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venerdì 18 marzo 2011
Crocifisso: Strasburgo assolve Italia, si chiude caso Lautsi
Corte Europea Diritti dell'Uomo , Camera Grande, sentenza 18.03.2011
ASCA) - Roma, 18 mar - La Grande Camera della Corte europea per i diritti dell'uomo (Cedu) ha dato ragione all'Italia nella causa ''Lautsi e altri contro Italia'' sulla presenza del crocifisso nelle aule delle scuole pubbliche. Si chiude cosi' il caso approdato davanti alla Corte il 27 luglio 2006 con il ricorso di Soile Lautsi, cittadina italiana di origini finlandesi.
La Lautsi riteneva infatti la presenza del crocifisso un'ingerenza incompatibile con liberta' di pensiero, convinzione e di religione (art. 9 della Convenzione per la salvaguardia dei diritti dell'uomo e delle liberta' fondamentali, firmata a Roma il 4 novembre 1950) cosi' come del diritto all'istruzione, in particolare, il diritto ad un'educazione ed insegnamento conformi alle convinzioni religiose e filosofiche dei genitori (art. 2 del Protocollo n. 1).
LA STORIA. I ricorrenti, nati nel 1957, 1988 e 1990 sono Soile Lautsi e i suoi due figli, Dataico e Sami Albertin, e tutti e tre vivono in Italia. Nell'anno scolastico 2001-2002 Dataico e Sami frequentavano l'istituto ''Vittorio da Feltre'', scuola pubblica ad Abano Terme (Padova), dove, in ogni classe, era affisso un crocifisso. Il 22 aprile del 2002, durante un incontro a scuola, il marito di Soile Lautsi, espose la questione della presenza dei simboli religiosi nelle classi e chiese la loro rimozione. La direzione della scuola rispose negativamente, cosi' Lautsi fece ricorso al Tribunale amministrativo del Veneto il 23 luglio 2002 lamentando la violazione del principio di laicita' dello Stato. Il 30 ottobre 2003 il ministro dell'Istruzione, dell'Universita' e della Ricerca - che nell'ottobre 2002 aveva adottato una direttiva che istruisse i dirigenti scolastici per garantire la presenza dei crocifissi nelle aule scolastiche - si uni' al ricorso presentato dalla richiedente sostenendo che la sua domanda fosse infondata perche' la presenza dei crocifissi nelle aule della scuola statale si basava su due regi decreti del 1924 e 1928. Nel 2004 la Corte Costituzionale boccio' il ricorso presentato dal Tar del Veneto. Il fascicolo torno' quindi al Tribunale amministrativo regionale, che il 17 marzo del 2005 a sua volta boccio' il ricorso, spiegando che le disposizioni dei regi decreti erano ancora in vigore e che la presenza dei crocifissi nelle aule della scuola di Stato non violava il principio della laicita' dello Stato, ma era ''parte del patrimonio giuridico d'Europa e delle democrazie occidentali''. Il 13 aprile del 2006, il Consiglio di Stato ha confermato questa posizione e, il 27 luglio dello stesso anno, il ricorso e' arrivato presso la Corte europea dei diritti dell'uomo.
SENTENZA DELLA CEDU. La prima sentenza della Cedu, il 3 novembre del 2009, aveva riconosciuto la violazione, da parte dell'Italia, sia dell'art. 2 del Protocollo aggiuntivo n. 1 della Convenzione sia dell'art. 9 sulla liberta' di pensiero, convinzione e religione. Non potendo imporre la rimozione dei crocifissi dalle scuole italiane ed europee, la Corte aveva condannato l'Italia a risarcire 5.000 euro alla Lautsi per danni morali. Il Governo italiano chiese allora il rinvio alla Grande Chambre (Gc) della Corte ritenendo la sentenza 2009 lesiva della liberta' religiosa individuale e collettiva, come riconosciuta dallo Stato italiano. La Grande Chambre accetto' la domanda di rinvio ed ha ascoltato in udienza pubblica (30 giugno 2010) le parti in causa: lo Stato italiano e il Legale ricorrente rinviando a oggi la sua decisione definitiva. Quanto ai contenuti giuridici, la questione e' stata affrontata dal ministro degli Esteri, Franco Frattini, assieme all'Ufficio dell'Agente e del Co-Agente del Governo italiano presso la CEDU ed in coordinamento con le varie Amministrazioni coinvolte (Presidenza del Consiglio-Dipartimento Affari Giuridici e Legislativi e Ministero della Giustizia). Frattini ha presieduto due riunioni interministeriali (17 dicembre 2009 e 21 gennaio 2010) che hanno portato rispettivamente a migliorare e formalizzare la memoria difensiva con il consenso di tutti gli attori coinvolti. Frattini ha inviato ai ministri degli Esteri dei 47 Stati membri del Consiglio d'Europa una lettera esplicativa della posizione italiana in merito alla questione e riassuntiva della memoria difensiva, presentata alla Corte, per poter ottenere accanto al sostegno politico anche un intervento degli Stati come ''terzi'' a favore dell'Italia. Hanno risposto positivamente intervenendo a favore del Belpaese davanti alla Corte i seguenti Stati: San Marino, Malta, Lituania, Romania, Bulgaria, Principato di Monaco, Federazione Russa, Cipro, Grecia, Armenia e alcune NGO italiane e straniere. crocifisso caso Lautsi
Corte Europea dei Diritti dell'Uomo
Sentenza 18 marzo 2011
CASE OF LAUTSI AND OTHERS v. ITALY
(Application no. 30814/06)
18 March 2011
This judgment is final but may be subject to editorial revision.
In the case of Lautsi and Others v. Italy,
The European Court of Human Rights, sitting as a Grand Chamber composed of:
Jean-Paul Costa, President,Christos Rozakis,Nicolas Bratza,Peer Lorenzen,Josep Casadevall,Giovanni Bonello,
Nina Vajić,Rait Maruste,Anatoly Kovler,Sverre Erik Jebens,Päivi Hirvelä,Giorgio Malinverni,George Nicolaou,Ann Power,Zdravka Kalaydjieva,
Mihai Poalelungi,Guido Raimondi, judges,and Erik Fribergh, Registrar,
Having deliberated in private on 30 June 2010 and on 16 February 2011,
Delivers the following judgment, which was adopted on the last-mentioned date:
1. The case originated in an application (no. 30814/06) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Italian national, Ms Soile Lautsi (“the first applicant”) on 27 July 2006. In her application she stated that she was acting in her own name and on behalf of her children Dataico and Sami Albertin, then minors. The latter, who have subsequently come of age, confirmed that they wished to remain applicants (“the second and third applicants”).
2. The applicants were represented by Mr N. Paoletti, a lawyer practising in Rome. The Italian Government (“the Government”) were represented by their Agent, Ms E. Spatafora, and their deputy co-Agents, Mr N. Lettieri and Ms P. Accardo.
3. The application was allocated to the Court's Second Section (Rule 52 § 1 of the Rules of Court). On 1 July 2008 a Chamber of that Section, composed of the following judges: Françoise Tulkens, Antonella Mularoni, Vladimiro Zagrebelsky, Danutė Jočienė, Dragoljub Popović, András Sajó and Işıl Karakaş, decided to give notice of the application to the Government; applying the provisions of Article 29 § 3 of the Convention, it also decided to rule on the admissibility and merits of the application at the same time.
4. On 3 November 2009 a Chamber of the same Section, composed of the following judges: Françoise Tulkens, Ireneu Cabral Barreto, Vladimiro Zagrebelsky, Danutė Jočienė, Dragoljub Popović, András Sajó and Işıl Karakaş, declared the application admissible and held unanimously that there had been a violation of Article 2 of Protocol No. 1, taken together with Article 9 of the Convention, and that it was not necessary to examine the complaint under Article 14 of the Convention.
5. On 28 January 2010 the Government asked for the case to be referred to the Grand Chamber by virtue of Article 43 of the Convention and Rule 73. On 1 March 2010 a panel of the Grand Chamber granted that request.
6. The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24.
7. The applicants and the Government each filed further written observations on the merits.
8. Leave to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2) was given to thirty-three members of the European Parliament acting collectively, the non-governmental organisation Greek Helsinki Monitor, which had previously intervened before the Chamber, the non-governmental organisation Associazione nazionale del libero Pensiero, the non-governmental organisation European Centre for Law and Justice, the non-governmental organisation Eurojuris, the non-governmental organisations International Committee of Jurists, Interights and Human Rights Watch, acting collectively, the non-governmental organisations Zentralkomitee der deutschen Katholiken, Semaines sociales de France and Associazioni cristiane lavoratori italiani, acting collectively, and the Governments of Armenia, Bulgaria, Cyprus, the Russian Federation, Greece, Lithuania, Malta, Monaco, Romania and the Republic of San Marino.
The Governments of Armenia, Bulgaria, Cyprus, the Russian Federation, Greece, Lithuania, Malta, and the Republic of San Marino were also given leave to intervene collectively in the oral procedure.
9. A hearing took place in public in the Human Rights Building, Strasbourg, on 30 June 2010 (Rule 59 § 3).
There appeared before the Court:
(a) for the respondent GovernmentMr Nicola Lettieri, co-Agent,Mr Giuseppe Albenzio, Adviser;
(b) for the applicantsMr Nicolò Paoletti, Counsel,Ms Natalia Paoletti,Ms Claudia Sartori, Advisers;
(c) for the Governments of Armenia, Bulgaria, Cyprus, the Russian Federation, Greece, Lithuania, Malta, and the Republic of San Marino, third-party interveners:
Mr Joseph Weiler, Professor of Law, New York University, Counsel,Mr Stepan Kartashyan, Deputy Permanent Representativeof Armenia to the Council of Europe,Mr Andrey Tehov, Ambassador, Permanent Representativeof Bulgaria to the Council of Europe,Mr Yannis Michilides, Deputy Permanent Representative of Cyprusto the Council of Europe,Ms Vasileia Pelekou, Deputy Permanent Representative ofGreece to the Council of Europe,Mr Darius Šimaitis, Deputy Permanent Representative ofLithuania to the Council of Europe,Mr Joseph Licari, Ambassador, Permanent Representativeof Malta to the Council of Europe,Mr Georgy Matyushkin, Government Agent of theRussian Federation,Mr Guido Bellatti Ceccioli, co-Agent of the Governmentof the Republic of San Marino, Advisers.
The Court heard addresses by Mr Nicolò Paoletti, Ms Natalia Paoletti, Mr Lettieri, Mr Albenzio and Mr Weiler.
I. THE CIRCUMSTANCES OF THE CASE
10. The first applicant and her two sons, Dataico and Sami Albertin, also applicants, were born in 1957, 1988 and 1990 respectively. They are resident in Italy. In the school year 2001-2002 Dataico and Sami attended the Istituto comprensivo statale Vittorino da Feltre, a State school in Abano Terme. A crucifix was fixed to the wall in each of the school's classrooms.
11. On 22 April 2002, during a meeting of the school's governors, the first applicant's husband raised the question of the presence of religious symbols in the classrooms, particularly mentioning crucifixes, and asked whether they ought to be removed. On 27 May 2002, by ten votes to two with one abstention, the school's governors decided to keep religious symbols in classrooms.
12. On 23 July 2002 the first applicant contested that decision in the Veneto Administrative Court, complaining of an infringement of the principle of secularism, relying in that connection on Articles 3 (principle of equality) and 19 (religious freedom) of the Italian Constitution and Article 9 of the Convention, and on the principle of the impartiality of public administrative authorities (Article 97 of the Constitution).
13. On 3 October 2002 the Minister of Education, Universities and Research adopted Directive no. 2666, instructing the competent services of his Ministry to take the necessary measures to see to it that school governors ensured the presence of crucifixes in classrooms (see paragraph 24 below).
On 30 October 2003 the Minister joined the proceedings brought by the first applicant. He argued that her application was ill-founded since the presence of crucifixes in the classrooms of publicly run schools was based on Article 118 of royal decree no. 965 of 30 April 1924 (internal regulations of middle schools) and Article 119 of royal decree no. 1297 of 26 April 1928 (approval of the general regulations governing primary education; see paragraph 19 below).
14. By a decision of 14 January 2004 the Administrative Court referred to the Constitutional Court the question of the constitutionality, with regard to the principle of the secular character of the State and Articles 2, 3, 7, 8, 19 and 20 of the Constitution, of Articles 159 and 190 of legislative decree no. 297 of 16 April 1994 (approving the single text bringing together the legislative provisions in force regarding education and schools), in their “specifications” resulting from Articles 118 and 119 of the above-mentioned royal decrees, and of Article 676 of the same legislative decree.
Articles 159 and 190 make municipalities responsible for purchasing and supplying the furniture of primary and middle schools. Article 119 of the 1928 decree specifies that each classroom must have a crucifix and Article 118 of the 1924 decree that each classroom must have a portrait of the king and a crucifix. Article 676 of legislative decree no. 297 stipulates that provisions not included in the single text remain in force, “with the exception of provisions contrary to or incompatible with the single text, which are repealed”.
By a decision of 15 December 2004 (no. 389), the Constitutional Court declared the question as to constitutionality manifestly inadmissible, on the ground that it was in reality directed towards texts which, not having the status of law, but only that of regulations (the above-mentioned Articles 118 and 119), could not form the subject of a review of constitutionality.
