FREEDOM OF EXPRESION AGAINST THE BACKGROUND OF RELIGIOUS
PROSELYTIZATION.
SH VAN ZYL
ABSTRACT
In every society it’s fundamental to find a balance between the right to freedom of
religion and another’s right to be left alone. To what extend should we allow
proselytization? This article will focus on the meaning of proselytism from a human
rights point of view and the European courts findings on the topic of proselytism.
1. INTRODUCTION
In the last third of the twentieth century more than thirty new democracies were
established worldwide. The focus placed on religious freedom resulted in the
establishment of 150 new national, regional and international instruments.1 This
instrument provided religious individuals/ groups the right to exercise their religious
freedom, guaranteed religious pluralism, equality, non-discrimination and other
special protections. The progress of modern human rights caused a great awakening
of religion worldwide. Ancient faiths that were once driven underground returned with
a new energy/ force in many countries newly committed to democracy and human
rights.2
In parts of Russia, Eastern Europe, Africa and Latin America the revolution of human
rights caused religious conflict (war for souls) between indigenous and foreign
groups. During the 1980s and 1990s foreign religious groups used to come and
preach their faiths, offer their services, and their main purpose was to convert.3 Local
religious groups (Catholic, Protestant, Sunni, Orthodox, Shi’ite, and traditional) didn’t
feel threatened. However time passed and they have come to resent the foreigners
Witte J, Jr. ‘Human Rights and the Right to Proselytize: Inherent Contradictions?’ (2000) 94
American Society of International Law p. 182. Also see, http://www.jstor.org/stable/25659384.
2 Witte J, Jr. ‘Human Rights and the Right to Proselytize: Inherent Contradictions?’ (2000) 94
American Society of International Law pp. 183-184. See, Witte J, Jr. ‘Primer on the Rights and
Wrongs of Proselytism’ (2001) 31 Cumberland Law Review 619. Also see, Richards MK, Svendsen
AL and Bless R ‘Codes of conduct for religious persuasion: The legal framework and best practices’
(2010) 3:2 IJRF p. 70.
3 Witte J, Jr. ‘Human Rights and the Right to Proselytize: Inherent Contradictions?’ (2000) 94
American Society of International Law p. 182.
1
and their religions.4 The communities grew unhappy with the individualism that
democracy inflicted, the massive expansion of religious pluralism democracy
encouraged, the extravagant forms of religious speech, press and the assembly that
democracy protected. For them this meant ‘war for souls’.5 They wanted to reclaim
the traditional cultural and moral souls of these new societies and keep the current
followers of their indigenous faiths. This was a theological war on the one hand, the
rival religionists trying to convert as many as possible even if it meant defaming or
demonizing the others. And on the other hand a legal war, local religious groups
conspired with politicians and leaders to adopt statutes and regulations that would
restrict the constitutional rights of the foreign religious rivals. 6
Today many countries willingly pass anti- proselytism laws, cult registration
requirements, tighter visa controls, and various discriminatory restrictions on new or
newly arrived religions.7 There are many facets/sides to freedom of religion. On face
value it seems that South African law (proclaiming religious freedom) comply with
international standards.8 In regard to international law it’s worth mentioning that there
is still the need to develop a generally acceptable standard when referring to the
basic integral part of freedom of religion or belief. Both freedom of religion and
freedom of belief were placed in the same category by different drafters of
international instruments relevant to religion.9 It is almost impossible to define
religion.
Witte J, Jr. ‘Primer on the Rights and Wrongs of Proselytism’ (2001) 31 Cumberland Law Review p.
620.
5 Witte J, Jr. ‘Primer on the Rights and Wrongs of Proselytism’ (2001) 31 Cumberland Law Review p.
621.
6 Witte John jr. ‘Primer on the Rights and Wrongs of Proselytism’ (2001) 31 Cumberland Law Review
p. 620.
Also see, Witte J, Jr. ‘Human Rights and the Right to Proselytize: Inherent Contradictions?’ (2000) 94
American society of International Law pp. 182-184. Also see, http://www.jstor.org/stable/25659384.
7 Witte J, Jr. ‘Human Rights and the Right to Proselytize: Inherent Contradictions?’ (2000) 94
American society of International Law p. 182; “Beneath shiny constitutional veneers of religious
freedom for all, several countries of late have passed firm new anti-proselytizing laws, cult registration
requirements, tighter visa controls and other discriminatory restrictions on new or newly arrived
religions.” See, Witte J, Jr. ‘Primer on the Rights and Wrongs of Proselytism’ (2001) 31 Cumberland
Law Review p. 621; “In part, this is a legal war, as local religious
Groups have begun to conspire with their political leaders to adopt statutes and regulations restricting
the constitutional rights of their foreign religious rivals.’’
8 Van Der Vyver JD and Green MC ‘Law religion and human rights in Africa: Introduction’ (2008) 8
African Human Rights Law Journal p. 354. Also see, http://reference.sabinet.co.za/sa_epublications.
9 The same protections apply to both rights and insure that it is not necessary to draw a line between
belief structures that qualify as a religion and those who do not. See, Van Der Vyver JD and Green
4
2
The Centre for the Study of Law and Religion researched and dedicated their time to
investigate the link between the religious dimensions of law, the legal dimensions of
religion, and also focused on the interaction of legal and religious ideas and
institutions, practices and norms.10 They believe that religion give law its spirit that
cause and inspire individuals to follow a ritual, tradition and justice. Law provide
religion with structure in the sense that it encourages the devotion to order,
organisation and orthodoxy.
Law and religion balance one another through justice and mercy, rule and equality,
discipline and love, and they share obligation and covenant. We can safely conclude
that without law, religion will deteriorate into shallow spiritualism. Without religion the
law would forfeit an ethical foundation and crumble into formalism.11 Religion can be
a powerful weapon in promoting moral values and enhancing humane conditions
within a political society despite the fact that religion often opposes principles
associated with human rights and fundamental freedoms.12 The Bill of rights in the
South African Constitution ensures that every individual’s right to freedom of religion
is protected.13 One’s right to freedom of religion and the right to change his/her
religion combined with allowing proselytism can cause complex issues when it
comes down to protecting basic human rights.
MC ‘Law religion and human rights in Africa: Introduction’ (2008) 8 African Human Rights Law Journal
p. 355. Also see, http://reference.sabinet.co.za/sa_epublications.
10 Van Der Vyver JD and Green MC ‘Law religion and human rights in Africa: Introduction’ (2008) 8
African Human Rights Law Journal p. 355. Also see, http://reference.sabinet.co.za/sa_epublications.
11 Van Der Vyver JD and Green MC ‘Law religion and human rights in Africa: Introduction’ (2008) 8
African
Human
Rights
Law
Journal
pp.
355-356.
Also
see,
http://reference.sabinet.co.za/sa_epublications
12 Van Der Vyver JD and Green MC ‘Law religion and human rights in Africa: Introduction’ (2008) 8
African Human Rights Law Journal p. 349. Also see, http://reference.sabinet.co.za/sa_epublications
13 Constitution of RSA 1996:sec. 15 - guarantee that a religious observance may be conducted at a
state or state aided institution provided that, the observance follow the rules made by the appropriate
public authorities, that they are conducted on a equal basis and attendance should be free and
voluntary. See, Ferrari S and Cristofori 2010:17. See, R v.Big M drug Mart (1985)1 SCR 295,336 par:
92. See, sec 31 (a)-(b) which state that any person who belong to a cultural, religious or linguistic
community have the right, with other members of that community, to enjoy their culture. They are
allowed to practise their religion and use their language and to form, join and maintain cultural,
religious and linguistic associations, and other organs of civil society. Also See, Sec 39(1)-(2) requires that the interpretation of the Bill of Rights should promote the values that underlie an open
and democratic society based on human dignity, quality and freedom. International law and foreign
law should be considered. If a court, tribunal or forum interprets any legislation, or when developing
the common law or customary law, it should do so in a manner that will promote the spirit, purport and
objects the Bill of Rights.
