Proselytism, Conversion and the Freedom to Change Religion
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A Critical Analysis
This dissertation seeks to critique the extent to which Article 9 of the ECHR upholds an individual's “freedom to change his religion and belief”. It is respectfully submitted that the landmark decisions of the European court have provided inconsistent guidance with respect to the issues surrounding proselytism, conversion and the freedom to change one's religion; consequently, this will have significant implications on interreligious dialogue and the protections on the rights of adherents of new religious movements, minority religions, and religious converts. This paper proposes that the ECtHR jurisprudence ought to consider the theoretical perspectives advanced by Stahnke, Danchin, and Taylor to strengthen the protections of one's freedom to change their religion, underscoring that a careful consideration of these theoretical approaches may provide a positive contribution to protecting the freedom of religion more generally.
Chapter 1: Issues surrounding proselytism, conversion and the Freedom of Religion
Stahnke highlights that the development of international principles governing the issues surrounding proselytism ‘is no easy task', especially in consideration of the varied state approaches to proselytism. After reflecting upon the Strasbourg jurisprudence in relation to the complicated issues arising from cases relating to proselytism, an individual's right to change his or her religion, and the freedom of religion espoused by Article 9, this paper asserts that Stahnke's statement is not only true in the global context, but is particularly acute in the European context as well. In this connection, it is evident that that the issues relating to proselytism pose pragmatic difficulties for jurists because it requires them to adjudicate between competing and conflicting rights claims. As Malcolm Evans highlights, “how can the fundamental right of one individual to the freedom of thought, conscience and religion be reconciled with the fundamental right to another to the same freedom, when the very possession of those beliefs might require a believer to present his views to others?” In other words, the court has to determine, as Witte has concisely stated, “Whose rites get rights?”
This paper begins its analysis by suggesting that the protections of an individual's right to change his or her religion as well as its corresponding links with proselytism is further complicated by the theoretical disagreements concerning the legal definitions of religion, and the freedom of religion. For example, Carolyn Evans notes that even if a collection of states agree to be bound by an international agreement adhering to a general principle protecting the freedom of religion, it is possible that the states' conceptual understanding over the rights and values at stake may differ significantly. She further contends that the subsequent interpretations of Article 9 in the European court mirror the aforementioned problem. Similarly, the complexity of human rights issues relating to religion contribute to the challenges of formulating an overarching framework of adjudication since religion is inextricably linked with nationalistic and political participation, particular family histories and cultures, spiritual and philosophical sentiments, and differing conceptions of morality.
1.2: Religion and the difficulties of definition
According to Gunn, a judge sitting on the European Court and their particularly personal definitions of ‘religion' plays a considerable role in shaping that judge's interpretations of Article 9 under the European Convention and how cases ought to be decided. For example, judicial conceptions of religion may have significant practical implications on applicants seeking to determine whether or not a new religious movement or minority religion receives tax exemption status, or whether a persecuted religious asylum seeker is able to claim refugee status. As we will soon discover, a judge's conception of religion is likely to influence his/her decisions in cases involving proselytism and conversion. However, this is complicated by the fact that the actual definition of religion under Article 9 does not exist since the issues of definition have been fraught with controversy since the drafting of the United Nations International Instruments, on which Article 9 is based.
Gunn astutely observes that there are underlying methodological difficulties concerning the natural definition of religion which necessarily involve assumptions concerning the nature of a religion—i.e., religion's metaphysical nature and/or theological conceptions of religion, the psychological experience of adherents, and the socio-cultural impact of religion—and whether or not there are features that all religions share in common—i.e., does a religion have to possess a theistic element, or would a polytheistic, atheistic, or non-theistic conception of religion suffice? Carolyn Evans highlights that although the European Court and Commission have adopted a broad, generous and liberal approach to defining religion, it is important to note that the courts have ruled that a religion ought to attain a sufficient degree of “cogency, seriousness, cohesion, and importance” to justify protection under Article 9. Consequently, as Evan notes, vague conceptions of religion are beyond the scope of the protections under Article 9. However, she also suggests that although there may be a genuine sincerity of an applicant's beliefs, the requirement that an applicant's belief possess a level of sufficient coherence “has the potential to exclude some more individualistic and personal beliefs”.
In this connection, it has been argued that legal definitions must also consider a range of other factors such as (a) ‘protecting freedom of religion', or (b) ‘prohibiting discrimination of religion'—tasks that are difficult to adjudicate because of the range of different opinions as to what exactly constitutes the nature of religion, and what specific manifestations of religion warrant protection.
The jurisprudence surrounding freedom of religion cases under Article 9 appear to distinguish between the ‘private' boundaries of religion and its inextricable links to the ‘internal' adoption of a particular religious belief, with the ‘public' boundaries and its corresponding links to ‘external' manifestations of religious belief; these concepts are occasionally referred to as the forum internum and forum externum respectively. Evans highlights that the interpretation of Article 9 typically underscores the primacy of the forum internum—that is, “the private thought, conscience, and religion of the individual” and it is generally asserted that the state is prohibited from interfering with the forum internum. However, it is unclear as to where the line between the ‘private conscience' and ‘public expression', or forum internum and forum externum is to be drawn, especially considering that many religions do not necessarily define themselves in such dualistic terms. For example, in highlighting the theoretical uncertainty in relation to the scope of the forum internum, Sullivan argues “many religious doctrines or beliefs dictate standards of social conduct and responsibility, and require believers to act accordingly. For those who follow such precepts of social responsibility, the distinction between religious and political activities may be artificial”. Similarly, Gunn underscores the importance for judges to consider the multifaceted nature of religion in that it not only comprises an applicant's ‘belief', but also an applicant's ‘identity' and ‘way of life'. Thus, he argues that “the adjudicator should seek to understand the religious facets of such cases not from the perspective of a person who might attend religious services a few times a year, but from the perspective of those who have chosen to devote their lives fully to their religion as they understand it”. In other words, a prudential approach from the standpoint of an adjudicator would not merely reduce the definition of religion to the mere domain of the private sphere, but would take account of how an individual's private belief intersects and overlaps with his or her public manifestation of belief. Nowhere is the overlap between an individual's private belief and public manifestation of belief more evident than in the issues surrounding proselytism and conversion—a subject to which we now turn.