15. On 17 March 2005 the Administrative Court dismissed the application. After ruling that Article 118 of the royal decree of 30 April 1924 and Article 119 of the royal decree of 26 April 1928 were still in force and emphasising that “the principle of the secular nature of the State [was] now part of the legal heritage of Europe and the western democracies”, it held that the presence of crucifixes in State-school classrooms, regard being had to the meaning it should be understood to convey, did not offend against that principle. It took the view, in particular, that although the crucifix was undeniably a religious symbol, it was a symbol of Christianity in general rather than of Catholicism alone, so that it served as a point of reference for other creeds. It went on to say that the crucifix was a historical and cultural symbol, possessing on that account an “identity-linked value” for the Italian people, in that it “represent[ed] in a way the historical and cultural development characteristic of [Italy] and in general of the whole of Europe, and [was] a good synthesis of that development”. The Administrative Court further held that the crucifix should also be considered a symbol of a value system underpinning the Italian Constitution. It gave the following reasons:
“... 11.1. At this stage, the Court must observe, although it is aware that it is setting out along a rough and in places slippery path, that Christianity, and its older brother Judaism – at least since Moses and certainly in the Talmudic interpretation – have placed tolerance towards others and protection of human dignity at the centre of their faith.
Singularly, Christianity – for example through the well-known and often misunderstood “Render unto Caesar the things which are Caesar's, and unto ...” – through its strong emphasis placed on love for one's neighbour, and even more through the explicit predominance given to charity over faith itself, contains in substance those ideas of tolerance, equality and liberty which form the basis of the modern secular State, and of the Italian State in particular.
11.2 Looking beyond appearances makes it possible to discern a thread linking the Christian revolution of two thousand years ago to the affirmation in Europe of the right to liberty of the person and to the key elements in the Enlightenment (even though that movement, historically speaking, strongly opposed religion), namely the liberty and freedom of every person, the declaration of the rights of man, and ultimately the modern secular State. All the historic phenomena mentioned are based to a significant extent – though certainly not exclusively – on the Christian conception of the world. It has been observed – judiciously – that the rallying call “liberty, equality, fraternity” can easily be endorsed by a Christian, albeit with a clear emphasis on the third word.
In conclusion, it does not seem to be going too far to assert that, through the various twists and turns of European history, the secular nature of the modern State has been achieved at a high price, and was prompted in part, though of course not exclusively so, by a more or less conscious reference to the founding values of Christianity. That explains why in Europe and in Italy many jurists belonging to the Christian faith have featured among the strongest supporters of the secular State. ...
11.5 The link between Christianity and liberty implies a logical historical coherence which is not immediately obvious – like a river in a karst landscape which has only recently been explored, precisely because for most of its course it flows underground – partly because in the constantly changing relations between the States and Churches of Europe it is much easier to see the numerous attempts by the Churches to meddle in matters of State, and vice versa, just like the frequent occasions on which Christian ideals have been abandoned, though officially proclaimed, in the quest for power, or on which governments and religious authorities have clashed, sometimes violently.
11.6 Moreover, with the benefit of hindsight, it is easy to identify in the constant central core of Christian faith, despite the inquisition, despite anti-Semitism and despite the crusades, the principles of human dignity, tolerance and freedom, including religious freedom, and therefore, in the last analysis, the foundations of the secular State.
11.7 By studying history carefully, from a suitable distance, not from up close, we can clearly perceive an affinity between (but not the identity of) the “hard core” of Christianity, which, placing charity above everything else, including faith, emphasises the acceptance of difference, and the “hard core” of the republican Constitution, which, in a spirit of solidarity, attaches value to the freedom of all, and therefore constitutes the legal guarantee of respect for others. The harmony remains, even though around those cores – both centred on human dignity – there have been numerous accretions of extraneous elements with the passage of time, some of them so thick as to obscure the core, particularly the core of Christianity. ...
11.9 It can therefore be contended that in the present-day social reality the crucifix should be regarded not only as a symbol of a historical and cultural development, and therefore of the identity of our people, but also as a symbol of a value system: liberty, equality, human dignity and religious toleration, and accordingly also of the secular nature of the State – principles which underpin our Constitution.
In other words, the constitutional principles of freedom have many roots, which undeniably include Christianity, in its very essence. It would therefore be something of a paradox to exclude a Christian sign from a public institution in the name of secularism, one of whose distant sources is precisely the Christian religion.
12.1 This court is admittedly not unaware of the fact that, in the past, other values have been attributed to the symbol of the crucifix, such as, at the time of the Albertine Statute, the sign of Catholicism understood as the State religion, and therefore used to Christianise and consolidate power and authority.
The court is well aware, moreover, that it is still possible today to give various interpretations of the sign of the cross, and above all a strictly religious meaning referring to Christianity in general and Catholicism in particular. It is also aware that some pupils attending State schools might freely and legitimately attribute to the cross values which are different again, such as the sign of an unacceptable preference for one religion in relation to others, or an infringement of individual freedom and accordingly of the secular nature of the State, or at the extreme limit a reference to temporal political control over a State religion, or the inquisition, or even a free catechism voucher tacitly distributed even to non-believers in an inappropriate place, or subliminal propaganda in favour of Christian creeds. Although all those points of view are respectable, they are ultimately irrelevant in the present case. ...
12.6 It must be emphasised that the symbol of the crucifix, thus understood, now possesses, through its references to the values of tolerance, a particular scope in consideration of the fact that at present Italian State schools are attended by numerous pupils from outside the European Union, to whom it is relatively important to transmit the principles of openness to diversity and the refusal of any form of fundamentalism – whether religious or secular – which permeate our system. Our era is marked by the ferment resulting from the meeting of different cultures with our own, and to prevent that meeting from turning into a collision it is indispensable to reaffirm our identity, even symbolically, especially as it is characterised precisely by the values of respect for the dignity of each human being and of universal solidarity. ...
13.2 In fact, religious symbols in general imply a logical exclusion mechanism, as the point of departure of any religious faith is precisely the belief in a superior entity, which is why its adherents, the faithful, see themselves by definition and by conviction as part of the truth. Consequently, and inevitably, the attitude of the believer, faced with someone who does not believe, and who is therefore implicitly opposed to the supreme being, is an attitude of exclusion. ...
13.3 The logical mechanism of exclusion of the unbeliever is inherent in any religious conviction, even if those concerned are not aware of it, the sole exception being Christianity – where it is properly understood, which of course has not always been and still is not always the case, not even thanks to those who call themselves Christian. In Christianity even the faith in an omniscient god is secondary in relation to charity, meaning respect for one's fellow human beings. It follows that the rejection of a non-Christian by a Christian implies a radical negation of Christianity itself, a substantive abjuration; but that is not true of other religious faiths, for which such an attitude amounts at most to the infringement of an important precept.
13.4 The cross, as the symbol of Christianity, can therefore not exclude anyone without denying itself; it even constitutes in a sense the universal sign of the acceptance of and respect for every human being as such, irrespective of any belief, religious or other, which he or she may hold. ...
14.1 It is hardly necessary to add that the sign of the cross in a classroom, when correctly understood, is not concerned with the freely held convictions of anyone, excludes no one and of course does not impose or prescribe anything, but merely implies, in the heart of the aims set for education and teaching in a publicly run school, a reflection – necessarily guided by the teaching staff – on Italian history and the common values of our society legally retranscribed in the Constitution, among which the secular nature of the State has pride of place. ...”
16. The first applicant appealed to the Consiglio di Stato (Supreme Administrative Court), which confirmed that the presence of crucifixes in State-school classrooms had its legal basis in Article 118 of the royal decree of 30 April 1924 and Article 119 of the royal decree of 26 April 1928 and, regard being had to the meaning that should be attached to it, was compatible with the principle of secularism. On that point it found in particular that in Italy the crucifix symbolised the religious origin of values (tolerance, mutual respect, valorisation of the person, affirmation of one's rights, consideration for one's freedom, the autonomy of one's moral conscience vis-à-vis authority, human solidarity and the refusal of any form of discrimination) which characterised Italian civilisation. In that sense, when displayed in classrooms, the crucifix could fulfil – even in a “secular” perspective distinct from the religious perspective to which it specifically referred – a highly educational symbolic function, irrespective of the religion professed by the pupils. The Consiglio di Stato held that the crucifix had to be seen as a symbol capable of reflecting the remarkable sources of the above-mentioned values, the values which defined secularism in the State's present legal order.
In its judgment (no. 556) dated 13 April 2006 the Consiglio di Stato gave the following reasoning:
“... the Constitutional Court has accepted on a number of occasions that secularism is a supreme principle of our constitutional order, capable of resolving certain questions of constitutional legitimacy (among numerous judgments, see those which concern the provisions relating to the compulsory nature of religious teaching in school or the jurisdiction of the courts over cases concerning the validity of marriages contracted according to canon law and recorded in the registers of marriages).
This is a principle which is not proclaimed in express terms in our Constitution, a principle which is rich with ideological resonances and has a history full of controversy, but one nevertheless which has a legal importance that can be deduced from the fundamental norms of our system. In reality the Court derives this principle specifically from Articles 2, 3, 7, 8, 19 and 20 of the Constitution.
The principle uses a linguistic symbol (“secularism”) which indicates in abridged form certain significant aspects of the above-mentioned provisions, the content of which established the operating conditions under which this symbol should be understood and function. If these specific operating conditions had not been established, the principle of “secularism” would remain confined to ideological conflicts and could be used only with difficulty in a legal framework.
In that framework, the operating conditions are of course determined by reference to the cultural traditions and the customs of each people, in so far as these traditions and customs are reflected in the legal order, and this differs from one nation to another. ...
In the context of this court and the problem placed before it, namely the legitimacy of displaying the crucifix in classrooms, on the part of the competent authorities acting pursuant to the regulations, what has to be done in practice is the simpler task of verifying whether that requirement does or does not infringe the content of the fundamental norms of our constitutional order, that give form and substance to the principle of “secularism” which now characterises the Italian State and to which the Constitutional Court has referred on a number of occasions.
Quite clearly, the crucifix is in itself a symbol that may have various meanings and serve various purposes, above all for the place in which it has been displayed.
In a place of worship the crucifix is properly and exclusively a “religious symbol”, since it is intended to foster respectful adherence to the founder of the Christian religion.
In a non-religious context like a school, used for the education of young people, the crucifix may still convey the above-mentioned values to believers, but for them and for non-believers its display is justified and possesses a non-discriminatory meaning from the religious point of view if it is capable of representing and evoking synthetically and in an immediately perceptible and foreseeable manner (like any symbol) values which are important for civil society, in particular the values which underpin and inspire our constitutional order, the foundation of our civil life. In that sense the crucifix can perform – even in a “secular” perspective distinct from the religious perspective specific to it – a highly educational symbolic function, irrespective of the religion professed by the pupils.
Now it is obvious that in Italy the crucifix is capable of expressing, symbolically of course, but appropriately, the religious origin of those values – tolerance, mutual respect, valorisation of the person, affirmation of one's rights, consideration for one's freedom, the autonomy of one's moral conscience vis-à-vis authority, human solidarity and the refusal of any form of discrimination – which characterise Italian civilisation.
Those values, which have pervaded traditions, a way of life, the culture of the Italian people, form the basis for and spring from the fundamental norms of our founding charter – contained in the “Fundamental Principles” and the first part – and especially from those which the Constitutional Court referred to and which delimit the form of secularism appropriate to the Italian State.
The reference, via the crucifix, to the religious origin of these values and their full and complete correspondence with Christian teachings accordingly makes plain the transcendent sources of the values concerned, without calling into question, rather indeed confirming the autonomy of the temporal power vis-à-vis the spiritual power (but not their opposition, implicit in an ideological interpretation of secularism which has no equivalent in the Constitution), and without taking anything away from their particular “secular” nature, adapted to the cultural context specific to the fundamental order of the Italian State and manifested by it. Those values are therefore experienced in civil society autonomously (and not contradictorily) in relation to religious society, so that they may be endorsed “secularly” by all, irrespective of adhesion to the creed which inspired and defended them.
As with any symbol, one can impose on or attribute to the crucifix various contrasting meanings; one can even deny its symbolic value and make it a simple trinket having artistic value at the most. However, a crucifix displayed in a classroom cannot be considered a trinket, a decorative feature, nor as an adjunct to worship. Rather, it should be seen as a symbol capable of reflecting the remarkable sources of the civil values referred to above, values which define secularism in the State's present legal order. ...”
II. DEVELOPMENT OF THE RELEVANT DOMESTIC LAW AND PRACTICE
17. The obligation to hang crucifixes in primary school classrooms was laid down in Article 140 of royal decree no. 4336 of 15 September 1860 of the Kingdom of Piedmont-Sardinia, promulgated in accordance with Law no. 3725 of 13 November 1859, which provided: “each school must without fail be equipped with ... a crucifix” (Article 140).
In 1861, the year which saw the birth of the Italian State, the 1848 Statute of the Kingdom of Piedmont-Sardinia became the Constitution of the Kingdom of Italy; it provided in particular: “the Roman Catholic Apostolic religion shall be the only religion of the State [and] other existing creeds shall be tolerated in conformity with the law”.
18. The capture of Rome by the Italian army on 20 September 1870, following which the city was annexed and proclaimed capital of the new Kingdom of Italy, caused a crisis in relations between the State and the Catholic Church. By Law no. 214 of 13 May 1871 the Italian State unilaterally regulated relations with the Church, granting the Pope a number of privileges for the orderly conduct of religious activity. According to the applicants, the display of crucifixes in schools fell little by little into disuse.
19. During the fascist period the State took a series of measures aimed at ensuring compliance with the obligation to display the crucifix in classrooms.
