At the Borders of Religious Freedom: Proselytism between Law and Crime

Rosa Geraci

PhD, Universy of Palermo

At the Borders of Religious Freedom: Proselytism between Law and Crime.*

Summary: - 1. Some remarks about religious freedom in global society. – 2. Behavioral advertising and proselytism. – 3. Aggressive proselytism and apostasy. – 4. Phenomenon of proselytizing in prison, with particular regard to Islamic fanaticism. – 5. Prevailing religion and ban on proselytism in Greece. – 6. Evaluation by ECHR of ban on proselytism. – 7. Conclusions.

1. Some remarks about religious freedom in global society

Because of current intense migratory flows, the coexistence of various religious movements, often very different ones, in our society has increased^[1]. This phenomenon is known as ‘religious pluralism’ and it is not a mere coexistence within the same social sphere of different religious groups, but it implies that before the law all religions have the right to exist, to spread doctrines, to worship, and to gain a recognition of ‘special’ juridical positions^[2].

In fact, today the market of ideas, especially religious ones, is open, highly variable, and constantly enriched by new stimuli. It fosters circulation of ideas, debate, and transmission of values that in a globalized world follows its own rules. But freedom of thought cannot exist until every single cult has equal freedom of propaganda and proselytism guaranteed.

In this background, the religious factor is a diriment element and the issue of State secularism represents the focal point of cultural and juridical debate.

Secularism, according to Barbier, is not easy to define and it is characterized by a detached behaviour of the State towards religion. The term secularism can have various meanings^[3]. The jurisprudence of the Constitutional Court set forth that it constitutes a ‘supreme Principle’ of the Italian State, affirming the claim of citizens to have a real autonomy of state from religions and a recognition of equal rights and freedom, with regard to one’s own religious belief or atheistic, agnostic, or rationalistic beliefs.

In other words, the idea of secularism, as pointed out in the juridical/constitutional field by the Constitutional Court allows all citizens to freely and publicly worship their faith and to lead a life free from religious obligations and conditionings.

Philosophically, secularism implies equality and liberty of all citizens, and is strictly related to a liberal State model considering its reluctance towards a paternalistic stance^[4]. In this sense, in the light of the Kantian principle of self-determination of citizens, regarded as subject to laws they give themselves, also formulated by Rawls and Habermans, some authors consider laity an unswerving requirement in order to avoid political interference from religions that could negatively influence individual autonomy^[5].

The current debate over laity of the State is focused on possible ways a relative neutrality of public institutions can be guaranteed, when facing the religious factor^[6]. When religion enters the public sphere, indeed it reflects its effects into the freedom of choice of single persons, and also into civil and political fundamental rights of individuals and groups.

In the current scenario, the multiplication of actors in the religious market and the return of old fundamentalisms cause the regression of separatism and secularism achieved by secular and laic societies in Western Europe. Moreover, the ever increasing processes of globalization, women’s emancipation, the deployment of means of communication, the rising movement of people also through a significant return or ‘frontier’ migrations, lead one to choose faiths other than traditional ones. For example, in several European countries, and especially in France, Buddhism has largely spread. Cultural contamination generates a remarkable individualization of sensitivity about religious affiliation and choices in life that is now uncontrollable and disconnected from traditions and places.

2. Behavioral advertising and proselytism

ICT, together with new means of communication and information processing, are the ground for the development of the so-called behavioural advertisement^[7]. It is a kind of propaganda based on the analysis of single web user’s behaviours, with the aim of being dynamically customized on user’s interests, tastes, and political or religious ideas. Through cookie files, behavioural advertising on the web defines a detailed user’s profile that will then receive ads. It uses such information to deliver a page tailored to a particular purpose, according to user’s behaviours on the Internet.

Behavioural advertising, on one hand could be utilized to campaign for religious beliefs and faiths and, on the other hand, could infringe individuals’ privacy and religious rights, especially when it presupposes a personal data processing that can disclose religious and philosophical data with the purpose of sending ads to the user.

Indeed, personal data, disclosing information about religion or philosophical beliefs are regarded as sensitive according to article 8 of Directive 95/46/CE; to article 4, subparagraph 4, letter d of Privacy Code; and according to article 9 of current Regulation, even if in the text the words ‘sensitive data’ are not used.

Sensitive data need a stronger safeguard because information referring to religious or philosophical beliefs ‘concerns the most intimate aspects of an individual’ and more importantly ‘they can be easily used with the aim of discriminating’. The reinforced protection in the current Privacy Code for sensitive data, included religious and philosophical ones, provides that data processing are legal only if: 1. The data processing Authority gives its authorization (ex article 26, subparagraph 1 of Privacy Code), and 2. A written authorization of informed, specific and free consensus to process data; failure to do so would be illegal (article 23, subparagraph 4).

We need to make a distinction between two kinds of behavioural advertising affecting the religious field in general^[8]. The first kind can be defined as sensitive behavioural advertising, and uses personal information that can disclose religious and philosophical beliefs of users (sensitive data). The second kind can be defined as common behavioural advertising, as it is based on the processing of not-sensitive common personal data. Within these kinds of advertising, we can identify advertising with religious proselytizing content.

With respect to sensitive behavioural advertising with a content of religious proselytism (for example we can think to a system based on cookies set up to record any possible visit to websites of religious interest), Article 29 Working Party (in its opinion no. 2/2010) has stated that (i) use of sensitive personal data (ex article 8 of EC regulation 95/46), included those data that could reveal religious, ‘philosophical or different beliefs, entails serious risks to infringe the personal data of individuals if this type of information is used for the purposes of serving behavioural advertising’; (ii) ‘Any possible targeting of data subjects based on sensitive information opens the possibility of abuse’; (iii) ‘awkward situations may arise if individuals receive advertising that reveals their religion, sexual preferences or political activity’.

