Pasquale Annicchino

Between the Margins of Appreciation and Neutrality: the Lautsi Case and a New Balance in the Field of Religious Freedom in Europe

Pasquale Annicchino - Research Fellow at the Robert Schuman Centre for Advanced Studies, European University Institute, Firenze, Italy. pasquale.annicchino@eui.eu

The paper deals with the famous case Lautsi v. Italy at the European Court of Human Rights, on crucifixes in the public schools, with two opposite Court rulings in 2009 and 2011. While analyzing the logic of both rulings, the author explores two interacting concepts: "margin of appreciation" and "neutrality". He believes, at the first ruling of 2009 the Court practice of margin of appreciation was ignored, and the principle of neutrality was imposed; while the second ruling, trying to introduce correction in this sense, made other mistakes by drawing upon disputable factual and normative argumentation. The case of crucifix thus reveals tensions between national legal systems and the conventional and European Law. Overall, today, cases about religious symbols in the public square serve as a medium for the European community to reflect upon its identity and the role of religion in this identity.

Keywords: European Court of Human Rights, religious symbols, margins of appreciation, neutrality, religion, identity.

For the original, see: Annicchino P. Tra margine di apprezzamento e neutralita: il caso "Lautsi" e i nuovi equilibri della tutela europea della liberta religiosa // Diritto e religione in Europa. Rapporto sulla giurisprudenza della Corte europea dei diritti dell'uomo in materia di liberta religiosa/A cura di R. Mazzola. Bologna: Societa editrice il Mulino, 2012. P. 179 - 193.

Introduction

The case of Lautsi v. Italia1 concerning the presence of crucifixes in Italian public schools leads the jurisprudence of the European Court of Human Rights (ECHR or Court) to a serious turning point 2. The judgment of 3 November 2009, by which the Second Section of the Court found Italy guilty of violating article 2 of Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the Convention) - namely, the right to education-in conjunction with article 9 of the Convention, which affirms the right to freedom of thought, conscience and religion, It was eventually overturned by a decision of the Grand Chamber of the Court, which, as we will see later, will play a crucial role in the case-law of the Strasbourg Court on the protection of freedom of religion.³

^1. Lautsi v. Italy, ECtHR, 3/11/2009 (no. 30814/2009) and the Grand Chamber, 18/03/2011. Then "Lautsi".

^2. Following the judgment of the Second Section of the Court, the Italian Government appealed under article 43 of the Convention. This appeal was later granted by the Grand Chamber. Acting under article 36 of the Convention, the President of the Court authorized the participation of the Governments of Armenia, Bulgaria, Cyprus, Greece, Lithuania, Malta, Monaco, Romania, the Russian Federation and San Marino in the proceedings. These ten countries were represented by Joseph Weiler, a professor at the New York University Law School. Speech by Prof. See Weiler J. H. H. State and Nation; Church, Mosque and Synagogue - the Trailer / / International Journal of Constitutional Law. 2010. Vol. 8. No. 2. P. 161-165. On this topic, see also: Pajno S. Dialogando con Weiler: apologo di Marco e Leonardo / / Quaderni Costuzionali. 2010. Vol. 4. P. 873-876; CorteseF. Dalogando con Weiler: il crocefisso e gli "imbarazzi" della giustizia//Quaderni Costuzionali. 2010. Vol. 4. P. 877 - 884. 33 members of the European Parliament, Greek Helsinki Monitor, Associazione nazionale del libero Pensiero, European Centre for Law and Justice, Eurojuris and collectively the International Commission of Jurists/Human Rights Watch and Zentralkomitee des deutschen Katholiken, Semaines sociales de France and Associazioni cristiane lavoratori italiani also submitted written comments. For the significant contribution of non-governmental organizations to the development of the Court's case law, see Hodson L. NGOs and the Struggle for Human Rights in Europe. Oxford: Hart, 2011.

