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Freedom of religion

Freedom of religion. The Kokkinakis case. Article 9ECHR &1.

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Freedom of religion

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  1. Freedom of religion The Kokkinakis case

  2. Article 9ECHR&1 • "1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

  3. Article 9ECHR&2 • 2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society 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."

  4. The facts • Mr Minos Kokkinakis, a retired businessman of Greek nationality • After becoming a Jehovah's Witness in 1936, he was arrested more than sixty times for proselytism. • He was also interned and imprisoned on several occasions. • On 2 March 1986 he and his wife called at the home of Mrs Kyriakaki in Sitia and engaged in a discussion with her.

  5. The wife of a cantor • Mrs Kyriakaki's husband, who was the cantor at a local Orthodox church, informed the police, • The police arrested Mr and Mrs Kokkinakis and took them to the local police station

  6. The Greek Constitution art.13 • 1. Freedom of conscience in religious matters is inviolable. The enjoyment of personal and political rights shall not depend on an individual's religious beliefs. • 2. There shall be freedom to practise any known religion; individuals shall be free to perform their rites of worship without hindrance and under the protection of the law. The performance of rites of worship must not prejudice public order or public morals. Proselytism is prohibited.

  7. Art. 3dominant religion • The dominant religion in Greece is that of the Christian Eastern Orthodox Church.

  8. Procelytismgreek definition • 'proselytism' - 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. • The commission of such an offence in a school or other educational establishment or a philanthropic institution constitute a particularly aggravating circumstance.

  9. Freedom of conscience theory • freedom of thought, conscience and religion is one of the foundations of a "democratic society" within the meaning of the Convention. • It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. • The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.

  10. Freedom to "manifest [one's] religion". • religious freedom is primarily a matter of individual conscience • it also implies freedom to "manifest [one's] religion". Bearing witness in words and deeds is bound up with the existence of religious convictions.

  11. Freedom to convince others? • freedom to manifest one's religion is not only exercisable in community with others, "in public" and within the circle of those whose faith one shares, but can also be asserted "alone" and "in private” • it includes in principle the right to try to convince one's neighbour, for example through "teaching" • failing which, moreover, "freedom to change [one's] religion or belief", enshrined in Article 9 (art. 9), would be likely to remain a dead letter.

  12. Bearing Christian witness - improper proselytism • Distinction has to be made between bearing Christian witness and improper proselytism. • The Greek courts established the applicant's liability by merely reproducing the wording of the law and did not sufficiently specify in what way the accused had attempted to convince his neighbour by improper means.

  13. Proportionality • It has not been shown that the applicant's conviction was justified in the circumstances of the case by a pressing social need. • The contested measure therefore does not appear to have been proportionate to the legitimate aim pursued or, consequently, "necessary in a democratic society ... for the protection of the rights and freedoms of others".

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