Introduction and main facts
On 3 November 2009, section 1 of the European Court of Human Rights (ECtHR) in Strasbourg issued a judgment in case Lautsi v. Italy concerning the right to so called negative religious freedom and to education of public schools’ students belonging to the atheist philosophical movement.
This judgment has caused a plethora of reactions and comments both positive and negative ones both in Italy and in other countries as well. Indeed it is a peculiar judgment in the context of the ECtHR case law concerning religious freedom and the right to education issues.
The ECtHR was founded by the Council of Europe (COE) in 1950 through the European Convention on Human Rights (ECHR) and since 1993 when the first case – Kokkinakis v. Greece – concerning religious freedom was taken to its attention the Court has issued many judgments within this field.
I hasten to add that although the very first and more (or even the most) immediate reason from which the whole Lautsi case began was the contested presence of the Catholic crucifix in the Italian public schools classrooms, actually the true point I am more interested in as a lawyer and scholar is the interconnection between the legitimate restrictions to positive and negative religious freedom imposed by States and the main consequences and implications such restrictions cause in the field of the students’ right to education.
What we also need to clarify is that whatever is the personal opinion and point of view of each of us in regard to the presence of crucifixes or any other religious symbols in public schools and places generally; whether it is appropriate or not; whether it is correct to show a symbol of a single religion or many of them; in any cases it is not my duty nor is it my intention to discuss such a point here because the main goal of this paper is different and it would be beyond its actual aims; it is also not possible to analyse here the whole judgment and in fact I will go through the most important points with a particular focus and attention on a comparison between the present case contents and those of other cases the Court decided about in the past.
As a matter of fact this judgment originates from a request no. 30814 filed before the Court in 2006 by Mrs Soile Lautsi on her own behalf and on behalf of her two sons, Dataico and Sami Albertin.
She complained that the presence of a religious symbol like the crucifix on the classrooms’ walls was a scandal for her children and it had to be considered as an undue interference which was also incompatible with the freedom of belief and religion and the right to education of both her sons.
This case is a result of a long series of claims and initiatives and also judgments at a national level started in 2001 when the claimant’s children were attending the high school named after “Vittorino da Feltre” and based in Abano Terme.
The claimant Mrs Lautsi a militant atheist received the full support of her association throughout the whole duration of the case and after its judicial conclusion as well. The association to which she belong is called U.A.A.R., the Union of Atheists and Agnostics and Rationalists, a movement that became quite famous during recent years due to a campaign, amongst others, called “Scrocifiggiamo l’Italia” (Let’s de-crucify Italy).
After a summary of the most relevant facts in which Mrs Lautsi stated that the crucifix presence was imposed by a pre-unitary piece of legislation which entered into force in fact when the Catholic religion was the official one within the Italian Kingdom; she simply affirmed that the crucifix in her view is unsuitable with principles like neutrality and impartiality and then it does constitute a clear violation of students’ negative religious freedom and in addition a restriction of her children’s right to education (Lautsi par. 27-33).
Additionally I need to point it out here very soon that Mrs Lautsi children never have been forced or invited to leave the classrooms or the school premises in reason of their beliefs and convictions – their right to education has been ensured for the all duration of their school studies and then the claims regarding the violation of the students right to education is completely unjustified and unreasonable!
On the other hand on the basis of what we are allowed to read on the judgment it seems that the defendant government simply has argued on the basis of theoretical and philosophical issues.
In fact the government has declared for instance that the crucifix aside with being a religious symbol in fact it also has a clear cultural meaning; it can be deprived of its religious meaning and then its exposition in public places cannot amount to a violation of the rights and freedoms enshrined in the European Convention on Human Rights and Mrs Lautsi claimed (Lautsi par. 35).