^3. As for the commentaries on the legal doctrine, we will confine ourselves to the following works: Cardia C. Identita religiosa e culturale europea. La questione del crocifisso. Torino: Allemandi, 2010. P. 227-284 [Russian translation: Cardia K. European religious and cultural identity. The question of Crucifixion, Moscow: Rudomino, 2011]; ManciniS. La supervisione europea presa sul serio: la controversa sul crocifisso tra margine di apprezzamento e ruolo contro-maggioritario delle Corti // Giurisprudenza costituzionale. 2009. Vol. 5. P. 4055 - 4083; Mancini S.The Crucifix Rage: Supranational Constitutionalism Bumps against the Counter-Majoritarian Difficulty // European Constitutional Law Review. 2010. Vol. 6. P. 6 - 27; Belgiorno de StefanoM. G. II crocifisso nelle aule scolactiche in Italia. Una condanna annunciata della Corte europea dei Diritti

An analysis of all the legal problems and difficulties arising from these two decisions - the Second Section's decision of 3 November 2009 and the Grand Chamber's decision of 18 March 2000-is not the purpose of this brief communication. I will focus on two main aspects: the "margin of appreciation" doctrine and the principle of neutrality.⁴

Decision of the Second Section of 03.11.2009: the doctrine of "margin of appreciation" and the concept of "neutrality"

One of the most interesting issues was the issue that was widely discussed after the ruling of the Second Section of the ECHR in the Lautsi case, about the breadth of the margin of appreciation that is ultimately assigned to participating States in the delicate and complex issue of the role of religion in public space in general and relations between States.-

Umani // Stato, Chiese e pluralismo confessionale. Marzo. 2010; Toscano M. Nuovi segnali di crisi: i casi "Lombardi Vallauri" e "Lautsi" davanti alia Corte europea dei diritti dell'uomo // Stato, Chiese e pluralismo confessionale. Maggio. 2010; Scerbo A. Simboli religiosi e laicita a partire dal caso Lautsi v. Italy // Stato, Chiese e pluralismo confessionale. Novembre. 2010; Colaianni N. Il crocefisso a Strasburgo: l'Italia non e la Francia//Quaderni costituzionali. 2010. Vol. 1. P. 148 - 154; Idem. Lautsi: Crucifix in the Classroom Redux//European Journal of International Law 2010. Vol. 21. No. 1. P. 277 - 280; см. также Dagostino F. Prove di accecata sentenziosita// Awenire. 4 novembre 2009; Rodota S. ha battaglia su un simbolo//La Repubblica. 4 novembre 2009; Cardia C. Quei giudici che vorrebbero farci tutti pim, poveri//Awenire. 5 novembre 2009; Groppi N. Quella Corte che ci guarda dall'Europa//L'Unita. 6 novembre 2011. For the decision of the Grand Chamber, see: Zucca L. A. Comment on Lautsi / / European Journal of International Law: TALK! 19 marzo 2011 (article available on the website www.ejiltalk.org); Leoni A. L'Affaire Lautsi c. Italie": la vicenda giudiziaria dell'esposizione del crocifisso nelle aule scolastiche // Stato, Chiese e pluralismo confessionale. Avrile. 2011; Belgiorni de StefanoM. G. Il crocifisso nelle aule scolastiche in Italia. See also the monographic issue of Religion and Human Rights: An International Journal (2011. Vol. 6. No. 3). Also, see Witte jr. J. Lift High the Cross? Religion in Public Spaces // Huffington Post. 27 marzo 2011 (available on the website www.huffingtonpost.com) and Ventura M. ha tradizione come diritto/ / Corriere della sera. 19 marzo 2011.

^4. A more detailed analysis of the judgment of the Second Section of the Court can be found in Annicchino P. Is the Glass Half Empty or Half Full? Lautsi v. Italy before the European Court of Human Rights//Stato, Chese e pluralismo confessionale. Maggio. 2010; см. также другие работы этого автора: Winning the Battle by Losing the War: The Lautsi Case and the Holy Alliance between American Coservative Evangelicals; The Russian Orthodox Church and the Vatican to Reshape European identity// Religion and Human Rights: An International Journal. 2011. Vol. 6. No. 3. P. 213 - 219. Also, for a more general, even comparative, analysis, see Annicchino P. How Wide is the Margin? The United States Supreme Court and the European Court of Human Rights on Religion in Public Schools//Droit et Religions. 2010 - 2011. Vol. 5. P. 301 - 232.

as a gift, and by religious denominations in particular. The doctrine of the limits of State discretion, which has been developed for many years, allows the ECtHR to take a respectful position on certain issues in relation to State decisions that affect the human rights guaranteed by the European Court. As Carolyn Evans pointed out, the margin of appreciation doctrine "plays a complex role in the case law of the European Convention... It is usually used as a justification for assigning the state a decision-making function in controversial or confusing issues... It is particularly likely that the Court will entrust it to a State in cases where it is aware that there is no consensus among European States on this issue. " ⁵

In this regard, the judgment of the Second Section of the Court of 3 November 2009 raises two main questions: the first is a myth, the second is a problem.

