Religion Religion and Human Rights 12 (2017) 99–111 Human Rights brill.com/rhrs Kokkinakis and the Narratives of Proper and Improper Proselytizing Brett G. Scharffs Rex E. Lee Chair and Professor of Law, Brigham Young University Law School, Provo, Utah, United States Abstract This article explores how the European Court of Human Rights (ECtHR) distinguishes between proper and improper proselytizing. It points out the importance of the com- peting factual narratives and how the way the facts are presented can determine how the Court responds to the proselytizing activity. Keywords Kokkinakis – proselytizing – proselyting – proper proselyting – improper proselytism – European Court of Human Rights (ECtHR) – Article 9 1 Introduction One of the central moves by the European Court of Human Rights in Kokkinakis v. Greece is the distinction the Court (Court or ECtHR) makes between proper and improper proselytizing, a distinction that has bedevilled the Freedom of Religion and Belief (FoRB) jurisprudence of the Court over the subsequent twenty-five years. This is remarkable because the distinction did not exist in the Greek statute prohibiting “proselytism” or the underlying Greek Constitutional prohibition of proselytism. The distinction between proper and improper proselytizing has been important not only in subsequent cases directly involv- ing missionary activities, but also in cases involving potent religious symbols such as the Islamic headscarf and Christian crucifix. © koninklijke brill nv, leiden, ���7 | doi �0.��63/�87�03�8-���3��Downloaded56 from Brill.com10/01/2021 07:55:47AM via free access 100 Scharffs This paper will focus on the influence of this hermeneutic move in two pri- mary ways. First, the distinction encourages the development of what I will call the competing “Proper Proselyting Narrative” and the “Improper Proselytism Counter-Narrative.”1 The Proper Proselyting Narrative sees missionary activity as a normal and even central element of freedom of thought, conscience, and religion, closely related to the core Article 9 right to change one’s religion or be- lief. The Improper Proselytism Counter-Narrative sees missionary activity as a dark and dangerous intrusion upon the religious freedom of adherents of ma- jority religions, as often coercive, and a looming violation of the (imagined?) right to be left alone.2 These two narratives assert themselves as competing tellings of what actually happened in the case—two alternative sets of facts.3 Second, these competing narratives also provide the background framework for subsequent cases involving not only direct efforts at proselytizing, but also in cases involving religious symbols that are either said to have, or not have, proselytizing potentials or effects.4 1 See infra, section 3. 2 In the Universal Declaration of Human Rights debates, the Greek delegate expressed his con- cern about proselytizing practices he observed in other countries: ‘Free lodgings, material assistance and a number of other advantages were offered to persons who agreed to belong to one religion or another … [The] danger of such unfair practices was a threat, not only to the minority groups of a given country … but also to the religious majority. While, admit- tedly, every person should be free to accept or reject the religious propaganda to which he was subjected, [he] felt that an end should be put to such unfair competition in the sphere of religion’. U.N. GAOR, 3d. Sess., 127th mtg. U.N. Doc. A/C.3/SR, 127, at 393–394 (Statement of Ambassador Alexander Contoumas, Representative of Greece). 3 For years post-modernists have been telling us there is no such thing as “fact,” but in our “post-truth” political moment, the importance of shared understandings of what actually happened when talking about an event that has occurred in the past is widely acknowledged. Post-modernists like Jacques Lacan, Michel Foucault and Derrida say, ‘Ideas like those of “reason” and “truth” are the fictions of the Enlightenment. Ideas about humans and society which we assume to be permanent truths change over time’. Terry Eagleton, The Illusions of Postmodernism (Oxford; Blackwell, 1996), p. 135. After the White House press secretary accused the news media of reporting falsehoods about the Trump and Obama inaugura- tion crowds and their relative size, Kellyanne Conway, a counsellor to President Trump said on NBC’s “Meet the Press” that ‘the White House had put forth “alternative facts” to ones reported by the news media’. Nicholas Fandos, ‘White House Pushes “Alternative Facts.” Here Are the Real Ones’, The New York Times, 22 January 2017, p. A15. 