3
2. PROSELYTIZATION FROM A HUMAN RIGHTS POINT OF VIEW
Religious faith is a means to provide values to civilization and in process force
progress. What about those who don’t share the same faith who will protect them;
can proselytism be a basic human right? Proselytism can take on different forms. To
proselytise means, someone share their world view or talk about their religion to
others with the purpose being, to persuade and convert them.14 Religious persuasion
may cause controversy in some cultures and accordingly anti- proselytism laws were
implemented to ban improper coercion. Those who persuade often feel compelled by
conscience to do so.15
All the major international human rights instruments recognize the right to freedom of
thought, conscience and religion.16 Legislative provisions on religious proselytism
vary widely from country to country.17 Some western countries don’t place specific
constraints on proselytism and regulate the activity through social norms of conduct
or religious bodies themselves. Other countries follow a more aggressive approach,
by banning the activity all together and the transgressors will be prosecuted. 18 Many
countries impose certain limits on those allowed to proselytize.19 Israel has certain
limits regarding proselytization.20 From an international law perspective, the right to
freedom of religion allow the individual to adopt a religion of his choice and to
manifest it publicly trough teaching, practice, worship, and observance. 21 The
Witte J, Jr. and Alexander FS 2010:253. - “Proselytism is the activity of communicating a religion or
world view trough verbal communication or through related activities as an invitation to others to adopt
the religion or world view.’’
15 Richards MK, Svendsen AL and Bless R ‘Codes of conduct for religious persuasion: The legal
framework and best practices (2010) 3:2 IJRF pp. 66- 67.
16 Universal Declaration of Human Rights (1948) art.18; International Covenant on Civil and Political
Rights; and European Convention on Human Rights (entered into force 3 September 1953).
17 Richards MK, Svendsen AL and Bless R ‘Codes of conduct for religious persuasion: The legal
framework and best practices (2010) 3:2 IJRF pp. 68-70.
18 Nepal and Greece ban this activity. See, Art.3 of the 1990 Nepal Kingdom provides “nobody has
the right to convert another person to another religion” and Art. 13(2) of the Constitution of Greece
states “proselytism is prohibited”.
19 For example its illegal for a non- Muslim to spread his faith in most Middle East countries and for a
foreigner to spread his faith is China. See, Pew Forum ‘Global Restrictions on Religion’ (The forum
identifies 75 countries).
20 U.S. Department of State: International religious freedom report ‘Israel and occupied territories’.
See, http://www.state.gov/j/drl/rls/rts/irf/2001/5697.htm.
21 International Covenant on Civil and Political Rights art.18 December 1966: “Everyone shall have
the right to... Manifest his religion or belief in worship, observance, practice and teaching.” See also,
International Covenant on Civil and Political Rights art. 18, December 16, 1966 999 U.N.T.S. 171;
Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or
Belief arts. 1, 6, G.A. Res. 36/55, U.N. Doc. A/36/6S4 (Nov. 25 1981); Convention for the Protection
of Human Rights and Fundamental Freedoms art. 9, Nov. 4, 1950, E.T.S. No. 5, 213 U.N.T.S. 222.
14
4
International Covenant on Civil and Political Rights 22 treasure this definition in article
18(1) and, in its subsections it states that coercion that impair another’s freedom to
have or adopt a religion or belief of his choice, is not allowed and any limitations
prescribed by law to ensure public safety, order, health, morals or if necessary
protect the fundamental rights and freedoms of others, such limitations is valid. Does
proselytism fall within the scope of ‘freedom to manifest religion or belief’?
The freedom to manifest religion or belief has two dimensions, public and private.23
The American Convention on Human Rights24 includes the freedom to spread one’s
faith, belief or religion freely but, proselytism and the freedom to disseminate don’t
get mentioned in any other international instruments. This absence is usually
explained in that it point to the “sensitivity” of this issue for many states. Many
denominations view proselytism as a key to speak of their faith and this cause them
to feel that any restrictions on proselytism infringe on their right to publicly manifest
their beliefs through, for example teaching, as well as on their right to free
expression. This is recognized and supported by international human right bodies.
The United Nation Human Rights Committee25 affirmed that, article 18(1) provides
that an individual can/ may “distribute religious texts or publications”, whereas the
European
Commissioner
for
Human
Rights
objected
Greece’s
ban
on
proselytization, and the US State Department felt that the ban on proselytism is a
restriction on public worship.26 Proselytism is unpopular in many areas of the world,
the reason being some feel this ban is justified in the International Covenant on Civil
and Political Rights (ICCPR), and sees this practise as a threat to public order when
allowing people to interfere in a right of the public at large, to choose their own faith
without coercion.27 A community who wants to protect their privacy and identity may
feel threatened in the sense that it violates boundaries and disrupts their traditions if
people of faith exercise their rights and start to persuade others to their faith. What is
22
International Covenant on Civil and Political Rights (1966): art.18 (1)-(3).
‘Public’ – refer to actions taken alone or in a community outside in public. ‘Private’- when an action
is taken alone or with others in private.
24 American Convention on Human Rights article 12, July 18, 1978, O.A.S.T.S. No. 36,1144 U.N.T.S.
123.
25 Universal Declaration of Human Rights Article 18: “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
teaching, practice, worship and observance.”
26 http://www.unhcr.org/refworld/docid/3fe815527.html.
27 Richards MK, Svendsen AL and Bless R ‘Codes of conduct for religious persuasion: The legal
framework and best practices (2010) 3:2 IJRF p. 65.
23
5
clear is that, fundamental human rights protect these practices.28 Freedom of religion
cause competing legal interests and in result makes proselytism a sensitive issue.
Take for instance the rights that protect religious persuasion, these rights is
conflicted with other countervailing rights whose just as important and worthy of
protection. For example, the right to an opinion without interference, the indigenous
peoples rights to protect their cultures from external forces and the right to privacy.29
On the one hand you have a person’s desire to manifest his belief by sharing it with
others and, on the other hand there is the desire to hold one’s own faith and protect
it from any coercion. Therefore though some may feel they have a right to religion
others have a right from it. Both parties’ rights, despite being fundamentally at odds
with one another derive from the same right. The state should always remain neutral
because there is no legal basis why they should favour one’s interest over the
other.30 One may argue that not all forms of proselytization fall within the parameters
of the word “coercion” as meant by the people who drafted the International
Covenant on Civil and Political Rights, and this may refer to coercion by the State,
which arguably requires a more intense form of coercion than a smaller activity like
the distribution of pamphlets on street corners. Either way, under a right based
approach one can conclude that it is a bit farfetched to say that a proselytism ban is
supported by the International Convention on Civil and Political Rights article. 31
3. THE EUROPEAN COURT OF HUMAN RIGHTS KEY DECISIONS ON
PROSELYTIZATION
The influence of the European Court extends beyond Europe. Through all major
human rights instruments there’s a link that forms the foundation with respect to
freedom of religion and belief, meaning the view or standpoint of one instrument will
automatically influence your interpretation of the others.32 The court addressed
28
For instance the right to freedom of conscience, the right to manifest religion or belief through
teaching, practise, worship and observance, and the right to free expression protect those who feel
the need to share their beliefs with others. See, Constitution of RSA 1996: sec. 15 and sec. 16.
29 See, http://www.jstor.org/stable/4144686?origin=JSTOR-pdf.
30 Stijn S ‘Freedom of religion versus freedom from religion: Putting religious duties back on the map’
(2012) p. 17.
31 Article 18.
32 Richards MK, Svendsen AL and Bless R ‘Codes of conduct for religious persuasion: The legal
framework and best practices’ (2010) 3:2 IJRF p. 79.
6
religious persuasion in the following three cases which showed the difficulty in
defining boundaries.
3.1 KOKKINAKIS v. GREECE
The applicant, a Greek national and Jehovah’s Witness, was arrested after he and
his wife talked to Mrs. Kyriakaki at her home. He was convicted and fined for
proselytism under Greek law. This was not his first offence.33 The applicant was
unhappy and felt his right to freedom of thought, conscience and religion, his
freedom of expression and his right to non-discrimination were violated in process.34
The applicant and his wife were prosecuted under section 4 of Act 1363/1938 which
stated that proselytism was an offence.35 The meaning of the term ‘proselytism’ was
clarified in section 2 0f Act 1672/1939 which stated this includes, “any direct or
indirect attempt to intrude on the religious beliefs of a person of a different religious
persuasion (eterodoxos), with the aim of undermining those beliefs, either by any
kind of inducement or promise of an inducement or moral support or material
assistance, by fraudulent means or by taking advantage of his inexperience, trust,
need, low intellect or naivety.”36
The Supreme Administrative Court defined proselytism and gave clarity by stating
that proselytism is prohibited including all forms of other activities directed against
the dominant religion but purely spiritual teaching does not fall within the meaning of
proselytism.37 Mr. Kokkinakis claimed that his conviction for proselytism breached his
Kokkinakis v Greece (Application no: 14307/88) ECHR 6, 7, -‘After becoming a Jehovahs Witness
in 1936 he was arrested more than 60 times. He was imprisoned for acts of proselytism,
conscientious objection and holding a religious meeting in a private house.’
