29/04/11

The facts in this case did not present any difficulty. Mrs Lautsi lodged an application on her behalf and on behalf of her two sons before the European Court of Human Rights against Italy on the grounds that a crucifix was fixed on the wall of each classroom of the State school attended by her children. She argued that the display of crucifixes was an infringement of her right to educate her children in conformity with her own philosophical convictions guaranteed by Article 2 of Protocol No. 1 and of the right of herself and her sons to freedom of thought, conscience and religion enshrined in Article 9 of the Convention.


1. The decision made by the 2nd Section of the European Court

The case was brought before the 2nd Section of the Court composed of seven judges who held on 3 November 2009 that there had been a violation of both Article 2 of Protocol No.1 and Article 9 of the Convention.

In its decision the Court interpreted Article 2 of Protocol No. 1 as establishing the existence of an obligation put on the State to refrain from imposing beliefs, even indirectly in places where persons were particularly vulnerable such as where schooling of children took place. It drew the implication that crucifixes were capable of clashing with the secular convictions of the mother and that they were emotionally disturbing for pupils of non-Christian religion or those who professed no religion. The right to freedom of religion also includes the right not to have any religion and the Court emphasized that the negative freedom of religion extended to practices and symbols. The protection of the right to believe or not to believe in any religion would imply that the State should avoid the display of any symbol that expresses a belief. The duty of the State was to uphold confessional neutrality in public education and serve educational pluralism. As a result the compulsory display of crucifixes was an unjustified restriction on the right of parents to educate their children in conformity with their convictions and the right of school children to believe or not to believe.


2. The decision made by the Grand Chamber of the European Court

An appeal was lodged by the Italian Government and the case was referred before the Grand Chamber of the European Court made up of 17 judges, which overturned the decision of the 2nd Section of the Court and decided there had not been any violation of the European Convention.

The Grand Chamber sought to deal with the question referred to it from the point of view of the right of parents to educate their children in conformity with their own religious and philosophical convictions (Article 2 of Protocol No. 1) in the light of the right to freedom of thought, conscience and religion that must be respected by the State (Article 9 of the Convention). The duty of the State is twofold. Firstly, it is to maintain neutrality and impartiality for the purpose of preserving public order in a democratic society between believers and non-believers and between members of various religions and beliefs. Secondly, it is to respect the right of parents to ensure the education and teaching of their children in conformity with their own religious and philosophical convictions. This implies negative and positive obligations. The negative obligation is that the State should primarily refrain from taking measures that would interfere with the rights of parents. The positive obligation is that the State should take measures to ensure that the right can effectively be exercised and the State enjoys a wide margin of appreciation in determining the steps to be taken to fulfil that obligation, taking into account the needs and resources of the community and individuals. But this does not go so far as to give parents the ability to require that the State provide a particular form of teaching. In relation particularly to religious education, the State can provide teaching or education of a religious or philosophical kind, provided it is delivered in an objective and pluralistic manner without proselytism. The limit imposed on the State by the Court is that it cannot pursue an aim of indoctrination that may be considered as a lack of respect of parents’ religious and philosophical convictions.

The Grand Chamber states that the scope of the respect due to parents’ religious and philosophical convictions includes the content of the school curriculum and the school environment. The Court indicated that crucifixes are above all a religious symbol and that they are part of the school environment. The mother’s subjective perception that the display of crucifixes is a lack of respect for her right to educate her children in conformity with her own philosophical convictions was not deemed sufficient by the Court to establish a breach of Article 2 of the Protocol No. 1.

The Court decided that in this domain the State has a wide margin of appreciation in order to reconcile the exercise of its functions in relation to education and teaching with the respect for the rights of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions. Since there is no consensus between European States on the question of the presence of religious symbols in State schools, the Court indicated that the decision whether crucifixes should be displayed in State schools classrooms was a matter falling within the margin of appreciation of the State.

The limit to that margin is that the school curriculum and environment should not lead to a process of indoctrination. A crucifix on the wall of State school classrooms, which is a passive symbol that refers to Christianity, does not amount to such a process, says the Court. This was supported by the fact that the presence of crucifixes did not encourage teaching practices with a proselytism tendency. Also the mother retained her full parental right as a parent to guide her children on a path in line with her own philosophical convictions.

The Court concluded that there had not been on the part of the State a violation of the right of the mother to educate and teach her children in conformity with her own religious and philosophical convictions. It also concluded that the rights of the children to receive an education that would respect their right to believe or not to believe had been guaranteed. Therefore there had been no violation of Article 2 of Protocol No. 1 nor of Article 9 of the European Convention in relation to the mother and her two sons.


3. Final comments

The Court found in the wide margin of appreciation given to the State and the absence of consensus between the European States on the question of the display of symbols a means to resolve this issue without having to constrain the Italian Government to remove all crucifixes from all the classroom walls of all State schools, which had been there for decades. It has chosen a balanced approach to the resolution of this issue. As long as the parents are not prevented from educating and teaching their children according to their religious or philosophical convictions and that the State is not pursuing a process of indoctrination in State schools, despite the presence of a particular religious symbol referring to Christianity, there is no violation of the Convention. It must be pointed out that the simple fact that a parent may have a subjective perception that his/her right is not respected is not enough to justify a breach of the Convention. In other words there is no right not to be offended under the European Convention. Clearly in this case, the mother was not prevented from teaching and educating her two boys according to her philosophical convictions and the State school did not seek to influence the beliefs and convictions of her children.

The aim of the complaint lodged by the mother was to impose secularism as the new philosophical conviction over all other beliefs and convictions and that it should be enforced by the Court and implemented by the Italian Government. Such a result could not have been seen as an expression of neutrality but rather as the promotion of one form of belief or conviction against all other differing beliefs or convictions. Taking down crucifixes would also have gone against the desire of the majority of the Roman Catholic population in Italy who would wish to keep that Christian symbol on the walls of classrooms. When parents have the right to teach and educate their children in the beliefs, faith or philosophical convictions of their choices, why should the wishes of one parent who claims to be offended by a passive religious symbol outweigh the desire of the majority of the parents of children attending the same school to see that symbol remain in place. The Court made the decision that in the circumstances of this case this was not acceptable and that there had not been any violation of the Convention. This decision will have the beneficial effect of dissuading future potential applicants from bringing cases before the European Court that are essentially ideologically motivated.