It seems to be reasonable to believe that processing of religious sensitive personal data with reference to propaganda and proselytism towards general web-users cannot renounce to the prerequisites of a written consensus and an Authority’s authorization.

Today, behavioural advertisement has not a legitimate base. In such a scenario, worries of Article 29 Working Party are still high, as cited in Opinion no. 2/2010, in relation to ‘serious risks for personal data protection’ and to embarrassing situations in case of advertising messages revealing religious preferences.

A closer look shows us that both sensitive behavioural advertising with religious content and the right to privacy of personal data, which could reveal religious and philosophical beliefs, find at least partially their foundation in article 19 of Italian Constitution. Therefore, the contrast between the advertiser who wants to spread a cult of a belief, and the right of a possible individual target to keep the privacy about his/her faith would need a balancing within article 19. This could be guaranteed through a specific, informed, expressed and free consent of the individual.

When examining the second kind of behavioural advertising with religion proselytism content, that is common behavioural advertising, we refer to the processing of not-sensitive personal data for advertising purposes. In this case, the obligation of prior checking, of notification to the Authority in order to profile recipients, and all issues relative to ‘cookie law’ are still valid. Also for this kind of advertising there is the need of safeguarding the aim of article 19 of Italian Constitution, but as we are not talking about sensitive data, by balancing risks and privacy of recipients of advertising, it seems that a stronger exercise of propaganda freedom of religion will prevail.

3. Aggressive proselytism and apostasy

Religions are experiencing a deep state of uncertainty that produces a crisis of those instruments that have always been used by confessions to limit their presence in society, such as religious punishment for apostasy, schism, heresy, and proselytism, in particular the aggressive one^[9].

The current scenario can be dated back to 1994, ten years after the signature of Corcordat between Italian state and the Vatican when, attempting to strengthen the institutions, Italian politics wanted to bring the traditional relationships between State and Church back up, even if in a more modern form. As we all know, this project failed because of the crisis of the ‘First Republic’ during which attitudes of abandonment of ecclesial communion spread, in favour of laic or even anti-clerical associations. On that occasion, enhanced ecumenical relationships among Christian Churches had created common initiatives of debate and confrontation with the aim of holding back ‘recessive’, miracle-mongering, and charismatic religious practices. Nevertheless, bishopric’s attention was, and still is, focused on apostasy carried out by those with atheist positions, which could not be faced by prohibiting proselytism.

The relationship between ban on proselytism and the issue of apostasy, which was first observed during the ‘70s, is currently of concern. Indeed, it is believed that only prohibiting ‘any kind of proselytism’, and making it a central rule of ecumenical coexistence can avoid a climate of strong concurrency among confessions. By operating a firm stand in favour of the relations among ethnic groups, traditions, and religious affiliation, new and aggressive presences on the market can be countered.

Processes of secularization, consumerism, society of spectacle, and different attitudes towards issues concerning birth, marriage, death, they all put a distance from cults and religious values, if not even making individuals abandon them. This is due to the fact that human beings believe they can control life processes, and that life, death and sentimental relationships are values belonging to persons and are available for all individuals.

Complexity of emotional and sentimental relationships builds a rougher, and less safe than in the past, road to religious affiliation. Religion’s choice concerns not only ‘believing or not believing’, but also affiliation from one religion to another. Hence the needs of promoting dialogue with nonbelievers, taking into account their ethical and existential choices.

On their parts, member States, which became weaker after the economic crisis, are slowing down the process of European integration, seeking help of strong and traditional religions in order to maintain a civil society that is going through serious crisis and looking for an identity in which religions play a crucial role.

We are aware that the main concern is to reconsider religious pluralism at the light of democracy, of secularism, and of equality of individuals and religion in an inclusive way.

However, this can be done if lawmakers intervene as soon as possible making a common law. This common law by keeping into account “concrete requests of civil and religious conscience of citizens” that share values, can lay the foundation of pluralism as a “consequence of negotiations and synthesis’in which the State could be an organizing system of reference for the social basis. Thus, the risk that some religions acquire a lobbying position can be avoided.

Contemporary political and juridical philosophy has put forward interesting proposals. A Rawlsian idea of political liberalism and Habermas’ procedural perspective of a neutral public space are just among the best-known propositions. They both have their theoretical roots in Kantian thought, when he deals with the relationship among law, politics and religion^[10].

The idea of John Rawls (American philosopher in the liberal tradition) is about the public reason revisited with the aim of attaining what he defines as ‘reasonable pluralism’ on ethical and religious issues. Rawls believes that thezeal to embody the whole truth (especially the religious one) in politics is incompatible with an idea of public reason. In order to solve disputes and to pinpoint rules of social cohabitation, it is necessary that legislative choices be based on the idea of ‘public reason’. Such a principle has to carry the basic theme of justice. It means a reason is public when it is founded on a series of non-authoritarian and not metaphysical argumentations, even moral ones, but on a political basis. As a result, all individuals adopting a neutral standpoint when they abandon any religious or philosophical doctrines can potentially accept such argumentations. Ethical or religious issues can be part of public debate if they are supported by and combined with significant reasons. A democratic ‘intersection consent’ among free and equal individuals, respecting fundamental rights and freedoms, is required in order to adopt a ‘public choice’.    

Habermas’ philosophy is similar to Rawls’. The German philosopher, in order to attain a deliberative democracy, points at the idea of public space in which citizens behave according to the ‘discourse ethics’. With this view, individuals develop a public discourse based on the respect of some instrumental conditions that respect individual rights for the adoption of impartial public choices (presuppositions of discourse and pretention to validity). This ensures impartiality of adopted decisions by introducing generalised reasons and arguments.

Public rules and decisions seem to have an intersubjective validity claim, and therefore, from a moral perspective they need to be observed. Habermas’ procedural perspective has the aim of including religious differences within a public debate: an argumentative framework sets valid decisions for individual of all faiths. Such decisions are adopted according to the principle of ‘better element’. In his theory, Habermas acknowledges the role of religions in the public sphere as valuable, whether or not they have an institutional representation, regarding them as elements influencing the decision-making process.

