Lautsi & Ors v Italy [2011] ECHR Application No 30814/06 (18 March 2011)
Summary

In this case, the Grand Chamber of the European Court of Human Rights held that crucifixes in Italian State schools do not infringe the art 9 right to religious freedom. The case originated in a dispute between a school and a parent and escalated into an international issue with almost all European countries intervening in the final hearing.

Facts

The applicants, Ms Lautsi and her two children, objected to the display of a crucifix in the classrooms of the children’s State school.

The dispute originated at a school governors’ meeting in 2002, where Ms Lautsi’s husband asked for the crucifixes to be removed. The governors declined this request. This decision was contested and subsequently affirmed in the Administrative Court, the Constitutional Court and the Supreme Administrative Court. Eventually, the applicants brought a case against the Italian Government in the ECHR.

The Government’s arguments

The Government relied on two Royal Decrees (Article 118 of Royal Decree number 965 of 30 April 1924 and Article 119 of Royal Decree number 1297 of 26 April 1928) which prescribed the presence of crucifixes in State schools.

In addition, the Government argued that:

• the crucifix is not only a religious symbol but also a “cultural and identity-linked symbol, the symbol of principles and values which formed the basis of democracy and western civilisation.” (Grand Chamber Judgment at paragraph 36);
• the crucifix is a passive symbol incapable of influencing students merely by its presence;
• since there was no European consensus on the issue, the States have a “wide margin of appreciation” that should be respected by the ECHR;
• the display of a crucifix is consistent with neutrality as it is the expression of one religion alongside others. The Government cited examples of its neutral approach to religion such as allowing students to wear headscarfs, other religious apparel and symbols; and
• permitting the presence of a crucifix protects the prevailing popular feeling.

The applicants’ arguments

The applicants argued that the Government had violated arts 2 and 9 of the European of Human Rights. Article 2 protects the right to education, including a parent’s right to ensure that their children are educated in conformity with their own convictions. Article 9 protects freedom of thought, conscience and religion.

The applicants submitted that these articles, read together, guarantee schoolchildren the right to education in a form which respects their right to believe or not to believe, and guarantees parents the right to ensure that this education conforms with their own convictions.

Further, the applicants submitted that the crucifix is an undeniably religious symbol and its display:

• is an illegitimate interference with their rights under the Convention;
• infringes the principle of educational pluralism by expressing a preference for a particular religion;
• inhibits the development of critical judgment; and
• disregards the State’s obligation to protect minors against indoctrination.

Decision

The Grand Chamber held that there was no violation of the Convention.

The majority judgment concluded that it was for each individual State, not the ECHR, to regulate the display of crucifixes in State schools. The Grand Chamber explained that its only role is to supervise the States to ensure that they do not engage in indoctrination.

The ECHR found that the presence of crucifixes in State schools, does not result in indoctrination on the basis that:

• the crucifix is a passive symbol which “cannot be deemed to have an influence on pupils comparable to that of didactic speech or participation in religious activities” (Grand Chamber Judgment at paragraph 72);
• the crucifix was not accompanied by the compulsory teaching of Christianity; and
• the Italian school environment was open to other religions.

The concurring opinion of Judge Bonello was particularly forceful, as reflected in paragraph 1.1 of his judgment:

A court of human rights cannot allow itself to suffer from historical Alzheimer’s. It has no right to disregard the cultural continuum of a nation’s flow through time, nor to ignore what, over the centuries, has served to mould and define the profile of a people.

Relevance to the Victorian Charter

Section 14 of the Charter (protecting freedom of thought, conscience, religion and belief) provides for similar rights to art 9 of the Convention. Similarly, s 17 of the Charter (protection of families and children) may be construed to include a child’s right to education as provided for in art 2 of the Convention. The Charter does not have a directly equivalent provision protecting a parent’s right to ensure that their child is educated in conformity with their own convictions.

On its face, this decision suggests that that the presence of a crucifix in an Australian State school would not breach the equivalent Charter provisions. However, this decision may not have direct application in Australia, especially given that the Grand Chamber’s judgment relied in part on the cultural and historical significance of the crucifix to the Italian people (in addition to its religious significance to present-day Christians).

Despite this, this decision does provide some guidance as to when religious symbols or activities will be considered by a Court to infringe on a person’s religious freedom. For example, this case is relevant to the current dispute concerning the predominantly Christian religious instruction classes in Australian State schools. The Grand Chamber’s judgment emphasised that the active teaching of Christianity in preference to other religions could infringe a person’s religious freedom.

This decision is at http://www.echr.coe.int/echr/resources/hudoc/lautsi_and_others_v__italy.pdf.

Amy Greenberg, Law Graduate, Mallesons Stephen Jaques Human Rights Law Group