EHRM, 18-03-2011, nr. 30814/06

The case originated in an application (no. 30814/06) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (‘the Convention’) by an Italian national, Ms Soile Lautsi (‘the first applicant’) on 27 July 2006. In her application she stated that she was acting in her own name and on behalf of her children Dataico and Sami Albertin, then minors. The latter, who have subsequently come of age, confirmed that they wished to remain applicants (‘the second and third applicants’).

The applicants were represented by Mr N. Paoletti, a lawyer practising in Rome. The Italian Government (‘the Government’) were represented by their Agent, Ms E. Spatafora, and their deputy co-Agents, Mr N. Lettieri and Ms P. Accardo.

The application was allocated to the Court's Second Section (Rule 52 § 1 of the Rules of Court). On 1 July 2008 a Chamber of that Section, composed of the following judges: Françoise Tulkens, Antonella Mularoni, Vladimiro Zagrebelsky, Danutė Jočienė, Dragoljub Popović, András Sajó and Işıl Karakaş, decided to give notice of the application to the Government; applying the provisions of Article 29 § 3 of the Convention, it also decided to rule on the admissibility and merits of the application at the same time.

On 3 November 2009 a Chamber of the same Section, composed of the following judges: Françoise Tulkens, President, Ireneu Cabral Barreto, Vladimiro Zagrebelsky, Danutė Jočienė, Dragoljub Popović, András Sajó and Işıl Karakaş, declared the application admissible and held unanimously that there had been a violation of Article 2 of Protocol No. 1, taken together with Article 9 of the Convention, and that it was not necessary to examine the complaint under Article 14 of the Convention.

On 28 January 2010 the Government asked for the case to be referred to the Grand Chamber by virtue of Article 43 of the Convention and Rule 73. On 1 March 2010 a panel of the Grand Chamber granted that request.

The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24.

The applicants and the Government each filed further written observations on the merits.

Leave to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2) was given to thirty-three members of the European Parliament acting collectively, the non-governmental organisation Greek Helsinki Monitor, which had previously intervened before the Chamber, the non-governmental organisation Associazione nazionale del libero Pensiero, the non-governmental organisation European Centre for Law and Justice, the non-governmental organisation Eurojuris, the non-governmental organisations International Committee of Jurists, Interights and Human Rights Watch, acting collectively, the non-governmental organisations Zentralkomitee der deutschen Katholiken, Semaines sociales de France and Associazioni cristiane lavoratori italiani, acting collectively, and the Governments of Armenia, Bulgaria, Cyprus, the Russian Federation, Greece, Lithuania, Malta, Monaco, Romania and the Republic of San Marino.

The Governments of Armenia, Bulgaria, Cyprus, the Russian Federation, Greece, Lithuania, Malta, and the Republic of San Marino were also given leave to intervene collectively in the oral procedure.

A hearing took place in public in the Human Rights Building, Strasbourg, on 30 June 2010 (Rule 59 § 3).

There appeared before the Court:

The Court heard addresses by Mr Nicolò Paoletti, Ms Natalia Paoletti, Mr Lettieri, Mr Albenzio and Mr Weiler.

Holds, by fifteen votes to two, that there has been no violation of Article 2 of Protocol No. 1 and that no separate issue arises under Article 9 of the Convention;

Holds unanimously that there is no cause to examine the complaint under Article 14 of the Convention.

Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 18 March 2011.

Erik Fribergh

Registrar

Jean-Paul Costa

President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

J.-P.C.

E.F.

The main issue to be resolved in this case is the effect of the application of the proportionality test to the facts. Proportionality between, on the one hand, the right of parents to ensure their children's education and teaching in conformity with their own religious and philosophical convictions, and, on the other hand, the right or interest of at least a very large segment of society to display religious symbols as a manifestation of religion or belief. Consequently, both the competing values involved in this case are simultaneously protected by the Convention, through Article 2 of Protocol No. 1 (the lex specialis), read in the light of Article 9 of the Convention, in so far as the parents are concerned, and Article 9 of the Convention, in so far as society's rights are concerned.

