On 18 March 2011, the Grand Chamber of the European Court of Human Rights (“the ECtHR”) handed down its keenly anticipated judgment in Lautsi v Italy, Application no. 30814/06.
The issue in the case was whether a provision of the Italian law requiring that crucifixes be displayed on the walls of state school classrooms constituted a violation of the Article 9 (freedom of religion) and Protocol 1, Article 2 (“A2P1”) rights of non-Christian children, and their parents, who objected to the presence of such religious symbols.
The case was previously considered by the Second Section of the ECtHR, which issued a unanimous judgment on 9 November 2009 holding that Italian law was incompatible with the Convention, finding a violation of Article 9 in conjunction with A2P1 and awarding Mrs Lautsi €5,000 in damages.
The judgment provoked a furious response, with the Strasbourg Court being widely criticised for illegitimate judicial legislation and failing to have appropriate regard to its subsidiary role as regards the balance struck between competing rights by individual Council of Europe (“CoE”) member states.
Notably, the backlash was not confined to political quarters. Shortly after the decision of the Second Section was handed down, the Italian Supreme Court issued a judgment containing dicta to the effect that decisions of the ECtHR which conflict with ‘fundamental norms’ of Italian law would lack inherent legitimacy and would not be enforced.
Consequently, the stakes in the Grand Chamber hearing were high. The case also generated an unprecedented number of third party interventions, including submissions from 9 NGOs and 10 CoE member states.
As was widely anticipated, the Grand Chamber (by a 15-2 majority) opted to retreat from the judgment of the Second Section, holding that Italian law is compatible with the ECHR and that no violation of Mrs Lautsi (or her children’s) rights had occurred. The judgment contains several statements of wider interest regarding the scope of A2P1 and the rights of parents in relation to the exposure of their children to religious symbols and concepts within the state school system.
Mrs Lautsi brought the action on behalf of herself and her two children, both of whom (at the relevant time) were being educated at a State school in Abano Terme. Her essential claim was that Article 9 and A2P1 should be interpreted as imposing an obligation on the State to maintain absolute religious neutrality within the State education system, so that any manifestation of religious imagery or symbolism that could be construed as having State approval or support would be prohibited. It was asserted that the mere exposure to the sight of a crucifix in an educational setting infringed a non-Christian child’s right to freedom of religion and was a violation of the parental right to have the child educated in conformity with his or her own philosophical convictions.
The reasoning of the ECtHR
The Court began by rehearsing its general approach to A2P1 and religion in the State school curriculum. Two points merit particular attention.
First, the Court emphasised the limitations on the right of parents to object to children being exposed to religious or philosophical teaching or concepts, stressing that what A2P1 prohibits is proselytism or indoctrination and that no valid objection can lie in respect of information conveyed in an objective, critical and pluralistic manner [§62].
Secondly, in a passage which is destined to be frequently invoked by those defending A2P1 claims on behalf of public authorities, the Strasbourg Court gave a strikingly account of the concept of ‘respect’ as deployed in A2P1 and the margin of the appreciation enjoyed by member states in respect of that provision of the Convention [at §61]:
“…“respect” in Article 2 of Protocol No. 1 means more than “acknowledge” or “take into account”; in addition to a primarily negative undertaking, it implies some positive obligation on the part of the State…
Nevertheless, the requirements of the notion of “respect”, which appears also in Article 8 of the Convention, vary considerably from case to case, given the diversity of the practices followed and the situations obtaining in the Contracting States. As a result, the Contracting States enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention with due regard to the needs and resources of the community and of individuals. In the context of Article 2 of Protocol No. 1 that concept implies in particular that this provision cannot be interpreted to mean that parents can require the State to provide a particular form of teaching”
Turning to the facts of the application, the ECtHR first noted that there was no evidence before it that the display of crucifixes in the classroom had any actual influence on pupils or impacted upon the formation of their religious or philosophical convictions [§66]. Secondly, it emphasised CoE member states’ margin of appreciation in regulating the school environment and the content of the curriculum, asserting in particular that there was no European consensus as to the proper role of religious symbols in State education [§§69-70 and 76]. Thirdly, it sought to distinguish the presence of what it characterised as ‘the essentially passive symbol’ of the crucifix in the classroom from the exposure of children to didactic and potentially proselytising indoctrination [§§71-74]. Fourthly, it relied on the fact that the evidence indicated that in practice the Italian state education system was pluralistic and allowed for exposure to, and expression of, a wide range of religious convictions and philosophies and that in any event Mrs Lautsi retained her right, both legally and in practice, to direct her children’s religious and/or philosophical development in line with her own convictions [§§74-75].
