PARTLY CONCURRING OPINION OF JUDGE PETTITI

(Translation)

I was in the majority which voted that there had been a breach of Article 9 (art. 9) but I considered that the reasoning given in the judgment could usefully have been expanded.

Furthermore, I parted company with the majority in that I also took the view that the current criminal legislation in Greece on proselytism was in itself contrary to Article 9 (art. 9).

The Kokkinakis case is of particular importance. It is the first real case concerning freedom of religion to have come before the European Court since it was set up and it has come up for decision at a time when the United Nations and Unesco are preparing a World Year for Tolerance, which is to give further effect to the 1981 United Nations Declaration against all forms of intolerance, which was adopted after twenty years of negotiations.

In the first place, I take the view that what contravenes Article 9 (art. 9) is the Law. I agree with acknowledging its foreseeability. But the definition is such as to make it possible at any moment to punish the slightest attempt by anyone to convince a person he is addressing.

The reasoning adopted by the majority with the intention of confining themselves to the particular case is tantamount to supervising the national court in respect of the degree of severity of the sentence passed, whereas what is in issue is the very principle of the punishment and it is not the European Court ’ s function to rule on the degree of severity of sentences in domestic law. The Court must abide by its decisions in the cases of Dudgeon v. the United Kingdom (judgment of 22 October 1981, Series A no. 45, pp. 18-19, para. 41) and Norris v. Ireland (judgment of 26 October 1988, Series A no. 142, p. 16, para. 33): the mere threat of applying a provision, even one that has fallen into disuse, is sufficient to constitute a breach.

The expression "proselytism that is not respectable", which is a criterion used by the Greek courts when applying the Law, is sufficient for the enactment and the case-law applying it to be regarded as contrary to Article 9 (art. 9).

The Government themselves recognised that the applicant had been prosecuted because he had tried to influence the person he was talking to by taking advantage of her inexperience in matters of doctrine and by exploiting her low intellect. It was therefore not a question of protecting others against physical or psychological coercion but of giving the State the possibility of arrogating to itself the right to assess a person ’ s weakness in order to punish a proselytiser, an interference that could become dangerous if resorted to by an authoritarian State.

The vagueness of the charge and the lack of any clear definition of proselytism increase the misgivings to which the Greek Law gives rise. Even if it is accepted that the foreseeability of the law in Greece as it might apply to proselytes was sufficient, the fact remains that the haziness of the definition leaves too wide a margin of interpretation for determining criminal penalties.

It may be asked whether the very principle of applying a criminal statute to proselytism is compatible with Article 9 (art. 9) of the Convention.

Criminal policy could be implemented by means of the technique of creating specific criminal offences covering coercive acts and the activities of certain sects which truly attack human freedom and dignity. Minors can be protected by means of precise criminal provisions. The protection of adults can be achieved by fiscal and welfare legislation and by the ordinary law on misrepresentation, failure to assist persons in danger and intentional or negligent injury (even physical).

At all events, even if the principle is accepted, it should not lead to the retention of legislation that provides for vague criminal offences which leave it to the court ’ s subjective assessment whether a defendant is convicted or acquitted. In its judgment in the Lingens v. Austria case (8 July 1986, Series A no. 103) concerning freedom of expression the European Court noted its misgivings about the freedom left to the courts to assess the concept of truth.

Interpretation criteria in relation to proselytism that are as unverifiable as "respectable or not respectable" and "misplaced" cannot guarantee legal certainty.

Proselytism is linked to freedom of religion; a believer must be able to communicate his faith and his beliefs in the religious sphere as in the philosophical sphere. Freedom of religion and conscience is a fundamental right and this freedom must be able to be exercised for the benefit of all religions and not for the benefit of a single Church, even if this has traditionally been the established Church or "dominant religion".

Freedom of religion and conscience certainly entails accepting proselytism, even where it is "not respectable". Believers and agnostic philosophers have a right to expound their beliefs, to try to get other people to share them and even to try to convert those whom they are addressing.

The only limits on the exercise of this right are those dictated by respect for the rights of others where there is an attempt to coerce the person into consenting or to use manipulative techniques.

The other types of unacceptable behaviour - such as brainwashing, breaches of labour law, endangering of public health and incitement to immorality, which are found in the practices of certain pseudo-religious groups - must be punished in positive law as ordinary criminal offences. Proselytism cannot be forbidden under cover of punishing such activities.

Certainly proselytism must not be carried on by coercion or by unfair means that take advantage of minors or persons legally incapacitated under civil law, but such lapses can be alleviated by the ordinary civil and criminal law.

In the second place, even if the Court had not found a breach in respect of the statute, it could, in my opinion, have worded its decision differently by adding a few definitions so that the scope of the decision would be properly understood.

Commentators and the member States may regret that, on such a serious matter, on the eve of the United Nations World Year for Tolerance, and given the United Nations Declaration against religious intolerance, the Court has failed to make explicit its interpretation of proselytism in relation to freedom of religion under Article 9 (art. 9).