1.3: Linkages between, and issues surrounding, proselytism, conversion and the freedom of religion
Given that Article 9 aims not only to protect an applicant's private conceptions of religion, but also an individual's right to manifest his or her religion subject to certain limitations, Danchin and Stahnke similarly argue that because proclaiming and sharing one's faith is such an important and integral aspect of a host of world religions, it would be logically inconsistent if the attempt to convince another to adopt one's religious belief, experiences and faith was beyond the scope of protections under the freedom to manifest religion. Additionally, it has also been suggested that “in modern human rights law, the right to change one's religion, in the absence of coercion and as a result of free will is considered a recognised freedom”.
Stahnke observes that the issues surrounding proselytism and conversion involve competing rights between the ‘source'—that is, the proselytiser, the ‘target'—that is, the individual receiving the information, and the role that the state should play in balancing the conflicting and competing rights between ‘source' and ‘target'. Hence, it is evident that the multifaceted nature of proselytism and conversion present significant challenges for the jurist in reconciling competing claims to the freedom of religion under article 9. Witte concisely summarises the ‘modern problems of proselytism' by asking,
How does the state balance one's community right to exercise and expand its faith versus another person's or community right to be left alone to its own traditions? How does the state protect the juxtaposed rights claims of majority and minority religions or of foreign and indigenous religions? How does the state craft a general rule to govern multiple theological understandings of conversion or change of religion?
Although an analysis of the array of theological perspectives of conversion and the change of religion is beyond the scope of this study, this subject is worth mentioning in order to illuminate the challenges of protecting the freedom of an individual's right to change his or her religion. For example, Witte notes that most Western conceptions of Christianity “have easy conversion into and out of the faith”, whereas “most Jews have difficult conversion into and out of the faith”. However, traditional Islamic perspectives prohibit proselytism directed towards Muslims, but encourage Islamic proselytism towards nonbelievers. Although traditional Islamic perspectives on proselytism have significantly influenced state policies restricting proselytism, it is evident that the phenomenon of the pervasive role of religion and its influence on state practices is undoubtedly mirrored in the European context as illustrated by the facts in Kokkinakis v. Greece.
Chapter 2: Freedom to change religion: The seminal case: Kokkinakis
The decisive judgment concerning the protections of religious freedoms as well as the issues surrounding proselytism is illustrated in Kokkinakis v. Greece. Gunn notes that between 1955 and 1993, only 45 of 20,000 applications challenging Article 9 were published by the European Commission, and Kokkinakis was the first case to be considered under Article 9 where the court found a member state in violation of the provisions protecting the freedom of religion.
2.1 The facts
In 1936 at the age of 17, Mr. Kokkinakis converted from Greek Orthodoxy into the minority Jehovah's Witness religion and was arrested over 60 times, and imprisoned on several occasions for proselytism throughout the course of his life. After exhausting all domestic remedies, Mr. Kokkinakis applied to the European Commission on Human Rights in 1988, who unanimously declared that there had been a violation of Article 9. His case was then submitted to the European court. By a 6-3 majority, the court held that there had been a breach of Mr. Kokkanakis' freedom of religion under article 9.
2.2: The reasoning of the court
The court reasoned that the “freedom of thought, conscience and religion” is one of the hallmarks of a pluralistic democratic society—serving not only as a protection for ardent religious believers—but also for “atheists, agnostics, sceptics and the unconcerned”. In this connection, the court affirmed the right to manifest one's religion encompasses not only public and private expressions of belief, but also “includes in principle the right to try to convince one's neighbour”. Otherwise, the provision in Article 9 protecting the ‘freedom to change [one's] religion or belief' “would be likely to remain a dead letter”.
However, the court issued a caveat, acknowledging
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.
To sum up the court's ruling, under Article 9(1), sections 31-36 of the judgment highlight that the sentence imposed by the Greek government interfered with Mr. Kokkanakis's right to manifest his religion under Article 9. However, the court then sought to determine whether the restrictions imposed on Mr. Kokkanakis by the Greek government were permissible under Article 9(2) by referring to the three tests of whether the actions were ‘prescribed by law', had a ‘legitimate aim', and whether the actions were ‘necessary in a democratic society'. Firstly, in paragraphs 40-41, the court highlighted that the existence of domestic case law prohibiting proselytism fell within the meaning of ‘prescribed by law' within ‘Article 9(2) of the convention'.
Secondly, the courts sought to determine whether the government's ‘measure was in pursuit of a legitimate aim'. The courts affirmed the Greek government's arguments that it was obliged to protect “the peaceful enjoyment of the person freedoms of all those living on its territory”, and therefore, “the impugned measure was in pursuit of a legitimate aim under Article 9(2), namely the protection of the rights and freedoms of others”.
