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The Missionary's Position After Kokkinakis v Greece.

Peter W Edge LLB, PhD (Cantab)*

Senior Lecturer in Law, University of Central Lancashire < p.w.edge@uclan.uk.ac>

* The author wishes to thank those who contributed to the departmental research seminar at which an earlier draft of this paper was discussed.

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Summary

The issue before the European Court of Human Rights in Kokkinakis v Greece concerned Article 9 of the European Convention on Human Rights which protects freedom of religion and required the Court to consider the relationship between those who wish to proselytise, and those who are the targets of such action.

Contents

Introduction
The Facts
Proceedings Before the Commission
Proceedings Before the Court
Analysis
Conclusions

Bibliograpy

Introduction.

Article 9 of the European Convention on Human Rights 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, 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.

Unlike other important articles of the Convention, Article 9 has been the subject of very little serious consideration by the European Court of Human Rights. In those cases where a violation was claimed, there was either no real discussion of principle, or the case was dealt with under another Article (eg Kjeldsen, Busk Madsen and Pedersen v Denmark (1976) 1 EHRR 711 (Ct), Johnston v Ireland (1986) 10 EHRR 123 (Ct)). The case of Kokkinakis v Greece (1994) 17 EHRR 397, which came before the Court in 1993, was the first serious attempt by the Court to apply Article 9. The purpose of this note is to analyse this vital case, which was fully reported only in 1994, and is yet to be fully discussed (cf Finnie, 1994).

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The Facts.

In 1986, the applicant and his wife, both active Jehovah's Witnesses (see Watchtower, 1993), persuaded the wife of the local cantor to allow them into her home, whereupon they began to discuss religious matters. Her husband immediately contacted the police, who arrested the couple on charges of proselytism. The couple were convicted of the offence, although Mrs Kokkinakis' conviction was quashed on appeal. The relevant provision of Greek law defined proselytism as:

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 naiveté. (at 404)

The majority of the appellate Court found that the applicants conduct had satisfied this definition, although the minority dissented on the grounds that no evidence showed the cantor's wife to be particularly inexperienced in Orthodox Christian doctrine, of particularly low intellect, or particularly naive and Greek case law on the section indicated that mere spiritual teaching did not constitute proselytism. It is reasonably clear that no extreme methods of enticement, such as bribery, threats, or 'brainwashing', were employed.

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Proceedings Before the Commission.

In his application to the Commission Kokkinakis used the common tactic of claiming violation of a range of Convention articles, including Article 9. It was accepted by Greece that the offence of proselytism was an interference with the right under Article 9(1), but it was argued that the interference was justified under Article 9(2). The Commission accepted that the restriction was laid down by law , and the majority accepted that it was intended to protect the freedom of religion of the target of proselytism, by ensuring that conversion was the result of a decision free from any moral or material constraint, rather than the result of fraud or deception (at 413). Two members of the Commission partly dissented, feeling that the infringement was not directed at a legitimate aim, but rather at protecting a dominant religion - unacceptable in the pluralistic societies envisaged by Article 14 of the Convention, which expressly prohibits discrimination on grounds of religion or other opinion (at 416).

The majority of the Commission, while satisfied that the aim was a legitimate one, did not consider that the extent of the infringement was necessary in a democratic society - not only was the conduct of the defendant inoffensive, but there was no evidence that Mrs Kyriakaki was in fact 'inexperienced', 'feeble minded', or 'ingenuous', and no evidence that the defendant had taken advantage of such characteristics. Accordingly, the Commission concluded that there had been a violation of Article 9 (at 414).

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Proceedings Before the Court.

The judgment of the Court was delivered on the 25 May 1993, just over a month after the unfortunate conclusion of the Waco siege in the USA. It seems improbable that the members of the Court were unaware of the events in Waco, one member of the Court, Judge Valticos, actually referring to "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" (at 432). It may be that this forcible reminder of the potential impact of religious conversion contributed to the wide divergence of opinion, resulting in six separate opinions. These are worth briefly summarising, before identifying common themes.