The reasoning could also have better reflected the fact that Article 9 (art. 9) applies also to non-religious philosophical beliefs and that the application of it must protect people from abuses by certain sects; but here it is for the States to legislate so that any deviation leading to attempts at brainwashing are regulated by the ordinary law. Non-criminal proselytism remains the main expression of freedom of religion. Attempting to make converts is not in itself an attack on the freedom and beliefs of others or an infringement of their rights.

The Government admitted that Law no. 1363/1938 had not been repealed after the adoption of the 1975 Constitution. They argued that several judgments of the Supreme Administrative Court had afforded religious freedom effective protection, but the fact remains that the courts can always apply the Law in the same way as it was applied in the Kokkinakis case. The Strasbourg institutions cannot, however, monitor compatibility with Article 9 (art. 9) on the basis of the degree of severity and the proportionality of the penalty.

Even without criticising the Greek courts ’ decision in itself, in respect of the content of the conversation and the verification of the evidence, one may note that in the decisions no dividing line is drawn, in terms of the law or the Constitution, between bearing witness, proclaiming one ’ s faith or religious persuasion, and coercion. The two dissenting judges in the Greek courts drew attention to the thinness of the reasons given for the decisions.

In his memorial in reply in the proceedings before the Commission, the applicant made two significant points:

"1. The formal proclamation of freedom of conscience in religious matters and its manifestations dates from after the prohibition of ‘ proselytism ’ in the various Constitutions. It was introduced in the Constitution of 3 June 1927 (Article 1 para. 1 (c)) and is included today among the ‘ personal and social ’ fundamental rights listed and, as in the Universal Declaration and the European Convention, specifically described as ‘ human rights ’ (Constitution of 9 June 1975, Articles 13 para. 1, 25 and 28. There is therefore an anomaly, if not a flagrant contradiction, in the actual text of the Constitution. While the decrees of 1938-39 issued under the dictatorship aggravated matters by making convictions and the purely verbal exercise of a religion a criminal offence - for which no provision has ever been made in criminal law (as already noted) -, there are cogent reasons for at last acknowledging that these provisions are incompatible with the letter and spirit of the Constitution in force: the exercise or harmless expression or even the suspicion of a sentiment which discloses a religious conviction - as in the Kokkinakis case - cannot amount to an offence! This is how the Constitution should have been applied by the legislature and the administrative and judicial authorities. And this, without any doubt, is above all how the European Convention must be obeyed, and applied by its own institutions.

2. The respondent Government point to certain judicial decisions which they claim show toleration of the existence and religious activities of believers other than those of the Orthodox Church and, in an isolated case which is ultimately of secondary importance, of an adherent of the religion professed by the applicant. It will be noted, firstly, that the existence of such judgments in itself demonstrates that there are intolerant administrative practices; secondly, that the cases in point and the solutions adopted under liberal-sounding recitals are not identified; and thirdly, that no decision has been cited which repudiates this parasitic criminal legislation that allows of sporadic but none the less virulent persecution of non-Orthodox Christians, since unfortunately no such decision has ever been given. All the decisions have recognised the validity and applicability of the 1938 decrees.

There is no question of embarking here on a discussion of the Constitutional merits of ‘ proselytism ’ in Greece as tendentiously defined in the emergency Laws of 1938/39, since the only issue arising before the European Convention institutions is whether the provisions of these enactments and the application made of them to the detriment of the applicant, until domestic remedies were exhausted, amount to breaches of the Convention for which the Greek Government are responsible."

The Greek Government relied on statements of principle supporting freedom of religion.

On this point the European Court ’ s reasoning does not seem to me to provide sufficient criteria for assessing the relationship between legislation on proselytism and Article 9 (art. 9).

Spiritual, religious and philosophical convictions belong to the private sphere of beliefs and call into play the right to express and manifest them. Setting up a system of criminal prosecution and punishment without safeguards is a perilous undertaking, and the authoritarian regimes which, while proclaiming freedom of religion in their Constitutions, have restricted it by means of criminal offences of parasitism, subversion or proselytism have given rise to abuses with which we are all too familiar.

The wording adopted by the majority of the Court in finding a breach, namely that the applicant ’ s conviction was not justified in the circumstances of the case, leaves too much room for a repressive interpretation by the Greek courts in the future, whereas public prosecution must likewise be monitored. In my view, it would have been possible to define impropriety, coercion and duress more clearly and to describe more satisfactorily, in the abstract, the full scope of religious freedom and bearing witness.

The forms of words used by the World Council of Churches, the Second Vatican Council, philosophers and sociologists when referring to coercion, abuse of one ’ s own rights which infringes the rights of others and the manipulation of people by methods which lead to a violation of conscience, all make it possible to define any permissible limits of proselytism. They can provide the member States with positive material for giving effect to the Court ’ s judgment in future and fully implementing the principle and standards of religious freedom under Article 9 (art. 9) of the European Convention.