For instance, on 22 November 1922 the Ministry of Education sent out a circular (no. 68) with the following wording: “... in the last few years in many of the Kingdom's primary schools the image of Christ and the portrait of the King have been removed. That is a manifest and intolerable breach of the regulations and especially an attack on the dominant religion of the State and the unity of the Nation. We therefore order all municipal administrative authorities in the Kingdom to restore, to those schools which lack them, the two sacred symbols of the faith and the consciousness of nationhood.”
On 30 April 1924 royal decree no. 965 of 30 April 1924 was adopted. This decree laid down the internal regulations governing middle schools (ordinamento interno delle giunte e dei regi istituti di istruzione media). Article 118 provided:
“Each school must have the national flag and each classroom must have a crucifix and a portrait of the King”.
Article 119 of royal decree no. 1297 of 26 April 1928, approving the general regulations governing the provision of primary education (approvazione del regolamento generale sui servizi dell'istruzione elementare), provides that the crucifix must form part of the “necessary equipment and supplies in school classrooms”.
20. The Lateran Pacts, signed on 11 February 1929, marked the “Conciliation” of the Italian State and the Catholic Church. Catholicism was confirmed as Italy's official religion, Article 1 of the Conciliation Treaty being worded as follows:
“Italy recognizes and reaffirms the principle established in the first Article of the Italian Constitution dated March 4 1848, according to which the Roman Catholic Apostolic religion is the only State religion.”
21. In 1948 Italy adopted its republican Constitution, Article 7 of which provides: “The State and the Catholic Church, each in its own order, shall be independent and sovereign ... their relations shall be regulated by the Lateran Pacts [and] amendments to the Pacts accepted by both parties shall not require proceedings to revise the Constitution.” Article 8 provides: “All religious creeds shall be equally free before the law ... religious creeds other than Catholicism shall have the right to organise in accordance with their own statutes, in so far as these are not incompatible with the Italian legal order [and] their relations with the State shall be determined by the law on the basis of agreements with their respective representatives”.
22. The Protocol to the new concordat, of 18 February 1984, ratified by Law no. 121 of 25 March 1985, states that the principle laid down in the Lateran Pacts, that the Catholic religion is the only State religion, is no longer in force.
23. In a judgment of 12 April 1989 (no. 203), rendered in a case which raised the question of the non-compulsory nature of Catholic religious instruction in State schools, the Constitutional Court held that the principle of secularism was derived from the Constitution, ruling that it implied not that the State should be indifferent to religions but that it should guarantee the protection of the freedom of religion in a context of confessional and cultural pluralism.
Dealing in the present case with an application concerning the conformity of the presence of crucifixes in State-school classrooms with the principle of secularism, the Constitutional Court ruled that it did not have jurisdiction, since the texts which required the presence of the crucifix were only regulations (decision of 15 December 2004, no. 389; see paragraph 14 above). When called upon to examine this question, the Consiglio di Stato held that, regard being had to the meaning that should be attached to it, the presence of the crucifix in State-school classrooms was compatible with the principle of secularism (judgment of 13 February 2006, no. 556; see paragraph 16 above).
In a different case, the Court of Cassation had taken the contrary view to that of the Consiglio di Stato in the context of a prosecution for refusing to serve as a scrutineer in a polling station on the ground that a crucifix was displayed there. In its judgment of 1 March 2000 (no. 439), it held that the presence of the crucifix infringed the principles of secularism and the impartiality of the State, and the principle of the freedom of conscience of those who did not accept any allegiance to that symbol. It expressly rejected the argument that displaying the crucifix was justified in that it was the symbol of “an entire civilisation or the collective ethical conscience” and – here the Court of Cassation cited the terms used by the Consiglio di Stato in an opinion of 27 April 1988 (no. 63) – also symbolised “a universal value independent of any specific religious creed”.
24. On 3 October 2002 the Minister of Education, Universities and Research issued the following instruction (no. 2666):
“... The Minister
... Considering that the presence of crucifixes in classrooms is founded on the provisions in force, that it offends neither against religious pluralism nor against the objectives of multicultural education of Italian schools and that it cannot be considered a limitation of the freedom of conscience guaranteed by the Constitution, since it does not refer to a specific creed but constitutes only an expression of Christian civilisation and culture, and that it therefore forms part of the universal heritage of mankind;
Having assessed, with respect for different allegiances, convictions and beliefs, the desirability of requiring all schools, within the limits of their own autonomy and by decision of their competent collegiate organs, to set aside part of their premises to be used, without any obligation and without any fixed hours being appointed, for contemplation and meditation by those members of the school community who so wish;
Issues the following instruction:
The Ministry's competent service ... shall take the necessary measures to see to it that:
1) school governors ensure the presence of crucifixes in classrooms;
2) all schools, within the limits of their own autonomy, and by decision of the members of their collegiate organs, set aside part of their premises to be used, without any obligation and without any fixed hours being appointed, for contemplation and meditation by those members of the school community who so wish ...”.
25. Articles 19, 33 and 34 of the Constitution are worded as follows:
“Everyone is entitled to freely profess their religious beliefs in any form, individually or with others, and to promote them and celebrate rites in public or in private, provided that they are not offensive to public morality.”
“The Republic guarantees the freedom of the arts and sciences, which may be freely taught.
The Republic lays down general rules for education and establishes State schools of all branches and grades. ...”
“Schools are open to everyone.
Elementary education, given for at least eight years, is compulsory and free. ...”
III. OVERVIEW OF LAW AND PRACTICE IN THE MEMBER STATES OF THE COUNCIL OF EUROPE WITH REGARD TO THE PRESENCE OF RELIGIOUS SYMBOLS IN STATE SCHOOLS
26. In the great majority of member States of the Council of Europe the question of the presence of religious symbols in State schools is not governed by any specific regulations.
27. The presence of religious symbols in State schools is expressly forbidden only in a small number of member States: the former Yugoslav Republic of Macedonia, France (except in Alsace and the département of Moselle) and Georgia.
It is only expressly prescribed – in addition to Italy – in a few member States, namely: Austria, certain administrative regions of Germany (Länder) and Switzerland (communes), and Poland. Nevertheless, such symbols are found in the State schools of some member States where the question is not specifically regulated, such as Spain, Greece, Ireland, Malta, San Marino and Romania.
28. The question has been brought before the supreme courts of a number of member States.
In Switzerland the Federal Court has held a communal ordinance prescribing the presence of crucifixes in primary school classrooms to be incompatible with the requirements of confessional neutrality enshrined in the Federal Constitution, but without criticising such a presence in other parts of the school premises (26 September 1990; ATF 116 1a 252).
In Germany the Federal Constitutional Court has ruled that a similar Bavarian ordinance was contrary to the principle of the State's neutrality and difficult to reconcile with the freedom of religion of children who were not Catholics (16 May 1995; BVerfGE 93,1). The Bavarian parliament then issued a new ordinance maintaining the previous measure, but enabling parents to cite their religious or secular convictions in challenging the presence of crucifixes in the classrooms attended by their children and introducing a mechanism whereby, if necessary, a compromise or a personalised solution could be reached.
In Poland the Ombudsman referred to the Constitutional Court an ordinance of 14 April 1992 issued by the Minister of Education prescribing in particular the possibility of displaying crucifixes in State-school classrooms. The Constitutional Court ruled that the measure was compatible with the freedom of conscience and religion and the principle of the separation of Church and State guaranteed by Article 82 of the Constitution, given that it did not make such display compulsory (20 April 1993; no. U 12/32).
In Romania the Supreme Court set aside a decision of the National Council for the Prevention of Discrimination of 21 November 2006 recommending to the Ministry of Education that it should regulate the question of the presence of religious symbols in publicly run educational establishments and, in particular, authorise the display of such symbols only during religious studies lessons or in rooms used for religious instruction. The Supreme Court held in particular that the decision to display such symbols in educational establishments should be a matter for the community formed by teachers, pupils and pupils' parents (11 June 2008; no. 2393).
In Spain the High Court of Justice of Castile and Leon, ruling in a case brought by an association militating in favour of secular schooling which had unsuccessfully requested the removal of religious symbols from schools, held that the schools concerned should remove them if they received an explicit request from the parents of a pupil (14 December 2009; no. 3250).
I. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 1 AND ARTICLE 9 OF THE CONVENTION
29. The applicants complained of the fact that crucifixes were affixed to the wall in the classrooms of the State school attended by the second and third applicants. They argued that this infringed the right to education, guaranteed by Article 2 of Protocol No. 1 in the following terms:
“No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”
They also contended that these facts infringed their right to the freedom of thought, conscience and religion enshrined in Article 9 of the Convention, which provides as follows:
“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
A. The Chamber's judgment
30. In its judgment of 3 November 2009 the Chamber held that there had been a violation of Article 2 of Protocol No. 1 taken together with Article 9 of the Convention.
31. First of all, the Chamber derived from the principles relating to the interpretation of Article 2 of Protocol No. 1 established in the Court's case-law an obligation on the State to refrain from imposing beliefs, even indirectly, in places where persons were dependent on it or in places where they were particularly vulnerable, emphasising that the schooling of children was a particularly sensitive area in that respect.
The Court went on to say that among the plurality of meanings the crucifix might have the religious meaning was predominant. It accordingly considered that the compulsory and highly visible presence of crucifixes in classrooms was capable not only of clashing with the secular convictions of the first applicant, whose children attended at that time a State school, but also of being emotionally disturbing for pupils of non-Christian religions or those who professed no religion. On that last point, the Chamber emphasised that the “negative” freedom of religion was not limited to the absence of religious services or religious education: it extended to practices and symbols expressing, in particular or in general, a belief, a religion or atheism. It added that this “negative right” deserved special protection if it was the State which expressed a belief and dissenters were placed in a situation from which they could not extract themselves if not by making disproportionate efforts and sacrifices.
According to the Chamber, the State had a duty to uphold confessional neutrality in public education, where school attendance was compulsory regardless of religion, and which had to seek to inculcate in pupils the habit of critical thought. It observed in addition that it could not see how the display in State-school classrooms of a symbol that it was reasonable to associate with the majority religion in Italy could serve the educational pluralism which was essential for the preservation of “democratic society” within the Convention meaning of that term.
32. The Chamber concluded that “the compulsory display of a symbol of a particular faith in the exercise of public authority in relation to specific situations subject to governmental supervision, particularly in classrooms, restrict[ed] the right of parents to educate their children in conformity with their convictions and the right of schoolchildren to believe or not believe”. The practice infringed those rights because “the restrictions [were] incompatible with the State's duty to respect neutrality in the exercise of public authority, particularly in the field of education” (§ 57 of the judgment).
B. Arguments of the parties
1. The Government
33. The Government did not raise an objection of inadmissibility.
34. They regretted that the Chamber had not had available to it a comparative law study of relations between the State and religions and on the question of the display of religious symbols in State schools. They asserted that the Chamber had thus deprived itself of an essential element, since such a study would have shown that there was no common approach in Europe in these fields, and would accordingly have led it to the finding that the member States had a particularly wide margin of appreciation; consequently, the Chamber, in its judgment, had failed to take that margin of appreciation into consideration, thus ignoring one fundamental aspect of the problem.
35. The Government also criticised the Chamber's judgment for deriving from the concept of confessional “neutrality” a principle excluding any relations between the State and a particular religion, whereas neutrality required the public administrative authorities to take all religions into account. The judgment was accordingly based on confusion between “neutrality” (an “inclusive concept”) and “secularism (an “exclusive concept”). Moreover, in the Government's view, neutrality meant that States should refrain from promoting not only a particular religion but also atheism, “secularism” on the State's part being no less problematic than proselytising by the State. The Chamber's judgment was thus based on a misunderstanding and amounted to favouring an irreligious or antireligious approach of which the applicant, as a member of the Union of atheists and rationalist agnostics, was asserted to be a militant supporter.
36. The Government went on to argue that it was necessary to take account of the fact that a single symbol could be interpreted differently from one person to another. That applied in particular to the sign of the cross, which could be perceived not only as a religious symbol, but also as a cultural and identity-linked symbol, the symbol of the principles and values which formed the basis of democracy and western civilisation; it appeared, for instance, on the flags of a number of European countries. Whatever the evocative power of an “image” might be, in the Government's view, it was a “passive symbol”, whose impact on individuals was not comparable with the impact of “active conduct”, and no one had asserted in the present case that the content of the teaching provided in Italy was influenced by the presence of crucifixes in classrooms.
That presence was the expression of a “national particularity”, characterised notably by close relations between the State, the people and Catholicism attributable to the historical, cultural and territorial development of Italy and to a deeply rooted and long-standing attachment to the values of Catholicism. Keeping crucifixes in schools was therefore a matter of preserving a centuries-old tradition. The Government argued that the right of parents to respect for their “family culture” ought not to infringe the community's right to transmit its culture or the right of children to discover it. Moreover, by contenting itself with a “potential risk” of emotional disturbance in finding a breach of the rights to education and freedom of thought, conscience and religion, the Chamber had considerably widened the scope of those provisions.
37. Referring in particular to the Otto-Preminger-Institut v. Austria judgment of 20 September 1994 (Series A no. 295-A), the Government contended that, although account should be taken of the fact that the Catholic religion was that of a large majority of Italians, this was not in order to make that fact into an aggravating circumstance, as the Chamber had done. On the contrary, the Court should acknowledge and protect national traditions and the prevailing popular feeling, and leave each State to maintain a balance between opposing interests. Moreover, it was the Court's case-law that school curricula or provisions establishing the preponderance of the majority religion did not in themselves point to undue influence on the part of the State or attempted indoctrination, and that the Court should respect constitutional traditions and principles relating to relations between the State and religions – including in the present case the particular approach to secularism which prevailed in Italy – and take into account the context of each State.