The myth is related to the notion that in matters of religion, the Court's case-law supposedly gives States complete freedom to act as they see fit. According to this reconstruction, presented mainly by media comments and public opinion on the Lautsi case, the Court's ruling turns out to be pure judicial activism6, aimed at narrowing the area of competence of the responsible authorities of individual countries in favor of the European judiciary.

It should be noted that in fact, the ECtHR has repeatedly stressed in numerous judgments that the limits of State discretion, although recognized, should nevertheless be accompanied by "European supervision". In other rulings, the Court has invoked the principle of proportionality in opposition to the margin of appreciation doctrine in order to verify specific measures taken by the State and assess their compliance with the requirements of Convention No. ⁷.

^5. См. Evans C. Individual and Group Religious Freedom in the European Court of Human Rights: Cracks in the Intellectual Architecture // Journal of Law and Religion. 2010 - 2011. Vol. 26. P. 332-333. For more general information on the concept of margin of appreciation, see, inter alia, Lestas G. A Theory of Interpretation of the European Convention on Human Rights. Oxford: Oxford University Press, 2007.

^6. Judicial activism - judicial decisions in which political or personal considerations may play a greater role than the law. - Approx. ed.

^7. See, among others: Paturel c. Francia, Corte EDU, 22/12/2005 (number 54968/00); Ginewski c. Francia, Corte EDU, 31/01/2006 (number 64016/00); Aydin Tatlav c. Turchia, Corte EDU, 2/05/2005 (number 50695/99); Klein c Slovacchia, Corte EDU

Naturally, at the theoretical level, the question of the role of the ECtHR, and therefore the limits of discretion that should be recognized for individual States, remains open. Recently, Christos Rozakis, the former Vice-President of the Court, and Lord Leonard Hoffman have represented the two opposite poles of this debate. On the one hand, the Court is turning less and less to the doctrine of margin of appreciation, which makes its own role more important; on the other hand, it is precisely for this reason that there is an increase in criticism of the "judicial activism" of the Strasbourg judges.⁸

The problem is as follows. From reading the judgment of the Second Section of the Court in the Lausti case, it is clear that the doctrine of margin of appreciation was not taken into account by the Strasbourg judges. As Susanna Mancini noted, " the margin of appreciation is mentioned in three cases, and each time by the Italian Government, in the hope of removing the crucifixion regulations from the competence of the Strasbourg judges."⁹

The Second Section's ruling therefore seems to represent a step forward from previous rulings, or at least a sign of less respect for national States than has been shown in some other cases; the Court is guided in such cases by its "concept of secularism, which [the Court] is prepared to apply regardless of the margin of appreciation" ^.10. Nevertheless, it should be noted that the Court does not properly justify this departure from previous judicial practice, since the reasons for such an obviously decisive turn are not mentioned or reasoned ¹¹. As we'll see later, the names of-

31/10/2006 (number 72208/01); Ahmet Arslan S. Turchia, Corte EDU 23/20/2010 (number 41135/98).

^8. See Hoffman L. The University of Human Rights//Juridical Studies Board Annual Lecture. March 19, 2009 (text available on the website www.jsboard.co.uk Rozakis C. Is the Case-Law of the European Court of Human Rights a Procrustean Bed? Or is it a Contribution to the Creation of a European Public Order? A Modest Reply to Lord Hoffman's Criticisms//University College London Human Rights Law Review. 2009. P. 20 - 31.

^9. See Mancini S. La supervisione europea presa sul serio: la controversia sul crocifisso tra margine di apprezzamento e ruolo contro-maggioritario delle Corti. P. 4064.

^{Tega D.} 10. Cercando un significato europeo di laicita: la liberta religiosa nella giurisprudenza della Corte europea dei diritti//Quaderni costituzionali. 2010. Vol. XXX. No. 4. P. 811.

