Saturday, January 14, 2012

The Kokkinakis v Greece case:
Defining pluralism and majoritarianism
in the Greek society /

Η υπόθεση Κοκκινάκης κατά Ελλάδας:
Ορίζοντας την πολυφωνία & τον πλειοψηφισμό
στην ελληνική κοινωνία

The ECtHR is, however, not in the role of bystander in the name of the principled compatibility between the Convention and the diversity of the European state-religion models. Though a margin of appreciation is left to national authorities, their decision remains subject to review by the Court in conformity with the requirements of the Convention and Protocols. The Court has, in its reviewing competence, attempted to develop a ”thin” constitutional framework (or perspective) whereby it sets specific limitations to the margin of appreciation of the national authorities. With respect to religion, this trend gained momentum with Kokkinakis v Greece (1993). Kokkinakis has the merit of being the first case to be judged under article 9 of the Convention, which states the principle of freedom of religion: “[e]veryone has the right to freedom of ... religion; this right includes ... freedom, either alone or in community with others and in public or private, to manifest his religion ... in worship, teaching, practice and observance.” Even if the concept of pluralism is an older presence in the jurisprudence of the Court, Kokkinakis has the merit to have interconnected, in a decisive way, the principle of freedom of religion with that of pluralism as an essential feature of the democratic society. According to Kokkinakis, “[a]s enshrined in Article 9…, freedom of thought, conscience and religion is one of the foundations of a´ democratic society within the meaning of the Convention. It is, in its religious dimension, 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, skeptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.” The corollary of the Court´s support of the liberal-pluralist perspective has been its questioning of biased aspects of the inherited bond between majority religion and nation-state. It is significant that Kokkinakis v Greece defended Mr. Kokkinakis´ freedom of speech against the manifest bias of the Greek state in favor of the majority religion (i.e. Orthodox Christianity). It is certainly disconcerting to learn that the appellant, a member of the religious minority of Jehovah’s Witnesses, had been arrested more than sixty times before his case reached the ECtHR.

* Camil Ungureanu,
"Between pluralism and majoritarianism: The ECHR on religious symbols and education"
[«Μεταξύ πολυφωνίας και πλειοψηφισμού: Το ΕΔΔΑ σχετικά με τα θρησκευτικά σύμβολα και την εκπαίδευση»],

in: / στο:

Ricard Zapata-Barrero & Anne R. van Ewijk (eds.),
Spheres of diversities: From concept to policy,
[Σφαίρες ποικιλότητας: Από την ιδέα στην πολιτική ρύθμιση]
Barcelona Centre for International Affairs, 2011,
pp./σσ. 36, 37.

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