Furthermore such a statement elaborated by the government is in fact supported by previous decisions issued by the Court on the basis of which it had been declared that the simple exposition of a symbol cannot be considered as such as a violation of the European Convention and that in addition a stronger and positive interference is necessary for such purposes, i.e. to be considered an undue violation of ECHR (Folgero recalled in Lautsi par. 36). For instance in case Folgero v. Norway where a violation of the right to education was found in fact the basis of such a judicial decision was that the compulsory classes in religion in public schools were not limited to an analysis of the history and tenets of the different religious traditions present in that country, and that instead such classes could be considered as true religious classes whose teaching had to be considered as incompatible and inappropriate with the spirit and the content of the ECHR principles.
Also another decision in case Kjeldsen, Busk Madsen and Pedersen v. Denmark deserves to be recalled for the aim of this presentation. In that judgment in fact the Court stated that the simple presence of a symbol cannot be compared to either an active or positive behaviour as it occurs for instance with teaching (Kjeldsen, Busk Madsen and Pedersen v. Denmark recalled in Lautsi par. 37).
On the other hand the Court has recalled some very well consolidated principles from its own case law reinterpreting them and applying them to the present case in a peculiar and original way to say the least.
The Court has stated that parents rights in regard to the right to education is based on the general right to education and this regards both public and private schools (Lautsi par. 47, b); it is necessary to respect parents rights in the context of a school where inclusion is favoured instead of exclusion regardless of the social, cultural, religious, ethnic origins of students (Lautsi par. 47, c); and says the Court recalling a previous judgment (Young, James, Webster v. United Kingdom) both positive and negative freedoms, i.e. the freedom to believe or not to believe are protected under art. 9 ECHR and finally that the duty to remain impartial and neutral is incompatible with every power of appreciation about the legitimacy of religious beliefs (internal freedom – forum internum) and the way they are expressed outside (external freedom – forum externum) (Lautsi par. 47, e).
Such principles are very well consolidated in the ECtHR case law; they also are in our view well-matched with the government assumptions in the present case. Neither the school authorities nor the government in fact have expressed a single opinion or appreciation or even a criticism about/against the beliefs and convictions of the claimant’s children nor have they in any way limited any of their rights to expression or their rights under art. 9 of the ECHR.
Mrs Lautsi and her sons have remained and still remain completely free to believe whatever they want and to express their own ideas and opinion in the way they prefer and in every context as they wish as it happens with every people belonging to different groups.
In spite of the above considerations the European Court has declared that governments are prevented from imposing also indirectly certain beliefs (Lautsi par. 48) and that the presence of a crucifix in a classroom goes beyond the use of symbols in a given historical context (Lautsi par. 52). The claimant, reads the judgment, states that such a symbol constitutes a limitation to her beliefs and to her children’s right not to believe – then the presence of that crucifix constitutes itself and as such an undue conflict with her and her children’s rights and beliefs (Lautsi par. 53).
In addition, says the Court, the presence of one or many symbols cannot be justified by other parents’ requests and claims; particularly the requests of those parents who want to educate their children in line with their religious beliefs nor can it be accepted that the crucifix presence is the consequence of the existence of political parties of a Christian inspiration within the Italian political scene (Lautsi par. 53).
In my view we also need to point out a different topic within the present discussion; for instance it seems that perhaps it was not clear to the Court that the religion classes and the presence of a crucifix in the public schools classrooms have not much in common nor the presence of such a symbol does influence in any way the teaching of other subjects.
In fact the subject called religion in Italy after the New Agreement between Italy and the Holy See in 1984 is no longer mandatory in public schools and people can choose whether to attend it or not to; alternative classes are ensured to students belonging to other religious groups or none of them.
Furthermore apart from the religion classes the simple presence of a religious symbol does not mean automatically, as I recalled, that the other curriculum subjects have to be taught in line with the principles expressed by that religious symbol, i.e. the Catholic doctrine and teachings.
In addition to this last point art. 2 of Protocol 1 to the ECHR acknowledges the parents right to educate and ensure education and training in conformity with their own religious and philosophical views and convictions. Such an article has been considered relevant in Lautsi case as the claimant wanted her children to be educated in conformity to her beliefs and convictions.
