PARTLY DISSENTING OPINION OF JUDGE MARTENS

INTRODUCTION

1. I concur with the Court that there has been a breach of Article 9 (art. 9), but for reasons other than those relied on by the Court. I moreover differ from the Court in that I consider that there has been a breach of Article 7 (art. 7) as well.

2. I likewise agree with the Court that the Article 9 (art. 9) issue is by far the more important one, and I would have welco med it if the Court had held - as, in my judgment, it could very well have done - that in view of its findings with respect to Article 9 (art. 9) it was not necessary to examine the applicant ’ s complaints under Article 7 (art. 7).

I would have preferred the Court to have chosen that course, since that would have enabled me to follow suit; whereas now, being unable to agree with the Court ’ s findings with respect to Article 7 (art. 7), I am bound to discuss whether that Article has been violated by the wording or the application of a criminal provision the very existence of which, in my opinion, violates Article 9 (art. 9).

However theoretical such an exercise may seem, it cannot be escaped. And since it may serve as an introduction to my discussion of the Article 9 (art. 9) issue, I will start with explaining my position with regard to Article 7 (art. 7).

3. Before doing so I would, however, point out that although both parties have - rightly - elevated the debate to the plane of important principle, it should not be forgotten that what occasioned this debate was a normal and perfectly inoffensive call by two elderly Jehovah ’ s Witnesses (the applicant was 77 at the time) trying to sell some of the sect ’ s booklets to a lady who, instead of closing the door, allowed the old couple entry, either because she was no match for their insistence or because she believed them to be bringing tidings from relatives on the mainland. There is no trace of violence or of anything that could properly be styled "coercion"; at the worst there was a trivial lie. If resort to criminal law was at all warranted, a prosecution for disturbance of domestic peace would seem the severest possible response.

HAS ARTICLE 7 (art. 7) BEEN VIOLATED?

4. In general I subscribe to what the Court says about Article 7 (art. 7) in the first part of paragraph 50 of its judgment, albeit that, unlike the Court, I think that the requirement that a legal definition of a crime be drafted as precisely as possible is not a consequence but part and parcel of the principle enshrined in Article 7 para. 1 (art. 7-1).

I am, furthermore, convinced that this requirement serves not only (as the Court suggests in the second part of paragraph 50) the aim of enabling the individual to know "what acts and omissions will make him liable", but is intended - in accordance with its historical origin - also and primarily to secure the individual adequate protection against arbitrary prosecution and conviction: Article 7 para. 1 (art. 7-1) demands that criminal law should be compatible with the rule of law.

5. The more I have thought about it, the less I have remained satisfied that section 4 of Law no. 1363/1938 defines the offence of proselytism with the degree of precision required by Article 7 (art. 7) thus understood.

The first - and, as regards protection against arbitrariness, the most suspect - imprecision lies in the words "in particular": those words virtually permit prosecution for acts that fall outside the definition given. Secondly, the punishable act (as defined) is not "intrusion on the religious beliefs" (whatever that may be), but "any direct or indirect attempt" at such intrusion, which not only considerably broadens the definition but also greatly enhances its essential vagueness. A final point to note is the dangerous ambiguity of the requirement "with the aim of undermining those beliefs": is it at all possible to distinguish between proclaiming one ’ s own faith to others and trying to convince those others that their tenets are "wrong"?

These deficiencies are such that, in an atmosphere of religious intolerance, section 4 of Law no. 1363/1938 provides a perfect and dangerous instrument for repressing heterodox minorities. The file suggests that in the past it has indeed been used for this purpose, whilst at present such use, to put it mildly, does not seem to be wholly excluded. This aspect is all the more serious as the present situation in the south-eastern part of Europe shows that the region is not at all immune to the rise of fierce religious intolerance which is sweeping over our modern world.

This is why I am not impressed by the argument that the above deficiencies of the text are "cured" by case-law, especially of the highest Greek courts. It may be, for instance, that since 1975 the Court of Cassation, reversing its former case-law, has eliminated the consequence of the words "in particular" and that the Supreme Administrative Court ’ s definition at least endeavours to take into account the above distinction between proclaiming one ’ s religion and trying to convince another of the shallowness of his own tenets. However, recent history has taught us that if the political or religious atmosphere in a country changes, the case-law of even the highest courts may change too. Such case-law cannot, therefore, supplement guarantees against arbitrariness which the text of the law does not provide.

6. As the Court points out, Article 7 para. 1 (art. 7-1) also enshrines the principle that criminal law should be restrictively interpreted. This principle fulfils the role of a secondary safeguard against arbitrariness. Accordingly, the broader and vaguer the text of the relevant provision, the more important this secondary safeguard. The more important also the supervision by the Convention institutions.

As the Commission has consistently stated, the Convention institutions are empowered under Article 7 para. 1 (art. 7-1) to verify whether, on the facts of the case, the national courts could reasonably have arrived at a conviction under the applicable rule of municipal law: the Convention bodies have to be satisfied that the conviction not only was based on a pre-existing (and sufficiently precisely worded) provision of criminal law but also was compatible with the principle of restrictive interpretation of criminal legislation. The greater the doubt of the Convention institutions as to whether the provision applied meets the requirement of precision, the stricter should be their supervision of its application.

