In this blogpost, Felicitas Benziger explores the particular reasons why Eastern European States tend to recognise an independent right to freedom of thought in their constitutions. Felicitas is a postdoctoral researcher in the Law and the Inner Self Project and leads the work on the fifth body of jurisprudence: the jurisprudence of human rights.
The right to freedom of thought represents somewhat of an odd concept from the viewpoint of most of the European legal sphere. Even though it features prominently in Art. 9(1) European Convention on Human Rights (ECHR), its legal essence remains mysterious with little engagement in literature and practice. For example, there is uncertainty as to the sorts of situations when the right could apply as an independent and justiciable right (however, a more recent strand in literature engages with the future potential of the right in the face of the so-called fourth industrial revolution). Indeed, while European States’ constitutions often refer to freedom of expression, opinion, religion and education, they do not, for the most part, reference the right to freedom of thought. Viewed from this angle, the ECHR does not reflect the constitutional traditions of the majority of Council of Europe (CoE) Member States.
A comparative analysis of the 46 CoE Member States’ constitutions shows that only 18 provide for the right to freedom of thought as a self-standing right, worded similarly to Art. 9(1) ECHR. The constitutions that reference the right to freedom of thought in this manner are those of Azerbaijan, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Estonia, Hungary, Latvia, Lithuania, Republic of Moldova, Montenegro, Republic of North Macedonia, Romania, Serbia, Slovakia, Slovenia, Turkey and Ukraine. Belgium is an interesting special case in so far as it does not mention freedom of thought, but instead refers to a right to mental integrity in its constitution (Art. 22bis). It becomes evident from this comparative constitutional overview, that Eastern European States especially appear to embrace the idea of providing for an independent right to freedom of thought more than other European States.
Two interrelated reasons are crucial to this:
First, this development is based on the history of post-Communist States. Freedom of thought holds a special significance for these States due to the experience of their peoples with political repression. In a strict one-party system, the free expression of thoughts, especially any criticism of the government that could challenge its authority, was systematically counteracted. However, beyond solely curtailing free expression of thoughts, many totalitarian governments in the last century also sought to exert influence on the free formation of thoughts. The main way through which this was pursued was indoctrination in schools and through propaganda in various sectors of life. When the Universal Declaration of Human Rights (UDHR) was adopted in 1948, the Communist States of the time that were part of the USSR – as well as the USSR itself – abstained during the vote. While several reasons for this were given during the Plenary Meeting, discussions during the drafting of UDHR provisions concerning the right to freedom of thought in different contexts suggest that diverging ideas about the limitation of such a freedom were among the key points of dissent. It should be noted that freedom of thought in the course of UDHR drafting was not only mentioned in relation to what is now Art. 18 (freedom of thought, conscience and religion), but also in relation to what is now Art. 19 (freedom of opinion and expression).
Second, the decision of post-Communist and ex-USSR states to directly incorporate the right to freedom of thought in their constitutions can be seen as an intentional departure from the stance of the former Communist regimes. It should also be viewed in the larger context of efforts to join the European political integration processes that resulted in the EU. Aligning their constitutions with the rights provided for in the ECHR was an essential step for post-Communist States towards complying with the 1993 Copenhagen criteria. In fact, the post-Communist constitutions that do provide for the right to freedom of thought in a comparable fashion to Art. 9(1) ECHR came into existence decades after the ECHR’s adoption (1950) and at a point in time were the European supranational integration process experienced its heyday that famously culminated in the establishment of the EU (through the Treaty of Maastricht in 1993). Conversely, the reason why many Western European constitutions do not make explicit reference to the right to freedom of thought evidently lies in the fact that they predate the UDHR and ECHR.
But what exactly is meant by freedom of thought in the tradition of Eastern European States? The historical background and a contextual interpretation of the constitutional right to freedom of thought across post-Communist States indicate that the right is closely related to the idea of freedom of expression, in particular the freedom to dissent or to have politically dissenting views. Repressive policies, aimed at controlling members of society to ensure compliance with the government’s views and actions, indoctrination through propaganda as well as the use of surveillance and other methods to receive access to an individual’s inner mental sphere to identify and take action against dissidents played a fundamental role in totalitarian regimes. One of the key developments, as post-Communism started to unravel, was the political, social and legal reform process that came along with it. As such freedom of thought is significant, first and foremost, as the freedom to have dissident thoughts even without being able to express them. In other words, it is best understood as the freedom to guard an individual’s inner mental sphere from any infringements.
From a practical perspective, it appears difficult to find an independent interpretation and context of application for the right to freedom of thought. This is one of the reasons why human rights reports or even entities that established a “Freedom of Thought Project” consider other more specific rights, notably freedom of expression and religion, rather than seeking to carve out independent room for the right to freedom of thought as such. It is notable, that NGO reports on the situation of human rights in Eastern Europe, do not refer to the right to freedom of thought, but rather focus on rights with an established practical application, such as the rights to freedom of expression, association and peaceful assembly.
An independent right to freedom of thought is best to be distinguished from related rights by looking at its forum internum. As soon as any product of thought – be this belief, opinion, religion or something else – is expressed in a perceivable manner to the outside world, other established human rights apply. While there is no established jurisprudence on the right to freedom of thought as a freestanding right, it is submitted that this right could include a prohibition of a range of measures such as drugging, the use of AI and similar brain-intrusive methods that interfere with our thoughts. It should also extend to the freedom not to be indoctrinated or forced to have certain thoughts or disclose thoughts. From a pragmatic point of view, even where activities affect the forum internum, they will in many – but not necessarily all - cases also simultaneously concern the scope of the forum externum, and thus other related rights. This is because the essence of other constitutional and human rights in the European legal sphere are specific concretisations of the essence of freedom of thought. The rights to freedom of religion and expression, for example, are derived from the very concept of a general freedom of thought. It becomes evident from this that so understood, the right to freedom of thought is best understood in conjunction with other rights, that might also apply in such situations.
An in-depth analysis of the constitutional provisions providing for the right to freedom of thought in post-Communist CoE Member States is necessary if we are to gain a deeper understanding of this under-researched right. While this is beyond the capacity of this blog post, it is evident that there is need for further research. European human rights literature does not typically consider the sphere of Eastern European states, but rather focusses on the Western hemisphere and the trajectory of freedom of thought and related rights in the tradition of Western European states. A certain bias in literature in this regard is justifiably based on the legacy of philosophers, such as Immanuel Kant, John Stuart Mill and René Descartes and their contributions to the concept of freedom of thought as essential fundament of the individual. Yet, exploring the history and development of the concept of freedom of thought in Eastern European countries deserves more attention. This is not only because unlike Western European constitutions Eastern European states anchored the right to freedom of thought in their constitutions, but also because freedom of thought has a rich history in Eastern European philosophy (for example, Alexander Kunitsyn and Lev Shestov).