^11. As Tega points out: "If the patterns used in decisions on religious symbols had been applied to the Lautsi case, it would have been necessary to use-

but the return of this concept to the central positions formed the basis of the "second decision" of 18.03.2011 - the Grand Chamber's resolution, which repealed the "first decision" of 03.11.2009.

Another significant aspect of the Second Section's ruling concerns the principle of neutrality. If the idea of neutrality itself is controversial on a theoretical level and cannot be unambiguously interpreted, ¹² as far as the case at hand is concerned, it would be appropriate to dwell on the concept of neutrality (in a more applied sense) used by the Court in its judgment of 3 November 2009.

It seems that the Second Section recommends a complete ban on the placement of religious symbols in public school classrooms, whether on the basis of a single request from private individuals (students/parents) or on the initiative of public authorities.¹³

A broad reading of the State's margin of appreciation, which would take into account the normative and historical aspects of secularism and the placement of crucifixes, while at the same time helping to avoid clashes between the Court and States parties... The Court has referred to its precedents concerning the veil, while failing to take into account the margin of appreciation, which is not mentioned once in the entire judgment"; see Tega D. Cercando un significato europea laicita. P. 810-811 (emphasis added). It should also be pointed out that there is no comparative analysis in the text of the November 2009 decision. As Contry pointed out: "The Strasbourg decision highlights the insufficiency of the comparative section, which covers decisions in chador cases instead of the present analysis... It is necessary to indicate this insufficiency. In fact, it is not a question of mere technique of justification, but rather of the lack of in-depth study of the issue, which was obviously absolutely necessary to provide the Court with a complete picture of the controversial issue of the display of the crucifix in public places in many European countries"; see ContriR. L'Europa e il crocifissio. P. 250. Such a paragraph is included in the Grand Chamber's decision (see paragraphs 26-28).

^12. A. Koppelman showed that the idea of neutrality is based on the following fundamental principle: "The main neutralist liberal statement is that the use of political power cannot be justified by "perfectionism", the idea that some lifestyles are inherently better than others and that the state can act accordingly in order to spread the best image life". However, this principle does not guarantee that its practical application will not have completely different results: "Once we abandon the excessive abstractness of the anti-perfectionists, it turns out that the idea of neutrality can serve to support such different political concepts that by itself it is not able to resolve any differences, either concerning religion or any other. But this does not mean that the language of neutrality has no value"; see Koppelmann A. The Fluidity of Neutrality // The Review of Politics. 2004. Vol. 66. P. 634, 636 - 637.

^13. In fact, some, like R. Conti, point out that there are conflicting passages on this issue in the text of the judgment. According to Cohn-

Thus, the Court makes the private concept of the neutrality of public authorities the main principle of decision-making, which, in our opinion, should be consistent with the equally important principle of democratic pluralism, which, in the broader context of the Court's practice, seems to play a significant and undoubtedly important role. ¹⁴ It is no coincidence that many commentators have pointed out that the concept of neutrality used by the Court in its judgment of 3 November 2009 is that of assertive secularism15, which goes back to the French or Turkish tradition and is therefore potentially inconsistent with the concept of secularism typical of the Italian model.¹⁶

Grand Chamber Resolution of 18.03.2011: new reading of "discretion limits "and"neutrality"

On March 18, 2011, the Grand Chamber of the European Court of Human Rights issued a second and final decision in this case. The Panel of Judges (fifteen votes to two) overturned the decision made by the judges of the Second Section in March 2009, declaring that mandatory

However, after reading paragraphs 48, 56 and 57, there remain "clear areas of uncertainty regarding the extension of this decision, which again should be clarified by the Grand Chamber"; see Conti R. L'Europa e il cricifisso. p. 272.

^14. См. Neuwenhuius A. The Concept of Pluralism in the Case-Law of the European Court of Human Rights//European Constitutional Law Review. 2007. Vol. 3. P. 367-384. See also Tulkens F. The European Convention on Human Rights and Church-State Relations: Pluralism vs Pluralism//Cardozo Law Review. 2009. Vol. 30. No. 6. P. 2575 - 2591. As shown by Z. Calo, in the context of ECtHR practice, the principle of pluralism plays a fundamental role: "In other words, it is not pluralism that serves freedom of religion, but freedom of religion that serves pluralism"; see Calo Z. Pluralism, Secularism and the European Court of Human Rights//Journal of Law and Religion. 2010 - 2011. Vol. 26. P. 262.

