Kokkinakis v Greece [1993] ECHR 20

Kokkinakis v Greece [1993] ECHR 20; (1994) 17 EHRR 397

European Court of Human Rights, 25 May 1993. Application no. 14307/88.

The decision

The European Court of Human Rights held, by six votes to three, that Greece had violated Minos Kokkinakis’s freedom of religion under Article 9 by convicting him of proselytism. The Greek courts had not sufficiently explained how he had used improper means to persuade another person to change her beliefs. His conviction was therefore not justified by a pressing social need.

The Court did not hold that every restriction on religious persuasion was unlawful. It distinguished protected religious teaching from improper proselytism and examined the justification for this particular conviction. By eight votes to one, it rejected the separate complaint that the offence was insufficiently defined under Article 7.

Facts and proceedings in Greece

Kokkinakis was a Jehovah’s Witness. On 2 March 1986, he and his wife visited Mrs Kyriakaki at her home in Sitia, Crete, and discussed religious matters with her. Her husband, a cantor at a local Orthodox church, informed the police. The couple were arrested and subsequently convicted of proselytism under section 4 of Law no. 1363/1938, as amended in 1939.

The trial court sentenced each to four months’ imprisonment, convertible into a monetary penalty, and a fine. The Crete Court of Appeal acquitted Mrs Kokkinakis but upheld her husband’s conviction, reducing his sentence to three months and converting it into a monetary penalty. The Court of Cassation dismissed his further appeal.

The domestic courts described Kokkinakis as taking advantage of Mrs Kyriakaki’s inexperience and lack of understanding. A dissenting judge in the Court of Appeal considered that the evidence did not establish those characteristics. Mrs Kyriakaki herself said that the discussion had not influenced her beliefs.

Religious persuasion under Article 9

The Court explained that freedom of thought, conscience and religion was fundamental to a democratic society. Its protection extended to believers and non-believers alike. Freedom to manifest religion included, in principle, trying to persuade another person through teaching; otherwise the freedom to change religion could lose much of its practical meaning.

Article 9(2) nevertheless permitted restrictions on the manifestation of religion where they were prescribed by law, pursued a listed legitimate aim and were necessary in a democratic society. The Court distinguished that qualified freedom from freedom of conscience itself. States could need to reconcile competing interests so that different religious groups could coexist and everyone’s beliefs were respected.

Kokkinakis’s conviction interfered with his freedom to manifest his religion. The issue was whether Greece could justify that interference under Article 9(2).

Why the conviction was disproportionate

The Court accepted that the interference was prescribed by law. Although the legislation used general language, an accessible body of national case law supplemented it sufficiently to enable Kokkinakis to regulate his conduct. Protecting the rights and freedoms of others was also a legitimate aim.

The decisive question was necessity. The Court distinguished bearing religious witness from improper proselytism. The latter could include offering material or social advantages to obtain converts, exerting improper pressure on people in distress, violence or brainwashing. The statutory criteria were compatible with that distinction only insofar as they punished improper proselytism.

In Kokkinakis’s case, however, the Greek courts had largely repeated the statutory wording. They had not sufficiently identified how he had attempted to persuade Mrs Kyriakaki by improper means, and none of the facts they set out warranted that finding. Greece had therefore failed to establish a pressing social need for the conviction. The measure was disproportionate to its legitimate aim and violated Article 9.

This was a decision about the justification for convicting Kokkinakis, rather than simply a conclusion that his sentence was too severe. Nor did the majority declare the proselytism legislation invalid in all its applications.

Article 7 and the other complaints

Article 7 was relevant not just because it prohibited retrospective punishment. It also required offences to be defined by law and prohibited extending criminal liability to an accused’s disadvantage, for example by analogy.

Kokkinakis argued that the definition of proselytism was too vague. The majority rejected that complaint: the statutory wording, read with the courts’ interpretation, sufficiently indicated what conduct attracted liability. A law could therefore satisfy the requirement of legal certainty while its application in a particular case still unjustifiably restricted religious freedom.

Having found an Article 9 violation, the Court unanimously considered it unnecessary to examine Article 10 separately or Article 14 together with Article 9. It awarded Kokkinakis 400,000 Greek drachmas for non-pecuniary damage and 2,789,500 drachmas for costs and expenses.

The separate opinions

The judges disagreed both about the legislation and about the facts. Judges Pettiti and Martens would have gone further in finding the proselytism law itself incompatible with Article 9; Martens also dissented on Article 7. Judge De Meyer emphasised that Kokkinakis had shown religious zeal without established impropriety. Judges Valticos, Foighel and Loizou considered that the conduct justified the restriction and dissented from the Article 9 finding.

The majority’s narrower conclusion was that religious persuasion could fall within Article 9, and that punishing it required a demonstrated justification. Repeating the language of an offence did not establish that justification.

Original judgment: Kokkinakis v Greece, European Court of Human Rights, particularly paragraphs 31–53 and 59–60.