7. In the present case the applicant complained of "what he claimed to be the wrongful application to him of section 4 of Law no. 1363/1938". One of the points in issue was whether the facts established against the applicant justified a conviction under that section (see paragraph 60 of the Commission ’ s report). It is true that this issue was addressed mainly in the context of Article 9 (art. 9), but, the Court being master of the legal characterisation to be given to the facts before it, there is room for scrutinising whether or not the Greek courts did respect the principle of restrictive interpretation of criminal legislation.

8. Let me say at once that upon examination of (the translations of) the full texts of the judgments of the Greek courts submitted by the parties, I have come to the conclusion that this question must be answered in the negative.

Before developing the three grounds on which my conclusion is mainly based, I cannot help noting one telling, but in the present context immaterial, feature of the file: although both the applicant and his wife have consistently denied the version of the facts given by Mrs Kyriakaki, his conviction was primarily, and without more, based on that version and consequently rests for all practical purposes on the testimony of one sole witness.

9. The first ground referred to above concerns the following.

Section 4 of Law no. 1363/1938 requires an intention to convert the victim to the perpetrator ’ s beliefs (as the word "proselytism" implies), or at least to undermine the victim ’ s beliefs. The applicant, however, denied having had that intention. He pointed out that his intention was merely to "witness", that is to proclaim the gospel as understood by his sect. There is, of course, a fundamental and in the present context crucial difference between, on the one hand, acquainting someone with an opinion or a belief and, on the other hand, trying to convince him of its truth. The Greek courts simply ignored this difference, not even troubling to state on what evidence they based their opinion - which is necessarily implied in their finding the applicant guilty of "proselytism" - that he intended to convince Mrs Kyriakaki of the rightness of his beliefs and of the wrongness of hers.

The inevitable conclusion must therefore be that the applicant ’ s conviction was based on the view that the mere proclaiming of religious beliefs differing from those of the person addressed implies intention to convert within the meaning of section 4. This is, however, clearly incompatible with the principle of restrictive interpretation of criminal legislation.

10. My second ground concerns a related point. The relevant judgments reveal that the Greek courts had no more than an extremely vague notion of what the applicant exactly had said to Mrs Kyriakaki.

From what both Mrs Kyriakaki and her eavesdropping husband testified before the magistrates at first instance it might be inferred that the applicant had somehow referred to the coming of the heavenly kingdom. On appeal, however, Mrs Kyriakaki could not remember whether this was mentioned and neither did her husband give any particulars about what he had overheard. The evidence included an equally vague reference to the paradise story and Mrs Kyriakaki ’ s testimony that "they talked to me about Christ".

One is forced to question how the Greek courts were able to conclude, as they did, that the applicant (intentionally) attempted to make Mrs Kyriakaki change her beliefs without establishing - at the very least - what exactly he had said to her and that what he had told her was incompatible with what she believed.

Here again I find that in juxtaposing the facts with the text of section 4 one cannot but conclude that the applicant ’ s conviction is incompatible with the principle of restrictive interpretation of criminal legislation.

11. My third and final ground corresponds to the criticism expressed by the anonymous dissenters in the Greek courts: the sole evidence for the applicant ’ s (intentionally) taking advantage of Mrs Kyriakaki ’ s "inexperience, her low intellect and her naïvety" (as the Crete Court of Appeal put it) was her testimony that she did not fully understand everything that the applicant read to her and told her. On appeal she even said in so many words: "They talked to me about things I did not understand very well."

This sufficed for the Greek courts to hold that the applicant had (intentionally) "abused" Mrs Kyriakaki ’ s "inexperience in doctrine" and "exploited" "her spiritual naïvety" (as the Court of Cassation put it). That can only mean that the applicant ’ s conviction was based on the view that the mere proclaiming of one ’ s faith to a heterodox person whose experience in religious matters or whose mental capacities are less than those of the proclaimer makes the latter guilty under section 4. Again one is forced to conclude that the manner in which the Greek courts applied section 4 was incompatible with the principle of restrictive interpretation of criminal legislation.

12. My conclusion is that section 4 of Law no. 1363/1938 is per se incompatible with Article 7 para. 1 (art. 7-1) of the Convention and that its application in the present case has given rise to a further violation of that Article.

HAS ARTICLE 9 (art. 9) BEEN VIOLATED?

13. The Court ’ s judgment touches only incidentally on the question which, in my opinion, is the crucial one in this case: does Article 9 (art. 9) allow member States to make it a criminal offence to attempt to induce somebody to change his religion? From what it said in paragraphs 40-42 and 46 it is clear that the Court answers this question in the affirmative. My answer is in the negative.

14. The basic principle in human rights is respect for human dignity and human freedom. Essential for that dignity and that freedom are the freedoms of thought, conscience and religion enshrined in Article 9 para. 1 (art. 9-1). Accordingly, they are absolute. The Convention leaves no room whatsoever for interference by the State.