Level of democracy and public participation must be extended to all individuals of all religions through mechanisms of collective negotiation in order to settle minimum rules shared by all, respecting principles of democracy, secularism, and equal rights of religious freedom for all citizens.

4. Phenomenon of proselytizing in prison, with particular regard to Islamic fanaticism

Apparently, Islamic world did not let ICT development pass it by, and the newest technologies, such as the Internet, are regarded as one of the most important vehicle for dissemination of ideology because it allows to transform into global something coming from local circles. As a matter of fact, today’s generation of terrorists are raised in the most advanced technology of modernity that comes from the western world, where cyberspace is the new way to disseminate not only an ideology but also a style of communication to carry out propaganda and proselytism.

It is not easy to precisely define how many and which are web spaces linked to Jihadist reality and ideology. Indeed, there are a significant number of independent individuals, even if a high degree of interaction among them has been established. Fight against terrorism is problematic also for the juridical configuration of operations that national and international anti-terrorism task forces have at their disposal.

Together with the risks related to telematics data transmission, we need to add surveys carried out in penitentiaries of some European countries, such as Italy, France and United Kingdom, which revealed two alarming phenomena connected to Islamic radicalism.

The first one concerns radicalization of many ordinary criminals, especially those coming from North Africa, that when entering prison did not have a religious inclination, but gradually became extremists, under the influence of already radicalized prisoners.

The second phenomenon, more and more spread, concerns Islamic law (the so-called Sharia) that in prisons is imposed by some groups of fundamentalist inmates.

Radicalization in prison can take place through two channels: through internal osmosis, that is the influence of other prisoners; or through external influence that is by introducing into prisons deviating textbooks or admitting authorized visitors. In fact, it is thought that prisons are a potential breeding ground for fanatical extremists, in particular for former fighters that can leverage weak individuals to select volunteer mujaheddins to be sent to war areas, thanks to a meticulous religious indoctrination[11].

In Italy the ‘Report on Information Security Policy’ highlighted that in prisons there is an insidious work of indoctrination and recruiting from ‘veterans’ who are sentenced for belonging to terrorist networks towards inmates sentenced for drug smuggling or minor crimes. Penitentiaries are in facts a place where single detainees are brought together, thus losing their own identity; all this allows individual and collective processes of jiadism to be promoted.

There is clearly a phenomenon of indoctrination, and through proselytizing activities a weak prisoner approaches a radical religious group. So, firstly fundamentalists approach the inmate, and then they pass to ‘brotherhood’ or ‘familiarization’, and to support, counselling or protection. After that religious indoctrination starts, followed by recruiting and final inclusion of the inmate into cells ready to strike once they are outside prison. Actually, apart from the composition of groups within prison cell, according to the law it is possible to have several ways to be in contact with inmates (time out of cell, recreational activities, etc.). During these moments risk factors for order and security measure are high, especially for dissemination of Islamic radicalization and proselytism.

In Italian penitentiaries the risk of proselytizing, aimed at armed struggle, is tangible and as a consequence constantly monitored. In Europe there are some 500 prisoners detained for crimes linked to terrorism; the alarm is stated in a report commissioned by Brussels ‘Jihadist radicalization in European prisons’ in which emerged that such individuals are militarily trained even to be up against the penitentiary’s system. In the report we can read that secret services found out that in prisons extremists ‘speak slang and use key-words to transmit information inside and outside the prison’.

According to French sociologist Piotr Smolar, conversions after 11^th September 2001 increased thanks to awakening of proselytism among those who had criminal records, and most part of recruiting and conversion took place in prison. In this analysis we can also read that, once out of prison, part of converted individuals are integrated in logistic support structures of Islamic groups or directed to ‘highly sensitive jobs’, such as airports, telephone switchboards, etc.

In 2003 the Italian Ministry of Home Affairs has created the Committee of Strategic Counter-Terrorism Analysis (C.A.S.A.) after the terror attack in Nassirya to the Italian army. It is an inter-force Board with prevention aims. Among the instruments C.A.S.A. has, we underline prisons’ monitoring, which is carried out in cooperation with the Department of Prison Administration, in order to recognize any possible proselytism by those convicted for terrorism, and also the intervention of Intelligence Agencies through their competences and information channels.

You shouldn’t underestimate that offering proselytism does not derive from spiritual reasons, but from an attempt of revenge or an answer of contrast towards the hosting system, regarded as discriminatory. This is why prevention of religious radicalization is achieved by solving ethnic and cultural contrasts, together with the increase of instruments and ways of integration and mediation[12].

With this regard, psychosocial research has designed several strategies to reduce contrasts in multicultural environments, so to make peaceful coexistence of different groups easier.

The first, which has an individualistic connotation, is to deny group’s belonging in order to facilitate a process that underlines individual characteristics, and not common characteristics of a certain group. Another strategy wishes to join original groups with a new single group built on characteristics and belongings revised by single individuals, so to create a multi-level group formed by members of one’s own group and also members of groups perceived in the past as opposed.

Therefore, if heterogeneous categories of prisoners, for instance indigenous and individuals coming from non-EU countries can apparently decrease conflicts, because of lack of uniformity, on the contrary a very strict and exclusive contact especially among Islamic persons can lead to a higher possibility of extremism dissemination. And even more, it is possible that charismatic and religious individuals can become leaders and therefore manipulate fellow believers’ mind to the point to push them against the religion and the institutions of the hosting country.

The most appropriate strategy for a multi-cultural environment could be coexistence of groups: the multi-level group does not substitute the original one, but it is added and exists with other groups. This way an individual can at once feel he belongs to both groups. Accordingly an ‘institutionalized’ Imam, chosen by the Administration, could help controlling the phenomenon and thus reduce the risk of proselytism and distorted use of religion.