I would clearly argue here that if we accept the idea that people and parents belonging to groups that can be considered as national minorities – like Mrs Lautsi and her sons and atheists in general – have the right and are entitled to such a claim to educate their children in conformity with their beliefs and instead people belonging to the majority group do not have an equivalent right.. it would mean the distortion or even the destruction of the basics of democracy upside down.
Majority rights and minorities rights can actually coexist and can be equally ensured by States; when and if problems do raise they can be easily resolved through the human rights instruments although it seems that probably the Court itself had not clear ideas about this last point.
Restrictions to the right to education as a consequence of a previous limitation to the right to religious freedom are quite usual and have in fact been justified on a number of occasions by the ECtHR: this has occurred for instance in regard to the rights of students belonging to minority religions such as Muslims and 7th Day Adventists.
They received a complete suppression of their positive and not only negative religious freedom; and consequently their right to education was deleted as well.
In the present case the Court has expressed concerns saying that it is not clear to them how the presence of a religious symbol linked to the culture shared by the majority of the population could ensure the pluralism which is necessary to be guaranteed in today’s democratic society (Lautsi par. 56).
Such a statement by the Court could be accepted but it is not in line with the previously issued judgments.
Never in fact has the Court expressed its interest in protecting the rights of students belonging to religious minorities in order to also ensure and preserve their fundamental right to education.. actually as regards the latter point, the opposite is true.
And the opposite is true because in all the other cases the ECtHR has always justified such restrictions to religious freedom and to the right to education as explained above.
The Court in those cases expressed its favour toward the philosophical views assumedly shared by the majority of the population in France. The Court supported the French principle and idea of State laïcité (secularism) which is in fact like a kind of State religion in that country and in that shape it is only peculiar of France. Supporting this principles the European Court has accepted, supported and justified every kind of restrictions and limitations to the right to religious freedom and to the right to education and then accepted and justified and allowed the subsequent exclusion of such students from public schools (Dogru v. France and Kervenci v. France).
The only case in which the Court accepted to restrict a right of a single person belonging to the national majority was a case involving a female college student in Turkey; however the Turkish case, which was also confirmed afterwards in other cases regarding Turkey, cannot be compared to other cases as those occurred in Italy and France because they are much different from those occurred in Turkey and because the Turkish social environment has its own peculiar characteristics as the Court clearly explained (Sahin v. Turkey and Karaduman v. Turkey).
Then we can say that in the past the Court has recognised quite an ample margin of appreciation to States allowing them to restrict students rights in the name of the national culture.
On the basis of such considerations it is not clear how could the Court say that the Italian legislation causes a violation of the students rights which is incompatible with the mandatory State neutrality (Lautsi par. 57).
We could also justify such a statement and the whole reasoning of the Court but surely we cannot accept it as it is in a clear contradiction with previous decisions.
The Court in fact failed completely to elaborate such assumptions in previous cases when it was to decide in regard to the limitations to rights of students belonging to minority religions whose rights had been completely and deliberately suppressed and suffocated in the name of the protection and respect of the national identity, i.e. the recalled French laïcité.
The Italian government has centred its reasoning on purely theoretical assumptions claiming that the cross is not only a religious symbol but also a culturally and historically and ethically relevant symbol (Lautsi par. 34-35).
The Court has accepted as indisputable the fact that the cross has also a cultural meaning but has also added that its religious connotation and nature is incontestable.
Then the Court has found an undue interference with the atheist student right to negative religious freedom. Actually in my view it would be more correct to talk about positive freedom not only negative because an atheist is not simply uninterested to the religious facts; atheists are not unconcerned; they belong to a clearly culturally organized philosophical movement and as such they have – stated the Court several times in the past – exactly the same rights of other religious people according to art. 9 ECHR and not more.