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Majority Opinion.

The majority of the Court, with whom Judge De Meyer concurred in his very brief separate Opinion, largely endorsed the Opinion of the Commission, finding that the restriction upon the applicant was not necessary in a democratic society. They drew a sharp dividing line between "bearing Christian witness and improper proselytism". The former was "a corruption or deformation" of the latter, which could be evidenced, inter alia, by offering material or social advantages with a view to gaining new members of the Church, by exerting improper pressure on persons in distress or need, or by use of violence or, to adopt the terminology of the Court, 'brainwashing'. Improper proselytism was incompatible with respect for the freedom of religion of others, and therefore could legitimately be regulated by the State. The Court held that at no point had it been shown that the defendant's behaviour constituted improper proselytism, therefore it had not been shown that the infringement was necessary, and therefore Article 9 had been violated (at 422).

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Judge Pettiti.

Judge Pettiti agreed that Article 9 had been violated, but, rather than rely upon its indiscriminate application to the applicant, considered that the existing Greek law was, because of its scope, contrary to Article 9. His opinion, in the translation available in the European Human Rights Reports, is occasionally incoherent, but two important criticisms of the majority Opinion emerge. He stressed the dangers of allowing a prosecution for improper proselytising of a person 'inexperienced in religious doctrine or of low intelligence'. Under the guise of protecting others against coercion, it attributed to the State the responsibility of judging the weakness of a person in order to prosecute the proselytiser - a responsibility with great potential for abuse (at 425, 428). Additionally, he criticised the majority judgment for failing to take into account the protection Article 9 gives to non-religious beliefs (at 426).

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Judge Martens.

Judge Martens also agreed that Article 9 had been violated, but took an even stronger anti-regulation stance than Judge Pettiti, holding that Article 9 did not allow States to make it a criminal offence to attempt to induce someone to change his religion - Article 9 included a freedom to change religion, and to induce others to change theirs (at 436). His Opinion is pervaded by the view that, given rising religious intolerance, it is bad in principle for the State to interfere in this area.

He accepted that the conversion transaction "sets the rights of those whose religious faith encourages or requires such activity against the rights of those targeted to maintain their beliefs", but cogently argued that the State had no role to play in this conflict - firstly, because human dignity and freedom implied freedom of choice; secondly, because tolerance demanded that 'free argument and debate' should be decisive; and thirdly, because under the Convention all beliefs were equal, whether or not there was a dominant or state religion (at 436-7). Even where the freedom to proselytise was abused the State should generally not intervene, as it lacked any way of deciding whether particular behaviour was proper or improper - a lack which could not be remedied by favouring the right to retain religion over the right to proselytise (at 437).

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Judge Valticos.

The remaining Opinions dissented from the majority, and found no violation of Article 9. Judge Valticos, the Greek judge, considered that Article 9 provided little or no protection for "a systematic attempt at conversion, and consequently an attack on the religious beliefs of others. That has nothing to do with Article 9, which is designed solely to protect the religion of individuals and not their right to attack that of others" (at 430). He approved the Greek law as prohibiting "if one may so term it, the rape of the beliefs of others ... [so] as to protect individual's freedom of religious belief" (at 430). He also noted that the law formally protected all religions from this form of attack, although there was no data on attacks on smaller religions. as, "sects are going to fish for followers in the best-stocked waters" (at 431).

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Judges Foighel and Loizou.

This dissenting Opinion interpreted 'teaching' in Article 9(1) so as to exclude the improper means detailed in the Greek definition, therefore Article 9 did not apply at all - especially when read in conjunction with the limits of Article 9(2) in relation to rights of others - when "means which are intended to entrap someone" or "unacceptable psychological techniques" were used on the target . Although they did not consider how far these criteria were met by the conduct of the applicant, they found that there was no violation of Article 9 (at 439-440).

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Analysis.

A number of important themes need to be drawn out and analysed from the Opinions of the Court.