Finally, the court referred to the doctrine of the ‘margin of appreciation'—which permits States to “assess the existence and extent of the necessity of an interference...subject to European supervision”. To do this, the court distinguished between ‘proper' and ‘improper proselytism', highlighting that the former is a reflection of “true evangelism...and the responsibility of every Christian and every church” whereas the latter is a “corruption or deformation of it”. The court also noted that a coercive expression of proselytism could “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”. Thus, any coercive expression would be deemed incompatible with the provisions set out in Article 9(2). Consequently, the court held that the Greek government failed to demonstrate that Mr. Kokkinakis's proselytising activities were of a coercive nature. Furthermore, the Strasbourg Court highlighted that Mr. Kokkinakis's criminal conviction was unjustified on the grounds of a ‘pressing social' need; therefore, Court ruled in favour of Mr. Kokkinakis, citing the measures enacted by the Greek government failed to demonstrate that they were “proportionate to the legitimate aim pursued” or “necessary in a democratic society...for the protection of the rights and freedoms of others”.
2.3: The polarised responses of the judges
It is interesting to highlight the polarised responses between some of the judges, as it is clear that particular understandings of religion and proselytism played a decisive role in shaping the judicial opinion in Kokkinakis. On the one hand, it is apparent that Judge Marten's analysis prioritised the rights of the proselytiser, where he reasoned that
it is not within the province of the State to interfere in this ‘conflict' between proselytiser and proselytised. First, 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 a way that he deems best—there is no justification for the State to use its power ‘to protect' the proselytised...Secondly, because even the ‘public order' argument cannot justify 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.
Judge Martens further argues 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'. [secondly], the rising tide of religious intolerance makes it imperative to keep the State's powers in this field within the strictest possible boundaries.
In other words, states are under a strict duty to minimise interfering in an individual's freedom to manifest religion as much as possible. Conversely, on the opposite extreme, Judge Valtico gave primacy to the rights of the target by arguing that the recipient of a ‘conversion effort' has a right to a peaceful enjoyment of his or her religion, and therefore ought to be protected from unwanted attempts to changing his or her religion:
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 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 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 in 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.
We now turn to the criticisms of Kokkinakis and the subsequent case law and its relationship to proselytism, conversion and the Freedom of Religion.
Chapter 3: Criticisms and observations of the case law
3.1 Critique of Judge Martens & Judge Valtico
Naivety and prejudice in legal reasoning
As mentioned in the previous chapter, both judges' reasoning reflect extreme positions of adjudication. On the one hand, judge Martens—a judge aligning his perspective with the majority— upheld a strict position of minimal state interference into an individual's freedom to manifest his or her religion by appealing to a principle of ‘strict neutrality' whereas judge Valtico's dissenting judgement reflected a hostile view of the applicant's particular manifestation of religion. It is respectfully submitted that the reasoning of both judges illustrated naivety and prejudice respectively.
It has been argued Judge Marten's position merely reduced the issues surrounding proselytism to the competing rights claims of the personal, autonomous, and individualistic manifestation of the proselytiser with the rights claims of adherents of the majority religion and the majority's attendant conceptions of the ‘common good'. Whilst true that the court had to adjudicate between the competing rights claims of the adherent of a minority religion with the ‘collective good', it is submitted that judge Martens not only overlooked the competing and conflicting individual rights claims of the proselytiser's right to share his/her faith with the individual rights claims of the recipient of the attempted proselytism to peacefully enjoy and practice his/her freedom of religion, but also the competing and conflicting conceptions of the common good as well. Moreover, judge Martens also referred to the notion that the state is bound to ‘strict neutrality' with respect to ‘religious matters'; however, his contention begs the question of whether there is such a concept of ‘religious neutrality' in the first place?
3.1.2: Prejudice: Privileging majority over minority religions
Conversely, judge Valtico's position has been widely criticised on the grounds that it demonstrates a biased and prejudicial approach consequently privileging the rights of adherents of the established religion over the rights of adherents of minority religions. At one point, judge Valtico even suggested that proselytism amounts to “rape of the belief of others” but it is apparent that this perspective dismisses the centrality of proselytism to the beliefs of Jehovah's Witnesses and that such beliefs could potentially contribute to the common good.
Consequently, it is evident that judge Valtico's position demonstrates significant hostility towards the practices of minority religions such as the Jehovah's Witnesses as well as an individual's freedom of religion. By casting a minority religious group in such negative terms, an unsettling consequence nevertheless arises in that religious liberty becomes further threatened, and a public backlash towards such groups could potentially ensue. Moreover, this could have insidious and deleterious effects on interreligious dialogue between adherents of majority religious groups, with adherents of new, minority religious movements aiming to promote a heightened understanding of their novel religious practices, hopes of integrating into the broader socio-cultural milieu, and quest for legitimacy. Additionally, it is contended that judge Valtico's view is an affront to the hallmarks of human rights law and its corresponding commitments to non-discrimination and equality.
Perhaps judge Valtico's position reflects the deference of the European Court to the constitutions, practices and statutes of member states overtly privileging the position of established churches, whilst correspondingly neglecting the impact of such laws on adherents of minority religious groups. Interestingly, there is evidence to suggest that acts of proselytism conducted by adherents of the Greek Orthodox faith have not resulted in arrest, unlike the proselytising actions of religious minorities; consequently, an implicit value in judicial support of the Greek Government's actions is the notion that “the law is applied in Greece to allow prosecutorial decisions based on an individual's religious status, not his or her actions”. Furthermore, one of the pressing anxieties over the privileged position of the established churches in member states is that such protections create a ‘two-tiered system' of religious rights which will continue to afford major mainstream churches the full rights, privileges, and immunities that are associated with traditional parameters of religious freedom, while simultaneously denying minority religions and new religious movements both equal legal status for their organizations and equal protection for their adherents.