38. Considering in addition that the second sentence of Article 2 of Protocol No. 1 was applicable only to school curricula, the Government criticised the Chamber's judgment for the finding of a violation without any indication of how the mere presence of a crucifix in the classrooms where the first applicant's children were taught was capable of substantially reducing her ability to bring them up in conformity with her convictions, the only reason given being that pupils would feel that they were being educated in a school environment marked by a particular religion. That reason was erroneous when judged by the yardstick of the Court's case-law, from which it could be seen in particular, firstly that the Convention did not prevent member States from having a State religion, or from showing a preference for a particular religion, or from providing pupils with more extensive religious teaching in relation to the dominant religion, and secondly that account had to be taken of the fact that the educational influence of parents was much greater than the school's.
39. In the Government's view, the presence of crucifixes in classrooms made a legitimate contribution to enabling children to understand the national community in which they were expected to integrate. An “environmental influence” was all the more improbable because children in Italy received an education which helped them to develop a critical outlook on the question of religion, in a dispassionate atmosphere from which any form of proselytising was excluded. Moreover, Italy had opted for a benevolent approach to minority religions in the school environment: Italian law currently conferred the right to wear Islamic headscarves and other apparel or symbols with a religious connotation; the beginning and end of Ramadan were often celebrated in schools; religious instruction was permitted for all recognised creeds; and the needs of pupils belonging to minority faiths were taken into account, with Jewish pupils, for example, being entitled not to sit examinations on Saturdays.
40. Lastly, the Government emphasised the need to take into account the right of parents who wanted crucifixes to be kept in classrooms. That was the wish of the majority in Italy and was also the wish democratically expressed in the present case by almost all the members of the school's governing body. Removing crucifixes from classrooms in such circumstances would amount to “abuse of a minority position” and would be in contradiction with the State's duty to help individuals satisfy their religious needs.
2. The applicants
41. The applicants submitted that the display of crucifixes in the classrooms of the State school attended by the second and third applicants constituted an illegitimate interference with their right to the freedom of thought and conscience and infringed the principle of educational pluralism in that it was the expression of the State's preference for a particular religion in a place where conscience was formed. By expressing that preference the State was also disregarding its obligation to give special protection to minors against any form of propaganda or indoctrination. Moreover, according to the applicants, since the educational environment was thus marked by a symbol of the dominant religion, the display of the crucifix which they complained of infringed the second and third applicants' right to receive an open and pluralistic education aimed at the development of a capacity for critical judgement. Lastly, as the first applicant was in favour of secularism, it infringed her right to have her children educated in conformity with her own philosophical convictions.
42. The applicants argued that the crucifix was without a shadow of a doubt a religious symbol and trying to attribute a cultural value to it savoured of an attempt to maintain a hopeless last-ditch defence. Nor did anything in the Italian legal system justify the assertion that it was a symbol of national identity: according to the Constitution, it was the flag which symbolised that identity.
Moreover, as the German Federal Constitutional Court had pointed out in its judgment of 16 May 1995 (see paragraph 28 above), giving the crucifix a profane meaning would move it away from its original meaning and help divest it of its sacred nature. As to the assertion that it was merely a “passive symbol”, this ignored the fact that like all symbols – and more than all others – it gave material form to a cognitive, intuitive and emotional reality which went beyond the immediately perceptible. The German Federal Constitutional Court had, moreover, made that finding, holding in the judgment cited above that the presence of crucifixes in classrooms had an evocative character in that it represented the content of the faith it symbolised and served as “publicity material” for it. Lastly, the applicants pointed out that in the Dahlab v. Switzerland decision of 15 February 2001 (no. 42393/98, ECHR 2001-V), the Court had noted the particular power that religious symbols exerted in the school environment.
43. The applicants contended that every democratic State had a duty to guarantee the freedom of conscience, pluralism, equal treatment of beliefs and the secular nature of institutions. The principle of secularism required above all neutrality on the part of the State, which should keep out of the religious sphere and adopt the same attitude with regard to all religious currents. In other words, neutrality obliged the State to establish a neutral space within which everyone could freely live according to his own beliefs. By imposing religious symbols, namely crucifixes, in classrooms, the Italian State was doing the opposite.
44. The approach advocated by the applicants was thus clearly distinct from State atheism, which amounted to denying the freedom of religion by imposing a secular viewpoint in an authoritarian manner. Seen in terms of the State's impartiality and neutrality, secularism was on the contrary a means of securing the religious and philosophical freedom of conscience of all.
45. The applicants further contended that it was essential to give special protection to minority beliefs and convictions, in order to preserve those who held them from a “despotism of the majority”, and that too was a reason for removing crucifixes from classrooms.
46. In conclusion, the applicants argued that although, as the Government maintained, removing crucifixes from State-school classrooms would take away part of Italian cultural identity, keeping them there was incompatible with the foundations of western political thought, the principles of the liberal State and a pluralist, open democracy, and respect for the individual rights and freedoms enshrined in the Italian Constitution and the Convention.
C. Submissions of the third-party interveners
1. The Governments of Armenia, Bulgaria, Cyprus, the Russian Federation, Greece, Lithuania, Malta and the Republic of San Marino
47. In their joint observations submitted at the hearing, the Governments of Armenia, Bulgaria, Cyprus, the Russian Federation, Greece, Lithuania, Malta and the Republic of San Marino indicated that in their view the Chamber's reasoning had been based on a misunderstanding of the concept of “neutrality”, which the Chamber had confused with “secularism”. They pointed out that there was a huge diversity of Church-State arrangements in Europe and that more than half the population of Europe lived in non-secular States. They added that State symbols inevitably had a place in state education and that many of these had a religious origin, the Cross – which was both a national and a religious symbol – being the most visible example. In their view, in non-secular European States the presence of religious symbols in the public space was widely tolerated by the secular population as part of national identity. States should not have to divest themselves of part of their cultural identity simply because that identity was of religious origin. The position adopted by the Chamber was not an expression of the pluralism manifest in the Convention system, but an expression of the values of a secular State. To extend it to the whole of Europe would represent the “Americanisation” of Europe in that a single and unique rule and a rigid separation of Church and State would be binding on everyone.
In their submission, favouring secularism was a political position that, whilst respectable, was not neutral. Accordingly, in the educational sphere a State that supported the secular as opposed to the religious was not being neutral. Similarly, removing crucifixes from classrooms where they had always been would not be devoid of educational consequences. In reality, whether the State opted to allow or prohibit the presence of crucifixes in classrooms, the important factor was the degree to which the curriculum contextualised and taught children tolerance and pluralism.
The intervening Governments acknowledged that there might be circumstances where the arrangements by the State were unacceptable. The burden of proof should remain on the individual, however, and the Court should intervene only in extreme cases.
2. The Government of the Principality of Monaco
48. The intervening Government declared that they shared the viewpoint of the respondent Government according to which the crucifix was a “passive symbol” that was found on the coats of arms and flags of many States and in the instant case reflected a national identity rooted in history. Furthermore, being indivisible, the principle of State neutrality required the authorities to refrain from imposing a religious symbol where there had never been one and from withdrawing one that had always been there.
3. The Government of Romania
49. The intervening Government submitted that the Chamber had taken insufficient account of the wide margin of appreciation available to the Contracting States where sensitive issues were involved and that there was no European-wide consensus. They pointed out that the Court's case-law recognised in particular that the States enjoyed a wide margin of appreciation regarding the wearing of religious symbols in State schools; in their submission, the same should apply to the display of religious symbols in such schools. They also pointed out that the Chamber judgment had been based on the premise that the display of religious symbols in State schools breached Article 9 of the Convention and Article 2 of Protocol No. 1, which conflicted with the principle of neutrality because, where applicable, Contracting States were compelled to intervene with a view to removing those symbols. In their view, that principle was better served where decisions of this type were taken jointly by teachers, pupils and parents. In any event, as it was not associated with particular religious obligations, the presence of the crucifix in classrooms did not sufficiently affect the religious feelings of those concerned for there to be a violation of the aforementioned provisions.
4. The non-governmental organisation Greek Helsinki Monitor
50. According to the intervening organisation, the crucifix could not be perceived as anything other than a religious symbol, so that displaying it in State-school classrooms could be seen as an institutional message advocating a particular religion. It pointed out that in the case of Folgerø the Court had held that the participation of pupils in religious activities could in fact influence them, and considered that the same was true where they were taught in classrooms where a religious symbol was displayed. It also drew the Court's attention to the fact that children or parents who were bothered by this might refrain from protesting for fear of reprisals.
5. The non-governmental organisation Associazione nazionale del libero Pensiero
51. The intervening organisation, which considered that the presence of religious symbols in State-school classrooms was incompatible with Article 9 of the Convention and Article 2 of Protocol No. 1, submitted that the restrictions imposed on the applicants' rights were not “prescribed by law” within the meaning of the Court's case-law. It pointed out in that connection that displaying the crucifix in State-school classrooms was prescribed not by law but by regulations adopted during the fascist era. It added that those regulations had in any event been implicitly repealed by the Constitution of 1947 and the Law of 1985 ratifying the agreements amending the Lateran Pacts of 1929. It pointed out that the Criminal Division of the Court of Cassation had ruled accordingly in a judgment of 1 March 2000 (no. 4273) in a similar case relating to crucifixes displayed in polling stations and that it had confirmed that approach in a judgment of 17 February 2009 concerning crucifixes displayed in courtrooms (without, however, ruling on the merits). There was therefore a conflict of case-law between the Consiglio di Stato – which, on the contrary, held that the relevant regulations were applicable – and the Court of Cassation that affected the principle of legal security, which was the pillar of a State governed by the rule of law. As the Constitutional Court had declined jurisdiction, there was no mechanism in Italy whereby this conflict could be resolved.
6. The non-governmental organisation European Centre for Law and Justice
52. The intervening organisation submitted that the Chamber had wrongly addressed the question raised by the case, which was whether the Convention rights invoked by the first applicant had been violated merely on account of the presence of the crucifix in classrooms. Its view was that they had not. Firstly, the “personal convictions” of the first applicant's children had not been violated because they had neither been compelled to act against their conscience nor prevented from acting according to their conscience. Secondly, their “innermost convictions” and the first applicant's right to ensure their education in conformity with her own philosophical convictions had not been violated because her children had neither been forced to believe nor prevented from not believing. They had not been indoctrinated; nor had they been the subject of misplaced proselytism. The intervening organisation submitted that the Chamber had been mistaken in holding that a State's decision to display crucifixes in classrooms was contrary to the Convention (which was not the question that had been submitted to it). In doing so, the Chamber had created “a new obligation relating not to the first applicant's rights, but to the nature of the “educational environment”. In the intervening organisation's submission, it was because it had been unable to establish that the first applicant's children's “innermost or personal convictions” had been violated on account of the presence of the crucifix in the classrooms that the Chamber had created a new obligation to ensure that the educational environment was entirely secular, thus exceeding the scope of the application and the limits of its jurisdiction.
7. The non-governmental organisation Eurojuris
53. The intervening organisation agreed with the Chamber's conclusions. After reiterating the relevant provisions of Italian positive law – and underscoring the constitutional value of the principle of secularism – it referred to the principle established in the Court's case-law to the effect that school should not be a place for proselytism or preaching. It also referred to cases in which the Court had examined the question of the wearing of Islamic veils in educational establishments. It went on to point out that the presence of crucifixes in Italian State-school classrooms had been prescribed not by law but by regulations inherited from the fascist era which reflected a confessional conception of the State today that was incompatible with the principle of secularism laid down in positive constitutional law. It firmly rejected the reasoning of the Italian Administrative Court, according to which prescribing the presence of crucifixes in State-school classrooms was still compatible with that principle because they symbolised secular values. In its submission, it was a religious symbol with which non-Christians did not identify. Moreover, by obliging schools to display it in State-school classrooms the State conferred a particular dimension on a given religion, to the detriment of pluralism.
8. The non-governmental organisations International Commission of Jurists, Interights and Human Rights Watch
54. The intervening organisations submitted that the compulsory display of religious symbols such as the crucifix in State-school classrooms was incompatible with the principle of neutrality and the rights guaranteed to pupils and their parents under Article 9 of the Convention and Article 2 of Protocol No. 1. In their submission, educational pluralism was an established principle, upheld not only in the Court's case-law but also in the case-law of a number of supreme courts and in various international instruments. Furthermore, the Court's case-law supported a duty of State neutrality and impartiality as among religious beliefs in the provision of public services, including education. They pointed out that this principle of impartiality was recognised not only by the Italian, Spanish and German Constitutional Courts but also, in particular, by the French Conseil d'Etat and the Swiss Federal Court. They added that, as several supreme courts had held, State neutrality as among religious beliefs was particularly important in the classroom because, school being compulsory, children were vulnerable to indoctrination at school. They went on to reiterate the Court's finding that, although the Convention did not prevent States from imparting through teaching or education information or knowledge of a religious or philosophical kind, they had to ensure that this was done in an objective, critical and pluralistic manner, and free of any indoctrination. They stressed that the same applied to all functions carried out in the area of education and teaching, including the organisation of the school environment.