Justifications for Freedom of Religion

A disappointing feature of the Opinions is the limited extent to which justifications for freedom of religion are discussed. Nonetheless, to some extent, possible justifications for freedom of religion are alluded to (see further Marshall 1994).

The majority of the Court describe:

freedom of thought, conscience and religion [as] one of the foundations of a 'democratic society' within the meaning of the Convention. It is, its religious dimension, one of the most vital elements that go to make up the identity of believers and of 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 upon it. (at 421)

The majority are compacting two distinct justifications for freedom of religion here - social justifications that argue religious freedom helps to produce a functioning pluralist society where all individuals feel a part of the State's society; and the personal development argument which sees religious freedom, in a way similar to the right to privacy, as providing scope for personal development and self-definition (Conkle 1988; Richards 1994). The consequences for the scope of Article 9 protection are not necessarily the same for the two justifications - in particular, purely utilitarian social arguments do not necessarily provide the same guarantees for very small religious groupings as an autonomy based argument which stresses the rights of each individual (cf Bradney 1993, especially Chapter Two). Other possible justifications for freedom of religion are not covered at all by the majority. Of the separate Opinions, Judges Pettiti and Marten both rely upon the human dignity/human autonomy justification (at 428, 436); while Judge Valticos stresses the social benefits to be gained from freedom of religion, characterising the right as "designed to ensure religious peace and tolerance" (at 429). It is interesting to note that this divide over the justification for religious freedom shows itself in relation to the general question of the right to proselytise - Judges Pettiti and Martens favour a broad right on the basis of individual autonomy; the majority favour a broad right subject to broad restrictions, based on a mix of autonomy and social policy rationales; while Judge Valticos favours broad restrictions on proselytism on the basis of social policy. The similarity between division on rationale, and division on the substantive points raised in the case, indicates that this was an important issue for discussion by the court. Apart from Judge Valticos, however (at 429), the different Opinions do not recognise this divergence in views within the Court. The problems caused by the predator paradigm, discussed below, are aggravated by this failure to draw out the principles underpinning Article 9. Additionally, the Court's reluctance to define clearly the interests Article 9 protects is likely to hinder attempts to apply Article 9(2), which requires a balancing of interests.

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Views of Individual Autonomy

The next point to bring out is the spectrum of views concerning the autonomy of the individual in relation to religious views. Judge Martens takes the strongest view of autonomy. The individual, even the minor or otherwise legally incompetent person, is in control of their own beliefs. It is impossible to coerce another into belief, and even insistent and intensive teaching is acceptable, "for people who truly believe do not change their beliefs as a result of coercion" (at 438). While recognising the argument for intervention against some methods of conversion, particularly where minors are involved, he remained uncertain as to whether intervention could be justified even then (at 438, cf 437). Judge Martens' Opinion encapsulates liberal views of self-determination and individuality at their strongest, and can be criticised for its failure to recognise the reality of human beings as social creatures - a recognition to be found in other key judgments of the Court, such as those bringing extra-marital sexual activity within the right to privacy (consider Bruggemann v FDR (1977) 3 EHRR 244 (Cm); Dudgeon v UK (1980) 3 EHRR 40 (Cm); Norris v Ireland (1991) 13 EHRR 186 (Ct)).

Less forceful, but similar, are the views of Judge Pettiti. He echoes the views of Judge Martens on the autonomy of the capable adult, but allows for some exceptions: "Of course, proselytism must not be imposed by coercion, by unfair means of abusing minors or 'incapacitated adults' in the sense of civil law" (at 426). Thus, Judge Pettiti recognises that some individuals are not fully autonomous, but limits the definition of such individuals to classes already recognised by general law as not being fully capable. Judge Pettiti seems to strike a good balance between respect for the freedom of choice of the individual, and recognition of the pressures upon the individual, although he remains open to some critiques of liberal approaches to freedom of religion (see M'Connell 1993).