In doing so, this paper submits that the reasoning offered by the European Court potentially inhibits the protections of religious freedom more generally. Furthermore, this paper maintains that judge Valtico's perspective could have insidious and deleterious effects not only on the freedom of religion of religious minorities, but also the freedom of religion for adherents of dominant religious faiths as well. For example, some national legislators may claim to be enacting general or ‘neutrally applicable' laws, but the outcomes do not necessarily reflect this; rather, they serve as an indicia of a privileged majority restricting the expansion of specific religious minorities, especially in member states where powerful churches aligned with the state can wield formidable political pressure on governments. In this connection, perhaps we can surmise that if a hypothetical faction within a privileged religious group were to dissent from a religious majority powerfully aligned with the state, the faction could potentially encounter significant limitations to their religious freedom. Perhaps the astute observations of a revolutionary writing from prison in 1916 underscoring the importance of protecting the freedoms of minority groups would provide some insight to assist the court's adjudication: “Freedom only for supporters of the government, for members of the party—though they are quite numerous—is no freedom at all. Freedom always means freedom for the dissenters”.
Consequently, the Kokkinakis decision has been problematic because the judges seemed to have minimised and dismissed the complexity of the theoretical and substantive issues relating to justified state intervention in cases involving proselytism, and only found an ‘impermissible violation' of an individual's freedom of religion when the specific facts arose in the case, rather than attempting to develop broader principles surrounding proselytism when given the opportunity. We now turn to the critiques surrounding the courts adjudication regarding the limitations to religious freedom and permissible scope of state restrictions under article 9(2) of the ECHR.
3.2 Prescribed by law: Implications and the purpose of domestic legislation
Although the court accepted that the Greek government's restrictions on proselytism were prescribed by law and had a legitimate aim in Kokkinakis, the Court eventually held that the Greek government failed to demonstrate that the measures were ‘necessary' and ‘proportionate' in a democratic society.
However, a common criticism of the Kokkinakis decision is that the courts failed to develop substantive protections of the rights of religious minorities and unpopular religions to proselytise as well as the concomitant rights of individuals to change their religion. For example, Taylor highlights that the European court's failure to “impugn Greece's anti-proselytism law” consequently ignored both the purpose of the legislation and the reality that the domestic law was often consistently applied as an instrument of discrimination. Similarly, it is also worthwhile to note that the courts only adjudicated on the particular facts of the case rather than developing broader principles in relation to proselytism and the freedom to change one's religion. In this connection, by merely narrowing its focus on Mr. Kokkinakis' conviction, it is evident that the court failed to critique Greece's anti-proselytism measures—measures which have been used as an instrument of discrimination as evidenced by the frequency of incarceration rates of minority believers.
Not only was the bias against unpopular and minority religious groups evident in Kokkinakis, but the reality that the domestic law has been used in a discriminatory fashion has also been reflected in the subsequent case law. For example, in Larissis, a group of Greek Pentecostal air force officers were convicted of proselytising to several of their ‘subordinate fellow servicemen' as well as a number of civilians under Greek law. The European court held that the Greek authorities were justified in protecting the rights of the subordinate servicemen and therefore did not find a violation of Article 9 in that particular instance because of the likelihood that the lower ranking airmen could potentially be subjected to ‘improper pressure'; however, the European court found that the Greek government could not justify the convictions of the Pentecostal Air Force officers in relation to the attempts of proselytising the civilians since the civilians were not subject to the same constraints and pressures of the lower-ranking airmen, and therefore, in violation of Article 9. The court reasoned,
[The] hierarchical structures which are a feature of life in the armed forces may colour every aspect of the relations between military personnel, making it difficult for a subordinate to rebuff the approaches of an individual of superior rank or to withdraw from a conversation initiated by him. Thus, what would in the civilian world be seen as an innocuous exchange of ideas which the recipient is free to accept or reject, may, within the confines of military life, be viewed as a form of harassment or the application of undue pressure in abuse of power.
Whilst understandable that the State was justified to intervene in order to protect the rights of the lower-ranking airmen since ‘hierarchical structures' of military life could make “it difficult for a subordinate to rebuff the approaches of an individual of superior rank”, the court avoided considering the question of whether the Greek legislation prohibiting proselytism was in and of itself a violation of Article 9. In this connection, it is evident that the court's failure to address whether the Greek criminalisation of the proselytism law ought to be reformed or abolished appears to demonstrate the European court's tacit approval of systematic state justifications of laws discriminating and negatively impacting the rights of religious minorities and new religious movements seeking to attract converts. In doing so, it appears that the court instituted its own objective assessment of how the laws would discriminate against the rights of religious minorities to proselytise rather than adopting a perspective acknowledging the vantage point of the religious minorities themselves. In other words, the court appears to dismiss the subjective experiences of the religious minorities in question; consequently, the courts “have shown little regard for the plight of sincere, committed believers whose claims that States' actions interfere with their religion or belief are routinely dismissed by institutions prepared to substitute their judgment for the judgment of the believers”.