^15. According to R. Hirschl, this model of relations between the state and religious groups is characterized by a special " form of aggressive, even militant secularism that goes beyond neutrality in relation to religion or declared a-religiosity, spreading openly secular civil religion, condemning the manifestations of religiosity in public life and considering secularism as a central element of the modern state and the collective identity of its members"; see Hirschl R. Comparative Law and Religion (out of print soon; available on the website www.ssrn.com).

^16. For example, A. Scerbo speaks of the very real "legal transplant" aimed at spreading the model of militant secularism of the French and Turkish types in the Italian judicial system"; see Scerbo A. Simboli religiosi e laicita a partire dal caso Lautsi v. Italy. P. 6. See also Lezgi I. New trends in Religious Liberty and the European Court of Human Rights// Ecclesiastical Law Journal. 2010. Vol 12. P. 266 - 279.

Placing a crucifix in the classrooms of Italian public schools does not violate the rights guaranteed by the Convention. Many aspects of the Grand Chamber's verdict are of interest, but for the sake of brevity, we will focus on the role of the same aspects - the doctrine of margin of appreciation and the principle of neutrality-primarily in light of the controversy that arose during the discussion of the" first judgment " of November 2009.

In contrast to the Second Section's ruling, which did not take into account the "margin of appreciation" doctrine, ¹⁷ the Grand Chamber's ruling places the State's margin of appreciation doctrine at the center. The Court focuses on the second part of article 2 of the First Additional Protocol to the Convention (right to education), which provides that:

[The State], in exercising the functions it assumes in the field of education and training, respects the right of parents to provide such education and training as is consistent with their religious and philosophical beliefs.

It is from the obligation to "respect" the choice of parents in this area that the Court deduces a positive obligation on the part of the State. ¹⁸ However, having failed to find a consensus among the States parties, the Court decides to leave Italy a wide margin of appreciation.¹⁹

^17. See note 12.

^18. Cf. paragraph 61: "The word' respect 'in Article 2 of Protocol 1 means more than just 'recognize' or 'take into account', and in addition to an inherently negative obligation, it implies a positive obligation on the part of the State." For positive obligations within the scope of the ECHR, see Mowbray A. The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights. Oxford: Hart, 2004.

^19. See, in particular, paragraphs 61 to 70: "Nevertheless, the requirements of the concept of 'respect', which is also found in article 8 of the Convention, vary considerably from case to case due to the diversity of common practices and existing situations in States parties. As a result, States parties enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention, taking due account of the needs and resources of society and individuals... The Court concludes in the present case that it is in principle within the respondent State's discretion to decide whether crucifixes should be present in public school classrooms." On the role of the doctrine of consensus in the ECHR case-law, see Dzehtsiarou K. European Consensus: A Way of Reasoning (UCD working paper in Law, Criminology & Socio-Legal Studies Research Paper Series. 2009. Vol. 11). See also proceedings of the seminar "The role of consensus in the system of the European Court of Human Rights".

However, this judgment is at least paradoxical precisely because the recognition of a positive obligation of the Italian State should have led the Court to recognize a lower margin of appreciation for the respondent State. ²⁰ However, the expression "margin of appreciation" is used 27 times in the text of the judgment and 8 times in twenty paragraphs of the majority opinion ²¹.

The large margin of appreciation granted to Italy by the Grand Chamber in its March 2011 judgment also clearly affects the perception of the ECtHR's neutrality. First of all, it should be emphasized that the Court limits the scope of its ruling only to the presence of the crucifix in public schools, without intending to comment on the issue of other symbols or other public places. ²² And it is precisely the change in the definition of asd-

Convention on Human Rights", held at the ECHR in 2008 (available on the website www.echr.coe.int).