Personally it is my opinion that both the government and the Court have not scratched the surface of the actual problem; they have in fact elaborated very superficial assumptions.
They have both failed to compare the present case problems with previous cases and to read them in the light of the very well consolidated principles within this field.
They have both failed to proceed with an analytical legal review of the case facts; the Court has applied consolidated principles in a different way; and for me as a human rights lawyer the most horrifying behaviour of the Court is that they have not respected their own rigorous procedural rules according to which in the first place they have to verify whether a restriction had taken place in a given case; whether that limitation was based on a piece of legislation which was in force when the restriction occurred; whether it had a legitimate aim and finally whether it was necessary in a democratic society.
The Court we can say has created a new reasoning and procedural way; has not respected its own rules and first of all has not investigated whether a real restriction had taken place; the Court has limited its analysis to abstract assumptions without direct links with the actual facts. The Court indeed has issued a decision on a general issue as if they had a hidden agenda.
According to the recalled well established principles both religious and atheist people are entitled in the same way to the right to religious freedom protected under art. 9 ECHR.
It also means that if and when problems concerning religious freedom do raise at a national level, States are requested to evaluate actual facts and then to elaborate their decisions regardless whether people involved with the facts belong to a religious movement or the atheist movement (Kokkinakis v. Greece par. 31; Campbell and Cosans v. United Kingdom par. 36). Such a statement is in compliance with the principle of equality that can surely be respected both in Italy and in any other country within the Council of Europe, France included.
In the present case we can definitely say that it was not ascertained by the Court whether a limitation of the students rights had really taken place. They were in fact free to maintain their beliefs and convictions and nobody forced them to accept any Christian values or principles; they were not forced to perform any religious behaviour nor to attend any religious service; they were not forced to leave either the class or the school premises as it had happened in the other cases involving students belonging to religious groups; also parents rights were preserved and respected in Lautsi case.
The Court has stated that the mandatory neutrality and impartiality of States are incompatible with any appreciation with regards to the legitimacy of people’s beliefs and their expression (Lautsi parr. 57; 47, c, e); it is true and in fact in the present case no appreciation had been expressed by the national authorities as regards Mrs Lautsi and her children’s ideas and beliefs and inner convictions.
Although it is not possible to find a single real limitation to these students’ rights to belief and convictions nor to their right to education the Court has found a violation of the European Convention on Human Rights.
In the past instead when clear restriction had taken place and evident appreciations had also been elaborated and from which an exclusion of students from public schools followed the Court decided that it was not the case to decide for the violation of the Convention; the Court openly and largely justified States behaviours aimed at restricting students rights and allowing them an ample and indiscriminate margin of appreciation on the base of which the respect of the national identity and tradition was claimed and justified.
Principles like social inclusion and respect for every student regardless of their background raised and taken into account by the Court in the present case never have been similarly taken into account in previous cases were in fact they were completely ignored by the Court.
The summary is that when it comes to protect atheist students the principle of inclusion must be mentioned and invoked in order to respect their beliefs in public schools.
When instead it comes to analyse religious students rights and claims.. every limitation can be justified as public school must remain neutral and impartial also accepting the students social exclusion.
We also have to notice that when the Court says that neutrality and impartiality do not allow any appreciation about the legitimacy of beliefs and the way they are expressed actually this is not true; in fact art. 9 par. 2 ECHR allows States to impose restrictions and limitations to external religious freedom and it is in fact on the basis of such paragraph 2 of art. 9 that the Court has justified previous restrictions to the rights of religious students.
The rights and freedoms of others were taken into account in previous cases to justify the restrictions to the claimants rights. The rights of students belonging to religious minorities were not respected instead they were completely suppressed and not only partly limited. And it is the respect of the principles and values contained in the national culture and constitutional tradition that constituted the very basis on which such decisions were taken by the Court.
