Commentary on the case of Lautsi v Italy of the European Court of Human Rights

In the case of Lautsi v Italy, the applicants claimed that the display of crucifixes in the classrooms of primary schools was contrary to freedom of religion and the right to education as protected by Article 2 of the Protocol No.1 of the ECHR.[1] In that case the Grand Chamber of the European Court of Human Rights ("ECtHR") overruled the judgment of the Chamber and held that there has been no violation on behalf of Italy.[2]

Precisely, the Grand Chamber justified its ruling on the basis that the crucifix has no impact on young students whilst it had also took into account the fact that the crucifix is a symbol that corresponds to the identity and history of Italy.[3] The ECtHR granted a wide margin of appreciation to Italy and suggested that it is for the contracting states to decide on issues related to their cultural and historical development because there is a considerable diversity between them.[4]

Apart from this, the Court alleged that the crucifix is a ‘passive symbol’ and, therefore it does not violate the obligation of the states to be neutral and impartial.[5] The Court acknowledged that the states have a positive obligation to provide students information and knowledge that is objective, critical and pluralistic but it concluded that the presence of a crucifix in the classroom does not amount to a mandatory teaching about Christianity.[6] Additionally, Judge Bonello in his concurring opinion argued that the ECHR does not require states to be secular, namely to be completely separate from the Church, because this is not what freedom of religion is about.[7] He explained that neutrality is not the same as secularism and emphasised that the removal of the crucifix would not be neutral but ‘’a positive and aggressive espousal of agnosticism or of secularism’’.[8]

Commentary 

The case of Lautsi has received considerable criticism. To my view, its most controversial aspect is the fact that the ECtHR departed from its previous position in relation to the wearing of headscarf in classrooms. Precisely, in the case of Dalhab the ECtHR rejected the position of the applicant, a school teacher, that the restriction of her ability to wear a headscarf in the classroom was a violation of her freedom of religion, on the ground that as representative of the state she should not wear a ‘powerful external symbol’ that could threaten the neutrality of the education system.[9] In that case the Court acknowledged that for three years there have been no complaints by the parents against the teacher, nonetheless it went on to allege that the wearing of a headscarf could potentially have some kind of proselytising impact on students.[10]

In fact, it is not relatively clear why the presence of a crucifix on the wall of a school is consistent with principle of neutrality but the wearing a headscarf is not. The justification given by the ECtHR in Lautsi as to why that case was different from Delhab does not clarify the matter, since the Court merely asserted that the prohibition of the headscarf was intended ‘’to apply the principle of denominational neutrality in schools enshrined in domestic law’’.[11]

If the real reason behind this approach is that the headscarf is a ‘powerful external symbol’ whereas the crucifix is a ‘passive symbol’, something that in any case was not mentioned by the Grand Chamber in Lautsi, then it could be argued that it is unacceptable for the principle of neutrality to be used in order to restrict symbols of Islam but not symbols of Christianity.[12] The actual proselytising effect of these symbols, if any, had not been established with evidence in the Court and, thus, the conclusion of the ECtHR in both cases was based on assumptions. Besides, before evaluating whether some symbols are more neutral than others and whether this distinction has any relevance at all, we should ask what the duty of neutrality entails and what the exact obligations of the states under the ECHR are.

This article has been written by Chara Palekythriti, Lawyer - Legal Consultant ©

Disclaimer: This article is for informative purposes only and does not constitute legal advice, opinion or otherwise.

[1] Lautsi v Italy App no 30814/06 (ECtHR, 18 March 2011).

[2] ibid paras [77], [78].

[3] ibid paras [66], [67].

[4] ibid paras [68].

[5] ibid paras [60], [72].

[6] ibid paras [62], [74]

[7] ibid para [2.4] (concurring).

[8] ibid para [2.10] (concurring).

[9] Dalhab v Switzerland App no 42393/98 (ECtHR, 15 February 2001).

[10] ibid.

[11] Lautsi (n 28) para [73].

[12] Lorenzo Zucca, 'Lautsi: A Commentary on a Decision by the ECtHR Grand Chamber' (2013) 11 Int'l J Const L 218, 220 – 221.