Kokkinakis v. Greece

Facts

Mr. Minos Kokkinakis, a Jehovah’s Witness, was convicted for acts of proselytism. Kokkinakis argued that obtaining converts was a manifestation of his religion, which had therefore been violated.

Held

Violation of freedom to manifest one’s religion (Art 9(2) ECHR). Obtaining converts was seen as a manifestation of the Mr Kokkinakis’s beliefs. The Government failed to show that Mr. Kokkinakis’s conviction was justified by a pressing social need, and therefore was not proportionate to the legitimate aim pursued or necessary in a democratic society for the protection of the rights and freedoms of others.

Key jurisprudence

• Freedom of religion is one of the foundations of a “democratic society”. It is 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”. (§ 31)
• The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on freedom of thought, conscience and religion. (§ 31)
• 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”. “(§ 31)
• “In democratic societies, in which several religions coexist within one and the same population, it may be necessary to place restrictions on this freedom in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected.” (§ 33)
• The Government, “had not managed to determine the nature of the applicant’s attempt to intrude on the complainant’s religious beliefs; its reasoning showed that it had convicted the applicant “not for something he had done but for what he was”. (§ 45)

Analysis

Kokkinakis upholds freedom of religion as an essential foundation of a democratic society. Nevertheless a balance must be struck to ensure that everyone’s beliefs are respected. The jurisprudence in Kokkinakis is frequently cited by the Court in Art. 9 cases, stressing the importance of the right.

The Court noted that Mrs Kyriakaki, whose rights Mr Kokkinakis was accused of infringing, “was an experienced adult woman with intellectual abilities; it was not possible, without flouting fundamental human rights, to make it a criminal offence for a Jehovah’s Witness to have a conversation with a cantor’s wife” (§ 45). The ability to be influenced is a key factor in deciding whether the rights of others are at risk. See Dahlab.

Related cases

Sahin
Dahlab