We can say then that the Court has followed a two-tiered approach forgetting the principle that religious and atheist people deserve the same treatment as regards rights under art. 9 ECHR as previously recalled and as stated by the same Court.
As regards the present case it cannot be stated that the Italian legislation does restrict or suppress in any way any of the rights of atheist or religious students attending public schools nor is it possible to the Court to decide on general issues such as about the possible dangerousness of a certain national law or act; the Court can only decide on actual facts and regarding precise claims concerning a claimed violation of one of the ECHR rights in a given clear case.
The mere presence of a cross cannot amount as such to a discrimination since a direct action is necessary to find a violation in a given case and as the Court said in the past the mere presence of a symbol does not equate indoctrination if a positive behaviour connected to that symbol is not requested by rules (Valsamis v. Greece and Folgero v. Norway).
In addition the way the Court justified limitations to personal rights and freedoms in the name of the safeguard of national values and the “rights of others”, i.e. the majority of the population, occurred also in case Otto-Preminger-Institut v. Austria; when the Court justified and accepted the limitations to the rights of a movie director to protect the religious values of the majority of the population belonging to the Christian tradition. Also the “public moral” is mentioned in art. 9 par. 2 ECHR; it is in fact one of the reasons on the basis of which restrictions and limitations to the freedom of thought, conscience and religion can be justified and that has not been taken into account by the ECtHR in the present case.
We can now proceed with a comparison between different cases; Kervanci and Dogru and Martins Casimiro cases on one side and Lautsi case on the other side.
They all concern students belonging to a minority and the problems raised regards their right to religious freedom and the connections with their right to education.
Religious freedom issue in Dogru, Kervanci and Martins Casimiro
In cases Dogru and Kervanci and Martins Casimiro involving religious students, in theme of religious freedom these students claimed their right to wear the headscarf and not to go to school the Day of Saturday as it is the day of religious service for 7th Day Adventists. The national authorities did now allow such claims and banned those behaviours in the name of the respect of other people’s rights and of the safeguard of a national tradition.
Religious freedom issue Lautsi
In Lautsi case as regards freedom of religion and belief students claimed their right to request the removal of the crucifix from the classroom wall. The national authorities did not allow such a claim and banned such a behaviour in the name of the respect of other people’s rights and of the safeguard of a national tradition.
Right to education issue in Dogru, Kervanci and Martins Casimiro
As regards the right to education in Dogru and Kervanci cases as a consequence of the refusal to recognise the students right to wear the headscarf they could no longer attend their school. The students right to education was ignored by State completely and the Court has supported such a behaviour refusing to acknowledge also the students parents right to ensure education and teaching in conformity with their religious and philosophical convictions as under art. 2 Prot 1 ECHR.
Right to education issue in Lautsi
As regards the right to education in Lautsi case nothing followed the refusal to remove the crucifix. Students were allowed to continue attending classes as nothing had happened. Their rights were fully guaranteed. In spite of that the Court has not supported the State’s points of view and has not justified its behaviour and has finally found and declared a violation of students right to education on the ground that it had not been ensured in conformity with their parents beliefs.
Then it is an actual fact that the Court has accepted and justified and supported the suffocation and suppression of the Muslim and 7th Day Adventist students rights to religious freedom and to education both personal and in the form of their parents right to ensure their education in conformity with their own religious and philosophical beliefs and convictions.
It is also straightforward that the Court has expressed its favour toward the atheist students condemning the State’s behaviour aimed at refusing to acknowledge their claims. The Court has in fact justified the students and their mother’s claims both in theme of religious freedom and of right to education in both the forms of personal right and parents’ right.
In the cases concerning Dogru and Kervanci and Martins Casimiro as well the European Court did not find a violation of art. 2 Prot. 1 ECHR as regards students rights and their parents rights nor a violation of art. 9 ECHR justifying and accepting every limitations to these students rights included their social exclusion.