Concerning, first, the parents' right, the Court's judgment underlines that the word ‘respect’ in the second sentence of Article 2 of Protocol No. 1 ‘means more than ‘acknowledge’ or ‘take into account’; in addition to a primarily negative obligation, it implies some positive obligation on the part of the State’ (see paragraph 61 of the judgment). Yet the respect due to the parents, even in the form of some positive obligation, ‘does not prevent States from imparting through teaching or education information or knowledge of a directly or indirectly religious or philosophical kind. It does not even permit parents to object to the integration of such teaching or education in the school curriculum’ (see paragraph 62).

This last reference to the Convention's case-law needs, I think, some further analysis. It is indisputable that Article 2 of Protocol No. 1 enshrines the fundamental right to education: a sacrosanct individual right — which undoubtedly can also be seen from the angle of a social right — that seems to be constantly gaining ground in our European societies. However, while the right to education constitutes one of the cornerstones of the protection of individuals under the Convention, the same cannot be said with equal force, to my mind, of the subordinate right of parents to ensure their children's education in accordance with their religious or philosophical beliefs. Here matters differ considerably, for a number of reasons:

In conclusion, it seems to me that, unlike other guarantees of the Convention, in respect of which the case-law of the Convention has increased the purview of protection, including the right to education, the right of parents, under the second sentence of Article 2 of Protocol No. 1, does not seem realistically to be gaining weight in the balancing exercise of the proportionality test.

At the other end of the spectrum, representing the other limb of the proportionality equation, lies the right of society, as reflected in the authorities' measure in maintaining crucifixes on the walls of State schools, to manifest their (majority) religious beliefs. Does this right, in the circumstances of the case, override the right of parents to educate their children in accordance with their religion and — more specifically in the circumstances of the present case — their philosophical convictions?

The answer should be given by interpreting the Convention case-law and applying it to the particular circumstances of this case. And the first question which must be settled is the issue of a European consensus. Is there any European consensus on the matter — allowing, imposing or prohibiting the display of Christian religious symbols in State schools — which should determine the position of the Court on the matter?

The answer emerges clearly from this very judgment of the Court, and from the part dealing with the overview of law and practice in the member States of the Council of Europe with regard to the presence of religious symbols in ‘State schools’ (see paragraphs 26 et seq.): there is no consensus among European States prohibiting the presence of such religious symbols, and few States expressly forbid them. There is, of course, a growing trend towards proscribing the possibility of displaying crucifixes in State schools — mainly through rulings of the higher national courts — but the number of States that have adopted measures prohibiting the display of crucifixes in public places and the extent of domestic judicial activity do not allow the Court to presume that a consensus has been reached against displaying them. This is particularly true if one takes into account that there are a number of States in Europe where the Christian religion is still the official or predominant religion and, moreover, as I have just underscored, that a number of States clearly allow, through their law or practice, crucifixes to be displayed in public places.

It should be observed here, while we are on the subject of a consensus, that the Court is a court of law, not a legislative body. Whenever it embarks on a search for the limits of the Convention's protection, it carefully takes into consideration the existing degree of protection at the level of the European States; it can, of course, afford to develop that protection at a level higher than the one offered by a specific respondent State, but on condition that there are strong indications that a great number of other European States have already adopted that degree of protection, or that there is a clear trend towards an increased level of protection. That principle cannot positively apply in the present case, although there is admittedly an emerging trend towards prohibiting the display of religious symbols in public institutions.

In view of the fact that there is still a mixed practice among European States on the issue, the only remaining guidance for the Court in achieving the correct balance between the rights involved comes from its prior case-law. The keywords deriving from the prior case-law are ‘neutrality and impartiality’. As the Court has noted in the present judgment, ‘States have responsibility for ensuring, neutrally and impartially, the exercise of various religions, faiths and beliefs. Their role is to help maintain public order, religious harmony and tolerance in a democratic society, particularly between opposing groups’ (see paragraph 60, in fine).

