From the Watch Tower to the Acropolis: The Search for a Consistent Religious Freedom Standard in an Inconsistent World

Abstract

Using the example of Greece, this Comment undertakes a critical analysis of the vague opinions and inconsistent applications by the ECHR under the limitations clause of Article 9(2) and suggests that the Court use three balancing tools to help decide whether to give deference to domestic authorities in religious freedom cases: (1) Special Historical Circumstances, (2) Religious Restoration and Preservation of Culture, and (3) Lack of Autonomous Meaning. Applying Article 9(2)’s three-prong analysis, when supplemented with these criteria, will balance the competing needs of religious free exercise, cultural traditions, public order, and societal needs of Europe’s states.

Part I introduces the origin and development of the problem of proselytism, the judicial and legislative handling of proselytism in Greece, and the modern societal concerns of proselytism. Part II analyzes the case-law applying and interpreting Article 9, the difficulties of applying the rule fairly and equitably across a diverse continent, and relevant judicial arguments, treaties, and documents that could be used to create a more predictable formula for assessing Article 9(2) questions in an ever-changing world. Finally, Part III offers tools to redress the problems analyzed in Part II and applies the tools to timely examples.

Keywords: Greece, ECHR, proselytism, Article 9, Europe, Council of Europe, religious freedom, human rights, European Court of Human Rights, European Convention, Kokkinakis, Damavolitis Emmanuel, marge d'appreciation, EU accession, Syntagma, Greek Constitution, international law, margin of appreciation

JEL Classification: K33, N43, N44, O52