AEAJ WORKSHOP ON “ACCESS TO ADMINISTRATIVE JURISDICTION IN ORDER TO SEEK FUNDAMENTAL RIGHTS”

Palermo: November 12th and 13th,

Italian case: On the religious symbols and full freedom of religious faith

1. Facts

1. The parents of two students in a public school of Abano Terme, during of the School board meeting on April 22nd 2002, ask for the removal of any religious symbol, referring in particular to the presence of the crucifix in the classrooms.
On the following May 27th, the Board approves a deliberation that proposes instead “to let the religious symbols exposed”.

2. The mother of the two students recourses against this deliberation in front of the Regional Administrative Tribunal of Veneto supporting:
violation of the impartiality principles in the Public administration (art. 97 Constitution) and of equality among citizens (art. 3 Constitution);
violation of the lay State principle (art. 19 Constitution), that recognizes the full freedom of one’s own religious faith, including also agnostic or atheism profession;
violation of art. 9 of the European Convention of human rights, ratified in Italy with the law August 4th 955 n. 848, that recognizes the freedom to manifest “one’s own religion or one’s own creed”:
Those principles would prevent the exposure of the crucifix and of other religious symbols in classrooms, which appears in violation of the “parity that must be guaranteed to all the religions and all the believes”:

3. The School Institute and the Ministry of Education defend themselves in court supporting that the recourse is not admissible because:
a. in that matter the administrative judge is lacking in jurisdiction, having regard that the freedom of worship is an expression of personality rights whose cognition belongs to the function of civil jurisdiction;
b. the recourse should have been notified also to the other parents eventually interested in the maintenance of the religious symbols.

4. Two private associations named “Forum” and “Associazione Genitori di Padova” (an Italian Parents Association) take part in the process in opposition to the recurrent, objecting the deficiency of jurisdiction of the administrative judge. In order to the contents, the defendant and the opponents observe that the crucifix represents the symbol of civilization and Christian culture. Therefore it expresses an universal value, independent from a specific religion and that however it would be a matter of an undiscriminating sign.

5. Administrative Tribunal of Veneto suspends the judgment and, with the decree n. 56 of 2004, sends to the Constitutional Court the action, raising the issue of constitutional conformity of various dispositions [1], in reference to the principle of the lay State and, however, to the principle fixed by art. 2, 3, 7, 8, 19 and 20 of the Italian Constitution.
Constitutional Court, with the sentence n. 389 of 2004, declares the issue not admissible, under the consideration that it regards dispositions of secondary rules and not of primary legislation, which the high Court has jurisdiction for.

2. Legal Framework

a. IC Law: European convention human rights
Art. 9 of the European Convention for the safeguard of the human rights and the fundamental freedoms, signed on November 4th, 1950 and ratified with Italian law n. 848 of August 4th, 1955, sanctions the inviolable right “to the freedom of thought, religion and conscience”.

b. Italian Constitution
Art. 2 states that: The Republic recognizes and guarantees inviolability of human rights, both as single either in the social associations where its personality is carried out, and demands the implementation of the binding duties of political, economic and social solidarity.

Art. 3 states that: All the citizens have the same social dignity and are equal in front of the law, without distinction of sex, race, language, religion, political opinions, personal and social conditions. It is the Republic’s task to remove the obstacles of economic and social order that, limiting in fact the freedom and the equality of the citizens, prevent the full development of the human person and the effective participation of all the workers in the political, economic and social organization of the Country.

Art. 7 states that: The State and the catholic Church are, everyone in its own order, independent and sovereign. Their relationships are regulated from the Lateranensi Pacts. The modifications of the Pacts, accepted from the two parts, do not demand the procedure of constitutional review.

Art. 19 states that: Everybody has the right to freely profess religion, in every sort, individual or associated, to promote and to exercise the cult in private or public, provided that it’s not in contrast with morals.

Art. 20 The ecclesiastical character and the religion aim of an association or institution cannot be cause of special legislative limitations, neither of special fiscal burdens for its constitution, legal ability and every form of activity.

c. National Law
- Art. 159 and art. 190 of legislative decree April 16th 1994, n. 297, like specified respective from art. 119 of royal decree April 26th 1928, n. 1297 (Table C) and from art. 118 of the royal decree April 30th 1924, n. 965.

 Art. 118 of the just mentioned royal decree 965/1924 - included in entitled head XII “of the premises and the scholastic furnishing” - arranges that every institute of secondary school “has the national flag; every classroom, the image of the crucifix and the portrait of the King”;

 art. 119 of the just mentioned royal decree 1297/1928, in its turn, establishes that the furnishings of the several scholastic classes are listed in table C, attached to the same regulations: such list includes the crucifix for each elementary class.

 art. 676 of the mentioned legislative decree 297/1994, for the part in which confirms the dispositions of art.119 of the royal decree 1297/1928, and art. 118 of the royal decree 965/1924 are still law in force.