It is, I think, indisputable that the display of crucifixes in Italian State schools has a religious symbolism that has an impact on the obligation of neutrality and impartiality of the State, despite the fact that in a modern European society symbols seem to be gradually losing the very important weight that they used to have in the past and more pragmatic and rationalistic approaches now determine, for large segments of the population, the real social and ideological values.

The question which therefore arises at this juncture is whether the display of the crucifix not only affects neutrality and impartiality, which it clearly does, but whether the extent of the transgression justifies a finding of a violation of the Convention in the circumstances of the present case. Here I conclude, not without some hesitation, that it does not, in accordance with the main reasoning of the Court's approach and, more particularly, the role of the majority religion of Italian society (see paragraph 71), the essentially passive nature of the symbol, which cannot amount to indoctrination (see paragraph 72), and also the educational context within which the crucifix appears on the walls of State schools. As the judgment has pointed out, ‘[f]irstly, the presence of crucifixes is not associated with compulsory teaching about Christianity … Secondly … Italy opens up the school environment in parallel to other religions. The Government indicated in this connection that it was not forbidden for pupils to wear Islamic headscarves or other symbols or apparel having a religious connotation; alternative arrangements were possible to help schooling fit in with non-majority religious practices; … and optional religious education could be organised in schools for ‘all recognised religious creeds’…’ (see paragraph 74 of the judgment). These elements, demonstrating a religious tolerance which is expressed through a liberal approach allowing all religions denominations to freely manifest their religious convictions in State schools, are, to my mind, a major factor in ‘neutralising’ the symbolic importance of the presence of the crucifix in State schools.

I would also say that this same liberal approach serves the very concept of ‘neutrality’; it is the other side of the coin from, for example, a policy of prohibiting any religious symbols from being displayed in public places.

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. No supranational court has any business substituting its own ethical mock-ups for those qualities that history has imprinted on the national identity. On a human rights court falls the function of protecting fundamental rights, but never ignoring that ‘customs are not passing whims. They evolve over time, harden over history into cultural cement. They become defining, all-important badges of identity for nations, tribes, religions, individuals’. 1.

A European court should not be called upon to bankrupt centuries of European tradition. No court, certainly not this Court, should rob the Italians of part of their cultural personality.

I believe that before joining any crusade to demonise the crucifix, we should start by placing the presence of that emblem in Italian schools in its rightful historical perspective. For many centuries, virtually the only education in Italy was provided by the Church, its religious orders and organisations — and very few besides. Many, if not most schools, colleges, universities and other institutes of learning in Italy had been founded, funded, or run by the Church, its members or its offshoots. The milestones of history turned education and Christianity into almost interchangeable notions, and because of this, the age-old presence of the crucifix in Italian schools should come as no shock or surprise. In fact, its absence would have come as a surprise and a shock.

Until relatively recently, the ‘secular’ State had hardly bothered with education, and, by default, had delegated that primary function to Christian institutions. Only slowly did the State start assuming its responsibilities to educate and to offer the population some alternatives to a virtual religious monopoly on education. The presence of the crucifix in Italian schools only testifies to this compelling and millennial historical reality — it could loosely be said that it has been there since schools have been there. Now, a court in a glass box a thousand kilometres away has been engaged to veto overnight what has survived countless generations. The Court has been asked to be an accomplice in a major act of cultural vandalism. I believe William Faulkner went to the core of the issue: the past is never dead. In fact it is not even past.2. Like it or not, the perfumes and the stench of history will always be with you.

It is uninformed nonsense to assert that the presence of the crucifix in Italian schools bears witness to a reactionary fascist measure imposed, in between gulps of castor oil, by Signor Mussolini. His circulars merely took formal notice of a historical reality that had predated him by several centuries and, pace Ms Lautsi's anti-crucifix vitriol, may still survive him for a long time. This Court ought to be ever cautious in taking liberties with other peoples' liberties, including the liberty of cherishing their own cultural imprinting. Whatever that is, it is unrepeatable. Nations do not fashion their histories on the spur of the moment.