These absolute freedoms explicitly include freedom to change one ’ s religion and beliefs. Whether or not somebody intends to change religion is no concern of the State ’ s and, consequently, neither in principle should it be the State ’ s concern if somebody attempts to induce another to change his religion.

15. There were good reasons for laying down in Article 9 (art. 9) that freedom of religion includes freedom to teach one ’ s religion: many religious faiths count teaching the faith amongst the principal duties of believers. Admittedly, such teaching may gradually shade off into proselytising. It is true, furthermore, that proselytising creates a possible "conflict" between two subjects of the right to freedom of religion: it sets the rights of those whose religious faith encourages or requires such activity against the rights of those targeted to maintain their beliefs.

In principle, however, it is not within the province of the State to interfere in this "conflict" between proselytiser and proselytised. Firstly, 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 the way that he deems best - there is no justification for the State to use its power "to protect" the proselytised (it may be otherwise in very special situations in which the State has a particular duty of care, but such situations fall outside the present issue). 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.

That is also true in a State where, as in the present case, one particular religion has a dominant position: as the drafting history of Article 9 (art. 9) confirms (see, for example, La Convention européenne des Droits de l ’ Homme , by J. Velu and R. Ergec , Bruylant , 1990, p. 581, para. 708), the fact of one religion having a special position under national law is immaterial to the State ’ s obligation under that Article.

To allow States to interfere in the "conflict" implied in proselytising by making proselytising a criminal offence would not only run counter to the strict neutrality which the State is required to maintain in this field but also create the danger of discrimination when there is one dominant religion. The latter point is tellingly illustrated by the file that was before the Court.

16. In this context the Court suggests that some forms of proselytism are "proper" while others are "improper" and therefore may be criminalised (paragraph 48).

Admittedly, the freedom to proselytise may be abused, but the crucial question is whether that justifies enacting a criminal-law provision generally making punishable what the State considers improper proselytism. There are at least two reasons for answering that question in the negative. The first is 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". The absence of such a touchstone cannot be made good (as the Court attempts to do) by resorting to the quasi-neutral test whether or not the proselytism in question is "compatible with respect for the freedom of thought, conscience and religion of others". This is because that very absence implies that the State is lacking intrinsic justification for attributing greater value to the freedom not to be proselytised than to the right to proselytise and, consequently, for introducing a criminal-law provision protecting the former at the cost of the latter. The second reason is that the rising tide of religious intolerance makes it imperative to keep the State ’ s powers in this field within the strictest possible boundaries. However, the Court achieves quite the reverse in attempting to settle those boundaries by means of so elusive a notion as "improper proselytism", a definition of which the Court does not even attempt to give.

17. Should the judgment be otherwise where proselytism is combined with "coercion"? I do not think so.

Coercion in the present context does not refer to conversion by coercion, for people who truly believe do not change their beliefs as a result of coercion; what we are really contemplating is coercion in order to make somebody join a denomination and its counterpart, coercion to prevent somebody from leaving a denomination. Even in such a case of "coercion for religious purposes" it is in principle for those concerned to help themselves. Accordingly, if there is to be a legal remedy, it should be a civil-law remedy. The strict neutrality which the State is bound to observe in religious matters excludes interference in this conflict by means of criminal law. Unless, of course, the coercion, apart from its purpose, constitutes an ordinary crime, such as physical assault. In such cases the State may, of course, prosecute under the applicable provision of (ordinary) criminal law and a defence based on freedom to proselytise may properly be rejected if that freedom is clearly abused. There is, however, no justification for making coercion in religious matters a criminal offence per se.

18. Is there no such justification even for making proselytism practised by means of serious forms of spiritual coercion a criminal offence? Cannot such justification be found in the methods of conversion used by some of the numerous new sects which have emerged these last decades, methods which are often said to be akin to brainwashing? Should not the State be entitled to protect its citizens - and especially its minors - against such methods?

Even if the use of such objectionable methods of proselytising had been established, I would have hesitated to answer this question in the affirmative, since it is evidently difficult to establish where spiritual means of conversion cross the borderline between insistent and intensive teaching, which should be allowed, and spiritual coercion akin to brainwashing. I am not satisfied, however, that the existence of such offensive methods has been established. In 1984 the author of a study on these new sects, made at the request of the Netherlands Parliament, concluded after extensive research that, as far as the Netherlands were concerned, there was no such evidence. The author stressed that everywhere the new sects had provoked violent reactions including persistent allegations about such methods, but that Governments had up till then declined to take measures.

I would add that there probably are methods of spiritual coercion akin to brainwashing which arguably fall within the ambit of Article 3 (art. 3) of the Convention and should therefore be prohibited by making their use an offence under ordinary criminal law. But in this context also I would stress that there is no justification for making a special provision in the law for cases where such methods are used for the purpose of proselytising.

19. To summarise: even if the Government ’ s thesis that section 4 of Law no. 1363/1938 is intended to prevent conversions being made by coercion were compatible with the wording of that provision (which it is not), that justification would fail.

20. For these reasons I find that Greece, which, as far as I have been able to ascertain, is the only member State to have made proselytism a criminal offence per se, in so doing has violated Article 9 (art. 9) of the Convention.