Friday, 18 March 2011

Grand Chamber Judgment in Lautsi: No Violation

Today, the Grand Chamber of the European Court of Human Rights ruled that Italy did not violate the ECHR in the highly publicised case about crucifixes in classrooms in Italian public schools. The judgment in Lautsi v Italy follows two years after an earlier Chamber judgment in the same case and has led to the opposite outcome. The case had been referred to the Grand Chamber at the request of Italy. In a nutshell, the Grand Chamber ruled that the decision whether or not to put crucifixes in classrooms fell within the state's margin of appreciation. Although the cruxifix was above other meanings a religious symbol, the Grand Chamber found no evidence that "the display of such a symbol might have an influence on pupils." It was a rather "passive symbol" as opposed to active teaching on a certain religion or forced participation of students in religious activities. Thus the right to education (article 2 of Protocol one had) in the view of a large majority of the Grand Chamber (fifteen votes to two) not been violated. It held that although the presence of crucifixes made Italy's majority religion visible in classrooms, this as such did not amount to indoctrination.

This is probably the case with the largest number of state party interventions ever to come before the Court so far, including both states, NGOs, members of the European Parliament and others, and also one of the cases with the most elaborate concurring and dissenting opinions (18 pages in total).

The European Parliament Platform for Secularism in Politics has already issued a press release in which they deplore the judgment as a slap in the face for secularism. According to the chair of the platform, Dutch MEP Sophie in 't Veld, "This ruling is effectively scrapping the separation of church and state. The Grand Chamber apparently accepts that governments may impose a particular religion on its citizens. It is shocking that such a medieval practice gets the backing of the Grand Chamber. After centuries of enlightenment, we still have to fight against theocracy."

I still need to read the judgment in more detail, but my first impression is that the Grand Chamber did a better job at cutting this very difficult Gordian knot than the Chamber previously did, with nuance and leaving leeway for future cases in which children do directly suffer from religious pressure in schools and where the European Court would find violations. One might also argue that in the current political climate, with incessant attacks on the Court's jurisprudence in a number of European countries, a highly mediatised judgment as the present one, leaving explicit room for a country's own traditions and margin of appreciation albeit still obviously with the Court guarding the outer limits, is wisely timed from a juridico-political perspective.

For my earlier comments on the Chamber judgment, see here. For the Court's press release about today's judgment, see here and for the webcast of the hearing in the case before the Grand Chamber, click here.

Undoubtedly, this Grand Chamber judgment will elicit as much or even more discussion than the previous one in the same case.


Tom Zwart said...

Great, Antoine, that you already pay attention to the judgment on your blog.

It looks as though the Grand Chamber was sensitive to much of the criticism and outrage that was unleashed by the Chamber decision. Therefore in my view the Court scores high on legitimacy.

To come to this result, the Court had to inflate the margin of appreciation, and to downplay the need to exercise European supervision. In that respect the judgment is not very convincing. It may be true that the crucifix was not linked to compulsory teaching on Christianity and proselytising and that non-Christian symbols like Islamic headscarfs are allowed in schools, but that says nothing on whether crucifixes by themselves violate the Convention. The suggestion that Mrs. Lautsi can correct the damage done to her children in the way she raises them, will be seen by her as adding insult to injury. The Court in my view scores low on reasoning.

If the Court had relied on the correct interpretation of Article 2FP in the first place, which allows parents to get their children educated in accordance with their religious beliefs, it would have come to the same conclusion. But now the Court had to use an inflated margin of appreciation to undo a bloated interpretation.

I supect that Prime Minister is celebrating tonight, and we all know where that leads to....

Tom Zwart

albert venn dicey said...

Rerely do I with my country ECHR judge, but here I find judge Kalaydjieva and Malinverni's dissent persuasive.

Anonymous said...

The public display of religious symbols has a long standing legal tradition in the United States. The nativity scene in public display cases include Lemon v Kurtzman (1971), Lynch v Donnelly (1984), and County of Allegheny v ACLU (1989).

The problem is not secularism v Christianity. The issue should be using public funds and places to endorse a particular religious sector. In this case, the walls of an educational environment.

The difference between the US and the EU is, the US is less likely to break apart simply because of different religious ideologies. Whilst in Europe, such differences could. Also, reading Lautsi along with Sahin v Turkey, Lautsi‘s protection of the mainstream Judeo-Christian view made Judge Tulken’s Islamophobic criticism against the ECtHR even more poignant.

jailhouselawyer said...

It would be too much of a cross to bear if the Grand Chamber allows the UK to challenge Hirst v UK (No2) by way of an appeal in Greens and MT v UK...