The scansion of the Italian school calendar further testifies to the inextricable historical links between education and religion in Italy, obstinate ties which have lasted throughout the centuries. School children to the very present day toil on the days consecrated to the pagan gods (Diana/Luna, Mars, Hercules, Jove, Venus, Saturn) and rest on Sunday (domenica, the day of the Lord). The school calendar apes the religious calendar closely — holidays double the Christian ones: Easter, Christmas, Lent, Carnival (carnevale, the time when church discipline allowed the consumption of meat), the Epiphany, Pentecost, the Assumption, Corpus Domini, Advent, All Saints, All Souls: an annual cycle far more glaringly non-secularist than any crucifix on any wall. May it please Ms Lautsi, in her own name and on behalf of secularism, not to enlist the services of this Court to ensure the suppression of the Italian school calendar, another Christian-cultural heritage that has survived the centuries without any evidence of irreparable harm to the progress of freedom, emancipation, democracy and civilisation.

This case raises issues as to the scope of certain provisions of the Convention and the Grand Chamber's rectification of a number of errors in the Chamber's Judgment was both necessary and appropriate. The core correction consists in the finding that the decision as to whether crucifixes should be present in state-school classrooms is, in principle, a matter falling within the margin of appreciation of a respondent state (§ 70). In exercising its supervisory role, the Court has confirmed its earlier case law1. to the effect that the ‘preponderant visibility’ within a school environment which a state may confer on a country's majority religion is not, in itself, sufficient to indicate a process of indoctrination such as would establish a breach of the requirements of Article 2 of Protocol No. 1 (§ 71).

The Grand Chamber has also corrected the rather speculative conclusion in the Chamber judgment (see § 55) as to the ‘particularly strong’ risk of emotional disturbance which the presence of a crucifix may pose to children of minority religions or none. Given the critical role of ‘evidence’ in any Court proceedings, the Grand Chamber has correctly noted that there was no evidence opened to the Court to indicate any influence which the presence of a religious symbol may have on school pupils (§ 66). While acknowledging as ‘understandable’ the first applicant's perception of a lack of respect for her rights, the Grand Chamber has confirmed that her subjective perception is not sufficient to establish a breach of Article 2 of Protocol No 1. The first applicant may have taken offence at the presence of a crucifix in classrooms but the existence of a right ‘not to be offended’ has never been recognised within the Convention. In reversing the Chamber's judgment, the Grand Chamber does no more than confirm a body of settled jurisprudence (notably under Article 10) which recognises that mere ‘offence’ is not something against which an individual may be immunized by law.

However, there was another fundamental and, in my view, erroneous conclusion in the Chamber's Judgment upon which the Grand Chamber did not comment and which, to my mind, merited clarification. The Chamber referred, correctly, to the State's duty to uphold confessional neutrality in public education (§ 56). However, it proceeded, to conclude, incorrectly, that this duty required the effective preference or elevation of one ideology (or body of ideas) over all other religious and/or philosophical perspectives or world views. Neutrality requires a pluralist approach on the part of the State, not a secularist one. It encourages respect for all world views rather than a preference for one. To my mind, the Chamber Judgment was striking in its failure to recognise that secularism (which was the applicant's preferred belief or world view) was, in itself, one ideology among others. A preference for secularism over alternative world views—whether religious, philosophical or otherwise—is not a neutral option. The Convention requires that respect be given to the first applicant's convictions insofar as the education and teaching of her children was concerned. It does not require a preferential option for and endorsement of those convictions over and above all others.