34 Article 9(1)-(2) of the Convention of Human Rights provide freedom of thought, conscience and
religion; freedom of expression within the meaning of article 10 and his non discrimination right within
the meaning of article 14.
35 Kokkinakis v Greece (Application no: 14307/88) ECHR 8, 41; The applicant held that section 4 of
Act 1363/1938 was vague due to use of particularly general terms and this may lead to abuse by the
authorities. The very definition of proselytism as a ‘direct or indirect’ act or the ‘attempt’ to commit
those act, with no reference to any element of violence, create an unacceptable uncertainty.
According to the Government the elements of the offence includes the following: Section 4 of Act
1363/1938 (a) the presence of two natural persons professing different religious faiths or belonging to
different denominations of the same religion; (b) an attempt by one of the two to undermine the
religious beliefs of the other; (c) the use in the course of this attempt of immoral means prejudicial to
the dignity or personality of others, e.g. deception, taking advantage of financial or other need or
feebleness of mind, or providing financial assistance or moral support with a view to effecting a
change in the other person’s religious beliefs.
36 Kokkinakis v Greece (Application no: 14307/88) ECHR 16.
37 Kokkinakis v Greece (Application no: 14307/88) ECHR 17, judgement 2276/1953 of the Supreme
Administrative court defined proselytism as follow “article 1 of the constitution, which establishes the
33
7
rights secured in articles 7, 9 and 10 of the Convention.38 In overturning the
conviction the court again reminded that freedom of religion or belief included the
freedom to manifest one’s religion.39 The court held that a democratic society in
which several religions coexist within the same society one should place restrictions
on this freedom (religion) in order to reconcile the interests of various groups and
insure that everyone’s beliefs are respected and balanced, the Government should
only punish improper proselytism.40 The court held that Mr. Kokkinakis didn’t use any
force or improper methods.41
3.2 LARISSIS AND OTHERS v. GREECE42
The three applicants are Greek citizens. They were officers in the Greek Air Force
and followers of the Pentecostal Church. The applicants approached various airman
serving under them and shared their belief trough talking about the teachings of the
freedom to practise any known religion and to perform rites of worship without hindrance and prohibits
proselytism and all other activities directed against the dominant religion, that of the Christian Eastern
Orthodox Church, means that purely spiritual teaching does not amount to proselytism, even if it
demonstrates the errors of other religions and entices possible disciples away from them, who
abandon their original religions of their own free will; this is because spiritual teaching is in the nature
of a rite of worship performed freely and without hindrance. Outside such spiritual teaching, which
may be freely given, any determined, importunate attempt to entice disciples away from the dominant
religion by means that are unlawful or morally reprehensible constitutes proselytism as prohibited by
the aforementioned provision of the Constitution.”
38 Kokkinakis v Greece (Application no: 14307/88) ECHR 25.
39 Kokkinakis v Greece (Application no: 14307/88) ECHR 31. See, Richards MK, Svendsen AL, Bless
R ‘Codes of conduct for religious persuasion: The legal framework and best practices’ (2010) 3:2
IJRF: 80. Also see, Unpublished article XYZ: 2. See, Art. 9 of the European Convention on Human
Rights in full reads:
”(1)Everyone has the right to freedom of thought, conscience and religion; this right includes the
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, practise and observance. (2)
Freedom to manifest one’s religion or beliefs shall be subjected 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 the protection of the rights and freedoms of others.”
See, Richards MK, Svendsen AL and Bless R ‘Codes of conduct for religious persuasion: The legal
framework and best practices (2010) 3:2 IJRF p. 80.
40 Richards MK, Svendsen AL and Bless R ‘Codes of conduct for religious persuasion: The legal
framework and best practices’ (2010) 3:2 IJRF 80. Also see, Kokkinakis v Greece (Application no:
14307/88) ECHR 31, 34, 48.
41 See, Richards MK, Svendsen AL and Bless R ‘Codes of conduct for religious persuasion: The legal
framework and best practices’ (2010) 3:2 IJRF 80; the court didn’t say what sort of behaviour would
constitute improper missionary conduct. Also see, Kokkinakis v Greece (Application no: 14307/88)
ECHR 48, 49.
42 Larissis and others v Greece (1998) International Journal of Human Rights, 2:2. The link to this
article: http://dx.doi.org/10.1080/13642989808406739.
8
Pentecostal Church (between 1986- 1989).43 Two of the applicants attempted to
convert a number of civilians and this ultimately led to them being charged with the
criminal offence proselytism under section 4 of Act 1363/1938.44 The military officers
were convicted under the same anti- proselytism law at issue in the Kokkinakis
case.45 The applicants complained that the Greek law against proselytism did not
provide a clear definition and was vague which constituted an unjustified interference
with their right to exercise their religious freedom.46
The court distinguished between proselytism of civilians and proselytism of
subordinated military officers. This lead to insights on how tensions between
freedom to religion and freedom from religion may be resolved.47 Regarding the
lower ranked military officers the court ruled that, because of the hierarchical
structures in the armed forces between military personnel; making it difficult for a
subordinate to refuse or question someone from a superior rank or withdraw from a
conversation in military life; this may be viewed as harassment or an abuse of power
where in a civilians world the recipient is free to accept or reject any idea. 48 In this
instance the court emphasised that even if pressure was not consciously applied the
acts of these higher ranked officers led to a situation where the airman felt a certain
43
Larissis and others v Greece (1998) International Journal of Human Rights, 2:2, 103. The link to
this article: http://dx.doi.org/10.1080/13642989808406739. Also see, Richards MK, Svendsen AL and
Bless R ‘Codes of conduct for religious persuasion: The legal framework and best practices’ (2010)
3:2 IJRF p. 81. See, Stijn S ‘Freedom of religion versus freedom from religion: Putting religious duties
back on the map’ (2012) pp. 7-8.
44 Kokkinakis v Greece (Application no: 14307/88) ECHR 41; According to the Government the
elements of the offence includes the following: Section 4 of Act 1363/1938 (a) the presence of two
natural persons professing different religious faiths or belonging to different denominations of the
same religion; (b) an attempt by one of the two to undermine the religious beliefs of the other; (c) the
use in the course of this attempt of immoral means prejudicial to the dignity or personality of others,
e.g. deception, taking advantage of financial or other need or feebleness of mind, or providing
financial assistance or moral support with a view to affecting a change in the other person’s religious
beliefs.
45 Kokkinakis v Greece (Application no: 14307/88).
46 Larissis and others v Greece (1998) International Journal of Human Rights, 2:2 p. 103. The link to
this article: http://dx.doi.org/10.1080/13642989808406739.
Richards MK, Svendsen AL and Bless R ‘Codes of conduct for religious persuasion: The legal
framework and best practices’ (2010) 3:2 IJRF pp. 81-82. See, Stijn S ‘Freedom of religion versus
freedom from religion: Putting religious duties back on the map’ (2012) pp. 7-8. Copy available at:
http://ssm.com/abstract= 2054694. Also see, Larissis and others v Greece (1998) International
Journal
of
Human
Rights,
2:2
104-105.
The
link
to
this
article:
http://dx.doi.org/10.1080/13642989808406739.
48 Richards MK, Svendsen AL and Bless R ‘Codes of conduct for religious persuasion: The legal
framework and best practices’ (2010) 3:2 IJRF p. 82. Also see, Larissis and others v Greece (1998)
International Journal of Human Rights, 2:2 pp. 104-105.
