3 Case studies
3.2 Other Relevant Cases
3.2.2 Lautsi and Others v. Italy
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prisoners were not stripped of their rights, and therefore could equally demand rights enshrined by the ECHR. If applicants’ complaints were rejected, the Court would set a very dangerous precedence for Government’s behavior. Under such circumstances, State could basically keep anybody in jail for the rest of his/her life, no matter what were the original crime and the length of the sentence. Although this case in particular was dealing with crimes committed by notorious rapists, if the retroactivity of heavier punishment would be allowed, it could influence other less serious criminal offences and undermine the judicial system of the State.
3.2.2 Lautsi and Others v. Italy
The Case of Lautsi and Others v. Italy illustrates the complicated situation regarding the religious freedoms in Europe. The Member States of the Council of Europe have surprisingly very dissimilar stances toward the question of religion and secularism, and their domestic laws governing these questions can vary significantly.
This situation is caused by several factors including different historical backgrounds of each State, and diverse immigration policies in recent years. Such variety among States governed by single human rights convention is possible particularly because of the wide margin of appreciation the European Convention of Human Rights offers.
It is important to understand that the role of religion plays different role in each of the Member State. This can be clearly illustrated by the Eurobarometer172 statistics, showing that whereas in some countries, such as Romania, Greece, Poland and Italy the majority of citizens believes in God, in countries such as Estonia, Czech Republic or Sweden, the majority of population does not. Currently, the major religions in
172 Statistical analysis and studies published annually by the European Commission. The standard Eurobarometer was established in 1973 and can be accessed online:
http://ec.europa.eu/public_opinion/archives/eb/eb78/eb78_en.htm
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Europe are Christian catholic, followed by Christian orthodox mainly in Eastern Europe, and Christian protestant, mainly located in the Northern Europe.
In this Case the Court was deciding, whether the position of Italy was in breach of rights enshrined by the Article 9 of the Convention, dealing with freedom of thought, conscience and religion173 and the Article 2 of Protocol174 dealing with the right to education. The first paragraph of the Article 9 reads: “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.”175 The second paragraph further ads: “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.”176 The Article 2 follows “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 religions and philosophical convictions.”177
In 2002, Mrs. Soile Lautsi, citizen of Finland and of Italy, requested the School Council of a school in Abano Terme to remove crucifixes from classrooms and filed a complaint of an infringement of the principle of secularism. The School Council by majority of votes decided not to comply and keep crucifixes in classrooms. Therefore Mrs. Lautsi applied to the Veneto Administrative Court, which decided that the
173 ECHR, Article 9: Freedom of thought, conscience and religion.
174 Protocol to the Covenant for the Protection of Human Rights and Fundamental Freedoms. Paris. 1952.
175 ECHR, Article 9(1).
176 ECHR, Article 9(2).
177 Protocol to the Covenant for the Protection of Human Rights and Fundamental Freedoms. Paris. 1952. Article 2.
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presence of crucifixes in State-school classrooms did not offend the principle of secularism. Mrs. Lautsi appealed to the Supreme Administrative Court which upheld the Veneto Court’s decision and stated that: “in Italy the crucifix symbolized the religious origin of values (tolerance, mutual respect, valorization 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 characterized Italian civilization.”178 For this reason crucifix should be understand 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.“179
In 2006, Mrs. Lautsi appealed to the European Court of Human Rights, and in 2009 the Chamber of the Second Section decided that the decision made by Italy not to remove crucifixes from State schools was in breach with applicants rights. The Court stated 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 o religions. On that last point, the Chamber emphasized 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, religion or atheism.”180 This decision caused uproar in Italy, which is one of the most religious countries in Europe. The applicant also reported personal threats and vandalism aimed at her property, because of the Court’s ruling.
178 Case of Lautsi and Others v. Italy, Application No. 30814/06 (2011). Para. 16.
179 Ibid. Para. 16.
180 Ibid. Para. 31.
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In 2010, the five-judge panel of the Grand Chamber accepted the referral request relating to the Case of Lautsi and Others v. Italy submitted by the Italian Government.
The case was therefore examined by the Grand Chamber, which gave its ruling in a final judgment.181 In March 2011, the Grand Chamber did overturn the ruling of the lower Chamber reached by 15 votes to 2. The Court stated that “there is no evidence before the Court that the display of a religious symbol on classroom walls may have an influence on pupils and so it cannot reasonably be asserted that it does or does not have and effect on young persons whose convictions are still in the process of being formed.”182 The Court further noted that even though the applicant “might see in the display of crucifixes in the classrooms of the State school formerly attended by her children a lack of respect on the State’s part for her right to ensure their education and teaching in conformity with her own philosophical convictions. Be that as it may, the applicant’s subjective perception is not in itself sufficient to establish a breach of Article 2 Protocol No.1.”183
The Court stated that the decision whether to have or have not crucifixes in classrooms falls within the margin of appreciation of the State. The Court noted that there is no consensus on the presence of religious symbols in schools in the European Community; hence it is better to let States decide themselves.184 The Court further commented that more important are the teaching methods and the content than what is on the walls in classrooms. According to the judgment “a crucifix on a wall is an essentially passive symbol and this point is of importance in the Court’s view, particularly having regard to the principle of neutrality…It cannot be deemed to have an influence on pupils comparable to that of didactic speech or participation in
181 Press Release by Registrar No 177. Crucifix: the Case of Lautsi v. Italy will be examined by the Court’s Grand Chamber. March 2, 2010.
182 Case of Lautsi and Others v. Italy, Application No. 30814/06 (2011). Para. 66.
183 Ibid. Para. 66.
184 Ibid. Para. 70.
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religious activities.”185