LAW REPORT / Greek case violated religious freedom: Kokkinakis v Greece - European Court of Human Rights, Strasbourg 25 May 1993

Although legislature could be designed to punish improper proselytism but not true evangelism, a conviction of proselytism infringed the accused's right to freedom to manifest his religion, where the court had not found sufficient facts to warrant a finding of improper proselytism.

The European Court of Human Rights held by six votes to three that there had been a violation of article 9 (right to freedom of religion) of the European Convention on Human Rights in the case of Mr Kokkinakis, a Jehovah's witness.

Mr and Mrs Kokkinakis, who were Jehovah's Witnesses, called at the home of an orthodox Christian. Mr Kokkinakis insisted that they should be let in and engaged in a discussion during which he attempted to convert her by reading from various books and giving her others. The couple were convicted of proselytism. On appeal Mrs Kokkinakis was acquitted but her husband's conviction was upheld. Mr Kokkinakis alleged, inter alia, violations of article 9.

THE EUROPEAN COURT OF HUMAN RIGHTS, in its majority judgment, said that as enshrined in article 9, freedom of thought, conscience and religion was one of the most vital elements that went to make up the identity of believers and of their conception of life, but it was also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society depended on it.

Religious freedom implied freedom to manifest one's religion, not only in community with others, in public and within the circle of those whose faith one shared, but also alone and in private; it included in principle the right to try to convince one's neighbour, for example through teaching.

The fundamental nature of the rights guaranteed in article 9 was also reflected in the wording providing for the limitations on them. The impugned Greek measure pursued the legitimate aim of the protection of the rights and freedoms of others. A distinction had to be made between bearing Christian witness and improper proselytism. The former corresponded to true evangelism; the latter a corruption or defamation of it, which was not compatible with respect for the freedom of thought, conscience and religion of others.

The relevant criteria adopted by the Greek legislature could be considered acceptable in so far as they were designed only to punish improper proselytism. However, the Greek courts had not sufficiently specified in what way the accused had attempted to convince his neighbour by improper means. None of the facts warranted that finding.

Therefore there had been a violation of article 9.