5. Prevailing religion and ban on proselytism in Greece

Greek system is highly interesting for ecclesiastical people as it states a peculiar relationship between State and Orthodox Church and recognizes due importance to religious laws^[13].

Greek Constitution, while recognizing freedom of religion, declares, by article 3, subparagraph 1, Eastern Orthodox Church of Christ as the prevailing religion and locates an area of absolute prevalence of religion. This territory is the peninsula of Mount Athos, which preserves unaltered its ancient privileged self-governing regime and is spiritually under the supervision of the Ecumenical Patriarchate of Holy Monasteries that forms a sovereign community.

The current system of prevailing Orthodox religion, as outlined in the Constitution, has its roots in the Christian Roman Empire of Byzantium. After the fall of Constantinople, Mehemed II recognized the political power of the Church to the extent that the Patriarch was responsible for all activities of Christian-Orthodox before the Ottoman Empire.

Only after Greek war of Independence against the Ottomans different relationships were arranged. The Constitution of the new Greek state, which was formed in 1827 with Ioannis Kapodistrias, declared the Orthodox religion as State religion, and guaranteed freedom of cult to faithful of other religions.

In 1831 Great Powers established in Greece an absolute monarchy. Otto of Bavaria was chosen as King, together with three regents. He introduced a system by which the State ‘took control’ of the Church. In 1833, a political decision declared the Greek Church independent, all legislative powers were given to the State, and the king governed the Church.

Article 105 of the Constitution specifically stated that ecclesial administrative powers be exercised by the State. Such relations between Church and State were maintained also in 1844 Constitution, but not specifically adopted in the following Constitutions of 1864, 1911, 1927, and 1952.

The Constitution Chart of 1975, a social-democratic one, was adopted at the end of a seven-year military dictatorship. It regulates relationships between State and Church and declares the Orthodox religion ‘prevailing’ religion. Even after 1985 and 2001 revisions, the text has maintained this regulation.

Literally, the juridical meaning of the term ‘prevailing’ implies the Orthodox religion to be the official religion of Greek State, even if it is not specifically stated, and it is considered with a particular regard that is not bestowed to other religions^[14].

The Orthodox Church has a special juridical status, being a public law body. Furthermore, it enjoys preferential legal provisions. For example, constitutional provision ex article 18, §8 guarantees that certain patriarchal properties are exempt from expropriation. Moreover, the text of the Holy Scriptures shall be maintained unaltered. The official translation into any other linguistic forms, without the sanction of the Autocephalous Church of Greece and the Great Church of Christ in Constantinople, is prohibited (art. 3, §3).

Article 3 also states that the Churchis autocephalous, exercising its sovereign rights independently of any other church, and is administered by the Holy Synod of Bishops and the Parliament Holy Synod.

The Orthodox Church of Greece acknowledging as its head Our Lord Jesus Christ is indissolubly united in doctrine with the Great Church of Constantinople and every other Church of Christ of the same doctrine. It observes steadfastly, as they do, the holy apostolic and synodical canons and the holy tradition.

Article 13 of Greek Constitution guarantees freedom of religious conscience and freedom to worship any religion. Indeed, Greek civil legislation states that proselytism presumes a guilty behaviour of an individual whose activity is regarded as heresy.

And precisely, according to article 198 of Greek penal code, proselytism can be punished for the following:

a) when it aims at attracting proselytes so to have certain religious beliefs that can influence their life or could cause disorders to the political establishment or if they are incompatible with it (art. 149 penal code);

b) when it is carried out by means of coercion (moral or physical violence and threat) with the aim of changing religious beliefs of subjects (art. 195 penal code);

c) when it is carried out by inappropriate means, by promises of monetary remuneration (art. 198 penal code).

Greek Court of Cassation, in the attempt of interpreting the term heretic, in sentence no. 213 of 1904 defined heretics ‘those who preach religious ideas, which are openly in contrast with the fundamental principle and with basic dogmas of Christianity’. Examples of such heretical concepts are: ‘Mary did not conceived Jesus Christ as a Divine being, but as a human; she did not remain virgin after Christ’s birth and she generated other children; miracles described in the gospels never happened’.

The Greek Court of Cassation has provided a more incisive definition of ‘heretic’ by sentence no. 586 of 1931 in which heretics are ‘those belonging to Churches other than the Orthodox one or are followers of other religions’. As a consequence, penal legislator, in order to safeguard the right of freedom of religious conscience, punished activities of proselytism to prevent it ‘among religions recognized by the State and among different religious system; thus, avoiding public order disturbances provoked by the mutual exercise of proselytism’.

In Greek legal system, penal offences of proselytism are typical. This means that it is legally not important if the crime is committed or if the used means are qualified for its fulfilment. Moreover, a semantic prerequisite of the idea of proselytism is the intensity of the persuasive (διείσδυση – diìsdisi) action, which must be suitable to affect others’ conscience. Persuasive action must be considered as an action that influences other’s ideas (επέμβαση – epemvasi) by means of pressures and influences. When pressures and insistence characterize the expression of persuasive actions addressed to heterodox individuals, only then we can talk about convincing action on religious conscience, and therefore about proselytism.

Nevertheless, it is undeniable that specific regulations on proselytism are somehow vague because they haven’t been clearly and accurately defined. To sum up, ‘the concise and general description of criminal liability of such behaviour poses questions on constitutionality of the concerned provisions, as they are undetermined’.  

Jurisprudence and doctrine debate whether laws on proselytism in Greece are constitutional or not, and in particular the provision establishing the right to religious freedom has been going on for many years with ups and downs and it is not possible to duly report it now, as the matter is wide and articulated. Today’s Greek situation appears to be quite critical due to the cohabitation of several religious identities and the subsequent safeguard of minorities.

