I. THE CRIMINALIZATION OF PROSELYTISM*
The existence of every new, non-mainstream, or minority religious group depends on the ability to make its doctrines known and to proselytize new members. Only by persuading people to change their religious affiliation (or in case of atheists or agnostics, to adopt one for the first time) will a group be able to survive as a religious community. While minority religions may on occasion compete against each other for new adherents, for practical reasons, their main target group will be the membership of the majority religion, who may react by lobbying the legislature and the administration to impose restrictions on religious teaching by minorities. This is not only a contemporary phenomenon. Michael McConnell notes that in 18th century Virginia, the most intolerant of the colonies, the Church of England was the established church and the authorities blocked efforts by Presbyterians and Baptists to preach their faith. More recently, the prohibition of proselytism came before the European Court of Human Rights in Kokkinakis v. Greece.
Kokkinakis is a seminal case, not only in its discussion of the issues of religious teaching and proselytism, but also for its discussion of freedom of religion in general. In the first case ever decided under Article 9 of the European Convention on Human Rights, the Strasbourg judges had the chance to spell out, for the first time, the principles governing religious freedom in the Convention context.
The applicant was an elderly Jehovah’s Witness living in the island of Crete. One day he visited one of his neighbors, who was the wife of the cantor of the local Christian Orthodox church, and engaged in a discussion about God with her. After her husband called the police, the applicant was arrested and charged with the criminal offense of proselytism. The offense was defined in the relevant Greek law as “any 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 naivety.” The applicant was convicted by the trial court and the judgment was upheld by the Court of Appeal and the Court of Cassation. Kokkinakis complained before the Convention organs of a violation of his right to religious freedom under Article 9 of the Convention, as well as violations of Articles 7 (no punishment without law) and 10 (freedom of expression).
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