JOINT DISSENTING OPINION OF JUDGES FOIGHEL AND LOIZOU

We regret that we are unable to agree with the opinion of the majority of the Court as we take a different approach to the issues raised in this case. Article 9 para. 1 (art. 9-1) guarantees to everyone the right to freedom of thought, conscience and religion; this right includes freedom to change one ’ s religion or belief and freedom, either alone or in community with others and in public or private, to manifest one ’ s religion or belief, in worship, teaching, practice and observance. We are concerned here with the freedom one has to teach one ’ s own religion.

The relevant Greek law making proselytism a criminal offence reads as follows:

"By ‘ proselytism ’ is meant, in particular, any direct or indirect attempt to intrude on the religious beliefs of a person of a different religious persuasion, with the aim of undermining those beliefs, either by any kind of inducement or promise of an inducement or moral support or material assistance, or by fraudulent means or by taking advantage of his inexperience, trust, need, low intellect or naïvety."

This definition of the offence of "proselytism" cannot, in our view, be considered to constitute a violation of Article 9 para. 1 (art. 9-1). It is only when it takes this kind of intrusive form as opposed to genuine, open and straightforward teaching of a religion that it is a criminal offence.

The term "teach" entails openness and uprightness and the avoidance of the use of devious or improper means or false pretexts as in this case in order to gain access to a person ’ s home and, once there, by abusing the courtesy and hospitality extended, take advantage of the ignorance or inexperience in theological doctrine of someone who has no specialist training and try to get that person to change his or her religion.

This is all the more so as the term "teach" has to be read in the context of the whole Article (art. 9) and in conjunction with the limitations prescribed by paragraph 2 (art. 9-2), in particular that of the protection of the rights and freedoms of others, which no doubt includes a duty imposed on those who are engaged in teaching their religion to respect that of others. Religious tolerance implies respect for the religious beliefs of others.

One cannot be deemed to show respect for the rights and freedoms of others if one employs means that are intended to entrap someone and dominate his mind in order to convert him. This is impermissible in the civilised societies of the Contracting States. The persistent efforts of some fanatics to convert others to their own beliefs by using unacceptable psychological techniques on people, which amount in effect to coercion, cannot in our view come within the ambit of the natural meaning of the term "teach" to be found in paragraph 1 of this Article (art. 9-1).

For the above reasons we find in the circumstances of this case that there has been no breach of Article 9 (art. 9).

[*]  The case is numbered 3/1992/348/421.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[*]   As amended by Article 11 of Protocol No. 8 (P8-11), which came into force on 1 January 1990 .

[*]  Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 260-A of Series A of the Publications of the Court), but a copy of the Commission's report is available from the registry.

[*]  Le Petit Robert, vol. 1, 1992 édition, p. 1552.

[*]   Paragraph 49 of the judgment; paragraphs 71 and 73 of the Commission's report.

[*]    Paragraphs 9 and 10 of the judgment; paragraphs 22-25 of the Commission's report.

[*]     Paragraph 7 of the judgment; paragraph 21 of the Commission's report.

[*]  Note by the Registrar: Hoffmann v. Austria judgment of 23 June 1993 , Series A no. 255-C.