6. Evaluation by ECHR of ban on proselytism

Problems arising from the implementation of norms on proselytism drew the attention of European Court of Human Rights (ECHR) that was asked, for the first time in 1990, to give its judgment in respect of the purported violation of law on proselitysm. The facts concern a Jehovah’s Witness who was convicted of proselytism by his country’s tribunals in 1988.

The applicant, Mr. Kokkinakis, was born in Crete in 1909, son of an Orthodox family, but in 1936 he joined Jehovah’s Witnesses^[15]. He submitted that the provision no. 1363 of 1938 was too vague, and potentially allowed police and judicial authority to decide on the matter, to the point that being Non-Orthodox signified living in a permanent ban of freedom of speech. Therefore, according to Mr. Kokkinakis, this kind of situation would impede to anyone the manifestation of religious orientation, in accordance with Greek provisions. For this reason he decided to submit the matter to the Strasbourg Court, believing that he suffered a restriction of his freedom of religion, provided for in article 9 of ECHR. Greek courts (in the first and the second instances, and also the highest court) convicted him of proselytism, whose ban was regulated in 1975 Constitution and concerned all religions, and not only the prevailing one, as provided for in1938 penal system.

Mr. Kokkinakis entered into a discussion with Mrs Kyriakaka, the wife of a cantor of the local Orthodox Church, about religion. Hence, article 9 of ECHR was violated because according to the Court, proselytism itself is not prohibited; on the contrary, article 9 safeguards it. EU laws ban illegal proselytism, and for this case the ‘pressing social needs’ used by the Greek government to justify the conviction were not present^[16].

With regard to proselytism, the judgment of the case Larissis and others v. Greece, of 24^th February 1998, was also used^[17]. In the case, three air-force military officers, members of a Pentecostal group, obtained a penal conviction for proselytizing to a number of civilians and subordinates. ECHR delivered the sentence of no violation of article 9 with reference to subordinates, since trying to convert them would result in taking advantage of officers’ superior rank. As for the conviction for proselytism to civilians, the Court decided otherwise, as civilians were not under undue pressure in abuse of power. Hence the officers were not in violation of article 9 considered that proselytism was exercised within limits set out by ECHR and by Kokkinakis v. Greece judgment.

The Court, in the comment to the sentence stated that article 9, §1 taken together with article 11 of the Convention, which guarantees freedom of assembly and association, recognizes the right to worship and practice religion in community with others, and to found churches of religious communities. Nevertheless, the Court had previously established some rules of cohabitation between different faiths that are subject to its supervision. Indeed, if on one hand it demands member States to be neutral toward religious phenomena, without passively accepting inter-religious fights, on the other hand requires States, by regulating the religious phenomenon in its collective dimension, to be impartial and neutral. Therefore, the Court deems it appropriate to judge if specific required authorizations must be asked, for example to build a place for worship, in compliance with article 9 §2 of ECHR.

7. Conclusions

Somehow the economic crisis, whose force we are not yet aware of, gives rise to concerns over the future and to increasing insecurity. Hence, this can give credence to the illusion that the authoritarian model and a return to original "purity" might be the best way to bring back feelings of security and well-being. Anyway, global communication makes us reconsider several apparently established standards.

It means that the era of closed cultures is over. In a deregulated market, secularism is the fundamental rule, the most important instrument used by governance’s practices to ease discussion, cohabitation, and coexistence of different, but equally important, cultural and religious models. Secularism will allow a possible experiential approach, based on diversity rather than on homologation, boosted by a continuous dialogue among different groups and individuals and evaluated according to Law.

In the great project, built by globalized world, religious rights play an important role because they are vehicles for values circulation. In this context, proselytism brings with its ethical pluralism, fostered by ethical relativism, which allows freedom of thought and capability to list all moral principles. We are dealing with a non-belligerent approach even if the existence of religious groups characterised by a strong fundamentalism makes, in my opinion, the resort to a ‘new jurisdictionalism’ inevitable as it represents an absolute secularity of public powers at every level of institutional autonomy.

In facts, if, on the one hand many countries are experiencing a growing consensus in favour of xenophobic and nationalistic parties, on the other hand mass-murdering terrorism is utilized to stir people’s conscience and spurring society to reaction through authoritarian choices. As a consequence, it is necessary to implement a more effective management of the territory so that institutions can become more efficient to guarantee a better standard of life.

Keywords:Religious freedom- proselytism – apostacy - behavioral advertising – globalization -Islamic fanatism.

Abstract: The raise of religious pluralism has a twofold effect, on one hand it widens the number of available and accessible religious options, and on the other it increases the level of tensions and conflicts. Even though religions preach peace, sometimes they provoke wars that are triggered by proselytism. Indeed, today recruitment campaigns in religious market fuel discontent, and yet freedom of religion implies the right to express and to profess a religious message, even for advertising or with a persuasive aim. Logic of the market, by new means of communication and freedom of criticism, influences under many aspect religion, and opens the doors to new forms of religiosity. The present study aims at examining the main critical issues of freedom of religion: the need of freedom of expression and the safeguard from invasiveness or offensiveness of proselytism. This will be achieved by trying to identify balanced boundaries among all ‘sacrosanct’ needs.

*Il contributo è stato sottoposto a double blind peer review

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^[2] E. Severino, La ragione, la fede, Milano, 2009, pp. 20 ss.; S. Sicardi, Questioni aperte nella disciplina del fenomeno religioso: dalla laicità al sistema delle fonti, in Quad. Dir. Pol. Eccl., 2005, I, pp. 3 – 29; A. Bettetini, Religione, diritto canonico e diritto politico in una società dopo-moderna, in G. B. Varnier(a cura di), Il nuovo volto del diritto ecclesiastico italiano, Soveria Mannelli 2004, pp. 163 ss.; F. Finocchiaro, Diritto ecclesiastico, Bologna, 2003, pp. 68 e 128; G. Barberini, Lezioni di diritto ecclesiastico, 2ª ed., Torino, 2001, p. 39; G. Dammacco, Diritti umani e fattore religioso nel sistema multiculturale euromediterraneo, Bari, 2000, p. 44; G. B. Varnier, Le problematiche del rapporto Stato-minoranze confessionali, in V. Parlato - G. B. Varnier (a cura di), Normativa ed organizzazione delle minoranze confessionali in Italia, Torino, 1992, pp. 7-8; see also S. Ferrari, La nozione giuridica di confessione religiosa (come sopravvivere senza conoscerla), in V. Parlato - G. B. Varnier (a cura di), Principio pattizio e realtà religiose minoritarie, Torino, 1995, pp. 19-47; A. C. Jemolo, Stato e Chiesa in Italia negli ultimi cento anni, Torino, 1971, pp. 330 ss.

