Friday, March 14, 2014
The European Convention of Human Rights and Fundamental Freedoms (ECHR) and Religion: A Commentary on the Lautsi v. Italy Case as Presented by Andrea J. Rush
I. Introduction The governments signatory to the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms, as previously amended, the latest of which is the amendment by the Protocol No.14, entering in force on 1 June 2010, envisaged, among others, to achieve greater unity among each other. By signing such document, the governments involved, affirmed their profound belief in the fundamental freedoms of humans, which are the foundation of justice and peace. They believed, that such freedoms are best maintained by having effective political democracy and a common understanding and observance of human rights.
As contained in the European Convention of Human Rights and Fundamental Freedoms (ECHR) itself, the signatory countries consider each other to be like-minded, to have a common heritage of political traditions, ideals and the rule of law. Aside of this, one of the strongest cultural and historical identities of Europe is religion. This fact is manifested at times in some of the educational and cultural system of some European countries. Even some political parties manifest their strong religious affiliations or inclinations. Isn't this a bit bizarre scenario in a democratic environment, priding itself to have a solid line in considering the separation of state and church?
With regards to the ECHR, religion is indeed one very interesting and debated topic. One of the most well-known is the Italian case, Lautsi v. Italy, which stirred attention not only at a local level but also internationally. This even wedged the attention of the religious world, even those of not directly related to the case.
II. The Lautsi v. Italy case: decisions taken and their respective legal bases:
A. Brief Summary of the Case In Lautsi v. Italy, hereinafter referred to as the "Case" for brevity, Mrs. Lautsi objected to the presence of religious symbols, specifically crucifixes, in classrooms where her two children, both of minor ages, attend to. The basis of this petition, which was presented to various Italian educational and legal bodies, is the principle of secularism found in the Italian Constitution and the ECHR, among others. Mrs. Lautsi then appealed to the European Court of Human Rights, hereinafter referred to as the "Court", after having her case failed to have the crucifixes removed by the school and the Veneto Administrative Court , respectively.
B. The Court Rulings The Court's Chamber, ruled in favor of Mrs Lautsi, outlawing the display of crucifixes in Italian state school rooms on 3 November 2009, holding that the school violated ECHR's: a. Article 2 of Protocol No. 1 (Right to education); and b. Article 9 (Freedom of thought, conscience and religion) After the appeal of the Italian government, the Court's Grand Chamber (of seventeen judges) overturned the previous judgment, 15 to 2, this time to the Italian government's favor, on 18 March 2011 holding that the Italian regulation mandating the presence of crucifixes in public school classrooms:
a. did not violate Mrs. Lautsi's parental rights to educate her children according to her beliefs nor her children's rights (to education for example) as guaranteed by the ECHR;
b. were within the margin of appreciation of Italy in setting the school environment, and did not violate the educational neutrality and impartiality required of the state;
c. did not violate that pluralism required by the state in allowing its citizens' freedom of religion, thought, and conscience;
d. falls within the margin of appreciation, serving as "identity-linked" symbol to Italy's historical and cultural traditions, aside from being a religious symbol;
e. did not prevent Italy from maintaining plurality, neutrality and impartiality intact as evidenced by its religious toleration of a plurality of minority religions;
f. was not proven to actually negatively affect and impact children, not constituted as a "powerful external symbol" and being a passive symbol merely hanging on the wall, thus not construed as compulsory religious teaching;
III. Observations and Reactions Aside from the Lautsi v. Italy case, there are other ECHR-related cases where religion is involved, such as Folgerø and Others v. Norway or Dogru v. France. It is worth-noting that each decision taken by the Court has a different dimension depending of course from the facts and evidence presented but also in consideration of the European country of origin of the case. This means that the ECHR and the related Courts are not yet fully developed as to exercise a single treatment for each signatory country, a one-fit-all approach. This is visible from the concept of laicità where it is applied variedly in different European countries, e.g., France or Italy. Each European country, although all were historically highly influenced by religion, mainly Christianity, each degree of modern appreciation, acceptance and relationship with religion is different at each national level. In the case involved, it is apparent that the Court's Grand Chamber took this national treatment of laicità as an essential consideration for its decision.