47
9
degree of pressure owing to the applicants status as officers and perhaps felt obliged
to enter into religious discussions with these applicants and possibly even convert to
the Pentecostal faith. Regarding proselytism of civilians the court ruled that they
were not in the same vulnerable position towards the applicants. The civilians that
the applicants attempted to convert were not subject to the same pressures and
constraints as the airmen.49
3.3 NOLAN AND K v. RUSSIA
The applicants were Mr. Nolan and his son K. Mr. Nolan was the sole custodial
parent to K. They lived in America and he was a member and a missionary of the
Unification Church.50 In 1994 the Unification Church invited Mr. Nolan to take part in
its activities via Russia. Mr. Nolan was allowed to stay at the Ministry of Foreign
Affairs of the Russian Federation on the condition that his visit should be renewed
every year. In January 2000 the Concept of National Security of the Russian
Federation was changed by the President of the Russian Federation who made it
clear that in order to protect the security of the Russian Federation measures were
allowed to oppose negative influence of foreign religious organisations and
missionaries.51 In May 2002 Mr. Nolan travelled to Cyprus and on his way back he
wasn’t allowed back in Russia because his visa was cancelled. 52 The Russian
Federal Security Service experts stated that Mr. Nolan’s activities were of a
destructive nature and it posed a threat to the security of the Russian Federation. Mr.
Nolan complained that while preventing him to enter Russia they breached his right
to manifest and spread his religion which inevitably violated article 9 and 14.53 The
court held there was no improper conduct by Mr. Nolan or others in the Unification
Church and concluded that by banning Mr. Nolan to enter Russia they repressed his
Richards MK, Svendsen A.L and Bless R ‘Codes of conduct for religious persuasion: The legal
framework and best practices (2010) 3:2 IJRF 82. Also see, Stijn S ‘Freedom of religion versus
freedom from religion: Putting religious duties back on the map’ (2012) 7-8. Copy available at:
http://ssm.com/abstract= 2054694. See, Larissis and others v Greece (1998) International Journal of
Human Rights, 2:2 105.
50 Nolan and K v Russia (Application no: 2512/04) Netherlands Institute of Human Rights.
http://sim.law.uu.nl/sim/caselaw/hof.nsf/e4ca7ef017f8c045c1256849004787f5/0bef50e1b59db186c12
575580045.
51 Nolan and K v Russia (Application no: 2512/04) Netherlands Institute of Human Rights. “Ensuring
the national security of the Russian Federation also includes opposing the negative influence of
foreign religious organisations and missionaries...”
52 Nolan and K v Russia (Application no: 2512/04) Netherlands Institute of Human Rights.
53 Article 9 and 14 of the European Convention of Human Rights.
49
10
right to freedom of religion and to exercise his right to spread the teachings of the
Unification Church. The limitations to this right listed in the international conventions
should be narrowly interpreted. If it’s necessary to protect the public order, in the
interest of public safety, for health reasons or the freedoms of others rights need
protection, these cases may justify exceptions.54 The court found that although the
Russian Government felt he posed a national security threat through his ‘activities’
rather than his ‘religious beliefs’, they failed to specify the nature of those activities
and failed to provide a FSB report which would have clarified the factual grounds for
his expulsion, and this was a violation of article 9.55
3.4 CONCLUSION
In Kokkinakis, Larissis and Nolan the court expressed that the fundamental
commitment to the sanctity of the Freedom of thought, conscience and religion form
one of the foundations of a democratic society. These cases illustrated that a
balance should be achieved among competing human rights. In Kokkinakis and
Larissis, the court focused on criminalizing ‘proselytism’ with the aim to protect the
rights and freedoms of others.56 The right to manifest one’s religion can be limited if
the persuasion was improper and this applies to situations where the missionary’s
conduct infringed on others freedom of thought, conscience and religion. Although
the court failed to define “improper” in Kokkinakis they (the cases) still provide some
general direction. In Larissis the court highlighted that in some cases the court
should protect the rights of a “vulnerable” group, a higher level of protection is
needed in regard to certain groups because they are more vulnerable to conversion
attempts (military subordinates whose ability to choose is diminished by their
circumstances).To conclude we can safely say that these cases showed the difficulty
in defining boundaries.57
Richards MK, Svendsen AL and Bless R ‘Codes of conduct for religious persuasion: The legal
framework and best practices (2010) 3:2 IJRF pp. 82- 83.
55 Nolan and K v Russia (Application no: 2512/04) Netherlands Institute of Human Rights.
56 Richards MK, Svendsen AL and Bless R ‘Codes of conduct for religious persuasion: The legal
framework and best practices (2010) 3:2 IJRF p. 84.
57 Richards MK, Svendsen AL and Bless R ‘Codes of conduct for religious persuasion: The legal
framework and best practices (2010) 3:2 IJRF pp. 84-86. See, Larissis and others v Greece (1998)
International Journal of Human Rights, 2:2 pp. 102-105. The link to this article:
http://dx.doi.org/10.1080/13642989808406739. Also see, Stijn S ‘Freedom of religion versus freedom
from religion: Putting religious duties back on the map’ (2012) pp. 7-8.
54
11
4. HUMAN RIGHTS IN CONFLICT
The rights of the European Convention on Human rights have a higher weight than
the ordinary public interest that is invoked by a government to justify their limitation.
If an individual breach on another’s right to manifest his religion, this behaviour will
only be justified if it passes the strict limitation clause of article 9 in the European
Convention on Human Rights.58 Article 9 distinguishes between the freedom to have
or change a religion or belief from one’s freedom to manifest a religion and provides
us with different levels of protection to each. Someone who is addressed by another
(proselytiser) finds himself in a vulnerable relationship towards the proselytiser
because of his authority or power; in this case measures should be in place to
protect him.59 In the following cases, upon closer examination it seems that the
European Court on Human Rights approach is not entirely correct and there was no
conflict between the human rights. The court connected the ‘proselytising effect’ to
the wearing of a headscarf. None of the applicants wore it with the intention of
convincing others to change their religion.60
4.1 DAHLAB v. SWITZERLAND
Ms. Dahlab was a teacher in a public primary school. After her conversion to Islam
she started to wear her headscarf to class. Four years went by without any
complaints or interference from school authorities but, an inspector reported her
when she took maternity leave.61 The Directorate General for Primary Education
Stijn S ‘Freedom of religion versus freedom from religion: Putting religious duties back on the map’
(2012) 1-2. Copy available at: http://ssm.com/abstract= 2054694. See, Article 9 of Convention for the
Protection of Human Rights and Fundamental Freedoms, 4 November 1950. Also See, The European
Convention on Human Rights, Article 9 in full:
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 in public or private, to manifest his religion or belief, in worship, teaching , practise and
observance.
2. Freedom to manifest one’s religion or belief shall be subjected 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 the protection of the rights and freedoms
of others.
59 Stijn S ‘Freedom of religion versus freedom from religion: Putting religious duties back on the map’
(2012) pp. 3-5. See, Unpublished Article XYZ: 4.
60 Stijn S ‘Freedom of religion versus freedom from religion: Putting religious duties back on the map’
(2012) pp. 9-16. See, Unpublished Article XYZ: 1-8.
61 Dahlab v Switzerland (Application no: 42393/98) 12 HRCD [2001] A, full judgement available at:
http://bear.rewi.hu berlin.de/w/files/1_adr/dahlab_echr_2001_4239398.pdf.
58
12
informed Ms. Dahlab that she was not allowed to wear the headscarf when she was
carrying out her professional duties on grounds that it breached section 6 of the
Public Education Act and constituted “an obvious means of identification imposed by
a teacher on her pupils, especially in a public, secular education system’’. 62 She was
dismissed.63 The applicant appealed against the decision to the Geneva Cantonal
Government but it was dismissed.64
The state of Switzerland argued that this was of essence to protect the
denominational neutrality of schools and religious harmony. They felt that because
Ms. Dahlab accepted the teaching job she automatically submitted herself to the
Swiss rules and her wearing the scarf should not cause people to think that the state
associates itself with one religion or favouring one over the other. Ms. Dahlab felt this
violated het right to freedom of religion.65 Article 164 of the Cantonal Constitution
states there’s a separation between church and state, the state being secular.66 This
separation is given practical effect by section 120(2) of the Public Education
Act/1940, “ civil servants must be lay persons, derogations from this provision shall
be permitted only in respect of university teaching staff”.67 By prohibiting the
appellant to wear her headscarf to class that identified her as a member of a certain
faith reflect the increasing desire on the part of the Geneva legislature (as expressed
in above citation) to ensure that the education system respects the principles of
denominational neutrality and the separation between church and state.68 Even if this
62
Public Education Act of 1940.