^[3] M. Barbier, La laicitè, Paris, 1995, pp. 69 ss.

^[4] A. Barbera, Il cammino della laicità, in www.forumcostituzionale.it, giugno 2004, pp. 3 ss..

^[5] J. Habermas, Tra scienza e fede, Roma-Bari, 2004, pp. 16-17; J. Rawls, Political Liberalism, New York, 1993, pp. 36 ss..

^[6]C. Cardia, Religione (libertà di), in Enc. giur., Aggiornam., vol. II, Milano, 1998, p. 919. See also P. Bellini, Nuova problematica della libertà religiosa individuale nella società pluralistica, in AA.VV., Individuo, gruppi, confessioni religiose nello Stato democratico, Milano, 1973, pp. 1118 ss.

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^[8] J. R. Mayer - J. C. Mitchell, Third-party web tracking: Policy and technolog, in Proceedings of IEEE Symposium on Security and Privacy, May 2012, in https://stanford.edu/~jmayer/papers/trackingsurvey12.pdf., pp. 1 ss.; M. Backes - A. Kate - M. Maffei - K. Pecina, ObliviAd: Provably secure and practical online behavioral advertising, in Proceedings of IEEE Symposium on Security and Privacy, May 2012, http://www.lbs.cs.uni-saarland.de/publications/obliviad.pdf, pp. 1 ss.; E. De Cristofaro - C. Soriente - G. Tsudik - A. Williams, Hummingbird: Privacy at the time of Twitter in Proceedings of IEEE Symposium on Security and Privacy, May 2012, pp. 4 ss.; F. Roesner - T. Kohno - D. Wetherall, Detecting and defending against third-party tracking on the web, in Symposium on Networked Systems Design and Implementation, April 2012, http://www.franziroesner.com/pdf/webtracking-NSDI2012.pdf, pp. 7 ss.; B. Krishnamurthy - K. Naryshkin - C. Wills, Privacy leakage vs. protection measures: the growing disconnect, in Web 2.0 Workshop on Security and Privacy, May 2011, http://www.research.att.com/~bala/papers/w2sp11.pdf, pp. 3 ss.; D. Wetherall - D. Choffnes - B. Greenstein - S. Han - P. Hornyack - J. Jung - S. Schechter - X. Wang, Privacy revelations for web and mobile apps, in Proceedings of HotOS, May 2011, http://appanalysis.org/jjung/jaeyeon-pub/hotos2011-revelations.pdf, pp. 8 ss.; AA.VV., Abusing social networks for automated user profiling, in RAID, 2010, http://www.iseclab.org/papers/raid2010.pdf., pp. 5 ss.; S. Guha - B. Cheng - P. Francis, Challenges in measuring online advertising systems. in Proceedings of IMC, November 2010, http://research.microsoft.com/en-us/um/people/saikat/pub/imc10-ads.pdf, pp. 10 ss.; W. Enck - P. Gilbert - B.-G. Chun - L. P. Cox - J. Jung - P. McDaniel - A. N. Sheth, Taintdroid, An information-flow tracking system for realtime privacy monitoring on smartphones, in Proceedings of the USENIX Symposium on Operating Systems Design and Implementation, Vancouver, BC Canada, October 2010, http://static.usenix.org/event/osdi10/tech/full_papers/Enck.pdf, pp. 1 ss.; D. Jang - R. Jhala - S. Lerner - H. Shacham, An emperical study of privacy-violating information flows in JavaScript web applications, in Proc. of ACM CCS, October 2010, http://cseweb.ucsd.edu/~hovav/dist/history.pdf, pp. 7 ss.; J. Gomez, T. Pinnick - A. Soltani, Knowprivacy: The current state of web privacy, data collection and information sharing, June 2009, http://knowprivacy.org/report/KnowPrivacy_Final_Report.pdf, pp. 1 ss.; B. Krishnamurthy - C. E. Wills, Privacy diffusion on the web: A longitudinal perspective. in WWW, 2009, http://www.research.att.com/~bala/papers/www09.pdf, pp. 2 ss.; B. Krishnamurthy - C. Wills, On the leakage of personally identifiable information via online social networks, in Proceedings of the Workshop on Online Social Networks, August 2009, http://www.research.att.com/~bala/papers/wosn09.pdf, pp. 9 ss.; L. Sweeney, K-anonymity: a model for protecting privacy, in International Journal of Uncertain. Fuzziness and Knowledge-Based Systems, 2002, 10 (5), pp. 557-570.