3.3 Legitimate Aim
The court noted that the ‘impugned measures' of the Greek government were “in pursuit of a legitimate aim under Article 9(2)” in protecting “the rights and freedoms of others”. However, one of the most unsettling features of the court's reasoning in Kokkinakis is its failure to further develop this conclusion. Under Article 9(2), state limitations to the manifestation of belief are only justified “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”, but one criticism levelled towards the approach in Kokkinakis is that “the Court effectively holds that a government satisfies its burden by offering any justification that can be tied, however remotely, to the ‘protection of the rights and freedoms of others'”. In other words, a government may sufficiently meet the ‘legitimate aim' requirement at its own discretion, irrespective of whether the government arrived at its conclusion in an arbitrary or capricious manner as long as the ‘protection of the rights and freedoms of others' outweigh the competing rights claims of religious minorities. Consequently, it is respectfully submitted that the failure to substantively elaborate on the boundaries of whether the state has a ‘legitimate aim' in restricting the manifestation of religion in relation to proselytism and concomitant protections of one's freedom to change his/her religion in Kokkinakis has had significant implications on the subsequent case law since the succeeding decisions ostensibly reflect an inconsistent approach to adjudication.
3.3.1: Otto-Preminger, Wingrove and Murphy
Although Otto-Preminger, Wingrove, and Murphy v. Ireland were ultimately decided on issues pertaining to Article 10, the court's reasoning is germane to the present discussion on the ‘legitimate aim' requirements relating to proselytism, conversion, and the freedom of religion more generally. The case of Otto-Preminger concerned the Austrian government's ‘seizure and forfeiture' of a satirical religious film due to be shown to the public deemed to be deriding the Eucharist and negatively portraying ‘God the Father, Christ and Mary Mother of God'. Under Austrian law, it was held that such a portrayal “came within the definition of the criminal offence of disparaging religious precepts” ‘under section 188 of the Penal code'. As a result, the non-profit applicant association argued that the ‘seizure and forfeiture' constituted a violation of Article 10. However, the Austrian government justified its actions on the grounds that it had a ‘legitimate aim' in protecting ‘the rights of others', “particularly the right to respect for one's religious feelings”, and “the prevention of disorder”. Upon referring to the Kokkinakis decision, the Strasbourg Court held the Austrian government's measure fell within the parameters of a ‘legitimate aim', opining that “the respect for the religious feelings of believers as guaranteed in Article 9 can legitimately be thought to have been violated by provocative portrayals of objects of religious veneration; and such portrayals can be regarded as malicious violation of the spirit of tolerance of the spirit of tolerance which must also be a feature of democratic society”. In attempting to adjudicate over the competing rights claims of those denying and affirming religious beliefs respectively, the court noted a constraint under Article 10, reasoning,
Those who choose to exercise the freedom to manifest their religion, irrespective of whether they do so as members of a religious majority or a minority, cannot reasonably expect to be exempt from all criticism. They must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith. However, the manner in which religious beliefs and doctrines are opposed or denied is a matter which may engage the responsibility of the State, notably its responsibility to ensure the peaceful enjoyment of the rights guaranteed under Article 9 to the holders of those beliefs and doctrines. Indeed, in extreme cases the effect of particular methods of opposing or denying religious beliefs can be such as to inhibit those who hold such beliefs from exercising their freedom to hold and express them.
The court further expressed that its primary role was concerned with “weighing up of the conflicting interests of the exercise of two fundamental freedoms guaranteed under the Convention, namely, the right of the applicant association to impart the public controversial views...and the right of other persons to proper respect for their freedom of thought, conscience and religion'”.  However, the Otto-Preminger decision has been criticised on several grounds.
Firstly, the court did not sufficiently distinguish between issues arising under Article 9 from issues arising under Article 10, especially since ‘proper respect' for religion is not a categorically enshrined right within Article 9. Rather, Article 9 encompasses “an absolute right to the freedom of thought, conscience and religion and it contains a qualified right to manifest a religion or belief”. Fortunately, the distinction between issues arising under Article 9 and 10 has been somewhat clarified in Wingrove where the British Board of Film Classification refused to classify a film for its blasphemous content in relation to the crucified Christ. In that decision, rather than equating ‘proper respect' for the sentiments of believers as a guaranteed right under Article 9, the court noted that the State was justified in protecting religious adherents from depictions of religion—in this case, Christianity—that are “calculated (that is, bound, not intended) to outrage those who have an understanding of, sympathy towards and support for the Christian story and ethic, because of the contemptuous, reviling, insulting, scurrilous or ludicrous tone, style and spirit in which the subject is presented”. In other words, the State is justified to intervene if a provocative religious portrayal is likely to trigger sentiments of hostility, outrage, and ‘indignation' among religious adherents.
3.4: The margin of appreciation
However, the second, most discomfiting consequence arising from the Otto-Preminger case is that the court abdicated from its supervisory role by conferring a wide discretion upon national authorities in determining the ‘margin of appreciation' to gauge “whether the applicant's conduct had in fact, accorded with the principle of respect”. The court noted, “As in the case of “morals” it is not possible to discern throughout Europe a uniform conception of the significance of religion in society; even within a single country such conceptions may vary”.
Consequently, one of the more noteworthy issues arising in Kokkinakis and the subsequent case law in relation to the State's ‘margin of appreciation' is that it is not entirely clear how the boundaries in relation to the protections conferred upon the ‘rights and freedoms of others' and the ‘respect for one's religious feelings' should actually be delineated. In other words, it is unclear as to “how far does the margin of the appreciation of the State extend in the case before it”, and “how far are applicants entitled to have their judgment of the content of their religious system, and the implications of this content taken into account”? This lack of clarity with respect to the ‘margin of appreciation' doctrine appears to be mirrored in two illustrations.