Unpublished Article XYZ: 3. Also see, Stijn S ‘Freedom of religion versus freedom from religion:
Putting religious duties back on the map’ (2012) p. 9. Dahlab v Switzerland (Application no: 42393/98)
12
HRCD
[2001]
141,
full
judgement
available
at:
http://bear.rewi.hu
berlin.de/w/files/1_adr/dahlab_echr_2001_4239398.pdf.
64 Dahlab v Switzerland (Application no: 42393/98) 12 HRCD [2001]; the court held that “Teachers
must... endorse both the objectives of the state school system and the obligations incumbent on the
education authorities, including the strict obligation of denominational neutrality... The clothing in
issue... represents..., regardless even of the appellant’s intention, a means of conveying a religious
message in a manner which in her case is sufficiently strong... to extend beyond her purely personal
sphere and to have repercussions for the institution she represents, namely the state school system.”
65 Stijn S ‘Freedom of religion versus freedom from religion: Putting religious duties back on the map’
(2012) pp. 10-11. See, Unpublished Article XYZ: 4.
66 Public Education Act/ 1940 of the Cantonal Constitution.
67 Public Education Act/ 1940 of the Cantonal Constitution.
68 Dahlab v Switzerland (Application no: 42393/98) 12 HRCD [2001] A. Also see, Section 6 of Public
Education Act/ 1940 of the Cantonal Constitution, “The public education system shall ensure that the
political and religious beliefs of pupils and parents are respected.”
63
13
meant her right to freedom of religion was narrowed/ impugned, they had a sufficient
basis in law.69
The three reasons to justify the limitation of her right were proselytism, gender
equality and respect for the rights of others. With regard to proselytism the court
concluded that the wearing of a headscarf may cause a social impact. Wearing the
headscarf can be seen as an endorsement of the religion with the potential to
influence others and persuade them to convert to Islam faith.70 Regarding gender
equality the court argued that according to the Koran, woman should wear a
headscarf and men don’t therefore it’s difficult to square this unequal treatment with
gender equality. The court ignored countless literature that suggested the wearing of
a headscarf doesn’t necessarily have an offensive meaning to gender equality. 71 The
final reason, respect for the rights of others, it seems that the court sees the wearing
of the headscarf as a dangerous signifier as a symbol of intolerance or anti
democratic sentiment but neither proved this claim as true nor does it convince that
the banning of religious symbols will influence and enhance the democratic order in
a positive way. 72
The court ruled, if one weighs the right to manifest her religion against the protection
of the pupils, needed to ensure harmony it’s found that the measures that the
Geneva authorities took was not unreasonable.73 The young age of the children, her
position of authority as teacher, her function as civil servant with a duty of neutrality,
and the proselytising effect that the wearing of the scarf may cause, was taken into
account to justify the restriction of her freedom to wear the headscarf.74 Banning
teachers to wear a headscarf was an unconvincing disproportionate measure to
protect the pupils’ right to freedom from religion. This decision has been criticised by
Dahlab v Switzerland (Application no 42393/98) 12 HRCD [2001] ECHR A - “Teachers must
tolerate proportionate restrictions on their freedom of religion.”
70 Unpublished Article XYZ: 4. Also see, Dahlab v Switzerland (Application no: 42393/98) 12 HRCD
[2001]
A,
full
judgement
available
at:
http://bear.rewi.hu
berlin.de/w/files/1_adr/dahlab_echr_2001_4239398.pdf.
71 Section 4 § 2 of the Federal Constitution of 1874. See, Dahlab v Switzerland (Application no:
42393/98) 12 HRCD [2001] ECHR.
72 Unpublished Article XYZ: 5. See, Stijn S ‘Freedom of religion versus freedom from religion: Putting
religious duties back on the map’ (2012) p. 13.
73 Section 27 § 3 of the Federal Constitution of 1874, held that “It shall be possible for members of all
faiths to attend State schools without being affected in any way in their freedom of conscience or
belief.”
74 Stijn S ‘Freedom of religion versus freedom from religion: Putting religious duties back on the map’
(2012):11-13.
69
14
scholars. Unlike the applicants in Larissis,75 she had no intention to proselytise or
behaved in any matter that would suggest that she wanted to indoctrinate her pupils.
Recent studies also indicate that pupils do not see their teachers as role models.76
4.2 LEYLA SAHIN v. TURKEY
The University of Istanbul issued a notice prohibiting students to wear headscarves
at lectures and exams. Ms. Leyla Sahin, medical student, didn’t follow the new rule
and she was refused entrance to lectures and exams numerous times, which led to
disciplinary proceedings against her. Ms. Leyla left Istanbul University and
completed her studies in Vienna.77 The applicant was unhappy and complained that
this violated her right to freedom of religion. The European court on Human Rights
Grand Chamber dismissed her claim because of gender equality, the protection of
the rights of others and the protection of secularism.78
The court focussed on what impact this behaviour (wearing of the scarf) has on
those who do not wear it. On the one side there was a fear of proselytism.79 The fear
that if she wears the headscarf it may somehow infringe on others religious freedom
and that other students could see this as a symbol too that is presented or could be
perceived as a compulsory religious duty.80 The majority of the Turkish population is
Muslim, her wearing the headscarf may coerce or influence others to join in and
wear it. The second consideration was the fear of extremism and the court felt the
need to make a decision protecting the rights of others.81 The conflicted rights in this
75
Larissis and others v Greece (1998) International Journal of Human Rights, 2:2, 102-105. The link
to article: http://dx.doi.org/10.1080/13642989808406739.
76 Bricheno P and Thornton M ‘Role model, hero or champion? Children’s views concerning role
models’, 49 Educational Research (2007), pp. 383-386. See, Stijn S ‘Freedom of religion versus
freedom from religion: Putting religious duties back on the map’ (2012), pp. 11-13.
77 Unpublished Article XYZ: 5. See, Stijn S ‘Freedom of religion versus freedom from religion: Putting
religious duties back on the map’ (2012), pp. 14. Electronic copy available at:
http://ssm.com/abstract= 2054694. Also, Sahin v Turkey (Application no: 44774/98 (2007) 44 EHRR.
78 The majority based their decisions on the first two. See, Evans C ‘Islamic Headscarf’ in the
European Court of Human Rights’, 7 Melbourne Journal of International Law (2006) pp. 65-66. See,
Gibson N ‘An Unwelcome Trend: Religious Dress and Human Rights Following Leyla Sahin v Turkey’,
25 Netherlands Quarterly of Human Rights (2007), pp. 599-640. See, Stijn S ‘Freedom of religion
versus freedom from religion: Putting religious duties back on the map’ (2012), p. 14.
79 Stijn S ‘Freedom of religion versus freedom from religion: Putting religious duties back on the map’
(2012), p. 15.
80 Leyla Sahin v Turkey, 10 November 2005, European Court of Human Rights (Application no:
30814/06) para. 115.
81 Stijn S ‘Freedom of religion versus freedom from religion: Putting religious duties back on the map’
(2012), pp. 15. Also see, Unpublished Article XYZ:7-8. Also see, Leyla Sahin v Turkey, 10 November
2005, European Court of Human Rights (Application no: 30814/06) para. 115.
15
case were Ms. Sahin’s right to freedom of religion against her fellow students’ rights
from religion. The proselytising effect argument should be rejected reason being,
unlike the Dahlab82 case, is Ms. Sahin a peer to her fellow students, she wasn’t in
any position of power and her so-called ‘victims’ were adults. There was no reason
to believe that her behaviour (wearing the scarf) would coerce or affect her fellow
students in a negative way.83 In this case, like Dahlib,84 the court illustrated a
situation by connecting social harm from a particular point of view with a headscarf.
The court failed to give any factual basis for its findings and we are left with a courts
logic that is hidden.