^[9]J. Pasquali Cerioli, Propaganda religiosa: la libertà silente, Torino, 2018, pp. 36 ss.; C. Lynch - T. B. Schwartz, Humanitarism’s Proselytism Problem, in International Studies Quarterly, 2016, 60, pp. 636-646; L. Vanoni, Pluralismo religioso e Stato (post) secolare: una sfida per la modernità, Torino, 2016, pp. 25 ss.; P. Bickley, The Problem of Proselytism, London, 2015, pp. 51 ss.; G. Cimbalo, L’appartenenza religiosa tra apostasia, divieto di proselitismo e ricerca di identità, in Stato, chiese e pluralismo confessionale, Rivista telematica (www.statoechiese.it), settembre 2011, pp. 1 ss.; S. Ferrari, Proselytism and Human Rights, in J. Witte Jr. - F. S. Alexander (eds), Chtistianity and Human Rights: An Introduction, Cambridge 2010, pp. 253-266; D. Loprieno, La libertà religiosa, Milano, 2009, pp. 12 ss.; S. P. Ramet, L’Europa centro orientale tra religione e politica. Cattolici, ortodossi e nuovi missionari dopo il 1989, Ravenna 2008, pp. 24 ss.; G. Barberini (a cura di), La politica del dialogo. Le carte Casaroli sull’Ostpolitik vaticana, Bologna, 2008, pp. 41 ss.; J. Witte Jr., The Rights and Limits of Proselytism in the New Religious Order, in T. Bancroft (ed.), Religious Pluralism, Globalization, and World Politics, New York, 2008, pp. 105-122; R. Hackett, Proselytization Revisited in Rights Talk, Free Markets and Culture Wars, Sheffield 2008, pp. 45 ss.; G. Barberini, L’Ostpolitik della Santa Sede. Un dialogo lungo e faticoso, Bologna, 2007, pp. 65 ss.; S. Ferrari - W. Cole Durham Jr. - E.A. Sewell, Diritto e religione nell’Europa post-comunista, Bologna, 2004, pp. 9-30; G. Barberini, La libertà di religione nel processo di democraticizzazione degli Stati dell’Europa centrale ed orientale, in S. Ferrari - W. Cole Durham Jr. - E. A. Sewell, Diritto e religione nell’Europa post-comunista, Bologna, 2004, pp. 9 ss.; G. Barberini, Dossier sullo stato giuridico delle confessioni religiose e sull’esercizio della libertà religiosa nei Pesi dell’Europa centro orientale, in A.G. Chizzoniti (a cura di), Chiese, associazioni, comunità religiose e organizzazioni non confessionali nell’Unione europea, Milano, 2002, pp. 93-132; G. Long, La “Carta ecumenica” e il proselitismo tra Chiese cristiane, in Daimon, 2002, 2, pp. 286- 314; M. J. Ciáurriz, El derecho de proselitismo en el marco de la libertad religiosa, Madrid 2001, pp. 19 ss.;T. Stanhke, Proselytism and the Freedom to Change Religion in International Human Rights Law, in Brigham Young University Law Review, 1999, 1, pp. 251-350; A. Filippi, Identità e proselitismo, in Il Regno-attualità, 1998, 12, p. 422 e ss.; L. Natan, Proselytism, Change of Religion, and International Human Rights, in Emory International Law Review, 1998, 12.1, pp. 477-563; D. A. Kerr, Mission and Proselytism: A Middle East Perspective, in International Bulletin of Missionary Research, 20, 1, 1996, pp. 12-22; Joint Working Group of the Roman Catholic Church and the World Council of Churches, Common Witness in Proselytism, in The Ecumenical Review, 1970, 23-1, pp. 9-20.

[10] J. Rawls,Political Liberalism, New York, 1993, pp. 54 ss.; J. Habermas, Tra scienza e fede, Roma-Bari, 2004, pp. 16-17; J. Rawls, The Idea of Public Reason Revisited, in The University of Chicago Law Review, 1997, 3, pp. 765-807. See also A. Schiavello, Ragione pubblica o ragione senza aggettivi? Riflessioni critiche sulla nozione rawlsiana di ragione pubblica, in G. L. Brena (a cura di), Etica pubblica e pluralismo, Padova, 2001, pp. 103-136.

^[11] Prisoner radicalisation is not a recent phenomenon and yet it is an area that is misunderstood and theoretically underdeveloped. Throughout history prisons have served as recruitment centres and headquarters for ideological extremists (such as Joseph Stalin and Adolf Hitler), where they used their time behind bars to develop extremist philosophies and recruit others into their mode of thinking. Some of the most powerful criminal groups, such as the Primeiro Comando da Capital (PCC) in São Paulo, Brazil, and the Commando Vemelho (Red Command) in Rio De Janeiro, Brazil, originated in prisons. Even so, since 11 September 2001 (9/11) several individuals have been radicalised while being incarcerated. For example, prisoner Richard Reid converted to Islam while incarcerated and when released attempted to smuggle explosives on an American airline flight in December 2001.

Research suggests that many prisoners enter prison with little or no religious calling, but over the duration of their incarceration some adopt a faith (e.g. Islam). However, of those who convert to Islam only a very small percentage will turn into radical extremists and an even smaller percentage will go on to join a terrorist organisation. An interesting study conducted by the United States Senate, Committee on the Judiciary, claim that roughly 80% percent of prisoners within America turn to Islam when seeking for faith behind bars. This percentage translates into a prisoner conversion rate of approximately 30,000 yearly.

^[12] The literature on Islam in prisons is divided into two schools of thought. One side indicates that Muslim groups in prison are breeding grounds for terrorists and the other side indicates that there is no relationship between prisoner conversion to Islam and terrorism. Nevertheless, research shows that religion plays an important role in prison security and rehabilitation. Clear and Sumter (T. Clear - M. Sumter, Prisoners, prison, and religion, in Journal of Offender Rehabilitation, 2002, 35 (3-4), pp. 125-156) administered self-report questionnaires to 769 prisoners from 12 state prisons and found that increasing levels of religiosity are associated with high levels of in-prison adjustment and are also significantly related to a smaller number of times inmates are placed in disciplinary confinement for violating prison rules. O’Connor and Perreyclear (T. O’Connor - M. Perreyclear, Prison religion in action and its influence on offender rehabilitation, in Journal of Offender Rehabilitation, 2002, 35, pp. 11-34) also found that as religion intensified prison disciplinary infractions declined. Similarly, Roy (O. Roy, Al Qaeda in the West as a Youth movement: The power of a narrative, in MICROCON Policy Working Paper, 2008, 2, pp. 4 ss.) argues that it makes more sense to separate theology from violence: ‘The process of violent radicalisation has little to do with religious practice, while radical theology, as salafisme, does not necessarily lead to violence’. The ‘leap into terrorism’ is not religiously inspired, but better seen as sharing ‘many factors with other forms of dissent, either political (the ultra-left), or behavioural: the fascination for sudden suicidal violence as illustrated by the paradigm of random shootings in schools (the “Columbine syndrome”)’.