4 See infra, section 4. Religion and HumanDownloaded Rights from 12Brill.com10/01/2021 (2017) 99–111 07:55:47AM via free access Kokkinakis & the Narratives of Proper & Improper Proselytizing 101 2 Setting the Stage Article 3 of the 1975 Greek Constitution provides, ‘[t]he dominant religion in Greece is that of the Christian Eastern Orthodox Church’.5 Article 13 states that, ‘[f]reedom of conscience in religious matters is inviolable’, and guaran- tees the ‘freedom to practise any known religion’, and that the ‘ministers of all known religions shall be subject to the same supervision by the State and to the same obligations to it as those of the dominant religion’.6 For purposes of the Kokkinakis case, the most important Constitutional provision appears in paragraph 2 of Article 13, which states simply, ‘[p]roselytism is prohibited’.7 The Constitution, however, does not define proselytism. Section 4 of a 1938 Greek law makes proselytism a criminal offense,8 and the meaning of proselytism was clarified in a 1939 amendment to the law, which provides: By “proselytism” is meant, in particular, any direct or indirect attempt to intrude on the religious beliefs of a person of a different religious persua- sion (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, or by fraudulent means or by taking advantage of his inexperience, trust, need, low intellect or naivety.9 5 Greek Constitution of 1975, Art. 3, cited in European Court of Human Rights, Kokkinakis v. Greece, Application No. 14307/88, 25 May 1993, para. 13. The paramount place of the Greek Orthodox Church under the Greek Constitution is evident throughout paragraph 3 of the Constitution. Paragraph one of Article 3 continues, ‘[t]he Greek Orthodox Church, which recognizes as its head Our Lord Jesus Christ, is indissolubly united, doctrinally, with the Great Church of Constantinople and with any other Christian Church in communion with it (omodoxi), immutably observing, like the other Churches, the holy apostolic and synodi- cal canons and the holy traditions…’. Paragraph 2 provides, ‘[t]he ecclesiastical regime in certain regions of the State shall not be deemed contrary to the provisions of the foregoing paragraph’. Paragraph 3 provides, ‘the text of the Holy Scriptures is unalterable. No official translation into any other form of language may be made without the prior consent of the Autocephalous Greek Church and the Great Christian Church at Constantinople’. 6 Greek Constitution of 1975, Art. 13. What constitutes a “known” religion is not defined in the Constitution. Article 13, para. 4 also appears to prohibit accommodations of religion and exemptions from laws on account of religion: ‘[n]o one may be exempted from discharg- ing his obligations to the State or refuse to comply with the law by reason of his religious convictions’. 7 Greek Constitution of 1975, Art. 13, para. 2 (cited in Kokkinakis, para. 13). 8 Law no. 1363/1938, sec. 4 (anagastikos nomos) (cited in Kokkinakis, para. 16). 9 Law no. 1672/1939, sec. 2 (cited in Kokkinakis, para. 16). Religion and Human Rights 12 (2017) 99–111 Downloaded from Brill.com10/01/2021 07:55:47AM via free access 102 Scharffs This prohibition on both ‘direct or indirect’ attempts to ‘intrude on the reli- gious beliefs’ of another person with the aim of ‘undermining those beliefs’ by ‘taking advantage’ of a listener’s ‘inexperience, trust, need, low intellect or naivety’ is the closest the law comes to defining what counts as unlawful proselytism. The provision is noteworthy for its breadth and reach, targeting both ‘direct and indirect’ intrusions on the beliefs of someone who belongs to a different re- ligion (logically, this would include all intrusions, which could mean any effort to persuade). Many aims are impermissible, including any ‘aim of undermin- ing’ another’s beliefs (again, might any effort to persuade another of anything might undermine their beliefs?); any kind of “inducement” (does the promise of “salvation” or “eternal life” count as an inducement? Does feeding the hun- gry or clothing the naked?), or “moral support” (does visiting those in prison constitute impermissible moral support?) or “material assistance” (again, food or clothing?), or “fraud” (do not many religious beliefs appear preposterous to outsiders?), or “taking advantage” of another’s vulnerabilities based upon ‘in- experience, trust, need, low intellect or naïvety’ (what about teaching children, or young adults? What if everyone needs salvation?).10 Mr. Kokkinakis was convicted of proselytism under Section 4, exhausted his domestic appeals, and applied to the ECtHR on the grounds, among others, that his conviction violated Article 9 of the European Convention on Human Rights.11 10 As Danchin points out, ‘[B]oth the proselytizer and the target of proselytism can advance rights claims based on freedom of religion or beliefs that are in conflict with each other’. Peter G. Danchin, ‘Of Propehts and Proselytes: Freedom of Religion and the Conflict of Rights in International Law’, Harvard International Law Journal (2008), pp. 250–321, at p. 266. 11 See Kokkinakis, para. 27. The European Convention on Human Rights, Art. 9 provides: ‘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 com- munity with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.