4.3 LAUTSI v. ITALY
The applicant and her two sons (also applicants) lived in Italy. The two boys
attended a State school. In the classrooms was a crucifix on the wall and the
applicant’s husband raised the question on whether this ought to be removed. 85 The
school’s governors decided not to remove the symbols. The first applicant
complained in the Veneto Administrative Court that their decision breached article 3
(principle of equality) and article 19 (religious freedom) of the Italian Constitution and
article 9 of the Convention. The Administrative court dismissed her application.86 The
applicant then appealed to the Supreme Administrative Court, which confirmed that
the crucifixes in classrooms had a legal basis and the crucifix should be viewed as a
symbol of Italy’s religious origin and values and characterised Italian civilisation.87
Having lost all levels of the Italian legal systems she appealed to the European Court
of Human Rights being convinced that the lawfulness of crucifixes in classrooms
breached article 2 of Protocol No.1 in terms of a parent’s right that education and
82
Dahlab v. Switzerland (Application no: 42393/98) 12 HRCD [2001].
Stijn S ‘Freedom of religion versus freedom from religion: Putting religious duties back on the map’
(2012) pp. 15-16. Also see, Unpublished Article XYZ:7-8. Dahlab v. Switzerland (Application no:
42393/98) 12 HRCD [2001] 141, full judgement available at: http://bear.rewi.hu
berlin.de/w/files/1_adr/dahlab_echr_2001_4239398.pdf. Also see, Leyla Sahin v Turkey, 10
November 2005, European Court of Human Rights (Application no: 30814/06) para. 110; she tried to
raise this argument but the court didn’t address it.
84 Dahlab v Switzerland (Application no: 42393/98) 12 HRCD [2001].
85 Lautsi and Others v Italy, 18 March 2011, European Convention of Human Rights, No. 30814/06,
para. 10-11.
86 Lautsi and Others v Italy, 18 March 2011, European Convention of Human Rights (Application no.
30814/06) para. 12-15.
87 Lautsi and Others v Italy, 18 March 2011, European Convention of Human Rights (Application no.
30814/06), para. 16.
83
16
teaching were in conformity with their religions and philosophical convictions.88 The
Chamber’s judgement held that the State had a duty to stay and uphold neutrality in
public education, where the school attendance was compulsory regardless of
religion.89 In addition to the symbol in classrooms the Chamber concluded that it
restricted the right of parents to educate their children in conformity with their
convictions and the right of schoolchildren to believe or not believe. Meaning the
practice violated these rights and the restrictions were incompatible with the State’s
duty to respect neutrality when they dealt with public authority especially in the field
of education.90 The Grand Chamber reserved this decision.
The Italian Government criticised the Chambers judgement, they argued that a
symbol could be interpreted differently from one person to another. They felt the sign
of a cross could be viewed not only as a religious symbol but also cultural, the
symbol of the principles and values form the basis of a democratic society and they
highlighted the fact that this symbol appeared on the flags of numerous European
countries.91 The European Court on Human Rights finds that the crucifix is a
religious symbol. The Court stated that there was no evidence which proved that this
symbol in a classroom have an effect or influence on the pupils whose convictions
are still in the process of being formed. Although the applicant may feel that the
State show a lack of respect by viewing the symbol in classroom doesn’t necessarily
mean her perception in itself is sufficient to establish a breach in terms of article 2 of
Protocol No.1. So it is safe to conclude that there was no evidence that the children
were indoctrinated or proselytised in any manner.92 The Court also referred to the
following judgements in Folgero93 and Zengun.94 In Folgero the Court had to
88
Lautsi and Others v Italy, 18 March 2011, European Convention of Human Rights (application no:
30814/06), para. 29. See, Article 2 of Protocol No.1 held that, “No person shall be denied the right to
education. In the exercise of any functions which it assumes in relation to education and to teaching,
the State shall respect the right of parents to ensure such education and teaching in conformity with
their own religious and philosophical convictions.”
89 Lautsi and Others v Italy, 18 March 2011, European Convention of Human Rights (Application no:
30814/06), para. 31.
90 Lautsi and Others v Italy, 18 March 2011, European Convention of Human Rights (Application no:
30814/06), para. 32.
91 Lautsi and Others v Italy, 18 March 2011, European Convention of Human Rights (Application no:
30814/06), para. 35-36.
92 Lautsi and Others v. Italy, 18 March 2011, European Convention of Human Rights (Application no:
30814/06), para. 35, 67.
93 Folgero and others v Norway, 29 June 2007, European Convention of Human Rights (Application
no: 15472/02), para.89.
17
examine the content of “Christianity, religion and philosophy” lessons. The Court
found that because the syllabus gave more knowledge on Christianity than any of
the other religions and philosophies this in itself can amount to indoctrination. In
Zengun the court reached a similar conclusion regarding “religious culture and
ethics” classes in Turkish schools, where the syllabus gave more knowledge of Islam
on the ground that it was the majority religion practised in Turkey. 95 In this case the
court held that the children’s right to freedom of religion was not threatened. The
court went on to say that:
“Furthermore, a crucifix on a wall is an essentially passive symbol and this
point is of importance in the court’s view, particularly having regard to the
principle of neutrality. It cannot be deemed to have an influence on pupils
comparable to that of didactic speech or participation in religious activities.” 96
The question of religious symbols in State schools is not governed by any specific
regulations within a great majority of member States of the Council of Europe.97 A
smaller number of states forbid the presence of religious symbols in schools.98 In
Switzerland the Federal Court held that crucifixes in primary school classrooms are
incompatible with the requirements of the neutrality enshrined in the Federal
Constitution.99 In Poland the Constitutional Court the Minister of Education
prescribed an ordinance regarding the display of crucifixes in State school
classrooms. The Constitutional Court ruled that the measure was compatible with the
freedom of conscience and religion and the principle of the separation of Church and
State (guaranteed by article 82 of the Constitution) did not make such a display
compulsory.100 By saying or referring to the crucifix as a ‘passive symbol’, the court
sidestepped the question of whether the presence of a religious symbol in a
94
Lautsi and Others v Italy, 18 March 2011, European Convention of Human Rights (Application no:
30814/06) para. 71. Also see, Hasan and Eylem Zengin v Turkey, 9 October 2007, European Court of
Human Rights (Application no: 1448/04), para. 63.
95 Lautsi and Others v Italy, 18 March 2011, European Convention of Human Rights (Application no:
30814/06), para. 71.
96 Lautsi and Others v Italy, 18 March 2011, European Convention of Human Rights (Application no:
30814/06), para. 72.
97 Lautsi and Others v Italy, 18 March 2011, European Convention of Human Rights (Application no:
30814/06), para. 26.
98 Lautsi and Others v Italy, 18 March 2011, European Convention of Human Rights (Application no:
30814/06), para. 27. For example France and Georgia.
99 26 September 1990; ATF 116 1a 252. See, Lautsi and Others v Italy, 18 March 2011, European
Convention of Human Rights (Application no: 30814/06), para. 28.
100 Lautsi and Others v Italy, 18 March 2011, European Convention of Human Rights (Application no:
30814/06), para. 28.
18
classroom offend the principle of state neutrality and this almost raise a Dahlab101
type of argument about proselytism.102 The Lautsi
103case
differed from Dahlab104 in
the sense of whether a religious symbol in school does in fact proselytise children.
The court didn’t give a clear indication to why a teacher with a headscarf would
proselytise children but a crucifix on a wall wouldn’t have the same effect. Lautsi105,
Dahlab106 and Sahin107 come together in the sense that in each case the court
leaves a wide margin to the member states in which they can decide which road they
want to follow in regard with the circumstances.108
4.4 CONCLUSION
The European Court of Human Rights has yet to clear questions regarding religious
symbols and its social impact in some countries. Where the court does engage with
the analysis of the social harm connecting the link between the religion and the
impact of the symbol in society its findings are usually depthless and wide or from an
angle not helping the next case that comes along. Take for instance the Lautsi
109case
that differed from Dahlab110 regarding on whether a religious symbol in
school does in fact proselytise children. The court didn’t give a clear indication to
why a teacher with a headscarf would proselytise children but a crucifix on a wall
wouldn’t have the same effect. Lautsi111, Dahlab112 and Sahin113 come together in
the sense that in each case the Court leaves a wide margin to the member states in
which they can decide which road they want to follow in regard with the
circumstances.114In Leyla Sahin v Turkey, like Dahlib,115 the court illustrated a
situation by connecting social harm from a particular point of view with a headscarf.
101
Dahlab v Switzerland (Application no 42393/98) 12 HRCD [2001].