^[13]H. Alfeyev, La nozione di territorio canonico nella tradizione ortodossa, in O Odigos,2006, 3, pp. 10-20; P. Rodoupolos, Territorial Jurisdiction according to Orthodox Canon Law, Territorialità e personalità nel diritto canonico ed ecclesiastico,Budapest, 2002, pp. 207-224; G. Papathomas, Le Patriarche oecuménique de Constantinople et le statut canonique de la “diaspora” orthodoxe de langue héllenique: le cas de la France, Atene, 2001, pp. 37 ss.; Id., Essai de bibliograph pour l’étude des questions de l’autocéphalie, de l’autonomie et de la diaspora, Atene, 2000, pp. 33 ss.; N. Daldas, Le statut de la diaspora orthodoxe, in Istina, 1995, pp. 386 ss.; G. Papathomas, Les differents modalités canoniques d’exercise de la jurisdiction du patriarcat oecuménique de Costantinople, in Istina, 1995, 4, pp. 369 ss.; O. Clement, Un vicariat extraordinaire du Trone oecuménique en Europe occidentale, in Istina, 1972, 1, pp. 5-16; T. Papadopoulos, Geographical juridiction and hierarchy Ecumenical Patriarchate, in Studies and Documents Relating to the History of the Greek Church and People under Turkish Domination, Brussels, 1952, pp. 76 ss.

^[14]C. Papastathis-Papathomas, I epikratousa thriskia, Salonicco, 2008, pp. 78 ss.; I. Konidaris, Themeliòdes diatàxis, Atene, 2007, pp. 11 ss.; I. Konidaris, Nomikì Theorìa, Atene, 2007, pp. 41 ss.; G. A. Poulis, I ischisi ton ieron kanonon, Atene, 2006, pp. 33-34; G. Karalambaki, Eleftheria tis thriskeftikis sinidiseos, Atene, 2005, pp. 27-28; G. Mavria-Panteli, Ellinika Sintagmatika kimena, Atene, 2005, p. 82; K. Kostis, I thriskeftiki eleftheria stin Ellada, Salonicco, 2004; G. Rallis, Piniko dikeo, Atene, 2003, p. 369; M. Korfiatis, O prosilitismos san energia pou prepei na timorithi stin Ellada, Atene, 2003, pp. 329-330; G. A. Poulis, To nomiko agatho prostatevomeno ap’to ekglima tou p., Atene-Salonicco, 2000, pp. 47 ss.; E. Kroustallaki, I eleftheria sinidiseos kei ekfrasis sta astika kai nomika dikastiria, in Ta dikeomata tis sintagmatikis eleftheria stin praxi, Atene-Kommotini, 1986, pp. 69 ss.; A. Loverdos, Prosilitismos, Atene-Kommotini, 1986, p. 39.

^[15] ECHR 25 maggio 1993 Kokkinakis c/ Greece, in Rev. Fr. Dr. Adm., 1995, p. 573. See also T. Scovazzi, L’osso duro del proselitismo, in L. Pineschi(a cura di), La tutela internazionale dei diritti umani. Norme, garanzie, prassi, Milano, 2006, pp. 443 ss.; F. Bolgiani - F. Margiotta Broglio - R. Mazzola(a cura di), Chiese cristiane, pluralismo religioso e democrazia liberale in Europa, Atti del Convegno della Fondazione Michele Pellegrino, Bologna, 2006, pp. 33 ss.; G. Ktistakis, Thriskeftiki eleftheria kai Evropaiki Simvasi Dikeomaton tou anthropou, Ed. Atene, 2005, p. 97; F. Margiotta Broglio, Il fenomeno religioso nel sistema giuridico dell’Unione Europea, in F. Margiotta Broglio - C. Mirabelli - F. Onida, Religioni e sistemi giuridici, Introduzione al diritto ecclesiastico comparato, Bologna, 2000, pp. 59 ss.; T. Scovazzi, Libertà di religione e testimoni di Geova secondo due sentenze della Corte Europea dei Diritti dell’Uomo, in Quad. Dir. Pol. Eccl., 1994, III, p. 725 ss.; P. Dell’Uomo, Un nuovo profilo della protezione della libertà di religione in un pronunciamento della Corte Europea dei Diritti dell’Uomo, in Il Dir. Eccl., 1994, II, pp. 197 ss.; J. Martìnez Torrón,Libertad de proselitismo en Europa. A proposito di una recente sentencia del tribunale europeos de derechos umanos, in Quad. Dir. Pol. Eccl., 1994, I, pp. 69 ss.

^[16] In his case, Mr Kokkonakis pointed to the logical and legal difficulty of drawing an even remotely clear dividing-line between proselytism and freedom to change one’s religion or belief and, either alone or in community with others, in public and in private, to manifest it, which encompassed all forms of teaching, publication and preaching between people. He criticised the absence of any description of the “objective substance” of the offence of proselytism and pointed to the risk of its “extendibility” by police, given that the relevant Greek legislation included terms like “in particular” and “indirect” proselytism.

^[17]M. Parisi, La sentenza Larissis della Corte Europea dei Diritti dell’Uomo e la tutela della libertà di religione, in Il Dir. Eccl., 1999, III, pp. 236 ss.; T. Scovazzi, Libertà di religione e Testimoni di Geova secondo due sentenze della Corte Europea dei Diritti dell’Uomo, in Quad. Dir. Pol. Eccl., 1994, III, pp. 719 ss.