Sentenza

Corte Europea Diritti dell'Uomo, Camera Grande, sentenza 18.03.2011, n.30814 Crocifisso nelle scuole. Causa Lautsi e altri contro Stato Italiano. Italia assolta.

GRAND CHAMBER
CASE OF LAUTSI AND OTHERS v. ITALY
(Application no. 30814/06)
JUDGMENT STRASBOURG 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 Vajic, 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:

PROCEDURE
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, Danute Jociene, Dragoljub Popovic, András Sajó and Isil Karakas, 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, Danute Jociene, Dragoljub Popovic, András Sajó and Isil Karakas, 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 applicants
Mr 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 Representative
of Armenia to the Council of Europe,
Mr Andrey Tehov, Ambassador, Permanent Representative
of Bulgaria to the Council of Europe,
Mr Yannis Michilides, Deputy Permanent Representative of Cyprus
to the Council of Europe,
Ms Vasileia Pelekou, Deputy Permanent Representative of
Greece to the Council of Europe,
Mr Darius Šimaitis, Deputy Permanent Representative of
Lithuania to the Council of Europe,
Mr Joseph Licari, Ambassador, Permanent Representative
of Malta to the Council of Europe,
Mr Georgy Matyushkin, Government Agent of the
Russian Federation,
Mr Guido Bellatti Ceccioli, co-Agent of the Government
of the Republic of San Marino, Advisers.
The Court heard addresses by Mr Nicolò Paoletti, Ms Natalia Paoletti, Mr Lettieri, Mr Albenzio and Mr Weiler.
THE FACTS
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:
Article 19
“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.”
Article 33
“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. ...”
Article 34
“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).
THE LAW
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 sch