedom to proselytise may properly be
rejected if that freedom is clearly abused. There is, however, no
justification for making coercion in religious matters a criminal
offence per se.
18. Is there no such justification even for making proselytism
practised by means of serious forms of spiritual coercion a criminal
offence? Cannot such justification be found in the methods of
conversion used by some of the numerous new sects which have emerged
these last decades, methods which are often said to be akin to
brainwashing? Should not the State be entitled to protect its
citizens - and especially its minors - against such methods?
Even if the use of such objectionable methods of proselytising
had been established, I would have hesitated to answer this question
in the affirmative, since it is evidently difficult to establish where
spiritual means of conversion cross the borderline between insistent
and intensive teaching, which should be allowed, and spiritual coercion
akin to brainwashing. I am not satisfied, however, that the existence
of such offensive methods has been established. In 1984 the author of
a study on these new sects, made at the request of the Netherlands
Parliament, concluded after extensive research that, as far as the
Netherlands were concerned, there was no such evidence. The author
stressed that everywhere the new sects had provoked violent reactions
including persistent allegations about such methods, but that
Governments had up till then declined to take measures.
I would add that there probably are methods of spiritual
coercion akin to brainwashing which arguably fall within the ambit of
Article 3 (art. 3) of the Convention and should therefore be prohibited
by making their use an offence under ordinary criminal law. But in
this context also I would stress that there is no justification for
making a special provision in the law for cases where such methods are
used for the purpose of proselytising.
19. To summarise: even if the Government's thesis that section 4
of Law no. 1363/1938 is intended to prevent conversions being made by
coercion were compatible with the wording of that provision (which it
is not), that justification would fail.
20. For these reasons I find that Greece, which, as far as I have
been able to ascertain, is the only member State to have made
proselytism a criminal offence per se, in so doing has violated
Article 9 (art. 9) of the Convention.
JOINT DISSENTING OPINION OF JUDGES FOIGHEL AND LOIZOU
We regret that we are unable to agree with the opinion of the
majority of the Court as we take a different approach to the issues
raised in this case. Article 9 para. 1 (art. 9-1) guarantees to
everyone the right to freedom of thought, conscience and religion; this
right includes freedom to change one's religion or belief and freedom,
either alone or in community with others and in public or private, to
manifest one's religion or belief, in worship, teaching, practice and
observance. We are concerned here with the freedom one has to teach
one's own religion.
The relevant Greek law making proselytism a criminal offence
reads as follows:
"By 'proselytism' is meant, in particular, any direct
or indirect attempt to intrude on the religious beliefs of a
person of a different religious persuasion, 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
his inexperience, trust, need, low intellect or naïvety." This definition of the offence of "proselytism" cannot, in our
view, be considered to constitute a violation of Article 9 para. 1
(art. 9-1). It is only when it takes this kind of intrusive form as
opposed to genuine, open and straightforward teaching of a religion
that it is a criminal offence.
The term "teach" entails openness and uprightness and the
avoidance of the use of devious or improper means or false pretexts as
in this case in order to gain access to a person's home and, once
there, by abusing the courtesy and hospitality extended, take advantage
of the ignorance or inexperience in theological doctrine of someone who
has no specialist training and try to get that person to change his or
her religion.
This is all the more so as the term "teach" has to be read in
the context of the whole Article (art. 9) and in conjunction with the
limitations prescribed by paragraph 2 (art. 9-2), in particular that
of the protection of the rights and freedoms of others, which no doubt
includes a duty imposed on those who are engaged in teaching their
religion to respect that of others. Religious tolerance implies
respect for the religious beliefs of others.
One cannot be deemed to show respect for the rights and
freedoms of others if one employs means that are intended to entrap
someone and dominate his mind in order to convert him. This is
impermissible in the civilised societies of the Contracting States.
The persistent efforts of some fanatics to convert others to their own
beliefs by using unacceptable psychological techniques on people, which
amount in effect to coercion, cannot in our view come within the ambit
of the natural meaning of the term "teach" to be found in paragraph 1
of this Article (art. 9-1).
For the above reasons we find in the circumstances of this case
that there has been no breach of Article 9 (art. 9).