In his separate opinion, Judge Bonello has pointed to the fact that within the European tradition, education (and, to my mind, the values of human dignity, tolerance and respect for the individual, without which there can be no lasting basis for human rights protection) is rooted, historically, inter alia, within the Christian tradition. To prohibit in public schools, regardless of the wishes of the body politic, the display of a symbol representative of that (or indeed any other religious) tradition and to require of the State that it pursues not a pluralist but a secularist agenda, risks venturing towards the territory of intolerance — a concept that is contrary to the values of the Convention.

The applicants complain of an alleged violation of their rights to freedom of thought, conscience and religion. I can find no interference with their freedom to manifest their personal beliefs. The test of a violation under Article 9 is not ‘offence’ but ‘coercion’.2. That article does not create a right not to be offended by the manifestation of the religious beliefs of others even where those beliefs are given ‘preponderant visibility’ by the State. The display of a religious symbol does not compel or coerce an individual to do or to refrain from doing anything. It does not require engagement in any activity though it may, conceivably, invite or stimulate discussion and an open exchange of views. It does not prevent an individual from following his or her own conscience nor does it make it unfeasible for such a person to manifest his or her own religious beliefs and ideas.

The Grand Chamber has found that the presence of the crucifix is, essentially, a passive symbol and it regards this point as being of great importance having regard to the principle of neutrality. I agree with the Court in this regard insofar as the symbol's passivity is not in any way coercive. However, I would have to concede that, in principle, symbols (whether religious, cultural or otherwise) are carriers of meaning. They may be silent but they may, nevertheless, speak volumes without, however, doing so in a coercive or in an indoctrinating manner. The uncontested evidence before the Court is that Italy opens up the school environment to a variety of religions and there is no evidence of any intolerance shown towards non-believers or those who hold non-religious philosophical convictions. Islamic headscarves may be worn. The beginning and end of Ramadan are ‘often celebrated’. Within such a pluralist and religiously tolerant context, a Christian symbol on a classroom wall presents yet another and a different world view. The presentation of and engagement with different points of view is an intrinsic part of the educative process. It acts as a stimulus to dialogue. A truly pluralist education involves exposure to a variety of different ideas including those which are different from one's own. Dialogue becomes possible and, perhaps, is at its most meaningful where there is a genuine difference of opinion and an honest exchange of views. When pursued in a spirit of openness, curiosity, tolerance and respect, this encounter may lead towards greater clarity and vision as it fosters the development of critical thinking. Education would be diminished if children were not exposed to different perspectives on life and, in being so exposed, provided with the opportunity to learn the importance of respect for diversity.

(Translation)

The Grand Chamber has reached the conclusion that there has not been a violation of Article 2 of Protocol No. 1 on the ground that ‘the decision whether crucifixes should be present in State-school classrooms is, in principle, a matter falling within the margin of appreciation of the respondent State’ (see paragraph 70, and also paragraph 69).

I have difficulty following that line of argument. Whilst the doctrine of the margin of appreciation may be useful, or indeed convenient, it is a tool that needs to be handled with care because the scope of that margin will depend on a great many factors: the right in issue, the seriousness of the infringement, the existence of a European consensus, etc. The Court has thus affirmed that ‘the scope of this margin of appreciation is not identical in each case but will vary according to the context … . Relevant factors include the nature of the Convention right in issue, its importance for the individual and the nature of the activities concerned’.1. The proper application of this theory will thus depend on the importance to be attached to each of these various factors. Where the Court decrees that the margin of appreciation is a narrow one, it will generally find a violation of the Convention; where it considers that the margin of appreciation is wide, the respondent State will usually be ‘acquitted’.

In the present case it is by relying mainly on the lack of any European consensus that the Grand Chamber has allowed itself to invoke the doctrine of the margin of appreciation (see paragraph 70). In that connection I would observe that, besides Italy, it is in only a very limited number of member States of the Council of Europe (Austria, Poland, certain regions of Germany (Länder) — see paragraph 27) that there is express provision for the presence of religious symbols in State schools. In the vast majority of the member States the question is not specifically regulated. On that basis I find it difficult, in such circumstances, to draw definite conclusions regarding a European consensus.