The most significant view of autonomy is contained in the Opinion of the majority. The majority cite with approval a 1956 report of the World Council of Churches dealing with improper proselytism. Although the majority expressly avoid giving a complete definition of improper proselytism, it would appear that they endorse a definition which includes "improper pressure on people in distress or need". It should be noted that the distinguishing feature of this form of improper proselytism is the target of the pressure, rather than the pressure itself, as other forms of improper pressure such as bribery and violence are dealt with elsewhere in the definition. Thus, the majority would seem to recognise that religious autonomy can be impaired by distress or need as well, it would seem to follow, as by more permanent characteristics such as age and incapacity (at 422).

The principal problem with the view of the majority is that it leaves the way open for excessively paternalistic restriction of religious freedom. As Judge Pettiti noted, extension of the classes of people to be protected from their own misjudgements beyond the legally incapable could act as a cloak for religious oppression (at 425). Of equal importance, this paternalistic approach is innately conservative - the protected person is to be allowed to continue in their current faith, even if exposure to the new ideas of the proselytiser might cause them to change their opinion. In other words, the protected person is incapable of changing their religious beliefs autonomously, but, it would seem to follow, is capable of retaining their current beliefs autonomously. This conservatism emerges again in the paradigm of conversion taken by the Court.

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Value of Conversion to the Convert: The Predator Paradigm.

Judge Valticos' Opinion makes it clear that he views the predator/prey relationship as the paradigm of conversion. His narrative of the incident, which differs from the majority of the Court, brings out an image of the missionary as predator:

On the one hand, we have 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 naive 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' 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. (at 430- 431)

Judge Valticos' narrative has overtones both demonic and sexual, the latter highlighted by the quashing of Mrs Kokkinakis' conviction on the basis that she accompanied her husband only in a passive role, and the role of the target's husband in saving her from Mr Kokkinakis. Even setting aside these more theoretical issues, the predator paradigm is central to the case.

Under this paradigm, the only interests to be balanced are the right of the predator to assail, against the right of the prey to be left alone. In Judge Valticos' case, given the strength of his imagery, it is unsurprising he finds that the predator has very few rights to convert the prey. Judges Foighel and Loizou, in their brief judgment, are more restrained, but seem to come to a similar conclusion (at 439). Even the majority of the Court consider this to be the obvious paradigm, although they take a more liberal view of the extent of the predators right to predate (at 419). Neither is the paradigm conclusively departed from by either Judge Pettiti or Judge Martens. Given the wide variation of Opinions in this case, there appears to be relative unanimity - a unanimity which may spring from events in Waco serving to concentrate the Court's attention on this imagery. The interests to be balanced are the right of the proselytiser to exercise his freedom of religion by attempting to convert others, and the right of the proselytiser's target to enjoy his current religion in peace.

But this is a singularly inappropriate model for religious freedom, in that it neglects the importance of conversion as a benefit to the convert. As the majority, along with Judges Pettiti and Martens, suggest, religious development is related to personal fulfilment - analogous to the right to privacy, freedom of religion is protected to allow free development of the personality (see Richards 1994). In that case, restrictions on proselytism carry with them the assumption that development of the personality is best carried out within the existing belief system, whatever it may be, rather than any other religion which may be brought to the target's attention by a proselytiser.

On a related, but not identical point, religious experience, including the experience of atheists and agnostics, may be a personal search for truth (see Marshall 1994). Given that neither the State nor the European Court of Human Rights has the jurisdiction to determine this personal truth, all that is required is for the State and Court to allow the individual to conduct their own search. This search is best carried out when a free market of ideas in the religious field exists. Thus, restrictions on proselytism affect not only the right of the proselytiser to spread their faith, but also the right of the target to undertake their search for truth. Personal truth can involve a change of faith, rather than the simple retention of faith described in the paradigm.

