By Felicitas Benziger*
After my previous post introduced this topic and highlighted the underrepresentation of Eastern European and post-Communist perspectives on the right to freedom of thought, this post aims to delve deeper into specific points raised therein. Key areas for further exploration are presented as subtitles, providing a structured guide throughout this contribution.
The Underrepresentation of the Right to Freedom of Thought in Eastern European States in Legal Literature
Through a comparative constitutional analysis of all 46 Council of Europe (CoE) Member States, I found that only 18 countries expressly recognise the right to freedom of thought as an independent, self-standing right, akin in wording to Article 9(1) of the European Convention on Human Rights (ECHR). Notably, most of these 18 Member States are located within Eastern Europe. This comparative overview suggests that Eastern European states, in particular, are more inclined than their Western counterparts to enshrine the right to freedom of thought as a distinct constitutional guarantee. Despite the fact that Eastern European constitutions more frequently include this right, human rights reports and the broader literature on Article 9(1) ECHR have not paid attention to this.
In the literature on Eastern Europe's post-Communist transition to liberalism, the right to freedom of thought, is often not specifically discussed as a distinct concept. Most literature addressing Eastern Europe’s human rights evolution during this period focuses on broader civil and political rights, especially freedom of expression, association, and the right to protest. These rights were crucial for anti-Communist dissidents and are commonly analysed as the primary means through which Eastern European societies challenged authoritarian regimes.
For example, in 1989: A Global History of Eastern Europe, the authors discuss how the period saw increasing recognition of individual and political rights, but they do not single out freedom of thought as a central focus, instead contextualizing it within general freedoms of expression and opposition to authoritarian thought control. Similarly, in The Power of Human Rights, freedom of thought is subsumed under broader discussions of the Helsinki Accords and how these norms influenced freedoms of speech and belief more generally, without a particular emphasis on freedom of thought as an independent right. Kopeček’s lecture, How Liberal Are Human Rights?, does address the plurality of political discourses, including liberal, socialist, and Christian ideologies, that coexisted in Eastern European dissident movements. This indirectly touches on aspects of thought as Eastern European thinkers explored various ideologies. However, Kopeček does not frame freedom of thought as a legally distinct right within this historical context but as part of a more general ideological pluralism that influenced the region’s political development.
This gap in the literature is notable, especially because the right to freedom of thought features explicitly in Eastern European States’ constitutions, and underscores the potential for further research into how this right was conceptualised independently of freedom of expression and belief.
Suppression of Freedom of Thought and the Intersection of Articles 3 and 9 of the ECHR
As discussed in my initial post on this topic, the right to freedom of thought holds particular significance for post-Communist states, given their histories of systematic political repression. In their endeavour to control the minds of their subjects, totalitarian Communist regimes did not stop at influencing the free formation of thoughts and other aspects of individuals’ inner selves on a metaphysical level, for example through indoctrination and propaganda. Rather, they also exerted pressure on the minds by using force on the physical body, particularly in cases of non-compliance. Forced labour, physical punishment, torture as well as selective and collective extermination were among the methods employed by totalitarian Communist regimes in Eastern Europe. Yet, the goal in all these actions was to force the individual from within itself to develop a personality compliant with the interests and ideas of the governing regime. Through these measures, the state aimed to reshape individuals' inner selves, aligning them with the regime’s interests and beliefs.
When viewed through this lens, the protection of freedom of thought intersects with concerns about inhuman and degrading treatment, since the objective of such treatment is typically to dominate the individual’s mind. Torture, in particular, may be intended not merely to extract information but also to erode an individual's mental autonomy. This notion aligns with European Court of Human Rights’ (ECtHR) jurisprudence, where the Court has explored the relationship between Article 3 (prohibition of torture and inhuman or degrading treatment) and Article 8 (right to private and family life) of the ECHR, particularly in cases where mental integrity and mental privacy are at stake.
Despite this, there remains a notable lack of engagement with the right to freedom of thought as an independent right in the Court's jurisprudence. This lack of engagement is especially striking considering that many forms of inhuman and degrading treatment are designed not only to physically harm but also to compel mental compliance, thereby directly impinging upon the scope of freedom of thought.
Russia’s Engagement with the CoE: Reconciling UDHR Abstention and Article 9(1) ECHR Adherence
When the Universal Declaration of Human Rights (UDHR) was adopted in 1948, the Soviet Union, along with other Communist states, abstained from the vote. While several reasons for this were cited during the Plenary Meeting, discussions during the drafting of UDHR provisions concerning the right to freedom of thought suggest that divergent views about the limitation or permissible scope of such a freedom were among the key points of dissent. In the drafting process, freedom of thought was addressed not only in relation to Article 18 (freedom of thought, conscience, and religion) but also Article 19 (freedom of opinion and expression). The Soviet bloc’s reluctance was, at least in part, influenced by concerns that unrestricted freedom of thought could threaten state control over ideological conformity, which was essential for Communist governance models.
