ECHR Crucifix Case: Ten Member States Join Italy in Support of the Crucifix

By ECLJ1275429622007

(Strasbourg, France) -- The European Centre for Law and Justice (ECLJ), which has been admitted as a Third Party (Amicus Curiae) in what's become known as the Italian “crucifix case” before the European Court of Human Rights (ECHR), said today that legal support for display of the crucifix in Italian schools continues to increase.

For the first time in the record of the ECHR, ten member States are simultaneously intervening as ‘third party’ in one single case. The case at stake is the Lautsi case - also known as the “crucifix case” - which will go before the Grand Chamber of the ECHR on June 30th.

The Court has communicated to the ECLJ the list of the following Member States:

  • Armenia;
  • Bulgaria;
  • Cyprus;
  • Greece;
  • Lithuania;
  • Malta;
  • Monaco;
  • San-Marino;
  • Romania;
  • The Russian Federation.

The ten States, out of the 47 of the Council of Europe, have formally asked the Court to be admitted as a “third party” into the procedure before the Grand Chamber of the Court. The “third party” status, also known as “Amicus Curiae,” permits to the States to become an officially party to a case and to submit to the Court their written and oral observations. They are all intervening in support of the Italian State seeking to overturn last November's decision. No State has intervened in support of the Court ruling banning the crucifix.

In addition to the ten member states, several other States took positions against the November 3rd, 2009 decision, even publicly such as Austria and Poland which both made political statements on November 19th and December 3rd 2009 respectively. Twelve NGOs, including the ECLJ, have also been admitted as third party (list below).

The Lautsi case has been referred to the Grand Chamber after the Italian Government appealed (on January 28th, 2010 – see the appeal here) a first decision (see the decision here) issued by the Second Section of the Court last November 3, 2009. In this first decision, the Court ruled that the presence of the crucifix in classrooms is “contrary to parents’ right to educate their children in line with their convictions and to childrens’ right to freedom of religion” because the Italian pupils would feel “educated in a school environment bearing the stamp of a given religion.”

“This is really an important precedent in the practice of the Court because usually, member States abstain from intervening, or intervene only when the case affects a national of their State as permitted by Article 36(1). The Lautsi case is unique and unprecedented. Ten States are in fact explaining to the Court what is the limit of its jurisdiction; what is the limit of its ability to create new “rights” against the will of the member States. This can be viewed as a kind of counter balancing of power,” according the Dr. Gregor Puppinck, Director of the European Centre for Law and Justice.

This particular alliance of member States is also of tremendous importance since it is an unprecedented alliance between Catholics and orthodox countries in the face of the liberal and secularist ideology. Those countries are uniting their forces to protect their religious heritage and freedom, and to reaffirm that the Christian symbols have a natural right to be displayed in public within Christian countries.

“This is culturally and religiously very important,” said Dr. Puppinck. In fact, the orthodox countries do not want to be forced to adopt everything from Western modern culture. They also refuse to return, in the name of Human Rights, to the extreme secularism of the former communist era.

It is true that those States are giving a political answer to the Court ruling, but this political answer is not illegitimate since firstly, the States are the ones that drafted the Convention, and secondly, the November ruling has been perceived as a political decision, exceeding the scope of the competency of the Court by imposing secularization of public schools. The role of the ECHR is to apply the European Convention on Human Rights and to give an interpretation of it. It does not have a general jurisdiction over the national constitutions on any issue related to Human Rights. Its competency is subsidiary and limited to make sure that the 47 Member States properly respect the rights guaranteed in the Convention.

Dr. Gregor Puppinck, who also participates in the work of the Council of Europe’s “Committee of Experts on the reform of the Court” noted that this political move from a consistent number of States has to be understood in the context of the “Interlaken Declaration” from February 2010. In this declaration, adopted in conjunction with the “High Level Conference on the Future of the European Court of Human Rights,” the 47 member States insisted on the subsidiary role of the Court in the application of the Convention. This declaration was already perceived as an answer to the November decision and as a call to the Court to self-restraint. In ruling for the secularization of schools the Court last November went too far into the creation of new obligations on the member States disregarding national sovereignties.

By intervening, the States are explaining that the Court has superseded itself in the creation of rights. Those States explained that it can not be found in the Convention that there are any duties to secularize education in Europe. In fact, the Convention says nothing on the nature of the relationship between the State and the church.

“Laïcité” or secularization is not part of the Convention.”

A large proportion of the member States were confessional when they drafted and signed the Convention and still are. According to the “traditional” case law of the Court, each State is free to organize its relationships with the religions of its county and even to grant privileges to the religion of the majority of its population. No obligation to secularize public schools, even implicit, can found in the Convention.

Until now, rules regarding religious freedom have mainly been elaborated from the ‘western liberal thought’ and this is the model that lead to the November decision. It is now being challenged. The ECLJ contends that it's imperative to develop rules that can acknowledge the cultural and religious diversity of Europe. Those rules may not only grant respect to the rights of the non-believers and of the religious minorities, as it is today, but shall also be able to recognize the rights of the majority religion and to respect the cultural sovereignty of the member States.

Other Interveners are:

  • European Centre for Law and Justice
  • Together, 33 Members of the European Parliament
  • Greek Helsinki Monitor
  • Associazone azionale del libero Pensiero
  • Eurojuris
  • International Commission of Jurists, Interights and Human Rights Watch
  • Together, Zentralkomitee des deutschen Katholiken, Semaines sociales de France et Associazioni critiane lavoratori italiani

In its amicus brief submitted today the ECLJ, made the argument that the religious freedom of the applicant’s children have not been violated by the simple presence of the crucifix in the classroom. In addition the ECLJ’s amicus brief demonstrates that the crucifix cannot be interpreted as indoctrination. It also demonstrates that the court could not create ex nilo a duty of secularization of the educational system.

The European Centre for Law and Justice (ECLJ) is an international law firm focusing on the protection of human rights and religious freedom in Europe and worldwide. The ECLJ is affiliated with the American Center for Law and Justice (ACLJ) which focuses on protecting religious freedom in the United States. Attorneys for the ECLJ have served as counsel in numerous cases before the European Court of Human Rights. Additionally, the ECLJ has special Consultative Status with ECOSOC of the United Nations, and is accredited to the European Parliament.

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