The retiring, but not retiring concurrence of Judge Bonello
It would be remiss to offer any account of Lautsi without drawing the reader’s attention to the astonishing concurrence of Judge Giovanni Bonello. Judge Bonello (deservedly crowned the 2008 Johnnie Walker man of the year: http://www.timesofmalta.com/articles/view/20081020/local/giovanni-bonello-is-johnnie-walker-man-of-the-year), has now retired from the Court and is known to enjoy a colorful phrase. However, the decision of the Second Section of the Strasbourg Court, and the suggestion that the presence of the crucifix in state schools could be construed as a breach of the ECHR, spurred him to unprecedented rhetorical heights. Edited highlights of what is likely to be a valedictory address include the following:
“”A court of human rights cannot allow itself to suffer from historical Alzheimer’s”…”No supranational court has any business substituting its own ethical mock-ups for those qualities that history has imprinted on the national identity”…”A European Court should not be called upon to bankrupt centuries of European tradition”…”No Court… should rob the Italians of their cultural personality”…”…a Court in a glass box a thousand kilometers away has been engaged to veto overnight what has survived countless generations”…”The Court has been asked to be an accomplice in a major act of cultural vandalism”…”It is uninformed nonsense to assert that the presence of the crucifix in Italian schools bears witness to a reactionary fascist measure imposed in between gulps of castor oil by Signor Mussolini. His circulars merely took notice of a historical reality that had preceded him by several centuries and, pace Ms Lautsi’s anti-crucifix vitriol, may still survive him for a long time.”
A2P1 and State education
From the perspective of the education lawyer, the most interesting passages of the judgment are to be found at §§61-62 and 70 where the Strasbourg Court frames the extent of the restrictions which A2P1 imposes on religious education in State schools (broadly, education is permitted but indoctrination is not), the limited nature of the relevant parental rights and the, generally wide, margin of appreciation which States enjoy in this field of activity.
The wider milieu
Lautsi is a striking example of, what appear to be increasingly frequent, confrontations between the Strasbourg Court and domestic Governments and superior courts. This phenomenon will be familiar to anyone in the UK who has followed the recent controversy concerning the ECtHR’s decision that the UK’s current blanket ban on serving prisoners voting in elections is a breach of the ECHR.
On one view, Lautsi might be considered as an example of what a sufficiently robust response to errant holdings of the Strasbourg Court can achieve: in the face of unified opposition from the Italian Government and senior judiciary the Grand Chamber arguably had no option but to retreat from the position adopted by the Second Section. This scenario, of domestic politicians and the judiciary uniting in opposition to the position adopted by the Strasbourg Court, has not generally been a feature of the issues which have to date arisen in the UK, where the general pattern has been for the ECtHR to deliver decisions which enhance judicial power and/or competence which (perhaps unsurprisingly) meet with the support of the judiciary but are opposed by elected politicians.
A possible analogue might be found in the pending judgment of the Grand Chamber in Al-Khawaja v. United Kingdom (Application no. 26766/05), where the Strasbourg Court is to determine whether English law’s treatment of the admissibility of hearsay evidence is compatible with Article 6 of the Convention. The Fourth Section had previously held that it was not, but this was followed by the unprecedented judgment of the UK Supreme Court in R (Horncastle)  UKSC 14, in which a nine-strong bench of Justices exhaustively analysed the Strasbourg jurisprudence and, in effect, pleaded with the Grand Chamber to reverse the Fourth Section’s judgment.
It is interesting to contrast the stance of the UK Supreme Court, with its emphasis on rigorous forensic analysis of the incoherence of the Strasbourg Court’s case law and, always deferential, request for further reflection (with no real suggestion that it will not fall into line with the ECtHR’s ultimate decision) with the altogether blunter and more robust stance adopted by the Italian Supreme Court. Lautsi might be read as showing that the ‘Italian approach’ works. Judgment in Al-Khawaja is expected imminently this year and it will be interesting to note whether the approach of the UK Courts proves similarly effective.