Unpublished XYZ:10.
103 Lautsi and Others v Italy, 18 March 2011, European Convention of Human Rights (Application no:
30814/06).
104 Dahlab v Switzerland (Application no: 42393/98) 12 HRCD [2001].
105 Leyla Sahin v Turkey’, 25 Netherlands Quarterly of Human Rights (2007).
106 Dahlab v Switzerland (Application no: 42393/98) 12 HRCD [2001].
107 Leyla Sahin v Turkey’, 25 Netherlands Quarterly of Human Rights (2007).
108 Unpublished Article XYZ: 10-11.
109 Lautsi and Others v Italy, 18 March 2011, European Convention of Human Rights (Application no:
30814/06).
110 Dahlab v Switzerland (Application no: 42393/98) 12 HRCD [2001].
111 Leyla Sahin v Turkey’, 25 Netherlands Quarterly of Human Rights (2007).
112 Dahlab v Switzerland (Application no: 42393/98) 12 HRCD [2001].
113 Leyla Sahin v Turkey’, 25 Netherlands Quarterly of Human Rights (2007).
114 Unpublished Article XYZ:10-11.
115 Dahlab v. Switzerland (Application no: 42393/98) 12 HRCD [2001].
102
19
The Court again failed to give any factual basis for its findings and we are left with a
courts logic that is hidden. The court needs to specify how it view religious symbols
in a society and what its standpoint is on the interests at stake.
5. RESTRICTIONS ON PROSELYTISM
Proseltization is a form of expression which has resulted in conflict numerous times.
Proselytism in itself is usually not the problem (expressing your belief of manifesting
your religion); the problem lies in finding a proper balance between the right to
proselytise and the right and freedom of another who may conflict with them.
Persons, who proselytise, usually feel entitled to do so.116 International rights law
states is responsible for sorting out these competing interests and formulate policies
to protect the rights involved. What complicate this situation is states have different
views on regulating these religious views of their people.117 In some countries the
changing of religious beliefs has far more reaching ramifications than in other
countries. Justice Frankfurter noted, “Courts can only hope to set limits and point the
way. It falls to the lot of legislative bodies and administrative officials to find practical
solutions within the frame of court decisions.”118
Proselytism can be restricted directly or indirectly. The manner in which proselytism
is restricted may lead to discrimination on grounds of religion and belief.119 There are
laws which directly restrict proselytism and there are those laws, rules and
regulations which indirectly restrict proselytism. Activities that can be characterised
as proselytism take on different forms, such as teaching, provision of humanitarian,
social services or even preaching.120 All these actions can become an act of
proselytism when undertaken depending on the intent of the person. Therefore will
the regulating of these activities intentionally or unintentionally restrict proselytism.121
Stahnke T ‘Proselytism and the freedom to change religion in International Human Rights law’
(2001) Brigham Young University Law Review 252.
117 Stahnke T ‘Proselytism and the freedom to change religion in International Human Rights law’
(2001) Brigham Young University Law Review 253.
118 Niemotko v Marylan D, 340 U.S. 268, 275 (1951).
119 Stahnke T ‘Proselytism and the freedom to change religion in International Human Rights law’
(2001) Brigham Young University Law Review 262.
120 Stahnke T ‘Proselytism and the freedom to change religion in International Human Rights law’
(2001) Brigham Young University Law Review 262.
121 Stahnke T ‘Proselytism and the freedom to change religion in International Human Rights law’
(2001) Brigham Young University Law Review 263; between 1937 and 1953, the United States
Supreme Court examined certain laws and regulations that indirectly affected proselytism. See,
Douglas v City of Jeanette, 31 9 U.S. 157, 170-174 (1943).
116
20
When proselytism is restricted this can lead to a number of issues causing
discrimination on the basis of religion and belief.122 Restriction can be applied or
enforced by authorities in a number of ways and that may cause discriminatory
behaviour.123
5.1 INTERNATIONAL INSTRUMENTS ON RESTRICTING PROSELYTISM
All of the major international human rights instruments recognise the right to freedom
of religion; this includes the freedom to hold your religion or belief and to manifest
the religion or belief.124 Note, the freedom to hold beliefs is absolute and not subject
to any limitations but the freedom manifest religious beliefs is subjected to
limitations.125 The Human Rights Committee and the European Court both stated
that the provisions guaranteeing the right to freedom of religion protect religious
belief and other beliefs of a similar fundamental character, and this includes atheism
and agnosticism.126
International Human Rights instruments also recognise the
principles of equality and non- discrimination on the basis of religion. The
International Covenant on Civil and Political Rights and the European Convention
contain the obligations to secure those instruments without using a distinction of any
Stahnke T ‘Proselytism and the freedom to change religion in Internation Human Rights law’
(2001) Brigham Young University Law Review 267.
123 Stahnke T ‘Proselytism and the freedom to change religion in Internation Human Rights law’
(2001) Brigham Young University Law Review 267; discrimination can be a common occurrence in
countries where there is tension between a dominant religious group and minority groups especially if
the dominant group have the ability to effect public policy as well as the law and its application.
124 Stahnke T ‘Proselytism and the freedom to change religion in Internation Human Rights law’
(2001) Brigham Young University Law Review 269. Also see, Article 18 of the International Covenant
on Civil and Political Rights (ICCPR) held that:
122
1.
2.
3.
“Everyone shall have the right to freedom of thought, conscience and religion. This right shall
include the freedom to have or adopt a religion or belief of his choice and freedom, either
individually or in the community with others and in public or private, to manifest his religion or belief
in worship , observance, practice and teaching.
No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or
belief of his choice.
Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are
prescribed by law and are necessary to protect public safety, order, health, or morals or the
fundamental rights and freedoms of others.”
All the provisions in other international human rights instruments reflect the same principles set aside
in article 18 (ICCPR), which in itself derives from the Universal Declaration of Human Rights.
125
Human Rights Committee, General Comment No. 22 (48) (art. 18), U.N. GAOR, 48th Sess., Supp.
No. 40, 3, U.N. Doc. CCPR /C/2 1/Re v. 1 /Add .1 (1 989 ), reprinted in U.N. Doc. HR1/GE N/1/Rev.1
at 26 (1994).
126 Human Rights Committee, General Comment No. 22 (48) (art. 18), U.N. GAOR, 48th Sess., Supp.
No. 40, 3, U.N. Doc. CCPR /C/2 1/Re v. 1 /Add .1 (1 989 ), reprinted in U.N. Doc. HR1/GE N/1/Rev.1
at 26 (1994). Also see, Kokkinakis v Greece (Application no: 14307/88) ECHR.
21
kind or discrimination on any ground.127 Everyone should be treated equally. 128
Although article 14 highlight the fact that discrimination should be prevented, it still
doesn’t have the same reach as article 26 in the International Covenant on Civil and
Political Rights, meaning in order to raise a valid claim of discrimination, it’s enough
to indicate that the claim fall within the scope of an article protecting this specific
right, a independent violation of a specific right (in the European Convention) and it
is not necessary to secure a valid claim of discrimination (under article 14).129
In some situations the court will allow discrimination because by not discriminating
the actions would evolve in unfair treatment towards some in a community,
remember discrimination is allowed unfair discrimination in not allowed, in order to
keep the balance in a society and protect the best interests of all. Under both the
International Covenant on Civil and Political Rights and the European Convention is
unequal treatment not discrimination if it constitutes a legitimate aim and is based on
objective and reasonable grounds.130 The rights to religious freedom are recognised
Article 2(1) of the International Convention on Civil and Political Rights stated, “Each State Party to
the present Covenant undertakes to respect and to ensure to all individuals without its territory and
subject to its jurisdiction on the rights recognised in the present Covenant, without distinction of any
kind, such as race, colour, sex, language, religion political or other opinion, national or social origin,
property, birth or other status.” Also see, Article 14 of the European Convention held: “The enjoyment
of the rights and freedoms set forth in this Convention shall be secured without discrimination on any
ground such as sex, race, colour, language, religion, political or other opinion, national or social origin,
association with a national minority, property, birth or other status.”
128
Article 26 of the International Convention on Civil and Political Rights provides that, “All persons
are equal before the law and are entitled without an y discrimination to the equal protection of the law.