With regard to the regulations governing this question, I would point out in passing that the presence of crucifixes in Italian State schools has an extremely weak basis in law: a very old royal decree dating back to 1860, then a fascist circular of 1922, and then royal decrees of 1924 and 1928. These are therefore very old instruments, which, as they were not enacted by Parliament, are lacking in any democratic legitimacy.

What I find more important, however, is that where they have been required to give a ruling on the issue, the European supreme or constitutional courts have always, without exception, given precedence to the principle of State denominational neutrality: the German Constitutional Court, the Swiss Federal Court, the Polish Constitutional Court and, in a slightly different context, the Italian Court of Cassation (see paragraphs 28 and 23).

Be that as it may, one thing is certain: the doctrine of the margin of appreciation should not in any circumstances exempt the Court from the duty to exercise the function conferred on it under Article 19 of the Convention, which is to ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto. Now, the wording of the second sentence of Article 2 of Protocol No. 1 confers a positive obligation on States to respect the right of parents to ensure education and teaching in conformity with their own religious and philosophical convictions.

That positive obligation derives from the verb ‘respect’, which appears in Article 2 of Protocol No. 1. As the Grand Chamber has rightly pointed out, ‘in addition to a primarily negative undertaking, this verb implies some positive obligation on the part of the State (see paragraph 61). Such a positive obligation can, moreover, also be inferred from Article 9 of the Convention. That provision can be interpreted as conferring on States a positive obligation to create a climate of tolerance and mutual respect among their population.

Can it be maintained that the States properly comply with that positive obligation where they mainly have regard to the beliefs held by the majority? Moreover, is the scope of the margin of appreciation the same where the national authorities are required to comply with a positive obligation and where they merely have to comply with an obligation of abstention? I do not think so. I incline, rather, to the view that where the States are bound by positive obligations their margin of appreciation is reduced.

In any event, according to the case-law, the margin of appreciation is subject to European supervision. The Court's task then consists in ensuring that the limit on the margin of appreciation has not been overstepped. In the present case, whilst acknowledging that by prescribing the presence of crucifixes in State-school classrooms the regulations confer on the country's majority religion preponderant visibility in the school environment, the Grand Chamber has taken the view that ‘that is not in itself sufficient, however, to … establish a breach of the requirements of Article 2 of Protocol No. 1’. I cannot share that view.

We now live in a multicultural society, in which the effective protection of religious freedom and of the right to education requires strict State neutrality in State-school education, which must make every effort to promote pluralism in education as a fundamental feature of a democratic society within the meaning of the Convention.2. The principle of State neutrality has, moreover, been expressly recognised by the Italian Constitutional Court itself, in whose view it flows from the fundamental principle of equality of all citizens and the prohibition of any discrimination that the State must adopt an attitude of impartiality towards religious beliefs.3.

The second sentence of Article 2 of Protocol No. 1 implies that the State, in fulfilling the functions assumed by it in regard to education and teaching, must take care that knowledge is conveyed in an objective, critical and pluralistic manner. Schools should be a meeting place for different religions and philosophical convictions, in which pupils can acquire knowledge about their respective thoughts and traditions.

These principles are valid not only for the devising and planning of the school curriculum, which are not in issue in the present case, but also for the school environment. Article 2 of Protocol No. 1 specifies that in the exercise of any functions which it assumes in relation to education and to teaching the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions. In other words, the principle of State denominational neutrality applies not only to the content of the curriculum, but the whole educational system. In the case of Folgerø the Court rightly pointed out that the duty conferred on the States under that provision ‘is broad in its extent as it applies not only to the content of education and the manner of its provision but also to the performance of all the ‘functions’ assumed by the State’.4.

This view is shared by other both domestic and international bodies. Thus, in its General Comment No. 1, the United Nations Committee on the Rights of the Child has affirmed that the right to education refers ‘not only to the content of the curriculum, but also the educational processes, the pedagogical methods and the environment within which education takes place, whether it be the home, school, or elsewhere’5., and also that ‘the school environment itself must thus reflect the freedom and the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups’.6.