^20. The inconsistency of the court's reasoning was shown by Zucca: "The Court manages to take away with one hand what it gives with the other, in the same paragraph, and in a triumph of illogic establishes that the concept of respect differs from country to country... This is like saying that I respect everyone's opinion, but I would like to suppress thoughts that are not approved by the majority (consensus). Or you can turn the Court's weapons against itself: I respect the ECHR, but I am ready to completely disregard its decisions in the absence of consensus on its powers"; see Zucca L. Lautsi - A Commentary of the Grand Chamber Decision/ / Internationa] Journal of Constitutional Law (in print). See also the opposing opinion of Judges Malinverni and Kalaydjievd: "Can it be argued that States are properly complying with a positive obligation if they are mainly considering the faith held by the majority? Moreover, is the margin of appreciation the same where public authorities are required to comply with the positive obligation of non-interference? I do not think so. I am more inclined to believe that where States are bound by positive obligations, their margin of appreciation is reduced."

^21. See Zucca L. Lautsi - A Commentary of the Grand Chamber Decision: "In 20 short paragraphs of its assessment, the Court mentions the margin of appreciation 8 times (they are mentioned 27 times in the entire decision-this gives an idea of the importance of this concept). According to the predictable theorem, when the court mentions broad margin of appreciation, it always rules in favor of the respondent State."

^22. See paragraph 57 - " First of all, the Court notes that it is solely concerned with the compatibility, in the light of the circumstances of the case, of the presence of crucifixes in Italian public schools with the requirements of Articles 2 of Protocol 1 and 9 of the Convention. Therefore, it is not necessary to investigate the presence of crucifixes in places other than public schools. Nor should the Court decide whether the presence of crucifixes in public school classrooms is consistent with the principle of secularism in Italian law." As Belgiorno de Stefano emphasized, "as a result, the court left Shiro-

While recognizing that the crucifix is a religious symbol,24 the Court nevertheless does not consider its influence on the formation of pupils and the resulting violation of article 2 of the First Protocol to be proven.²⁵ Therefore, in the Court's view, the obligation of neutrality to be observed by Member States of the Convention is not violated by the mere placement of the crucifix, also because, as the Court points out, while accepting the Italian Government's observation, the actual situation in an Italian school in any case provides full freedom for religious minorities.²⁶

Nevertheless, the Court's "neutralization" of the crucifix by defining it as a "passive symbol" seems to contradict logic: how does a passive symbol differ from an active one?27.This does not seem to take into account the fact that it is precisely in the context of the school that the obligation of State neutrality should be much more stringent, since the mandatory presence of a particular religious symbol can most likely be read as an exclusion from the political community of those who do not identify with this symbol28. As former U.S. Supreme Court Justice O'Connor argued, " A government cannot support the religious practices and beliefs of only a fraction of its citizens without sending a non-religious message."-

the greatest problems of state secularism regarding the demonstration of the crucifixion in public institutions in general"; Belgiorno de StefanoM. G.W crocifisso nelle aule scolasctiche in Italia. Una condanna revocata, ma condizionata, dalla Corte europea dei Diritti Umani. P. 8.

^23. Revirement ( French) - complete revision. - Editor's note.

^24. The Court bases its reasoning on the definition of the crucifix as a "passive symbol", without agreeing with the Judgment of November 2009, where it was assessed as a signe exterieurfort [fr.strong external symbol] capable of causing discomfort to non-believers or believers of other religions.

^25. See paragraph 72: "Furthermore, the crucifixion on the wall is essentially a passive symbol, and in the Court's view this is important, particularly in relation to the principle of neutrality. It cannot be considered to have an effect on students comparable to that of instructive speech or participation in religious activities."

^26. See paragraph 76 of the Judgment.

^27. For this issue, see Zucca L. Lautsi - A Commentary on the Grand Chamber Decision.

^28. A link to Annichino P. will be useful here. How Wide is the Margin? The United States Supreme Court and the European Court of Human Rights on Religion in Public Schools//Annuaire Droit et Religions. 2010 - 2011. Vol. 5. P. 301 - 323.

those who hold these beliefs are given an unambiguous hint that they are outsiders or incomplete members of the political community. " ²⁹