Additionally, this paradigm indirectly discriminates between religions (see Liberal Party v UK (1980) 4 EHRR 106 (Cm) for the Convention approach to indirect discrimination; more generally, Robertson and Merrill 1993 at pp 177-183). It is impossible for the Court to rule that some religions are better than others. Even if it were possible it would be inappropriate, as the Court must remain neutral between religions. On a formal level, the Court's paradigm achieves this - the actual faith of the proselytiser and the target are formally irrelevant. But the inbuilt preference for current faiths must favour existing, dominant faiths over new, or very small, faiths. A faith which is professed by 95% of a State population will gain much more from a restrictive approach to proselytism than one which is practised by 1%. The failure of the Court to stress the interests of the target individual in being allowed exposure to proselytism, and to recognise the extent to which a formally neutral law may discriminate between religions, are serious flaws in the judgment. In fairness to the Court, however, it must be stressed that the paradigm adopted was principally used in order to discuss improper techniques of proselytism, where the predator/prey analogy may have some limited merit, and these flaws are perhaps less critical.

The next theme to consider is whether the State has a duty to protect the individual from improper proselytism of the kind envisaged by the Court.

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A State Duty to Prevent Improper Proselytism.

The principal justification for restricting improper proselytism was that it constituted an infringement of the rights of the target (see the majority at 419 and 421, Judge Pettiti at 426 and 427, Judge Martens at 438). This raises the question whether, if the State does not restrict such proselytism, it is in violation of the Convention for failing to adequately protect the target's rights (cf Young v United Kingdom (1979) 3 EHRR 20 (Cm); Nedjati 1978 at 12-13).

Judge Martens puts forward an interesting argument. Although generally sceptical of the extent to which belief can be compelled, he notes:

that there probably are methods of spiritual coercion akin to brainwashing which arguably fall within the ambit of Article 3 of the Convention, and should therefore be prohibited by making their use an offence under ordinary criminal law. (at 438)

Judge Pettiti also agrees there are circumstances in which:

Article 9 must protect individuals against the abuses of certain sects ... it is up to the individual states to legislate on this point ... to remedy the excesses leading to attempts to 'brainwash'. (at 427)

There is some support for Judge Pettiti's view of Article 3 (see Nedjati 1978 at p 173), but we do not need to look to a different article to find this positive duty. The restriction on proselytism is justified with regard to the rights and interests of others: the restriction on one individual's religious freedom is in order to protect another's.

It would seem to follow that this protection of religious freedom by the State could be capable of forming a right under the Convention. In the context of the case this did not arise - the applicant was not found to have used techniques capable of damaging his target's religious freedom, and such techniques would certainly have been prohibited under Greek law. But there are wider implications. Judge Martens apart, the whole Court accept the existence of 'brainwashing', or in some other way unacceptable, techniques used by religious or quasi-religious organisations in order to gain or retain adherents (see the majority at 422, Judge Pettiti at 426, Judge Valticos at 427, Judges Foighel and Loizou at 439- 440).

It would seem to follow from the above discussion that an individual who had lawfully been exposed to such techniques, and suffered harm as a result, could claim that the member State had failed to provide laws to protect him from such abuse. Although the sect in question would not be a party to such a claim, determination of the claim would require the court to determine whether or not such techniques had been used against the target by the sect. With other European bodies expressing serious concern over the activities of some new faiths, the opportunity to determine such issues in court might prove a valuable one (see Council of Europe Parliamentary Assembly 1991).

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Specific Restriction of Religious Conversion.

Even if a State is under a duty to protect the individual from some improper methods of persuasion, it is open to question whether a specific offence of religious proselytism is an acceptable way of satisfying that duty. The majority of the Court, supported by Judges Valticos, Foighel and Loizou, found nothing objectionable about a specific proselytism law - it provided special protection for a special interest. Judges Pettiti and Martens both disagreed, finding a specific law aimed at religious proselytism to be an inappropriate way of dealing with any problems caused by improper conversion methods (see Judge Pettiti at 426, Judge Martens at 438).