In Lautsi case instead the Court has found a violation of the right to education as a parents right to educate children in conformity with their beliefs under art. 2 Prot. 1 ECHR in conjunction with art. 9 ECHR.
Then we can say that in the cases regarding Dogru and Kervanci and Martins Casimiro the Court did not acknowledge the safeguard of the students right to freedom of religion and belief and as a consequence of that they were not allowed to enjoy their right to education in both the forms of a personal right and of their parents right; the governments were granted very large margins of appreciation.
Oppositely in Lautsi case the Court has acknowledged the safeguard of the students right to freedom of religion and belief and as a consequence of that they have been allowed to enjoy their right to education in full in both the forms of a personal right and of their parents right; the government has not been granted a minimal margin of appreciation.
I want once again to emphasize that in all the above cases the claimants were students belonging to minority groups and that they all claimed the respect of rights connected with their freedom of religion and belief.
Ignoring the rights claimed by Dogru and Kervanci and Martins Casimiro the Court has permitted that the limitations imposed by States through a positive behaviour – such as the ban to wear the headscarf – were considered as proportionate and legitimate as aimed at safeguarding national identities expressed and shared by the majority of the population. Being States in fact as representative projections of their populations they represent people’s values and identities.
In Lautsi case instead accepting to acknowledge the students claims the Court has permitted that the assumed and actually indirect limitations enforced by State through a negative behaviour like the refuse to remove the cross were considered as disproportionate and illegitimate as aimed at safeguarding a national identity expressed and shared by the majority of the population – exactly the same like in the previous cases. Previously the Court stated that national constitutions and legislations deserve a stronger protection when they are – like in cases Dogru and Kervanci – based on issues originating from cultural and religious traditions in a given territory. It was in fact the Court that acknowledged that States are better qualified and capable to balance contrasting and diverging interests raising to conflict in a given historical moment in a single case.
And now it is the time for a conclusion.
It is my personal opinion that the Court should have decided in the same way like in previous cases issuing a completely different final decision, in fact States, all of them, are representative projections of their population and it is no scandal if they want to protect a national identity, either the French one or the Italian one.
However it seems that the Court has used two different weights and two measures to evaluate and balance opposite and diverging interests in these cases.
Surely as a human rights lawyer and scholar I would have preferred a very different approach, from the beginning, to the whole issue concerning the relationships between the right to religious freedom and to the right to education.
Every students should be treated equally in public schools allowing them to enact as they prefer according to their beliefs and convictions. Also the majority of the population should remain free to evaluate in regard of the opportunity to maintain or not certain symbols of the national tradition. Surely it is not possible nor is it acceptable to use two different ways to evaluate cases regarding the same claims and the same rights.
It does not mean that the national authorities are not allowed to impose restrictions and limitations to such a right to external religious freedom as such limitations are allowed by art. 9 par. 2 ECHR.
It means that a way of interpreting the Convention has been followed to allow and justify the limitations to the rights of religious students then the same way has to be followed when it comes to decide about cases concerning atheist students.
Two weights and two measures are unacceptable!
And now I want to conclude saying that probably the Court has forgotten the origins and the main meaning of the symbol that at its best represents Europe worldwide: the European flag.
The European flag in fact is a religious symbol itself; it was inspired by an image of Jesus’ mother Mary present in the background of Strasbourg Cathedral behind the major altar.
The “Holy Bible” describes such a symbol when it says that “Now a great sign appeared in heaven: a woman clothed with the sun, with the moon under her feet, and on her head a garland of twelve stars” (Revelation 12: 1 – NKJV).
The European flag is the symbol shared by almost a billion of people around Europe and it represents in fact common values. Its cultural meaning is indisputable as it is its religious nature. Will the European Court remove such a symbol to preserve the secularism of Europe?? Will the European Court require national governments to remove the crosses, which are in the national flags of many countries, included the country, Finland, from which the claimant, Mrs Lautsi, comes from??
Thanks for coming to this presentation and thanks for your attention.