3. Case solution

I. Decision of the Regional Administrative Tribunal of Veneto
Regional Administrative Tribunal of Veneto, with sentence n. 1110 of March 22nd, 2005 judges not admissible the intervention in opposition of Forum and of Italian Parents Association, that don’t demonstrate the interest in the refusal of the recourse.
The Tribunal instead considers admissible the participation in opposition proposed by one of the scholar’s parents who has shown his own interest in the maintenance of the religious symbol.
Regional Administrative Tribunal determinates to be appropriate judge, in term of jurisdiction, having regard the presence of a public act expression of a scholastic administration organizational power.
Towards the contents of the dispute, Tribunal asserts that the crucifix cannot be considered simply as a piece of furnishings, but it is a symbol, an object that recalls various meanings regarding historical and cultural evolution and, therefore, the identity of the Italian people.
It also represents a sign of freedom rights system as equality, human dignity, religious tolerance and, therefore, lay State, principles that inspire the Italian Constitution. The constitutional principles of freedom have many roots. One of them is undoubtedly Christianity, in its essence: it would be, therefore, paradoxical and conflicting to exclude a Christian sign from a public structure in the name of a laicism,

II. Appeal decision of Consiglio di Stato

The decision of the Tribunal is appealed by the recurrent.
The Consiglio di Stato, sec. VI, with sentence n. 556 of February 13th 2006, admittes the intervention in opposition of the two parents associations that demonstrated a symmetrical interest of not patrimonial character, than one of the recurrent.
An interest as such, it is sufficient in order to take part in judgment, without the necessity of further specifications.
The Consiglio di Stato dismissed the appeal for the similar reasons expressed by Regional Administrative Tribunal of Veneto.
Particularly – the Italian appeal judges write - the crucifix cannot be removed from the classrooms because it has highly educational symbolic function, apart from the specific religion followed by the pupils; it is neither considered as an "ornament" , neither as "a religion object" , but it is a symbol “suitable to express the high basis of the civil values": tolerance, mutual respect, valorisation of the person, affirmation of his rights, consideration of his freedom, autonomy of the moral conscience towards the authority, human solidarity, refusal of every discrimination. Nevertheless all of those values have religious origin, at present they finally represent the principles that outline the laicism inside present State legal order.

III. Appeal to ECHR
The mother of the pupils contested the sentence of Consiglio di Stato in front of European Court of Human Rights (ECHR) that recently decided with sentence n. 819 of November 3th 2009.
According to the European Court the presence of the crucifix – which it was impossible not to notice in the classrooms – could easily be interpreted by pupils of all ages as a religious sign and they would feel that they were being educated in a school environment bearing the stamp of a given religion. This could be encouraging for religious pupils, but also disturbing for pupils who practised other religions or were atheists, particularly if they belonged to religious minorities. The freedom not to believe in any religion (inherent in the freedom of religion guaranteed by the Convention) was not limited to the absence of religious services or religious education: it extended to practices and symbols which expressed a belief, a religion or atheism. This freedom deserved particular protection if it was the State which expressed a belief and the individual was placed in a situation which he or she could not avoid, or could do so only through a disproportionate effort and sacrifice.
The State was to refrain from imposing beliefs in premises where individuals were dependent on it. In particular, it was required to observe confessional neutrality in the context of public education, where attending classes was compulsory irrespective of religion, and where the aim should be to foster critical thinking in pupils.
The Court was unable to grasp how the display, in classrooms in State schools, of a symbol that could reasonably be associated with Catholicism (the majority religion in Italy) could serve the educational pluralism that was essential to the preservation of a “democratic society” as that was conceived by the Convention, a pluralism that was recognised by the Italian Constitutional Court.
The compulsory display of a symbol of a given confession in premises used by the public authorities, and especially in classrooms, thus restricted the right of parents to educate their children in conformity with their convictions, and the right of children to believe or not to believe.
The Court concluded, unanimously, that there had been a violation of Article 2 of Protocol No. 1, taken jointly with Article 9 of the Convention of Human Rights, and condemned Italian State to pay to the plaintiff the sum of € 5.000 for moral damage.

IV. Appeal to the Great Chamber of the Court
Minister of Education announced the probable appeal of Italian Government to the Great Chamber of the Court against the decision of ECHR, under article 43 of the Convention, for the final judgment about the dispute.

3. Future Prospects

a. The problems
There are three crucial problems:
1. Is there jurisdiction of the administrative judge or civil judge in matter of free expression of own religious confession?
2. Do the intervening counterparts in opposition have legal standing?
3. Is the Italian legal order actually oriented towards a religious neutrality?

The first question concerns the problem of the connection between civil and administrative jurisdiction. On the one hand the dispute pertains to the human rights for which Italian legislation provides for the jurisdiction of civil judge; on the other hand the contested deliberation of the School Board is an expression of organizational power of school administration towards the person concerned is holder of legitimate expectations and for which Italian legislation provides for the jurisdiction of administrative judge.
The second question concerns the problem of the right to take part in the process from individuals or associations which have shown their own interest in the maintenance of religious symbols in the school as the crucifix.
The third problem implies this question: does the Italian Constitution have completed a choice in the sense of the Italian State neutrality towards religious matters?
We point out that, on one side, the art. 8, 2st paragrafh, Constitution statues that all the religions are equally free towards the law and the art. 19 Constitution expressly recognizes the religious freedom to every individual, but, on the other one, the art. 7 and the art. 8, paragraph 2nd, assign a special status, regarding to national legal ordering, to the catholic church [2] or to the other religious confessions, whose relationships with the State are regulated for law on the base of agreements with the relative representations.
So, Italian Constitution admits some differentiation among religious confessions in the relationships with the State, although within the perimeter concurred from the fundamental principle of equal freedom in front of the law, according to art. 8, paragraph 1st, Constitution.

b. The solution
Italian administrative courts, first and appeal level, judged that the display of the crucifix in the state school is not contrary to Italian Constitution and national legislative frame-work.
European human rights Court expressed an opposite opinion.
The dispute definition depends on the result of the Italian State appeal to the Great Chamber of the European Human Rights Court

Gianmario Palliggiano
Judge of Administrative Regional Tribunal
of Campania - Salerno