9. The non-governmental organisations Zentralkomitee der deutschen katholiken, Semaines sociales de France and Associazioni cristiane lavoratori italiani
55. The intervening organisations stated that they agreed with the Chamber that, whilst the crucifix had a plural meaning, it was primarily the central symbol of Christianity. They added, however, that they disagreed with its conclusion, and found it difficult to understand how the presence of crucifixes in classrooms could be “emotionally disturbing” for some pupils or hinder the development of their critical thinking. In their submission, that presence alone could not be equated with a religious or philosophical message; it should rather be interpreted as a passive way of conveying basic moral values. The question accordingly had to be regarded as one that fell within the competence of the State when deciding on the curriculum in schools; parents had to accept that certain aspects of State-school education could not be entirely in keeping with their convictions. They added that a State's decision to display crucifixes in State-school classrooms did not mean that it pursued an aim of indoctrination prohibited by Article 2 of Protocol No. 1. They maintained that a balance had to be found in the present case between the rights and interests of believers and non-believers, between the fundamental rights of individuals and the legitimate interests of society, and between the formulation of standards relating to fundamental rights and maintaining the diversity existing in Europe. In their submission, the Court should leave a wide margin of appreciation to the States in this area because the organisation of the relationship between the State and religion varied from one country to another and – in particular regarding the place of religion in State schools – was deeply rooted in the history, tradition and culture of a country.
10. Thirty-three members of the European Parliament acting collectively
56. The interveners pointed out that the Court was not a constitutional court and had to respect the principle of subsidiarity and recognise a particularly broad margin of appreciation in favour of Contracting States not only regarding the relationship between the State and religion but also where they carried out their functions in the area of education and teaching. In their view, by taking a decision whose effect would be to make it compulsory to remove religious symbols from State schools, the Grand Chamber would be sending a radical ideological message. They added that it was clear from the Court's case-law that a State which, for reasons deriving from its history or its tradition, showed a preference for a particular religion did not exceed that margin. Accordingly, in their opinion, the display of crucifixes in public buildings did not conflict with the Convention, and the presence of religious symbols in the public space should not be seen as a form of indoctrination but the expression of a cultural unity and identity. They added that in this specific context religious symbols had a secular dimension and should therefore not be removed.
D. The Court's assessment
57. In the first place, the Court observes that the only question before it concerns the compatibility, in the light of the circumstances of the case, of the presence of crucifixes in Italian State-school classrooms with the requirements of Article 2 of Protocol No. 1 and Article 9 of the Convention.
Thus it is not required in this case to examine the question of the presence of crucifixes in places other than State schools. Nor is it for the Court to rule on the compatibility of the presence of crucifixes in State-school classrooms with the principle of secularism as enshrined in Italian law.
58. Secondly, the Court emphasises that the supporters of secularism are able to lay claim to views attaining the “level of cogency, seriousness, cohesion and importance” required for them to be considered “convictions” within the meaning of Articles 9 of the Convention and 2 of Protocol No. 1 (see Campbell and Cosans v. the United Kingdom, 25 February 1982, § 36, Series A no. 48). More precisely, their views must be regarded as “philosophical convictions”, within the meaning of the second sentence of Article 2 of Protocol No. 1, given that they are worthy of “respect 'in a democratic society'”, are not incompatible with human dignity and do not conflict with the fundamental right of the child to education (ibid.).
1. The case of the first applicant
a. General principles
59. The Court reiterates that in the area of education and teaching Article 2 of Protocol No. 1 is in principle the lex specialis in relation to Article 9 of the Convention. That is so at least where, as in the present case, the dispute concerns the obligation laid on Contracting States by the second sentence of Article 2 to respect, when exercising the functions they assume in that area, the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions (see Folgerø and Others v. Norway [GC], no. 15472/02, § 84, ECHR 2007-VIII, § 84).
The complaint in question should therefore be examined mainly from the standpoint of the second sentence of Article 2 of Protocol No. 1 (see also Appel-Irrgang and Others v. Germany (dec.), no. 45216/07, ECHR 2009-...).
60. Nevertheless, that provision should be read in the light not only of the first sentence of the same Article, but also, in particular, of Article 9 of the Convention (see, for example, Folgerø, cited above, § 84), which guarantees freedom of thought, conscience and religion, including the freedom not to belong to a religion, and which imposes on Contracting States a “duty of neutrality and impartiality”.
In that connection, it should be pointed out that States have responsibility for ensuring, neutrally and impartially, the exercise of various religions, faiths and beliefs. Their role is to help maintain public order, religious harmony and tolerance in a democratic society, particularly between opposing groups (see, for example, Leyla Şahin v. Turkey [GC], no. 44774/98, § 107, ECHR 2005-XI). That concerns both relations between believers and non-believers and relations between the adherents of various religions, faiths and beliefs.
61. The word “respect” in Article 2 of Protocol No. 1 means more than “acknowledge” or “take into account”; in addition to a primarily negative undertaking, it implies some positive obligation on the part of the State (see Campbell and Cosans, cited above, § 37).
Nevertheless, the requirements of the notion of “respect”, which appears also in Article 8 of the Convention, vary considerably from case to case, given the diversity of the practices followed and the situations obtaining in the Contracting States. As a result, the Contracting States enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention with due regard to the needs and resources of the community and of individuals. In the context of Article 2 of Protocol No. 1 that concept implies in particular that this provision cannot be interpreted to mean that parents can require the State to provide a particular form of teaching (see Bulski v. Poland (dec.), nos. 46254/99 and 31888/02).
62. The Court would also refer to its case-law on the place of religion in the school curriculum (see essentially Kjeldsen, Busk Madsen and Pedersen v. Denmark, 7 December 1976, §§ 50-53, Series A no. 23; Folgerø, cited above, § 84; and Hasan and Eylem Zengin v. Turkey, no. 1448/04, §§ 51 and 52, ECHR 2007-XI).
According to those authorities, the setting and planning of the curriculum fall within the competence of the Contracting States. In principle it is not for the Court to rule on such questions, as the solutions may legitimately vary according to the country and the era.
In particular, the second sentence of Article 2 of Protocol No. 1 does not prevent States from imparting through teaching or education information or knowledge of a directly or indirectly religious or philosophical kind. It does not even permit parents to object to the integration of such teaching or education in the school curriculum.
On the other hand, as its aim is to safeguard the possibility of pluralism in education, it requires the State, in exercising its functions with regard to education and teaching, to take care that information or knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner, enabling pupils to develop a critical mind particularly with regard to religion in a calm atmosphere free of any proselytism. The State is forbidden to pursue an aim of indoctrination that might be considered as not respecting parents' religious and philosophical convictions. That is the limit that the States must not exceed (see judgments cited above in this paragraph, §§ 53, 84 (h) and 52 respectively).
b. Assessment of the facts of the case in the light of the above principles
63. The Court does not accept the Government's argument that the obligation laid on Contracting States by the second sentence of Article 2 of Protocol No. 1 concerns only the content of school curricula, so that the question of the presence of crucifixes in State-school classrooms would fall outside its scope.
It is true that a number of cases in which the Court has examined this provision concerned the content and implementation of the school curriculum. Nevertheless, as the Court has already emphasised, the obligation on Contracting States to respect the religious and philosophical convictions of parents does not apply only to the content of teaching and the way it is provided; it binds them “in the exercise” of all the “functions” – in the terms of the second sentence of Article 2 of Protocol No. 1 – which they assume in relation to education and teaching (see essentially Kjeldsen, Busk Madsen and Pedersen, cited above, § 50; Valsamis v. Greece, 18 December 1996, § 27, Reports of Judgments and Decisions 1996-VI; Hasan and Eylem Zengin, cited above, § 49; and Folgerø, cited above, § 84). That includes without any doubt the organisation of the school environment where domestic law attributes that function to the public authorities.
It is in that context that the presence of crucifixes in Italian State-school classrooms is to be placed (see Article 118 of royal decree no. 965 of 30 April 1924, Article 119 of royal decree no. 1297 of 26 April 1928 and Articles 159 and 190 of legislative decree no. 297 of 16 April 1994 – paragraphs 14 and 19 above).
64. In general, the Court considers that where the organisation of the school environment is a matter for the public authorities, that task must be seen as a function assumed by the State in relation to education and teaching, within the meaning of the second sentence of Article 2 of Protocol No. 1.
65. It follows that the decision whether crucifixes should be present in State-school classrooms forms part of the functions assumed by the respondent State in relation to education and teaching and, accordingly, falls within the scope of the second sentence of Article 2 of Protocol No. 1. That makes it an area in which the State's obligation to respect the right of parents to ensure the education and teaching of their children in conformity with their own religious and philosophical convictions comes into play.
66. The Court further considers that the crucifix is above all a religious symbol. The domestic courts came to the same conclusion and in any event the Government have not contested this. The question whether the crucifix is charged with any other meaning beyond its religious symbolism is not decisive at this stage of the Court's reasoning.
There is no evidence before the Court that the display of a religious symbol on classroom walls may have an influence on pupils and so it cannot reasonably be asserted that it does or does not have an effect on young persons whose convictions are still in the process of being formed.
However, it is understandable that the first applicant might see in the display of crucifixes in the classrooms of the State school formerly attended by her children a lack of respect on the State's part for her right to ensure their education and teaching in conformity with her own philosophical convictions. Be that as it may, the applicant's subjective perception is not in itself sufficient to establish a breach of Article 2 of Protocol No. 1.
67. The Government, for their part, explained that the presence of crucifixes in State-school classrooms, being the result of Italy's historical development, a fact which gave it not only a religious connotation but also an identity-linked one, now corresponded to a tradition which they considered it important to perpetuate. They added that, beyond its religious meaning, the crucifix symbolised the principles and values which formed the foundation of democracy and western civilisation, and that its presence in classrooms was justifiable on that account.
68. The Court takes the view that the decision whether or not to perpetuate a tradition falls in principle within the margin of appreciation of the respondent State. The Court must moreover take into account the fact that Europe is marked by a great diversity between the States of which it is composed, particularly in the sphere of cultural and historical development. It emphasises, however, that the reference to a tradition cannot relieve a Contracting State of its obligation to respect the rights and freedoms enshrined in the Convention and its Protocols.
As regards the Government's opinion on the meaning of the crucifix, the Court notes that the Consiglio di Stato and the Court of Cassation have diverging views in that regard and that the Constitutional Court has not given a ruling (see paragraphs 16 and 23 above). It is not for the Court to take a position regarding a domestic debate among domestic courts.
69. The fact remains that the Contracting States enjoy a margin of appreciation in their efforts to reconcile exercise of the functions they assume in relation to education and teaching with respect for the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions (see paragraphs 61-62 above).
That applies to organisation of the school environment and to the setting and planning of the curriculum (as the Court has already pointed out: see essentially the judgments cited above in the cases of Kjeldsen, Busk Madsen and Pedersen, §§ 50-53; Folgerø, § 84; and Zengin, §§ 51-52; paragraph 62 above). The Court therefore has a duty in principle to respect the Contracting States' decisions in these matters, including the place they accord to religion, provided that those decisions do not lead to a form of indoctrination (ibid.).
70. The Court concludes in the present case that the decision whether crucifixes should be present in State-school classrooms is, in principle, a matter falling within the margin of appreciation of the respondent State. Moreover, the fact that there is no European consensus on the question of the presence of religious symbols in State schools (see paragraphs 26-28 above) speaks in favour of that approach.
This margin of appreciation, however, goes hand in hand with European supervision (see, for example, mutatis mutandis, Leyla Şahin, cited above, § 110), the Court's task in the present case being to determine whether the limit mentioned in paragraph 69 above has been exceeded.
71. In that connection, it is true that by prescribing the presence of crucifixes in State-school classrooms – a sign which, whether or not it is accorded in addition a secular symbolic value, undoubtedly refers to Christianity – the regulations confer on the country's majority religion preponderant visibility in the school environment.
That is not in itself sufficient, however, to denote a process of indoctrination on the respondent State's part and establish a breach of the requirements of Article 2 of Protocol No. 1.
The Court refers on this point, mutatis mutandis, to the previously cited Folgerø and Zengin judgments. In the Folgerø case, in which it was called upon to examine the content of “Christianity, religion and philosophy” (KRL) lessons, it found that the fact that the syllabus gave a larger share to knowledge of the Christian religion than to that of other religions and philosophies could not in itself be viewed as a departure from the principles of pluralism and objectivity amounting to indoctrination. It explained that in view of the place occupied by Christianity in the history and tradition of the respondent State – Norway – this question had to be regarded as falling within the margin of appreciation left to it in planning and setting the curriculum (see Folgerø, cited above, § 89). It reached a similar conclusion in the context of “religious culture and ethics” classes in Turkish schools, where the syllabus gave greater prominence to knowledge of Islam on the ground that, notwithstanding the State's secular nature, Islam was the majority religion practised in Turkey (see Zengin, cited above, § 63).
72. Furthermore, a crucifix on a wall is an essentially passive symbol and this point is of importance in the Court's view, particularly having regard to the principle of neutrality (see paragraph 60 above). It cannot be deemed to have an influence on pupils comparable to that of didactic speech or participation in religious activities (see on these points Folgerø and Zengin, cited above, § 94 and § 64 respectively).
73. The Court observes that, in its judgment of 3 November 2009, the Chamber agreed with the submission that the display of crucifixes in classrooms would have a significant impact on the second and third applicants, aged eleven and thirteen at the time. The Chamber found that, in the context of public education, crucifixes, which it was impossible not to notice in classrooms, were necessarily perceived as an integral part of the school environment and could therefore be considered “powerful external symbols” within the meaning of the decision in Dahlab, cited above (see §§ 54 and 55 of the judgment).
The Grand Chamber does not agree with that approach. It considers that that decision cannot serve as a basis in this case because the facts of the two cases are entirely different.
It points out that the case of Dahlab concerned the measure prohibiting the applicant from wearing the Islamic headscarf while teaching, which was intended to protect the religious beliefs of the pupils and their parents and to apply the principle of denominational neutrality in schools enshrined in domestic law. After observing that the authorities had duly weighed the competing interests involved, the Court held, having regard above all to the tender age of the children for whom the applicant was responsible, that the authorities had not exceeded their margin of appreciation.