Following the collapse of Communist regimes, many post-Soviet states made a marked shift by directly incorporating the right to freedom of thought into their constitutions. This departure from former Communist policy can be viewed as a symbolic and legal rejection of state-imposed ideological conformity. Furthermore, these constitutional changes took place within a broader context of integration into European political frameworks, particularly as states aspired to join the European Union. Aligning national constitutions with ECHR rights, especially Article 9(1), was a critical step toward meeting the 1993 Copenhagen criteria, which established democracy, human rights, and the rule of law as prerequisites for EU accession.
The decision of several post-Communist countries to enshrine freedom of thought in their constitutions contrasts with other European constitutions, many of which lack explicit references to this right. This discrepancy is largely historical: most non-Eastern European constitutions were drafted prior to the adoption of the UDHR (1948) and the ECHR (1950) and therefore do not reflect the post-war emphasis on enshrining specific fundamental rights at the constitutional level. By contrast, post-Communist constitutions emerged in the 1990s, also a period when European supranational integration was advancing significantly, culminating in the EU’s establishment through the Treaty of Maastricht (1993).
Interestingly, even the German Basic Law, which was adopted in 1949, while referencing other civil and political rights set out in the UDHR, does not reference the right to freedom of thought. Neither do constitutional revisions in other CoE Member States appear to have incorporated the right to freedom of thought following the adoption both the UDHR and ECHR. One exception, even though it does not concern the right to freedom of thought as such, concerns the Belgian constitution. Following an amendment in 2008, the right to mental integrity was explicitly included in Art. 22bis.
Yet, despite Russia’s initial rejection of the UDHR in 1948, it did become a member of the CoE in 1996 (but was excluded from it following its invasion in Ukraine in 2022). This initial rejection was primarily motivated by the Soviet Union’s desire to retain control over individual freedoms, including freedom of thought, which was seen as a potential threat to the authoritarian state’s ideological dominance. When Russia joined the CoE in 1996 (as the ‘Russian Federation’ following the dissolution of the USSR in 1991), it did so within the context of its broader goal of integrating into European political and economic structures. Membership in the CoE was viewed as essential for Russia's engagement with the West and for its transition from a Soviet system to a more open, democratic society. To reconcile its historical stance on the right to freedom of thought with its obligations as a member of the CoE, Russia was required to align its constitutional and legal framework with the ECHR. This involved significant legal reforms and the adoption of new provisions that were consistent with the ECHR's protection of civil and political rights, including freedom of thought, conscience, and religion under Article 9. Russia’s 1993 Constitution reflects this shift. While it was not as explicit in guaranteeing freedom of thought as some European constitutions, it incorporated protections for individual rights and freedoms, which were in line with international human rights standards. This constituted a departure from the Soviet approach, where state control over thought and expression was paramount. Russia's commitment to the ECHR as part of its CoE membership demonstrated its willingness to engage with international human rights frameworks, although challenges remain regarding the practical implementation of these rights. This constitutes a significant parallel to the historic constitutional development observed in other former USSR member states as outlined above, even though it did not result in an explicit embracement of the right to freedom of thought as in other Eastern European constitutions.
Eastern European Philosophers on Freedom of Thought – a Russian Influence?
The literature on freedom of thought often centres on the philosophical contributions of figures like Immanuel Kant, John Stuart Mill, and René Descartes, who significantly shaped the concept of freedom (including rationality and thought) as a fundamental aspect of the individual. This even influenced philosophers, including Eastern European philosophers, on freedom and thought far beyond Europe. Hence, a certain bias towards such conceptualisations of freedom of thought that influences even today’s human rights literature is understandable. However, there is a compelling case for giving greater attention to the history and development of freedom of thought in Eastern European thought. This is not only because many Eastern European constitutions explicitly enshrine the right to freedom of thought, unlike many other European counterparts, but also because Eastern European philosophy has a rich tradition of engaging with this concept.
Thinkers such as Alexander Kunitsyn and Lev Shestov (from Russia and Ukraine) offer valuable insights into how freedom of thought has been understood and interpreted in the region. Another example is Azerbaijani philosopher Tofig Ahmadov, who explores the contrasting Eastern and Western perspectives on freedom, highlighting that Eastern thought often connects freedom with mental perfection and spiritual values, while Western thought emphasises individual freedoms in practical, social, and political contexts. Ahmadov argues that understanding these divergent views can foster a broader dialogue between civilizations. Polish philosopher Leszek Kołakowski, a key figure in the intellectual resistance against the Communist regime, wrote extensively on the need for freedom of thought as an intrinsic part of human dignity. His critique of Marxism and his philosophical work on freedom of consciousness and individual thought significantly shaped the broader intellectual environment in Eastern Europe during the Cold War.
These are just a few examples of how Eastern European philosophy offers rich perspectives on freedom of thought, with distinct views shaped by the region's unique political, historical, and cultural experiences. These contributions are vital in understanding how freedom of thought is treated within constitutional frameworks and politico-philosophical discourse across the region.
*Felicitas is a Post-Doctoral Researcher, University College Cork, working on the
Law and Inner Self Project, funded by an Irish Research Council (Consolidator) Laureate Grant (IRCLA/2022/2628.
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