In this respect , the law shall prohibit any discrimination and guarantee to all persons equal and
effective protection against discrimination on any ground such as race , colour, sex, language ,
religion , political or other opinion, national or social origin, property, birth or other status.”
129 Stahnke T ‘Proselytism and the freedom to change religion in Internation Human Rights law’
(2001) Brigham Young University Law Review 272.
130 Stahnke T ‘Proselytism and the freedom to change religion in Internation Human Rights law’
(2001) Brigham Young University Law Review 273. See, The Human Rights Committee held that:
“The right to equality before the law and to equal protection of the law without any discrimination does
not make all differences of treatment discriminatory. A differentiation based on reasonable and
objective criteria does not amount to prohibited discrimination within the meaning of article 26.” See,
General Comment on article 18, “the committee observes that not every differentiation of treatment
will constitute discrimination, if the criteria for such differentiation are reasonable and objective and in
the aim to achieve a purpose which is legitimate under the Covenant.” Also see, European Court
concluded that: [T]his principle of equality of treatment is violated if the distinction has no objective
and reasonable justification. The existence of such a justification must be assessed in relation to the
aim and effects of the measure under consideration... a difference of treatment in the exercise of a
right laid down in the Convention must not only pursue a legitimate aim: Article 14 is likewise violated
when it is clearly established that there’s no reasonable relationship of proportion ability between the
means employed and the aim sought to be realised.
Belgian Linguistics Case (1968) ECHR 34.
127
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in all international instruments for the main reason being to protect the minorities. 131
Although article 27 put emphasis on the fact that minorities will have additional
protection to profess and practise their religion, what is vague is how these
provisions will give additional protection and how do their rights and protections differ
in general of all persons who enjoy the protection of religious freedom and equal
protection of law.132 The State have a duty to protect the identity and this includes
religious identity of those belonging to a minority group.
The Human Rights Committee has stated that, if special measures are taken it
wouldn’t be discrimination if (A)“they are aimed at correcting conditions which
prevent or impair the enjoyment of the rights guaranteed under article 27”; (B)
“based on reasonable and objective criteria”, and (C) if they “respect the provisions
of art.2(1) and 26 of the ICCPR both as regards to the treatment between different
minorities and the treatment between the persons belonging to them and the
remaining part of the population.133 The true factor being it has to threaten their
existence or way of life in minority or the ability to exercise those rights.
5.2 THE LINE BETWEEN PROPER AND IMPROPER PROSELYTIZATION
The law restrict proselytism in some countries more than others, to a greater or
lesser extent, but the courts have yet to clarify what factors exactly leads to the
conclusion that the activity resulted into an act of proper or improper proselytism.
What does improper proselytism mean? In Kokkinakis v Greece,134 judge Pettiti
scolded the European Court on the basis that they didn’t give clarity on the meaning
of “improper proselytism” and didn’t attempt to explain when they had the opportunity
to do so. He thought it was possible to define “impropriety, coercion and duress more
clearly and to describe more satisfactorily, in the abstract, the full scope of religious
Article 27 of the International Convention on Civil and Political Rights held that; “In those States in
which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be
denied the right, in community with the other members of their group, to enjoy their own culture, to
profess and practise their own culture, to profess and practise their own religion or to use their own
language.”
132 Stahnke T ‘Proselytism and the freedom to change religion in Internation Human Rights law’
(2001) Brigham Young University Law Review 274.
133 Human Rights Committee, General Comment No. 22 (48) (art. 27), U.N. GAOR, 48th Sess., Supp.
No. 40, 3, U.N. Doc. CCPR /C/2 1/Re v. 1 /Add .1 (1 989 ), reprinted in U.N. Doc. HR1/GE N/1/Rev.1
at 26 (1994). Also see, Document of the Copenhagen Meeting of the Conference on the Human
Dimension , Conference on Security and Cooperation in Europe, June 29 (1990) 33, reprinted in 29
I.L.M. 1305 (1990). “Any such measures will be in conformity with the principles of equal it y and non discrimination with respect to the other citizen s of the participating St at e concerned.”
134 Kokkinakis v Greece (Application no: 14307/88) ECHR.
131
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freedom and bearing witness.”135 If the restriction on proselytism is to extensive this
may result in burdening the persons who wish to engage in such activities which will
result in to pressuring them to submit to punishment, stifling them in their ability to
express themselves freely or forcing them to relinquish those beliefs. Then there’s
the chance that too little restriction may cause excessive harm to the target (person
being proselytised). Every individual should be able to make his own decision in
regard to religion and faith. Thus the more that proselytism interferes with another’s
ability to choose the more should the State start to intervene and restrict the
situation.
The cornerstone of proselytism is coercion. The State is by nature in a position of
control, how they choose to restrict the people’s religious right will differ from country
to country. Acts of proselytism by the State may reflect “improper coercion” and the
Human Rights Committee held that this includes “policies or practices having the...
intention or effect” of “compelling believers or non believers to adhere to their
religious beliefs and congregations to recant their religion or belief or to convert.”136
The United States Supreme Court held that any form of religious expression by the
State or persons acting in official capacity or with official endorsement is more likely
to coerce.137
Private institutions can also have an effect and influence over the choice of religious
belief of others. For instance someone who works in a private institution providing a
needed service to the public who entrust to their care, as the case in a hospital or
nursing home may also be a coercive source of concern. The European Court
recognised this dynamic in Larissis v Greece, where two military officers were
convicted of “improper proselytism” of their subordinates.138 The Court eventually
Stahnke T ‘Proselytism and the freedom to change religion in International Human Rights law’
(2001) Brigham Young University Law Review 328. Also see, Kokkinakis v Greece (Application no:
14307/88) ECHR 28 (1993).
136 Human Rights Committee, General Comment No. 22 (48) (art. 18), U.N. GAOR, 48th Sess., Supp.
No. 40, 3, U.N. Doc. CCPR /C/2 1/Re v. 1 /Add .1 (1 989 ), reprinted in U.N. Doc. HR1/GE N/1/Rev.1
at 26 (1994). See, Stahnke T ‘Proselytism and the freedom to change religion in International Human
Rights law’ (2001) Brigham Young University Law Review 331.
137 Lee v Weisman, 50 5 U.S. 577, 587,589 (1992). In this case the court stated that, “[T]he
Constitution guarantees that government may not coerce anyone... participate in religion or its
exercise... The design of the Constitution is that preservation and transmission of religious beliefs and
worship is a responsibility and choice committed to the private sphere, which itself is promised
freedom to pursue that mission.”
138 Larissis and others v Greece (1998), International Journal of Human Rights 41. In this case the
court held that, [T]he hierarchical structures which are a feature of life in the armed forces may colour
every aspect of the relations between military personnel, making it difficult for a subordinate to rebuff
the approaches of an individual of superior rank or to withdraw from a conversation initiated by him.
135
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decided that the officer’s criminal convictions of proselytism didn’t violate article 9 of
the European Convention. However the court went on to hold that it was not
improper for the military officers to engage in similar proselytizing activity when
directed at civilians. In the case of private employment the European Court follow the
same conditions mentioned above.
5.3 CONCLUSION
In many cases, the rights of religious minorities are opposed by the dominant
religious political group, and this can result in conflict between the denominations
within religions. International instruments are generally silent on the issue of
proselytism.139 International bodies have either not delt with the problem in a
confliction neither have they been aggressive enough in defining the parameters/
boundaries of the freedom to engage in proselytism. The silence or avoiding dealing
with these issues may possibly be the result of the widely divergent practices of
States, ranging from severe limitations on the activity in all of its forms to broad
freedom to engage in the activity regardless of the effect it may have on the
others.140 Developing international standards to govern proselytism within this range
of State practices is no easy task. However international instruments should set out
a number of important clear principles that can guide states in their efforts to address
proselytism conflicts consistent with their international obligations to avoid future
uncertainty.
Thus, what would in the civilian world be seen as an innocuous exchange of ideas which the recipient
is free to accept or reject, may within the confines of military life, be viewed as a form of harassment
or the application of undue pressure in abuse of power.
139 Stahnke T ‘Proselytism and the freedom to change religion in Internation Human Rights law’
(2001) Brigham Young University Law Review 341.
140 Stahnke T ‘Proselytism and the freedom to change religion in Internation Human Rights law’
(2001) Brigham Young University Law Review 342.
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