Document Type

Article

Disciplines

International Law

Abstract

The European Court of Human Rights ("the Strasbourg Court") is generally considered a great success by human rights scholars, at least when compared to its competition.1 Boasting a convention securing some of the most essential rights of free and democratic societies, the fact that it gives individuals the ability to directly sue member states for violations of those rights, and forty-six members that (mostly) respect the courts' judgments, the Strasbourg court presides over one of the few international human rights systems that can be described as "effective." 2 This is not to say, however, that European Human Rights is without issues. Like all legal systems, it has its shortcomings, and one such shortcoming that no lack of scholars have pointed out is the Strasbourg court's inadequate jurisprudence on the intersection of the freedom of religion and the freedom of expression.

From the very beginning of the European human rights system, when the European Convention on Human Rights ("the Convention") was created in 1950, it had included the "freedom of thought, conscience and religion" under Article 9 as one of its core rights. 4 Indeed, the freedom of religion was arguably at the center of Europe's efforts to build a human rights system, as the members of the Council of Europe had only just witnessed the wanton killing of over six million Jews for no reason other than sheer, unwarranted animosity towards their religious identity. 5 Yet despite this, after its establishment, the Strasbourg Court did not take a case on the freedom of religion for over thirty-five years as though it was afraid to touch it; it was not until 1993 that the court addressed the issue of freedom of religion for the first time in Kokkinakis v. Greece.

In that case, Greece had arrested, charged, and convicted Kokkinakis, a Jehovah's Witness, for proselytizing his faith to others. The Strasbourg Court had very little issue determining that Greece had crossed a line here; Greece had stopped Kokkinakis from sharing his religion with others because he was attempting to convert people of Greece's state religion, Greek Orthodox, to Jehovah's Witnesses.7 It was clear to the court that this could not stand under the freedom of religion, "one of the foundations of a democratic society[,]" which it said included the right to talk to and convince others of your beliefs, lest the "freedom to change one's religion or belief, enshrined in article 9, . . . remain a dead letter."8 However, just one year after Kokkinakis, the Strasbourg Court's freedom of religion jurisprudence immediately became irreparably entangled with the freedom of expression in Otto-PremingerInstitut v. Austria (" Otto-Preminger").

Accessibility Requirements

1

Download

Share

COinS