A number of strong grounds support the dissenting view in this case. Firstly, and a point missed by the majority of the Court, the protection of Article 9 is not limited to religious beliefs, but includes other beliefs fundamental to personal development (see Arrowsmith v UK (1978) 3 EHRR 218 (Cm); Faclini v Switzerland (1993) 16 EHRR CD13 (Cm); H v UK (1993) 16 EHRR CD44 (Cm)). A law specifically aimed at religious proselytism would not appear to extend to those other beliefs and, unless there is a good ground for the distinction, might fall foul of Article 14 and Article 9 read in conjunction. Secondly, if discussion for the purposes of religious conversion is ever justifiable, then restrictions on Article 9 must be based on the methods employed, rather than the religious nature of the discussion. By creating a special offence requiring, in part, the discussion to be of a religious nature, an irrational feature, unconnected with the justification for the offence, is introduced. This irrational feature constitutes a form of special stigmatism, aimed only at religious debate, which seems bad in principle. Finally, a specific offence of proselytism may be open to abuse, as it focuses attention on the religious nature of the debate, rather than the coercive methods of the techniques.

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Conclusions

As of November 1991 Greece was the only Convention party to restrict specifically proselytism in some circumstances, and was one of only eleven countries across the world to do so (Humana 1992). Kokkinakis v Greece provided limited endorsement of this law, although the specific application of it in the applicant's case was found to be a violation of the Convention. In reaching this finding, a majority of the Court endorsed the propriety of restricting some forms of religious proselytism, and may have laid the foundations for a duty upon other Convention parties to ensure such restrictions exist in their jurisdiction. There is no requirement for a particular form of law to satisfy Convention obligations, however, and there are strong arguments for a form of law which is not specifically aimed at religious discussion, but rather at the techniques characterised as improper by the Court. Nonetheless, on the specific issue of proselytism, and recruitment to religious groups, the importance of Kokkinakis is clear, although it might have been strengthened by a clearer discussion of the facts of the application.

But, as well as being the first Court case concerned with proselytism, Kokkinakis was the first significant case on Article 9 to reach the Court. It is disappointing, therefore, that the Court, perhaps deliberately, took such a superficial approach to a number of key issues. In particular, the relative failure to discuss the underpinning justifications for freedom of religion, problematic in itself, may have led the courts to endorse too heavily the predator paradigm, by ignoring the value of conversion opportunities to the proselytiser's target. The Court also failed to consider how far its analysis was inherently conservative, and therefore indirectly discriminated against small religions relying upon adult converts, rather than traditional adherents, to expand. The Court also passed over the opportunity to approve or disapprove the developing jurisprudence of the Commission on this Article.

There is a final disquieting theme in the Opinions of the majority of the Court, which is significant even beyond Article 9. The views of individual autonomy taken open up a dangerously paternalistic view, by which the Court, and thus the State, take upon themselves the ability to decide when individuals are incapable of making fundamental decisions, such as those concerning religion, autonomously. It is to be hoped that the future jurisprudence of the Court will make it clear that this authority is to be used very sparingly.

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Bibliography.

Bradney, A (1993), Religions, Rights and Laws (Leicester: Leicester UP).

Conkle, D (1988) "Toward A General Theory of the Establishment Clause" 82 Northwestern University Law Review 113.

Council of Europe Parliamentary Assembly (1991) Report on Sects and New Religious Movements, 29 November 1991.

"Human Rights in 1993" [1994] 3 Juridical Review 328, at 351-2.

Humana, C (1992) World Human Rights Guide (Oxford: Oxford University Press).

M'Connell, M (1993), "'God is dead and we have killed him': Freedom of Religion in the Post-modern Age" 1 Brigham Young ULR 163.

Marshall, W (1994),"Truth and the Religion Clauses" 43 DePaul L Rev 243.

Nedjati, Z (1978) Human Rights Under the European Convention (Amsterdam: North Holland Publishing Company).

Richards, D (1994) "Sexual Preference as a Suspect (Religious) Classification: An Alternative Perspective on the Unconstitutionality of Anti-Lesbian/Gay Initiatives" 55 Oh St L J 491.

Robertson, A and Merrill, J (1993) Human Rights in Europe (Manchester: Manchester University Press).

Watchtower (1993) "European High Court Upholds Right to Preach in Greece" Watchtower 1 September.

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