3.4.1: Inconsistency in the case law?
First, the more recent case of Murphy v. Ireland illustrates the conceptual confusion and further obfuscation of the Strasbourg jurisprudence concerning the overlapping issues between Articles 9 and 10 in which the court upheld the State's (Ireland) restriction of a radio advertisement promoting a screening of a film advancing an ‘apologetic' of the Christian faith on a locally independent commercial radio station. Murphy has been criticised on the grounds that the term ‘respect' as discussed in Otto-Preminger has been significantly exaggerated since the court failed to consider a less restrictive approach in addressing the issue of the wholesale restrictions and prohibitions of religious advertising. It appears that the material consideration justifying State intervention in Murphy seemed to hinge on “the manner in which religious beliefs and doctrines are opposed or denied”, but it is important to highlight that the prohibited religious advertisement neither opposed, nor denied the religious claims of other groups, apart from to the degree to which, as the Irish Government expressed, ‘the simple proclamation of the truth of one religion necessarily proclaims the untruth of another”. The court further acknowledged the government's position that “as such, even innocuous religious expression can lead to volatile and explosive reactions”.
It is respectfully submitted that the court failed to sufficiently consider, and distinguish, between the issues arising in Otto-Preminger, Wingrove, and Murphy. In Murphy, although the Irish Government even conceded to the fact that the prohibited “advertisement appeared innocuous and that it was to some extent simply informational”, it was “simply the religious nature of the advertisement that constituted sufficient justification for its restriction”. However, it is difficult to surmise how the Irish Government's depiction of the innocuous advertisement and subsequent restrictions of the advertisements in Murphy falls within the same category as the restrictions set out in Otto-Preminger and Wingrove respectively, since the ‘legitimate aim' requirement was carefully scrutinised in the latter two cases and the national aims were thus designed to safeguard religious adherents from being subjected to actions or behaviours prone to ‘arouse justified indignation', or at least designed to safeguard adherents from actions likely to evoke feelings of hostility and outrage. Conversely, the prohibited advertisement in Murphy does not appear to mirror an action or behaviour designed to ‘arouse justified indignation' towards ‘an object of religious veneration'. Whilst understandable that the government's restrictions on religious advertising was grounded in the notion of providing “a ‘level playing field' for all religions irrespective of their wealth, their dominance, their power, and their current popularity”, it is neither entirely clear how such a blanket prohibition of an ‘informational' and ‘innocuous' expression of religious advertising promotes the freedom of religion, the freedom to change one's religion, nor is it certain as to whether the protections of the rights of adherents of new religious movements, religious minorities and potential for interreligious dialogue are safeguarded more generally, especially since “the religious advertisement in Murphy could not in any meaningful sense be characterised as the opposition or denial of the religious beliefs of others”. In this connection, it is submitted that the restrictions set out in Murphy are not particularly conducive to fostering interreligious dialogue and its twin aims of both promoting a heightened understanding of religious perspectives that differ from one's own as well as combating religious stereotypes. Rather than legitimising a restriction on the grounds that even the innocuous ‘religious nature' of the advertisement could potentially lead to ‘volatile and explosive reactions', perhaps the European court could have inquired whether such a restriction would promote a heightened understanding between religious groups, enabling religious groups to “encourage fresh appreciations of...each other's texts, heritage and history, developing a framework for disagreement and producing a context for enquiry”.
3.4.2: Imprecision and lack of clear guidance
Secondly, this paper argues that in relation to the issues surrounding proselytism and the State's ‘margin of appreciation', it is evident that the court provided inconsistent guidance as to what the rights of others are, or ought to be, with respect to one's religious freedom, and that the definitions of proper and improper proselytism have been characterised by imprecision.
Although the court sought to distinguish between ‘proper' and ‘improper proselytism' in Kokkinakis, this paper argues that it is the uncertain scope of applying laws prohibiting proselytism and potential of unjustified State interference render the inherent right to the freedom of religion and the freedom to change one's religion somewhat illusory. This paper underscores that judge Martens was correct in highlighting his concerns over the ‘elusive notion' of ‘improper proselytism', and that judge Pettiti's concerns over the hazy adjudication of the majority of the court in reference to the Greek anti-proselytism measure is particularly instructive in his acknowledgement that it “leaves too much room for subsequent repressive interpretation on the part of the Greek courts”. Since “proselytism is linked to freedom of religion”, this paper maintains that the concerns over the imprecise and subjective application of anti-proselytism measures as well as the court's failure to substantively critique and consider the domestic measure itself are nevertheless warranted. Other concerns that have been mentioned throughout the literature criticising the Kokkinakis decision and its failure to adequately define ‘proper' and ‘improper proselytism' highlight the potential for the court legitimising measures designed to vilify or curtail proselytism; the criticisms also underscore that the court dismissed the ‘inherent conflict' between ‘exclusionary beliefs' and potential for vexatious or frivolous litigation between religious groups, and highlight that such legislation could possibly jeopardise public expressions of religious practice such as interreligious dialogue or debate, and street evangelism.