Conclusions

From a technical point of view, both decisions of the ECtHR reveal significant shortcomings. As we have already seen, the ruling of the Second Section, which does not take into account the Court's established practice regarding the margin of appreciation, led to the imposition of the concept of neutrality, which potentially contradicts the Italian version of secularism. The verdict of the Grand Chamber is an attempt to correct these shortcomings of argumentation, but it does not solve them, but, on the contrary, even aggravates them, aligning its argumentation scheme with the evidence of the Italian government and placing some far from indisputable factual and legal considerations as the basis of its decision. Instead, the Court could opt for a decision that could effectively use the principle of pluralism, which is considered the true purpose of the State neutrality obligation, and declare a violation of the convention obligation in the case of a State-imposed display of a religious symbol, if it is allowed to be placed at the request of students or parents. The Court could also choose a pragmatic solution, that is, one according to which the demonstration of the crucifixion is a violation of the Convention if the State does not provide an exemption mechanism that protects the freedom to believe or disbelieve, as protected by article 9 of the Convention.

As we have seen, the Grand Chamber chose to place this case in a different row. The Lautsi judgment allows us to offer the following arguments concerning the specifics of the relationship between law, religion and politics in the European public sphere.

Grand Chamber ruling, especially after the recent controversy surrounding Hirst v. United Kingdom ³⁰,

^29. See County of Allegheny C. ACLU, 492 U.s. 573, 1989, 627 (opinion of Judge O'Connor).

^30. See Hirst C. Regno Unito, Corte EDU, 6/10/2005 (no. 74025/01), concerning the denial of voting rights to prisoners in the United Kingdom. The Court's decision, which found a violation of paragraph 3 of the Convention, caused a sharp controversy in British society, so that on February 10, 2011, the House of Commons filed a complaint against the Court.-

First of all, it concerns the implementation of the protection of human rights by the European system, as well as the special role of the Court, which seems to be increasingly acquiring an "almost constitutional" nature. ³¹ From this point of view, as N. Colaianni points out, "the question of the crucifixion has become a casus belli33

The Lautsi case was decided by the Grand Chamber in favour of national law. In this particular case, it should be emphasized that court cases concerning the role of religious symbols in the public sphere are not only a rich subject for study, but also synthesize centuries of internal conflicts between European and Eastern civilizations. ³⁴ Today, they are the means by which the European community finds its own new features and asks questions about its own identity and the role of religion in shaping this identity. From this point of view, the prospect of an "Alliance against Secularism"³⁵ speaks of new and unexpected rapprochements-

By an overwhelming majority (234 against 22), it adopted a resolution disapproving of the ECtHR verdict. The British resolution was followed by criticism from the President of the European Court of Human Rights, Jean-Paul Costa, who declared such an attitude unacceptable. See Watt N. Prisoners Vote Refuse against the European Court "would be like dictatorship" / / The Guardian. February 16, 2011; also Murphy S. British Political Populism Risks Conflict with Europe over Human Rights Court//The Guardian. 17 February 2001.

^31. See Wildhaber L. A Constitutional Future for the European Court of Human Rights?// Human Rights Law Journal. 2002. P. 161 - 165.

^32. Casus belli (Latin) - a military incident that can lead to war. - Approx. ed.

^33. See Colaiani N. Il crocifisso in giro per l'Europa: da Roma a Strasburgo (e ritorno). P. 25.

^34. As White Jr. has shown, " Cases of religious symbols are a serious matter. It is easy to criticize them as just "much ado about nothing" or a hobby for cultural grumblers or those who like to argue about public interests. But with such a view, we underestimate the exceptional luxury that we now have in the West: the ability to fight our own cultural battles on religious symbols in courts and academies, rather than on the streets and battlefields. In the past centuries, in the West - and in many regions today - controversies about religious symbols have often led to violence, and sometimes to all-out war." См. Wittejr. J. Lift High the Cross? Religion in Public Spaces.

^35. См. Puppnick G. Un'alleanza contro il secolarismo//L'Osservatore Romano. 22 luglio 2011. According to Pappnik, the open support of the Italian government from many Eastern European countries is the result of the strong influence of the Moscow Patriarchate: "In response to Patriarch Kirill's call to ' unite Christian churches before the onslaught of secularism', Metropolitan Ilari-

religious leaders who seek to influence not only conflicts related to the presence of religious symbols in the public sphere, but also - as the cultural clash over the Manhattan Declaration ³⁶ has shown in the United States - more important topics of public debate about the delicate relationship between the protection of fundamental rights and religious morality.

Translated from Italian by Isabella Levina

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