The Supreme Court of Canada has also observed that the school environment is an integral part of discrimination-free education: ‘In order to ensure a discrimination-free educational environment, the school environment must be one where all are treated equally and all are encouraged to fully participate.’7.

Religious symbols are indisputably part of the school environment. As such, they might therefore infringe the duty of State neutrality and have an impact on religious freedom and the right to education. This is particularly true where the religious symbol is imposed on pupils, even against their will. As the German Constitutional Court observed in its famous judgment: ‘Certainly, in a society that allows room for differing religious convictions, the individual has no right to be spared from other manifestations of faith, acts of worship or religious symbols. This is however to be distinguished from a situation created by the State where the individual is exposed without possibility of escape to the influence of a particular faith, to the acts through which it is manifested and to the symbols in which it is presented’8.. That view is shared by other supreme or constitutional courts.

Thus, the Swiss Federal Court has found that the duty of denominational neutrality incumbent on the State is of special importance in State schools, where schooling is compulsory. It went on to say that, as guarantor of the denominational neutrality of the school system, the State could not, where teaching was concerned, manifest its own attachment to a particular religion, be it a majority or a minority one, because certain people may feel that their religious beliefs are impinged upon by the constant presence at school of the symbol of a religion to which they do not belong.9.

The crucifix is undeniably a religious symbol. The respondent Government argued that, in the context of the school environment, the crucifix symbolised the religious origin of values that had now become secular, such as tolerance and mutual respect. It thus fulfilled a highly educational symbolic function, irrespective of the religion professed by the pupils, because it was the expression of an entire civilisation and universal values.

In my view, the presence of the crucifix in classrooms goes well beyond the use of symbols in particular historical contexts. The Court has moreover held that the traditional nature, in the social and historical sense, of a text used by members of parliament when swearing loyalty did not deprive the oath to be sworn of its religious nature.10. As observed by the Chamber, negative freedom of religion is not restricted to the absence of religious services or religious education. It also extends to symbols expressing a belief or a religion. That negative right deserves special protection if it is the State which displays a religious symbol and dissenters are placed in a situation from which they cannot extract themselves.11. Even if it is accepted that the crucifix can have multiple meanings, the religious meaning still remains the predominant one. In the context of state education it is necessarily perceived as an integral part of the school environment and may even be considered as a powerful external symbol. I note, moreover, that even the Italian Court of Cassation rejected the argument that the crucifix symbolised values independent of a particular religious belief (see paragraph 67).

The presence of crucifixes in schools is capable of infringing religious freedom and schoolchildren's right to education to a greater degree than religious apparel that, for example, a teacher might wear, such as the Islamic headscarf. In the latter example the teacher in question may invoke her own freedom of religion, which must also be taken into account, and which the State must also respect. The public authorities cannot, however, invoke such a right. From the point of view of the seriousness of the infringement of the principle of State denominational neutrality, this will accordingly be of a lesser degree where the public authorities tolerate the headscarf in schools than where they impose the presence of crucifixes.

The impact which the presence of crucifixes may have in schools is also incommensurable with the impact that they may have in other public establishments, such as a voting booth or a court. As the Chamber rightly pointed out, in schools ‘the compelling power of the State is imposed on minds which still lack the critical capacity which would enable them to keep their distance from the message derived from a preference manifested by the State’ (see § 48 of the Chamber judgment).

To conclude, effective protection of the rights guaranteed by Article 2 of Protocol No. 1 and Article 9 of the Convention requires States to observe the strictest denominational neutrality. This is not limited to the school curriculum, but also extends to ‘the school environment’. As primary and secondary schooling are compulsory, the State should not impose on pupils, against their will and without their being able to extract themselves, the symbol of a religion with which they do not identify. In doing so, the respondent Government have violated Article 2 of Protocol No. 1 and Article 9 of the Convention.