Additionally, the failure to further elaborate on the boundaries between proper and improper proselytism and the protections accorded to the proselytiser's legitimate manifestation of religion and the rights of the recipient of such information to “be free from injury or offense to his/her religious feelings” respectively illustrate the difficulties of adjudication presented to the courts, especially because of the ‘indeterminacy of harm' principle. The principle of the ‘indeterminacy of harm' refers to the notion that not only are there differing conceptions of ‘the common good' among divergent religious faiths, but there are also differing conceptions of what is harmful or injurious to one's religious faith as well. Perhaps at this juncture, it would be worthwhile to consider the various theoretical models in relation to the conflicting rights claims between the rights of ‘proselytisers' and ‘proselytisees' in order to guide future decisions of the court, and it is to this subject we now turn.
Chapter 4: Theoretical proposals/solutions
In an article concerning the rights of religious speech and proselytism in the workplace, Greenawalt suggests that although there ought to be restrictions placed upon proselytisers proclaiming their religious faith to unwilling listeners, the protections conferred upon willing and receptive ‘proselytisees' eager to receive such information and open to changing their religion ought to be substantively protected as well. However, Isaiah Berlin's penetrating critique of the challenges inherent in adjudicating between rival claims is particularly instructive especially where decision makers are confronted by an incompatible ‘clash of values', in which he suggests,
it is better to face this intellectually uncomfortable fact than to ignore it, or automatically attribute it to some deficiency on our part which could be eliminated by an increase in skill or knowledge; or, what is worse still, suppress one of the competing values altogether by pretending that it is identical with its rival—and so end by distorting both”.
We thus conclude our analysis by briefly considering three theoretical frameworks to assist the court's decision making with the hopes that such perspectives may provide a positive contribution to promoting the freedom of religion, and protecting the freedom to change one's religion more generally.
4.1: Framework for distinguishing proper and improper proselytism
As mentioned in chapter 1.3 in reference to Stahnke's analysis that the rival claims in cases involving proselytism touch and concern the rights of the ‘source', ‘target', and interests of the State respectively, Stahnke also provides a helpful, detailed framework to guide adjudicators who aim to distinguish between proper and improper proselytism.
In differentiating between ‘proper' and ‘improper' proselytism, Stahnke suggests that adjudicators ought to begin by contemplating the intersections between the ‘characteristics of the source', ‘characteristics of the target', ‘where the action takes place', and ‘the nature of the action'. In considering the ‘characteristics of the source' for example, a prudent approach would inquire whether the attributes of the ‘source' reflected a coercive nature, or ‘abuse of authority', and whether the ‘source' possesses an economic, physical or legal advantage the ‘target'. Such an assessment of ‘coercion' partially hinges “on the official position of the source and its relationship to the target”. For example, although the court did not consider the question of whether the Greek domestic legislation criminalising proselytism violated Article 9 in Larissis, the court's acknowledgment of the potentially coercive acts of proselytism of the higher-ranking airmen and recognition that the subordinate airmen would find it difficult to resist such acts of proselytism was nevertheless warranted.
In reference to addressing the ‘characteristics of the target', adjudicators ought to consider the ‘target's decision-making capacity', ‘vulnerability', and ‘susceptibility' and whether it becomes evident that such vulnerabilities impairing the target's decision-making capacity are exacerbated as a result of the target's interactions with the source. For example, heightened restrictions on proselytism may be justified if the ‘target's' decision-making capacities are inhibited as a result of a mental or physical incapacity, or financial or material disadvantage in relation to the source, whereas the State could adopt a more lenient approach if the objections to the proselytising activities hinge on socio-cultural grounds that do not necessarily limit the target's decision-making capacity. In this connection, it is important to highlight that ‘no religious tradition can remain' permanently insulated from interacting with other religions where proselytism is a hallmark of one's religious practice, and perhaps adjudicators also ought to consider the ways in which the State can further develop the social conditions which encourage interreligious dialogue, cooperation, and respectful discourse in a world where theological differences are the norm rather than the exception.
Thirdly, Stahnke, urges adjudicators to account for ‘where the action takes place', whereby less-restrictive measures ought to be adopted in cases where the target voluntarily attends the source's religious classroom or place of worship, but substantial restrictions ought to be placed upon the source if there is an unwarranted intrusion into the target's religious classroom or place of worship. However, in the scenario of ‘street-evangelism' or public ‘proselytism' in a public park or a public street, such acts of proselytism may be permitted (if in compliance with local nuisance laws) since the target is free to move to another location. Furthermore, public proselytism ought to be restricted from government buildings or public buildings not designated for ‘assembly and debate'.
Finally, Stahnke encourages adjudicators to consider the range of actions between an ‘innocuous exchange of ideas' and communication of one's religious beliefs on the one hand, and acts of proselytism resorting to violence in order to effect a conversion, on the other. It is important to note that ideas which ‘includes a denial of the truth of the beliefs of others or is otherwise critical of those beliefs” do not necessarily reflect a coercive act of proselytism, but this paper argues that this principle could have been further clarified in the decided judgments of European courts, especially in consideration of the lack of clarity, and imprecise application of the case law noted above.