74. Moreover, the effects of the greater visibility which the presence of the crucifix gives to Christianity in schools needs to be further placed in perspective by consideration of the following points. Firstly, the presence of crucifixes is not associated with compulsory teaching about Christianity (see the comparative-law information set out in Zengin, cited above, § 33). Secondly, according to the indications provided by the Government, Italy opens up the school environment in parallel to other religions. The Government indicated in this connection that it was not forbidden for pupils to wear Islamic headscarves or other symbols or apparel having a religious connotation; alternative arrangements were possible to help schooling fit in with non-majority religious practices; the beginning and end of Ramadan were “often celebrated” in schools; and optional religious education could be organised in schools for “all recognised religious creeds” (see paragraph 39 above). Moreover, there was nothing to suggest that the authorities were intolerant of pupils who believed in other religions, were non-believers or who held non-religious philosophical convictions.
In addition, the applicants did not assert that the presence of the crucifix in classrooms had encouraged the development of teaching practices with a proselytising tendency, or claim that the second and third applicants had ever experienced a tendentious reference to that presence by a teacher in the exercise of his or her functions.
75. Lastly, the Court notes that the first applicant retained in full her right as a parent to enlighten and advise her children, to exercise in their regard her natural functions as educator and to guide them on a path in line with her own philosophical convictions (see, in particular, Kjeldsen, Busk Madsen and Pedersen and Valsamis, cited above, §§ 54 and 31 respectively).
76. It follows from the foregoing that, in deciding to keep crucifixes in the classrooms of the State school attended by the first applicant's children, the authorities acted within the limits of the margin of appreciation left to the respondent State in the context of its obligation to respect, in the exercise of the functions it assumes in relation to education and teaching, the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.
77. The Court accordingly concludes that there has been no violation of Article 2 of Protocol No. 1 in respect of the first applicant. It further considers that no separate issue arises under Article 9 of the Convention.
2. The case of the second and third applicants
78. The Court considers that, when read as it should be in the light of Article 9 of the Convention and the second sentence of Article 2 of Protocol No. 1, the first sentence of that provision guarantees schoolchildren the right to education in a form which respects their right to believe or not to believe. It therefore understands why pupils who are in favour of secularism may see in the presence of crucifixes in the classrooms of the State school they attend an infringement of the rights they derive from those provisions.
However, it considers, for the reasons given in connection with its examination of the first applicant's case, that there has been no violation of Article 2 of Protocol No. 1 in respect of the second and third applicants. It further considers that no separate issue arises in the case under Article 9 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
79. The applicants submitted that because the second and third applicants had been exposed to the crucifixes displayed in the classrooms of the State school they attended, all three of them, not being Catholics, had suffered a discriminatory difference in treatment in relation to Catholic parents and their children. Arguing that “the principles enshrined in Article 9 of the Convention and Article 2 of Protocol No. 1 are reinforced by the provisions of Article 14 de la Convention”, they complained of a violation of the latter Article, which provides:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
80. The Chamber held that, regard being had to the circumstances of the case and the reasoning which had led it to find a violation of Article 2 of Protocol No. 1 taken together with Article 9 of the Convention, there was no cause to examine the case under Article 14 also, whether taken separately or in conjunction with those provisions.
81. The Court, which notes that little argument has been presented in support of this complaint, reiterates that Article 14 of the Convention has no independent existence, since it has effect solely in relation to the enjoyment of the rights and freedoms safeguarded by the other substantive provisions of the Convention and its Protocols.
Proceeding on the assumption that the applicants wished to complain of discrimination regarding their enjoyment of the rights guaranteed by Article 9 of the Convention and Article 2 of Protocol No. 1 on account of the fact that they were not adherents of the Catholic religion and that the second and third of them had been exposed to the sight of crucifixes in the classrooms of the State school they attended, the Court does not see in those complaints any issue distinct from those it has already determined under Article 2 of Protocol No. 1. There is accordingly no cause to examine this part of the application.
FOR THESE REASONS,
1. Holds, by fifteen votes to two, that there has been no violation of Article 2 of Protocol No. 1 and that no separate issue arises under Article 9 of the Convention;
2. Holds unanimously that there is no cause to examine the complaint under Article 14 of the Convention.
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 18 March 2011.
Erik Fribergh Jean-Paul CostaRegistrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:
(a) Concurring opinion of Judge Rozakis joined by Judge Vajić;
(b) Concurring opinion of Judge Bonello;
(c) Concurring opinion of Judge Power;
(d) Dissenting opinion of Judge Malinverni joined by Judge Kalaydjieva.
CONCURRING OPINION OF JUDGE ROZAKIS JOINEDBY JUDGE VAJIĆ
The main issue to be resolved in this case is the effect of the application of the proportionality test to the facts. Proportionality between, on the one hand, the right of parents to ensure their children's education and teaching in conformity with their own religious and philosophical convictions, and, on the other hand, the right or interest of at least a very large segment of society to display religious symbols as a manifestation of religion or belief. Consequently, both the competing values involved in this case are simultaneously protected by the Convention, through Article 2 of Protocol No. 1 (the lex specialis), read in the light of Article 9 of the Convention, in so far as the parents are concerned, and Article 9 of the Convention, in so far as society's rights are concerned.
Concerning, first, the parents' right, the Court's judgment underlines that the word “respect” in the second sentence of Article 2 of Protocol No. 1 “means more than 'acknowledge' or 'take into account'; in addition to a primarily negative obligation, it implies some positive obligation on the part of the State” (see paragraph 61 of the judgment). Yet the respect due to the parents, even in the form of some positive obligation, “does not prevent States from imparting through teaching or education information or knowledge of a directly or indirectly religious or philosophical kind. It does not even permit parents to object to the integration of such teaching or education in the school curriculum” (see paragraph 62).
This last reference to the Convention's case-law needs, I think, some further analysis. It is indisputable that Article 2 of Protocol No. 1 enshrines the fundamental right to education: a sacrosanct individual right – which undoubtedly can also be seen from the angle of a social right – that seems to be constantly gaining ground in our European societies. However, while the right to education constitutes one of the cornerstones of the protection of individuals under the Convention, the same cannot be said with equal force, to my mind, of the subordinate right of parents to ensure their children's education in accordance with their religious or philosophical beliefs. Here matters differ considerably, for a number of reasons:
(i) that right, although linked to the right to education, does not directly vest in the basic recipient of the right, namely, in the recipient of the education, that is, the one who has the right to be educated. It vests in the parents – whose direct right to education is not at stake in the circumstances – and is limited to one aspect of education alone: their religious and philosophical convictions.
(ii) although there is admittedly an obvious relationship between the education that children receive in their schools and the religious and philosophical ideas and opinions, deriving from convictions, which exist in the family environment – a relationship that requires a degree of harmonisation in these matters between the school and home environments – Europe has nevertheless changed dramatically regarding this aspect as well as others since Protocol No. 1 was adopted. Most of us now live in multicultural, multi-ethnic societies within our national States, a feature which has become a common characteristic of those societies, and children living in that environment are exposed, in their everyday life, to ideas and opinions which go beyond those emanating from school and their parents. Human relations outside the parental roof and modern means of communication undoubtedly contribute to that effect. As a consequence, children become accustomed to receiving a variety of frequently conflicting ideas and opinions and the role of both school and parents in these matters has become relatively less influential.
(iii) as a result of the changed composition of our societies, it is increasingly difficult for a State to cater for the individual needs of parents on educational issues. I would go as far as saying that its main concern, and this is a valid concern, should be to offer children an education which will ensure their fullest integration into the society in which they live and prepare them, in the best possible way, to cope effectively with the expectations that that society has of its members. Although this characteristic of education is not a new one – it has existed since time immemorial – it has recently acquired more obvious importance because of the particularities of our era and the composition of societies today. Again, the duties of the State have largely shifted from concerns of parents to concerns of society at large, thus reducing the extent of the parents' ability to determine, outside the home, the kind of education that their children receive.
In conclusion, it seems to me that, unlike other guarantees of the Convention, in respect of which the case-law of the Convention has increased the purview of protection, including the right to education, the right of parents, under the second sentence of Article 2 of Protocol No. 1, does not seem realistically to be gaining weight in the balancing exercise of the proportionality test.
At the other end of the spectrum, representing the other limb of the proportionality equation, lies the right of society, as reflected in the authorities' measure in maintaining crucifixes on the walls of State schools, to manifest their (majority) religious beliefs. Does this right, in the circumstances of the case, override the right of parents to educate their children in accordance with their religion and – more specifically in the circumstances of the present case – their philosophical convictions?
The answer should be given by interpreting the Convention case-law and applying it to the particular circumstances of this case. And the first question which must be settled is the issue of a European consensus. Is there any European consensus on the matter – allowing, imposing or prohibiting the display of Christian religious symbols in State schools – which should determine the position of the Court on the matter?
The answer emerges clearly from this very judgment of the Court, and from the part dealing with the overview of law and practice in the member States of the Council of Europe with regard to the presence of religious symbols in “State schools” (see paragraphs 26 et seq.): there is no consensus among European States prohibiting the presence of such religious symbols, and few States expressly forbid them. There is, of course, a growing trend towards proscribing the possibility of displaying crucifixes in State schools – mainly through rulings of the higher national courts – but the number of States that have adopted measures prohibiting the display of crucifixes in public places and the extent of domestic judicial activity do not allow the Court to presume that a consensus has been reached against displaying them. This is particularly true if one takes into account that there are a number of States in Europe where the Christian religion is still the official or predominant religion and, moreover, as I have just underscored, that a number of States clearly allow, through their law or practice, crucifixes to be displayed in public places.
It should be observed here, while we are on the subject of a consensus, that the Court is a court of law, not a legislative body. Whenever it embarks on a search for the limits of the Convention's protection, it carefully takes into consideration the existing degree of protection at the level of the European States; it can, of course, afford to develop that protection at a level higher than the one offered by a specific respondent State, but on condition that there are strong indications that a great number of other European States have already adopted that degree of protection, or that there is a clear trend towards an increased level of protection. That principle cannot positively apply in the present case, although there is admittedly an emerging trend towards prohibiting the display of religious symbols in public institutions.
In view of the fact that there is still a mixed practice among European States on the issue, the only remaining guidance for the Court in achieving the correct balance between the rights involved comes from its prior case-law. The keywords deriving from the prior case-law are “neutrality and impartiality”. As the Court has noted in the present judgment, “States have responsibility for ensuring, neutrally and impartially, the exercise of various religions, faiths and beliefs. Their role is to help maintain public order, religious harmony and tolerance in a democratic society, particularly between opposing groups” (see paragraph 60, in fine).
It is, I think, indisputable that the display of crucifixes in Italian State schools has a religious symbolism that has an impact on the obligation of neutrality and impartiality of the State, despite the fact that in a modern European society symbols seem to be gradually losing the very important weight that they used to have in the past and more pragmatic and rationalistic approaches now determine, for large segments of the population, the real social and ideological values.
The question which therefore arises at this juncture is whether the display of the crucifix not only affects neutrality and impartiality, which it clearly does, but whether the extent of the transgression justifies a finding of a violation of the Convention in the circumstances of the present case. Here I conclude, not without some hesitation, that it does not, in accordance with the main reasoning of the Court's approach and, more particularly, the role of the majority religion of Italian society (see paragraph 71), the essentially passive nature of the symbol, which cannot amount to indoctrination (see paragraph 72), and also the educational context within which the crucifix appears on the walls of State schools. As the judgment has pointed out, “[f]irstly, the presence of crucifixes is not associated with compulsory teaching about Christianity ... Secondly ... Italy opens up the school environment in parallel to other religions. The Government indicated in this connection that it was not forbidden for pupils to wear Islamic headscarves or other symbols or apparel having a religious connotation; alternative arrangements were possible to help schooling fit in with non-majority religious practices; ... and optional religious education could be organised in schools for 'all recognised religious creeds'...” (see paragraph 74 of the judgment). These elements, demonstrating a religious tolerance which is expressed through a liberal approach allowing all religions denominations to freely manifest their religious convictions in State schools, are, to my mind, a major factor in “neutralising” the symbolic importance of the presence of the crucifix in State schools.
I would also say that this same liberal approach serves the very concept of “neutrality”; it is the other side of the coin from, for example, a policy of prohibiting any religious symbols from being displayed in public places.
CONCURRING OPINION OF JUDGE BONELLO
1.1 A court of human rights cannot allow itself to suffer from historical Alzheimer's. It has no right to disregard the cultural continuum of a nation's flow through time, nor to ignore what, over the centuries, has served to mould and define the profile of a people. No supranational court has any business substituting its own ethical mock-ups for those qualities that history has imprinted on the national identity. On a human rights court falls the function of protecting fundamental rights, but never ignoring that “customs are not passing whims. They evolve over time, harden over history into cultural cement. They become defining, all-important badges of identity for nations, tribes, religions, individuals”.1
1.2 A European court should not be called upon to bankrupt centuries of European tradition. No court, certainly not this Court, should rob the Italians of part of their cultural personality.
1.3 I believe that before joining any crusade to demonise the crucifix, we should start by placing the presence of that emblem in Italian schools in its rightful historical perspective. For many centuries, virtually the only education in Italy was provided by the Church, its religious orders and organisations – and very few besides. Many, if not most schools, colleges, universities and other institutes of learning in Italy had been founded, funded, or run by the Church, its members or its offshoots. The milestones of history turned education and Christianity into almost interchangeable notions, and because of this, the age-old presence of the crucifix in Italian schools should come as no shock or surprise. In fact, its absence would have come as a surprise and a shock.
