News | Sunday, 08 November 2009

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Myths and misconceptions about the Italy ruling

1. ‘The EHCJ ordered Italy to remove all crucifixes from its schools’

No it didn’t. The court does not have the power to issue direct orders to a sovereign State. The most it can do is determine whether a specific action or circumstance constitutes a human rights violation, and recommend an appropriate remedy.

2. ‘The EHCR is one of the European Union’s institutions.’

No it’s not. This week the European parliament representation felt the need to publicly clarify tis matter. The ECHR based in Strasburg, falls under the aegis of the Council of Europe – of which Malta has been a member since 1964. The EU’s main legal institution is the European Court of Justice in Luxembourg, which is where the European Commission files cases against EU members states for failing to apply European law to its satisfaction.

3. The court action was brought against Italy by a Muslim.

Not at all – the plaintiff was Finnish by nationality and an atheist by religious persuasion. However, an analogous case was brought against an elementary school in L’Abbruzzi in 2003 by naturalised Italian citizen (and founder of the Union of Italian Muslims), Adel Smith. Smith initially won the case, sparking outrage across Italy, only to lose it on appeal. But this week’s ruling is entirely unrelated to this event.

What the Court ruled

The question before the European Court of Human Rights was whether the hanging of crucifixes in State school classrooms infringed on:
1) the right not to be denied an education (and the right for parents to have their children educated in accordance with their religious and other views), and;
2) the right to freedom of thought, conscience and religion.
The ECHR declared that the presence of the crucifix in classrooms “could easily be interpreted by pupils of all ages as a religious sign and they would feel that they were being educated in a school environment bearing the stamp of a given religion.”
While this could be encouraging for religious pupils, it could be disturbing for pupils of religions or were atheists, particularly religious minorities.
By way of the freedom not to believe in any religion, guaranteed by the Convention on Human Rights, pupils are free not to attend religious services or religious education. Therefore this extends to symbols which express a belief, a religion or atheism. The ECHR said “this freedom deserved particular protection if it was the State which expressed a belief and the individual was placed in a situation which he or she could not avoid, or could do so only through a disproportionate effort and sacrifice.”
In delivering judgement, the Court said the government must refrain from imposing beliefs in premises “where individuals were dependent on it”. In particular, it was required to observe “confessional neutrality” in public education, where attending classes is compulsory irrespective of religion, and where the aim should be to foster critical thinking in pupils.
The Court could not agree with the Italian defence that the crucifix – as “positive moral symbol” – could serve the educational pluralism that was essential to the preservation of a “democratic society”.

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