4.2: Danchin's ethic of ‘value pluralism'
According to Danchin, issues surrounding proselytism, conversion, and the freedom to change one's religion not only touch and concern a ‘constellation' of rival individual rights claims as well as the interests of the state, but also, competing ‘communal' rights claims as well. In this connection, Danchin's theory of ‘value-pluralism' questions the cherished assumptions of liberalism's “exaltation of individual autonomy as the single, overarching meta-value” by arguing that individual rights claims cannot be understood apart from their socio-cultural, historical and communal contexts. Thus, it is submitted that future decisions of the ECtHR relating to proselytism, conversion and the freedom to change one's religion would benefit significantly by considering the theory of ‘value pluralism'. Value pluralism is defined as a theory “encouraging an ethos of cultivation and engagement by attempting to reach political settlements and forms of reconciliation between the claims, values, and practices of diverse religious and cultural communities, and the assertions of right and justice to which they continually give rise”. Consequently, the theory of value pluralism acknowledges the ‘incommensurability' of contesting values by underscoring the limits of liberal theories of adjudication and its corresponding failure to consider communal identities, collective values “and the historicity of understanding and meaning”. Since religion provides adherents with a comprehensive world view attempting to answer questions of purpose, meaning, morality, existence, the nature of evil, questions of life and death, as well as guidance on the public expression of religious belief, it is unclear as to whether liberal conceptions of individual rights adequately and sufficiently address collective constructs of religious identities. In other words, as Danchin notes that “(i) the fact that people worship in groups and communities; (ii) the fact that religious practice is an integral part of certain ways of social life and “cultures”; and (iii) the fact that religious freedom thus requires a communal atmosphere—call into question whether a purely individualistic approach is going to work without causing great violence to this [the communal] sphere of human existence”.
However, it is important to highlight that a value pluralist approach neither suggests “that all religiously motivated practices are equally deserving of accommodation or protection”. Rather, a value pluralist approach would strive to accommodate for reasonable disagreements, and correspondingly encourage dialogue and debate as to where the distinctions between the ‘common good' and varying conceptions of human flourishing ought to be delineated. Such an approach would have particular relevance to the competing individual and collective rights claims relating to proselytism and the freedom to change one's religion, since it aims to promote intra-religious understanding, as well as a means to articulate, critique and evaluate conflicting conceptions of the ‘common good'. Moreover, a value pluralism approach seeks to locate a secular, liberal philosophy of adjudication within its proper socio-historical context, critiquing the extent to which it is possible to adopt a secular and neutral approach to religion and religion's corresponding conception of the ‘common good'. Thus, it is argued that a ‘value pluralist' approach opens up new possibilities for dialogue, since it aims to foster and develop an “ethos of engagement in public life among a plurality of controversial theistic and non-theistic perspectives”.
4.3: Greater harmonisation with international instruments
We finally consider Taylor's suggestion that the ECtHR jurisprudence surrounding issues relating to proselytism and the freedom to change one's religion align more closely with the historic development of international instruments and universal standards. For example, citing the 1997 report on the Freedom of Religion, Taylor highlights that the Special Rapporteur essentially declared that the right to change religion is absolute, emphasizing that “religious freedom cannot be dissociated from the freedom to change religion” as the “right to change religion” is a “legally essential aspect of religious freedom”. Furthermore, although the right to change one's religion is a hallmark of both the international and European instruments, Taylor argues that “a reassertion of the absolute character of the right to change religion would be welcomed (should the European Court have the opportunity), particularly in the context of proselytism”.
In this connection, Drinan notes that although the imperfect approach of the ECtHR is promising with respect to resolving violations of religious liberty, he suggests that the harmonisation of the ECtHR's jurisprudence with international instruments could be accomplished to a greater degree via the creation and development of an international legal mechanism “to which persons victimized by religious zealots or by nations hostile to religion can appeal for justice”. Whilst this is a laudable aim, there is reason to suggest that such an approach has its limits. For example, Defeis questions the degree to which an international legal forum would encounter difficulties of enforcing compliance, especially since many judgments of the International Court of Justice have been flouted consequently calling into question its overall effectiveness; moreover, Defeis highlights that Member States generally acquiesce and comply with the judgments of the European Court and thus, an international mechanism could be counterproductive. Nevertheless, Taylor and Drinan's suggestions to further align the jurisprudence of the European Court with international instruments are warranted, but perhaps a more detailed consideration of these perspectives could be explored in a future study.
This dissertation suggested that the decisions relating to the freedom to change one's religion were not only complicated by the difficulties of defining religion, but the challenges of adjudication were further compounded by assessing the competing rights claims of both individuals and communities. Several noteworthy points were unveiled throughout the analysis.
Firstly, one of the trenchant criticisms over the court's adjudication throughout the cases revealed that the court seems to have reduced the relevant issues to the domain of individual rights without considering the importance of conflicting communal rights. This analysis also briefly questioned whether the concept of ‘religious neutrality' actually exists, and the limitations of referring to the concept of ‘religious neutrality' in adjudication. Furthermore, this paper noted that there was an implicit privileging of ‘majority' religions over religious minorities and new religious movements. It was suggested that the implicit hierarchy of religions could have negative consequences on religious minorities, new religious movements and interreligious dialogue.
Reference was also made to the European Court's “failure to develop broader principles” relating to improper and proper proselytism as well as its failure to substantively critique the point, purpose and value of the relevant domestic prohibitions governing proselytism. Additionally, this paper also argued that the subsequent case law arising from Kokkinakis was inconsistently decided. Finally however, this paper suggested relevant theoretical approaches to guide future decisions of the court with the aims of potentially strengthening the freedom to change one's religion and freedom of religion more generally.
Given the intractable difficulties of adjudicating between the competing rights claims in relation to proselytism, this paper has also underscored the importance of interreligious dialogue. In this connection, Witte's remarks are instructive in his suggestion that “the preferred solution to the modern problem of proselytism is not so much further state restriction but further self-restraint on the part of local and foreign religious groups... [a prudent approach] would include: knowing the history, culture, and language of the proselytisee...dealing honestly and respectfully with theological and liturgical differences”, and “respecting and advocating the religious rights of all peoples”. Perhaps member states should positively and collectively encourage such an enterprise.
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