1.4 Until relatively recently, the “secular” State had hardly bothered with education, and, by default, had delegated that primary function to Christian institutions. Only slowly did the State start assuming its responsibilities to educate and to offer the population some alternatives to a virtual religious monopoly on education. The presence of the crucifix in Italian schools only testifies to this compelling and millennial historical reality – it could loosely be said that it has been there since schools have been there. Now, a court in a glass box a thousand kilometres away has been engaged to veto overnight what has survived countless generations. The Court has been asked to be an accomplice in a major act of cultural vandalism. I believe William Faulkner went to the core of the issue: the past is never dead. In fact it is not even past.2 Like it or not, the perfumes and the stench of history will always be with you.
1.5 It is uninformed nonsense to assert that the presence of the crucifix in Italian schools bears witness to a reactionary fascist measure imposed, in between gulps of castor oil, by Signor Mussolini. His circulars merely took formal notice of a historical reality that had predated him by several centuries and, pace Ms Lautsi's anti-crucifix vitriol, may still survive him for a long time. This Court ought to be ever cautious in taking liberties with other peoples' liberties, including the liberty of cherishing their own cultural imprinting. Whatever that is, it is unrepeatable. Nations do not fashion their histories on the spur of the moment.
1.6 The scansion of the Italian school calendar further testifies to the inextricable historical links between education and religion in Italy, obstinate ties which have lasted throughout the centuries. School children to the very present day toil on the days consecrated to the pagan gods (Diana/Luna, Mars, Hercules, Jove, Venus, Saturn) and rest on Sunday (domenica, the day of the Lord). The school calendar apes the religious calendar closely – holidays double the Christian ones: Easter, Christmas, Lent, Carnival (carnevale, the time when church discipline allowed the consumption of meat), the Epiphany, Pentecost, the Assumption, Corpus Domini, Advent, All Saints, All Souls: an annual cycle far more glaringly non-secularist than any crucifix on any wall. May it please Ms Lautsi, in her own name and on behalf of secularism, not to enlist the services of this Court to ensure the suppression of the Italian school calendar, another Christian-cultural heritage that has survived the centuries without any evidence of irreparable harm to the progress of freedom, emancipation, democracy and civilisation.
What rights? Freedom of religion and conscience?
2.1 The issues in this controversy have been fudged by a deplorable lack of clarity and definition. The Convention enshrines the protection of freedom of religion and of conscience (Article 9). Nothing less, obviously, but little more.
2.2 In parallel with freedom of religion, there has evolved in civilised societies a catalogue of noteworthy (often laudable) values cognate to, but different from, freedom of religion, like secularism, pluralism, the separation of Church and State, religious neutrality, religious tolerance. All of these represent superior democratic commodities which Contracting States are free to invest in or not to invest in, and many have done just that. But these are not values protected by the Convention, and it is fundamentally flawed to juggle these dissimilar concepts as if they were interchangeable with freedom of religion. Sadly, traces of such all but rigorous overspill appear in the Court's case-law too.
2.3 The Convention has given this Court the remit to enforce freedom of religion and of conscience, but has not empowered it to bully States into secularism or to coerce countries into schemes of religious neutrality. It is for each individual State to choose whether to be secular or not, and whether, and to what extent, to separate Church and governance. What is not for the State to do is to deny freedom of religion and of conscience to anyone. An immense, axiomatic chasm separates one prescriptive concept from the other non-prescriptive ones.
2.4 Most of the arguments raised by the applicant called upon the Court to ensure the separation of Church and State and to enforce a regime of aseptic secularism in Italian schools. Bluntly, that ought to be none of this Court's business. This Court has to see that Ms Lautsi and her children enjoy to the full their fundamental right to freedom of religion and conscience. Period.
2.5 The Convention proves to be quite helpful with its detailed and exhaustive inventory of what freedom of religion and conscience really means, and we would do well to keep these institutional constraints in mind. Freedom of religion is not secularism. Freedom of religion is not the separation of Church and State. Freedom of religion is not religious equidistance – all seductive notions, but of which no one has so far appointed this Court to be the custodian. In Europe, secularism is optional, freedom of religion is not.
2.6 Freedom of religion, and freedom from religion, in substance, consist in the rights to profess freely any religion of the individual's choice, the right to freely change one's religion, the right not to embrace any religion at all, and the right to manifest one's religion by means of belief, worship, teaching and observance. Here the Convention catalogue grinds to a halt, well short of the promotion of any State secularism.
2.7 This Court's rather modest function remains that of determining whether the exposure in State schoolrooms of what to some is a Christian symbol and to others a cultural gadget in any way interfered with Ms Lautsi's and her children's basic right to freedom of religion – as defined by the Convention itself.
2.8 I believe anyone could persuasively try to argue that the presence of the crucifix in Italian State schools might possibly offend the doctrine of secularism and that of the separation between Church and State. At the same time I do not believe that anyone can persuasively plead that the presence of a crucifix interfered in any way with the Lautsis' right to profess any religion of their choice, to change their religion, not to have any religion at all or to manifest their beliefs, if any, by worship, teaching and observance, or with their right to reject outright anything they may consider insipid superstitious junk.
2.9 With or without a crucifix on a schoolroom wall, the Lautsis enjoyed the most absolute and untrammelled freedom of conscience and religion as demarcated by the Convention. The presence of a crucifix in a State classroom might conceivably be viewed as a betrayal of secularism and an unjustifiable failure of the regime of separation between Church and State – but these doctrines, however alluring and beguiling, are nowhere mandated by the Convention, nor are they necessary constitutive elements of the freedoms of conscience and of religion. It is for the Italian authorities, not for this Court, to enforce secularism if they believe it forms part, or should form part, of the Italian constitutional architecture.
2.10 Seen in the light of the historical roots of the presence of the crucifix in Italian schools, removing it from where it has quietly and passively been for centuries, would hardly have been a manifestation of neutrality by the State. Its removal would have been a positive and aggressive espousal of agnosticism or of secularism – and consequently anything but neutral. Keeping a symbol where it has always been is no act of intolerance by believers or cultural traditionalists. Dislodging it would be an act of intolerance by agnostics and secularists.
2.11 Millions of Italian children have, over the centuries, been exposed to the crucifix in schools. This has neither turned Italy into a confessional State, nor the Italians into citizens of a theocracy. The applicants have failed to unfurl before the Court any evidence at all that those exposed to the crucifix forfeited in any way their complete freedom to manifest their individual and personal religious belief, or their right to repudiate any religion. The presence of a crucifix in a schoolroom does not seem to have hindered any Italian in his or her liberty to believe or to disbelieve, to embrace atheism, agnosticism, anti-clericalism, secularism, materialism, relativism, or doctrinaire irreligion, to recant, apostatise, or to embrace whatever creed or “heresy” of their choice they find sufficiently appealing, with the same vigour and gusto others freely embrace a Christian faith. Had any such evidence been adduced, I would have been strident in my voting for finding a violation of the Convention.
What rights? Right to education?
3.1 Article 2 of Protocol No. 1 guarantees the right of parents to ensure that the teaching their children receive is in conformity with their own religious and philosophical convictions. The Court has to supervise and ensure respect for this right.
3.2 Does the mere silent and passive presence of a symbol in a classroom in an Italian school amount to “teaching”? Does it hinder the exercise of the guaranteed right? Try hard as I might, I fail to see how. The Convention specifically and exclusively bans any teaching in schools unwelcome to parents on religious, ethical and philosophical grounds. The keyword of this norm is obviously “teaching” and I doubt how far the mute presence of a symbol of European cultural continuity would amount to teaching in any sense of that fairly unambiguous word.
3.3 In my view, what the Convention prohibits are any indoctrination, arrant or devious, the aggressive confiscation of young minds, invasive proselytism, the putting in place by the public educational system of any obstacle to the avowal of atheism, agnosticism or alternative religious options. The mere display of a voiceless testimonial of a historical symbol, so emphatically part of the European heritage, in no way amounts to “teaching”, nor does it undermine in any meaningful manner the fundamental right of parents to determine what, if any, religious orientation their children are to follow.
3.4. But, even assuming that the mere existence of a mute object should be construed as “teaching”, the applicants have failed to answer the far more cardinal question of proportionality, intimately related to the exercise of fundamental rights when these conflict with the rights of others – the weighting to be given to the various competing interests.
3.5 All the parents of all the thirty pupils in an Italian classroom enjoy equally the fundamental Convention right to have their children receive teaching in conformity with their own religious and philosophical convictions, at least analogous to that of the Lautsi children. The parents of one pupil want that to be “non-crucifix” schooling, and the parents of the other twenty-nine, exercising their equally fundamental freedom of decision, want that schooling to be “crucifix” schooling. No one has so far suggested any reason why the will of the parents of one pupil should prevail, and that of the parents of the other twenty-nine pupils should founder. The parents of the twenty-nine have the fundamental right, equivalent in force and commensurate in intensity, to have their children receive teaching in conformity with their own religious and philosophical convictions, be they crucifix-friendly or merely crucifix-indifferent. Ms Lautsi cannot award herself a licence to overrule the right of all the other parents of all the other pupils in that classroom, who want to exercise the same right she has asked this Court to inhibit others from exercising.
3.6 The crucifix purge promoted by Ms Lautsi would not in any way be a measure to ensure neutrality in the classroom. It would be an imposition of the crucifix-hostile philosophy of the parents of one pupil, over the crucifix-receptive philosophy of the parents of all the other twenty-nine. If the parents of one pupil claim the right to have their child raised in the absence of a crucifix, the parents of the other twenty-nine should well be able to claim an equal right to its presence, whether as a traditional Christian emblem or even solely as a cultural souvenir.
4.1 Very recently, this Court was called upon to determine whether a ban ordered by the Turkish authorities on the distribution of Guillaume Apollinaire's novel Les onze mille verges could be justified in a democratic society. That novel would only fail to qualify as fierce pornography through the most lavish disregard of contemporary standards of morality.3 Yet the Court manfully saved that smear of transcendental smut on the ground that it formed part of European cultural heritage.4
4.2 It would have been quite bizarre, in my view, for this Court to protect and redeem an under-the-counter, over-the-borderline discharge of nauseous obscenity on the ground of its distinctly faint “European heritage” merit, and, in the same breath, deny European heritage value to an emblem recognised over the centuries by millions of Europeans as a timeless symbol of redemption through universal love.
CONCURRING OPINION OF JUDGE POWER
This case raises issues as to the scope of certain provisions of the Convention and the Grand Chamber's rectification of a number of errors in the Chamber's Judgment was both necessary and appropriate. The core correction consists in the finding that the decision as to whether crucifixes should be present in state-school classrooms is, in principle, a matter falling within the margin of appreciation of a respondent state (§ 70). In exercising its supervisory role, the Court has confirmed its earlier case law5 to the effect that the 'preponderant visibility' within a school environment which a state may confer on a country's majority religion is not, in itself, sufficient to indicate a process of indoctrination such as would establish a breach of the requirements of Article 2 of Protocol No. 1 (§ 71).
The Grand Chamber has also corrected the rather speculative conclusion in the Chamber judgment (see § 55) as to the “particularly strong” risk of emotional disturbance which the presence of a crucifix may pose to children of minority religions or none. Given the critical role of “evidence” in any Court proceedings, the Grand Chamber has correctly noted that there was no evidence opened to the Court to indicate any influence which the presence of a religious symbol may have on school pupils (§ 66). While acknowledging as “understandable” the first applicant's perception of a lack of respect for her rights, the Grand Chamber has confirmed that her subjective perception is not sufficient to establish a breach of Article 2 of Protocol No 1. The first applicant may have taken offence at the presence of a crucifix in classrooms but the existence of a right 'not to be offended' has never been recognised within the Convention. In reversing the Chamber's judgment, the Grand Chamber does no more than confirm a body of settled jurisprudence (notably under Article 10) which recognises that mere 'offence' is not something against which an individual may be immunized by law.
However, there was another fundamental and, in my view, erroneous conclusion in the Chamber's Judgment upon which the Grand Chamber did not comment and which, to my mind, merited clarification. The Chamber referred, correctly, to the State's duty to uphold confessional neutrality in public education (§ 56). However, it proceeded, to conclude, incorrectly, that this duty required the effective preference or elevation of one ideology (or body of ideas) over all other religious and/or philosophical perspectives or world views. Neutrality requires a pluralist approach on the part of the State, not a secularist one. It encourages respect for all world views rather than a preference for one. To my mind, the Chamber Judgment was striking in its failure to recognise that secularism (which was the applicant's preferred belief or world view) was, in itself, one ideology among others. A preference for secularism over alternative world views—whether religious, philosophical or otherwise—is not a neutral option. The Convention requires that respect be given to the first applicant's convictions insofar as the education and teaching of her children was concerned. It does not require a preferential option for and endorsement of those convictions over and above all others.
In his separate opinion, Judge Bonello has pointed to the fact that within the European tradition, education (and, to my mind, the values of human dignity, tolerance and respect for the individual, without which there can be no lasting basis for human rights protection) is rooted, historically, inter alia, within the Christian tradition. To prohibit in public schools, regardless of the wishes of the body politic, the display of a symbol representative of that (or indeed any other religious) tradition and to require of the State that it pursues not a pluralist but a secularist agenda, risks venturing towards the territory of intolerance – a concept that is contrary to the values of the Convention.
