Proselytism, Conversion and the Freedom to Change Religion
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Published: Fri, 23 Feb 2018
A Critical Analysis
This dissertation seeks to critique the extent to which Article 9 of the ECHR upholds an individual’s âfreedom to change his religion and beliefâ. 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 âis 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, âhow 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?â In other words, the court has to determine, as Witte has concisely stated, âWhose rites get rights?â
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 âreligion’ 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 religionâi.e., religion’s metaphysical nature and/or theological conceptions of religion, the psychological experience of adherents, and the socio-cultural impact of religionâand whether or not there are features that all religions share in commonâi.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 âcogency, seriousness, cohesion, and importanceâ 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 âhas the potential to exclude some more individualistic and personal beliefsâ.
In this connection, it has been argued that legal definitions must also consider a range of other factors such as (a) âprotecting freedom of religion’, or (b) âprohibiting discrimination of religion’âtasks 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 âprivate’ boundaries of religion and its inextricable links to the âinternal’ adoption of a particular religious belief, with the âpublic’ boundaries and its corresponding links to âexternal’ 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 internumâthat is, âthe private thought, conscience, and religion of the individualâ 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 âprivate conscience’ and âpublic 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 âmany 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 artificialâ. Similarly, Gunn underscores the importance for judges to consider the multifaceted nature of religion in that it not only comprises an applicant’s âbelief’, but also an applicant’s âidentity’ and âway of life’. Thus, he argues that âthe 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 itâ. 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 conversionâa 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 âin 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 freedomâ.
Stahnke observes that the issues surrounding proselytism and conversion involve competing rights between the âsource’âthat is, the proselytiser, the âtarget’âthat is, the individual receiving the information, and the role that the state should play in balancing the conflicting and competing rights between âsource’ and âtarget’. 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 âmodern 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 âhave easy conversion into and out of the faithâ, whereas âmost Jews have difficult conversion into and out of the faithâ. 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 âfreedom of thought, conscience and religionâ is one of the hallmarks of a pluralistic democratic societyâserving not only as a protection for ardent religious believersâbut also for âatheists, agnostics, sceptics and the unconcernedâ. In this connection, the court affirmed the right to manifest one’s religion encompasses not only public and private expressions of belief, but also âincludes in principle the right to try to convince one’s neighbourâ. Otherwise, the provision in Article 9 protecting the âfreedom to change [one’s] religion or belief’ âwould be likely to remain a dead letterâ.
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 âprescribed by law’, had a âlegitimate aim’, and whether the actions were ânecessary 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 âprescribed by law’ within âArticle 9(2) of the convention’.
Secondly, the courts sought to determine whether the government’s âmeasure was in pursuit of a legitimate aim’. The courts affirmed the Greek government’s arguments that it was obliged to protect âthe peaceful enjoyment of the person freedoms of all those living on its territoryâ, and therefore, âthe impugned measure was in pursuit of a legitimate aim under Article 9(2), namely the protection of the rights and freedoms of othersâ.
Finally, the court referred to the doctrine of the âmargin of appreciation’âwhich permits States to âassess the existence and extent of the necessity of an interference…subject to European supervisionâ. To do this, the court distinguished between âproper’ and âimproper proselytism’, highlighting that the former is a reflection of âtrue evangelism…and the responsibility of every Christian and every churchâ whereas the latter is a âcorruption or deformation of itâ. The court also noted that a coercive expression of proselytism could âtake 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 brainwashingâ. 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 âpressing social’ need; therefore, Court ruled in favour of Mr. Kokkinakis, citing the measures enacted by the Greek government failed to demonstrate that they were âproportionate to the legitimate aim pursuedâ or ânecessary in a democratic society…for the protection of the rights and freedoms of othersâ.
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 âconflict’ between proselytiser and proselytised. First, becauseâsince 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 bestâthere is no justification for the State to use its power âto protect’ the proselytised…Secondly, because even the âpublic order’ argument cannot justify use of coercive State power in a field where tolerance demands that âfree 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
âState, 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 âproper’ or âimproper’. [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 âconversion 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 Martensâa judge aligning his perspective with the majorityâ 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 âstrict 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 âcommon good’. Whilst true that the court had to adjudicate between the competing rights claims of the adherent of a minority religion with the âcollective 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 âstrict neutrality’ with respect to âreligious matters’; however, his contention begs the question of whether there is such a concept of âreligious 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 ârape of the belief of othersâ 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 âthe law is applied in Greece to allow prosecutorial decisions based on an individual’s religious status, not his or her actionsâ. Furthermore, one of the pressing anxieties over the privileged position of the established churches in member states is that such protections create a âtwo-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 âneutrally 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: âFreedom only for supporters of the government, for members of the partyâthough they are quite numerousâis no freedom at all. Freedom always means freedom for the dissentersâ.
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 âimpermissible 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 ânecessary’ and âproportionate’ 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 âimpugn Greece’s anti-proselytism lawâ 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 measuresâmeasures 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 âsubordinate 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 âimproper 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 âhierarchical structures’ of military life could make âit difficult for a subordinate to rebuff the approaches of an individual of superior rankâ, 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 âhave 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 believersâ.
3.3 Legitimate Aim
The court noted that the âimpugned measures’ of the Greek government were âin pursuit of a legitimate aim under Article 9(2)â in protecting âthe rights and freedoms of othersâ. 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 âin the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of othersâ, but one criticism levelled towards the approach in Kokkinakis is that âthe Court effectively holds that a government satisfies its burden by offering any justification that can be tied, however remotely, to the âprotection of the rights and freedoms of others’â. In other words, a government may sufficiently meet the âlegitimate aim’ requirement at its own discretion, irrespective of whether the government arrived at its conclusion in an arbitrary or capricious manner as lo
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