Aside from the concept of laicità, various terms and theories were brought out such as respect, neutrality, and plurality. All these concepts are unique but they have one thing in common: they were all defined in a qualified manner, or given a new meaning or interpretation depending on the point of view of the user such idea.
In order to have a uniform viewpoint in regard to the application and exercise of ECHR articles and protocols for each European nation, it is of importance to have a single treatment of the same or highly similar cases regardless of its location in Europe, as long as that country is a signatory of the ECHR.
How to achieve a single viewpoint and treatment? This is a delicate question in all its aspects. European nations, generally, have a shared cultural and historical heritage. It is also the nations' aim to continue sharing these customs as evidenced by the efforts of the previous European leaders in the 1950s to unite the countries, and they succeeded indeed, economically. Throughout the years the relationship intertwining the various European countries grow stronger, both in size and in intensity, caused not only by their original common goal of economic unity, but also influenced by outside factors, one of which is the economic crisis, calling for a far more solid unity, redefining their economic unity to a far higher level, up to budgetary and fiscal points and also demanding for a greater political unity. This scenario is the backdrop of the issue of uniformity of ECHR treatment. While European countries are busy in their union process, in all its aspects, evolution of European culture and society happens each day. Presently, there are not only Jews and Christians in Europe but also a lot of other members of religious or no-religion movements such as Muslims and Atheists. Not only that, there are sub categorization in each religion, just in Christianity for example, there are Orthodox, Catholics and Protestants. In short, Europe is very culturally diversified place these days, despite its uniting factors, making it clear that a single treatment of ECHR, specifically of Article 9 for example, emphasizing one's freedom of thought, conscience and religion, is a very difficult goal to achieve.
Difficult or not, ECHR proponents and signatories have to do something, and also very carefully, in making the intention of each article and protocols clearer and obvious and to avoid different interpretations. Just to give a sample, some extreme right-winged political parties in some European country/ies, propose a national approach to religion and culture to which everybody, locals and immigrants, should adhere to. Considering ECHR's Article 9.1 which is at a domestic level and hypothetically such law is approved at a national level and gets imposed on everybody in that country, what becomes of the substance of human rights and freedoms? Technically, if a law like this is passed, this is not a violation of ECHR since it is within Article 9.2's reach and coverage, but in substance, isn't this something against someone's freedom, to force him or her to a certain religious group s/he did not willingly choose?
Going back to the Case, the Italian government, with its democratic state, and one of the top advanced and modern western society contradicted its own claim of having a state separate from the Church when the Veneto Administrative Court ruled against the removal of the crucifixes from the middle school, which is obviously a public domain. Is one of the factors affecting this decision is the presence of the Holy See in the history of Italy? How can future cases and decisions be more independent? These are some considerations the ECHR has to consider.
Finally, the Case, with all its controversies and strong opposing views, and vocal supporters to each litigating party, is an eye opener to the ECHR proponents and signatory states, underlining the fact that without an aligned national and European approaches to its interpretations, in this case in terms treatment of religious freedom, will make a stir in each future incoming cases involving similar subject matter.
IV. Conclusion Despite the strong incongruence when it comes to interpretations of ECHR articles and protocols, causing strong debate in its Court decisions, the overall intention of the Convention is for the human freedom, thus, for a greater good. Cases like Lautsi v. Italy can be taken as a challenge, and at the same time as an inspiration, to have everything in place, and aligned. Maybe amendments can be introduced in the near future to have a clearer view of the issues that cause so much varied construal such as in the case of religious freedom. The volume of the case relating to this issue, and the expanded experiences gathered along the way, taking into consideration the media, supporters and people's reactions, are something European countries, that are signatories to ECHR can study and analyze as far as ECHR is concerned. It takes time and long process to have overall unity at a European level, and single understanding and implementation of ECHR but eventually, this will be achieved with the stakeholders' cooperation just like what the old saying say, "Rome wasn't built in a day".
Rojen Salditos 28 April 2013
Posted by Rojen at 3:19 PM