The applicants complain of an alleged violation of their rights to freedom of thought, conscience and religion. I can find no interference with their freedom to manifest their personal beliefs. The test of a violation under Article 9 is not “offence” but “coercion”.6 That article does not create a right not to be offended by the manifestation of the religious beliefs of others even where those beliefs are given 'preponderant visibility' by the State. The display of a religious symbol does not compel or coerce an individual to do or to refrain from doing anything. It does not require engagement in any activity though it may, conceivably, invite or stimulate discussion and an open exchange of views. It does not prevent an individual from following his or her own conscience nor does it make it unfeasible for such a person to manifest his or her own religious beliefs and ideas.
The Grand Chamber has found that the presence of the crucifix is, essentially, a passive symbol and it regards this point as being of great importance having regard to the principle of neutrality. I agree with the Court in this regard insofar as the symbol's passivity is not in any way coercive. However, I would have to concede that, in principle, symbols (whether religious, cultural or otherwise) are carriers of meaning. They may be silent but they may, nevertheless, speak volumes without, however, doing so in a coercive or in an indoctrinating manner. The uncontested evidence before the Court is that Italy opens up the school environment to a variety of religions and there is no evidence of any intolerance shown towards non-believers or those who hold non-religious philosophical convictions. Islamic headscarves may be worn. The beginning and end of Ramadan are “often celebrated”. Within such a pluralist and religiously tolerant context, a Christian symbol on a classroom wall presents yet another and a different world view. The presentation of and engagement with different points of view is an intrinsic part of the educative process. It acts as a stimulus to dialogue. A truly pluralist education involves exposure to a variety of different ideas including those which are different from one's own. Dialogue becomes possible and, perhaps, is at its most meaningful where there is a genuine difference of opinion and an honest exchange of views. When pursued in a spirit of openness, curiosity, tolerance and respect, this encounter may lead towards greater clarity and vision as it fosters the development of critical thinking. Education would be diminished if children were not exposed to different perspectives on life and, in being so exposed, provided with the opportunity to learn the importance of respect for diversity.
DISSENTING OPINION OF JUDGE MALINVERNI JOINED BY JUDGE KALAYDJIEVA
1. The Grand Chamber has reached the conclusion that there has not been a violation of Article 2 of Protocol No. 1 on the ground that “the decision whether crucifixes should be present in State-school classrooms is, in principle, a matter falling within the margin of appreciation of the respondent State” (see paragraph 70, and also paragraph 69).
I have difficulty following that line of argument. Whilst the doctrine of the margin of appreciation may be useful, or indeed convenient, it is a tool that needs to be handled with care because the scope of that margin will depend on a great many factors: the right in issue, the seriousness of the infringement, the existence of a European consensus, etc. The Court has thus affirmed that “the scope of this margin of appreciation is not identical in each case but will vary according to the context ... . Relevant factors include the nature of the Convention right in issue, its importance for the individual and the nature of the activities concerned”.7 The proper application of this theory will thus depend on the importance to be attached to each of these various factors. Where the Court decrees that the margin of appreciation is a narrow one, it will generally find a violation of the Convention; where it considers that the margin of appreciation is wide, the respondent State will usually be “acquitted”.
In the present case it is by relying mainly on the lack of any European consensus that the Grand Chamber has allowed itself to invoke the doctrine of the margin of appreciation (see paragraph 70). In that connection I would observe that, besides Italy, it is in only a very limited number of member States of the Council of Europe (Austria, Poland, certain regions of Germany (Länder) – see paragraph 27) that there is express provision for the presence of religious symbols in State schools. In the vast majority of the member States the question is not specifically regulated. On that basis I find it difficult, in such circumstances, to draw definite conclusions regarding a European consensus.
With regard to the regulations governing this question, I would point out in passing that the presence of crucifixes in Italian State schools has an extremely weak basis in law: a very old royal decree dating back to 1860, then a fascist circular of 1922, and then royal decrees of 1924 and 1928. These are therefore very old instruments, which, as they were not enacted by Parliament, are lacking in any democratic legitimacy.
What I find more important, however, is that where they have been required to give a ruling on the issue, the European supreme or constitutional courts have always, without exception, given precedence to the principle of State denominational neutrality: the German Constitutional Court, the Swiss Federal Court, the Polish Constitutional Court and, in a slightly different context, the Italian Court of Cassation (see paragraphs 28 and 23).
Be that as it may, one thing is certain: the doctrine of the margin of appreciation should not in any circumstances exempt the Court from the duty to exercise the function conferred on it under Article 19 of the Convention, which is to ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto. Now, the wording of the second sentence of Article 2 of Protocol No. 1 confers a positive obligation on States to respect the right of parents to ensure education and teaching in conformity with their own religious and philosophical convictions.
That positive obligation derives from the verb “respect”, which appears in Article 2 of Protocol No. 1. As the Grand Chamber has rightly pointed out, “in addition to a primarily negative undertaking, this verb implies some positive obligation on the part of the State (see paragraph 61). Such a positive obligation can, moreover, also be inferred from Article 9 of the Convention. That provision can be interpreted as conferring on States a positive obligation to create a climate of tolerance and mutual respect among their population.
Can it be maintained that the States properly comply with that positive obligation where they mainly have regard to the beliefs held by the majority? Moreover, is the scope of the margin of appreciation the same where the national authorities are required to comply with a positive obligation and where they merely have to comply with an obligation of abstention? I do not think so. I incline, rather, to the view that where the States are bound by positive obligations their margin of appreciation is reduced.
In any event, according to the case-law, the margin of appreciation is subject to European supervision. The Court's task then consists in ensuring that the limit on the margin of appreciation has not been overstepped. In the present case, whilst acknowledging that by prescribing the presence of crucifixes in State-school classrooms the regulations confer on the country's majority religion preponderant visibility in the school environment, the Grand Chamber has taken the view that “that is not in itself sufficient, however, to ... establish a breach of the requirements of Article 2 of Protocol No. 1”. I cannot share that view.
2. We now live in a multicultural society, in which the effective protection of religious freedom and of the right to education requires strict State neutrality in State-school education, which must make every effort to promote pluralism in education as a fundamental feature of a democratic society within the meaning of the Convention.8 The principle of State neutrality has, moreover, been expressly recognised by the Italian Constitutional Court itself, in whose view it flows from the fundamental principle of equality of all citizens and the prohibition of any discrimination that the State must adopt an attitude of impartiality towards religious beliefs.9
The second sentence of Article 2 of Protocol No. 1 implies that the State, in fulfilling the functions assumed by it in regard to education and teaching, must take care that knowledge is conveyed in an objective, critical and pluralistic manner. Schools should be a meeting place for different religions and philosophical convictions, in which pupils can acquire knowledge about their respective thoughts and traditions.
3. These principles are valid not only for the devising and planning of the school curriculum, which are not in issue in the present case, but also for the school environment. Article 2 of Protocol No. 1 specifies that in the exercise of any functions which it assumes in relation to education and to teaching the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions. In other words, the principle of State denominational neutrality applies not only to the content of the curriculum, but the whole educational system. In the case of Folgerø the Court rightly pointed out that the duty conferred on the States under that provision “is broad in its extent as it applies not only to the content of education and the manner of its provision but also to the performance of all the 'functions' assumed by the State”.10
This view is shared by other both domestic and international bodies. Thus, in its General Comment No.1, the United Nations Committee on the Rights of the Child has affirmed that the right to education refers “not only to the content of the curriculum, but also the educational processes, the pedagogical methods and the environment within which education takes place, whether it be the home, school, or elsewhere”11, and also that “the school environment itself must thus reflect the freedom and the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups”.12
The Supreme Court of Canada has also observed that the school environment is an integral part of discrimination-free education: “In order to ensure a discrimination-free educational environment, the school environment must be one where all are treated equally and all are encouraged to fully participate.”13
4. Religious symbols are indisputably part of the school environment. As such, they might therefore infringe the duty of State neutrality and have an impact on religious freedom and the right to education. This is particularly true where the religious symbol is imposed on pupils, even against their will. As the German Constitutional Court observed in its famous judgment: “Certainly, in a society that allows room for differing religious convictions, the individual has no right to be spared from other manifestations of faith, acts of worship or religious symbols. This is however to be distinguished from a situation created by the State where the individual is exposed without possibility of escape to the influence of a particular faith, to the acts through which it is manifested and to the symbols in which it is presented”14. That view is shared by other supreme or constitutional courts.
Thus, the Swiss Federal Court has found that the duty of denominational neutrality incumbent on the State is of special importance in State schools, where schooling is compulsory. It went on to say that, as guarantor of the denominational neutrality of the school system, the State could not, where teaching was concerned, manifest its own attachment to a particular religion, be it a majority or a minority one, because certain people may feel that their religious beliefs are impinged upon by the constant presence at school of the symbol of a religion to which they do not belong.15
5. The crucifix is undeniably a religious symbol. The respondent Government argued that, in the context of the school environment, the crucifix symbolised the religious origin of values that had now become secular, such as tolerance and mutual respect. It thus fulfilled a highly educational symbolic function, irrespective of the religion professed by the pupils, because it was the expression of an entire civilisation and universal values.
In my view, the presence of the crucifix in classrooms goes well beyond the use of symbols in particular historical contexts. The Court has moreover held that the traditional nature, in the social and historical sense, of a text used by members of parliament when swearing loyalty did not deprive the oath to be sworn of its religious nature.16 As observed by the Chamber, negative freedom of religion is not restricted to the absence of religious services or religious education. It also extends to symbols expressing a belief or a religion. That negative right deserves special protection if it is the State which displays a religious symbol and dissenters are placed in a situation from which they cannot extract themselves.17 Even if it is accepted that the crucifix can have multiple meanings, the religious meaning still remains the predominant one. In the context of state education it is necessarily perceived as an integral part of the school environment and may even be considered as a powerful external symbol. I note, moreover, that even the Italian Court of Cassation rejected the argument that the crucifix symbolised values independent of a particular religious belief (see paragraph 67).
6. The presence of crucifixes in schools is capable of infringing religious freedom and schoolchildren's right to education to a greater degree than religious apparel that, for example, a teacher might wear, such as the Islamic headscarf. In the latter example the teacher in question may invoke her own freedom of religion, which must also be taken into account, and which the State must also respect. The public authorities cannot, however, invoke such a right. From the point of view of the seriousness of the infringement of the principle of State denominational neutrality, this will accordingly be of a lesser degree where the public authorities tolerate the headscarf in schools than where they impose the presence of crucifixes.
7. The impact which the presence of crucifixes may have in schools is also incommensurable with the impact that they may have in other public establishments, such as a voting booth or a court. As the Chamber rightly pointed out, in schools “the compelling power of the State is imposed on minds which still lack the critical capacity which would enable them to keep their distance from the message derived from a preference manifested by the State” (see § 48 of the Chamber judgment).
8. To conclude, effective protection of the rights guaranteed by Article 2 of Protocol No. 1 and Article 9 of the Convention requires States to observe the strictest denominational neutrality. This is not limited to the school curriculum, but also extends to “the school environment”. As primary and secondary schooling are compulsory, the State should not impose on pupils, against their will and without their being able to extract themselves, the symbol of a religion with which they do not identify. In doing so, the respondent Government have violated Article 2 of Protocol No. 1 and Article 9 of the Convention.
1. Justin Marozzi, The Man who Invented History, John Murray, 2009, p. 97.
2 Requiem for a nun, 1951.
3. Wikipedia classifies this work as “a pornographic novel” in which the author “explores all aspects of sexuality: sadism alternates with masochism; ondinism/scatophilia with vampirism; paedophilia with genrontophilia; masturbation with group sex; lesbianism with homosexuality ... the novel exudes an infernal joy”.
4. Akdaş v. Turkey, no. 41056/04, 16 February 2010.
5. See Folgerø and Others v. Norway [GC], no. 15472/02, § 89, ECHR 2007-VIII; see also Hasan and Eylem Zengin v. Turkey, no. 1448/04, § 63, ECHR 2007-XI.
6. See Buscarini and Others v. San Marino [GC], no. 24645/94, ECHR 1999-I; see also the Supreme Holy Council of the Muslim Community v. Bulgaria, no. 39023/97, 16 December 2004.
7. Buckley v. the United Kingdom, 25 September 1996, § 74, Reports of Judgments and Decisions 1996-IV.
8. Manoussakis and Others v. Greece, 26 September 1996, § 47; Kokkinakis v. Greece, 25 May 1993, § 31.
9. Italian Constitutional Court, judgment no. 508/2000.
10. Folgerø and Others v. Norway, 29 June 2007, § 84. Our italics.
11. Committee on the Rights of the Child, General Comment No. 1, of 4 April 2001, “The Aims of Education”, para. 8. Our italics.
12. Idem, para. 19. Our italics.
13. Supreme Court of Canada, Ross v. New Brunswick School District no. 15, para. 100.
14. German Constitutional Court, BVerfGE 93, I I BvR 1097/91, judgment of 16 May 1995, § C (II) (1), non-official translation.
15. Swiss Federal Court, ATF 116 Ia 252, Comune di Cadro, judgment of 26 September 1990, § 7.
16. Buscarini and Others v. San Marino [GC], no. 24645/94, ECHR 1999-I.
17. Lautsi v. Italy, no. 30814/06, § 55, 3 November 2009.
LAUTSI AND OTHERS v. ITALY JUDGMENT
LAUTSI AND OTHERS v. ITALY JUDGMENT
LAUTSI AND OTHERS v. ITALY JUDGMENT – SEPARATE OPINIONS
LAUTSI AND OTHERS v. ITALY JUDGMENT – SEPARATE OPINIONS
LAUTSI AND OTHERS v. ITALY JUDGMENT – SEPARATE OPINIONS
LAUTSI AND OTHERS v. ITALY JUDGMENT – SEPARATE OPINIONS
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