"It would have been quite bizarre, in my view..."

Vorige week heeft de Grote Kamer van het Europese Hof voor de Rechten van de Mens in Straatsburg met vijftien stemmen tegen twee vastgesteld dat het niet in strijd is met het recht op opvoeding als er in een klas op een Italiaanse school een kruisbeeld hangt. Naast de algemene motivering hebben in Straatsburg de rechters de gelegenheid - ook als ze het met het eindoordeel eens zijn - bij wijze van concurring opinion een eigen motivering aan het oordeel toe te voegen. We publiceren hier de tekst van de concurring opinion van rechter Giovanni Bonello:

1.1 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”.
1.2 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.
1.3 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.
1.4 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. Like it or not, the perfumes and the stench of history will always be with you.
1.5 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.
1.6 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.

What rights? Freedom of religion and conscience?

2.1 The issues in this controversy have been fudged by a deplorable lack of clarity and definition. The Convention enshrines the protection of freedom of religion and of conscience (Article 9). Nothing less, obviously, but little more.
2.2 In parallel with freedom of religion, there has evolved in civilised societies a catalogue of noteworthy (often laudable) values cognate to, but different from, freedom of religion, like secularism, pluralism, the separation of Church and State, religious neutrality, religious tolerance. All of these represent superior democratic commodities which Contracting States are free to invest in or not to invest in, and many have done just that. But these are not values protected by the Convention, and it is fundamentally flawed to juggle these dissimilar concepts as if they were interchangeable with freedom of religion. Sadly, traces of such all but rigorous overspill appear in the Court's case-law too.
2.3 The Convention has given this Court the remit to enforce freedom of religion and of conscience, but has not empowered it to bully States into secularism or to coerce countries into schemes of religious neutrality. It is for each individual State to choose whether to be secular or not, and whether, and to what extent, to separate Church and governance. What is not for the State to do is to deny freedom of religion and of conscience to anyone. An immense, axiomatic chasm separates one prescriptive concept from the other non-prescriptive ones.
2.4 Most of the arguments raised by the applicant called upon the Court to ensure the separation of Church and State and to enforce a regime of aseptic secularism in Italian schools. Bluntly, that ought to be none of this Court's business. This Court has to see that Ms Lautsi and her children enjoy to the full their fundamental right to freedom of religion and conscience. Period.
2.5 The Convention proves to be quite helpful with its detailed and exhaustive inventory of what freedom of religion and conscience really means, and we would do well to keep these institutional constraints in mind. Freedom of religion is not secularism. Freedom of religion is not the separation of Church and State. Freedom of religion is not religious equidistance – all seductive notions, but of which no one has so far appointed this Court to be the custodian. In Europe, secularism is optional, freedom of religion is not.
2.6 Freedom of religion, and freedom from religion, in substance, consist in the rights to profess freely any religion of the individual's choice, the right to freely change one's religion, the right not to embrace any religion at all, and the right to manifest one's religion by means of belief, worship, teaching and observance. Here the Convention catalogue grinds to a halt, well short of the promotion of any State secularism.
2.7 This Court's rather modest function remains that of determining whether the exposure in State schoolrooms of what to some is a Christian symbol and to others a cultural gadget in any way interfered with Ms Lautsi's and her children's basic right to freedom of religion – as defined by the Convention itself.
2.8 I believe anyone could persuasively try to argue that the presence of the crucifix in Italian State schools might possibly offend the doctrine of secularism and that of the separation between Church and State. At the same time I do not believe that anyone can persuasively plead that the presence of a crucifix interfered in any way with the Lautsis' right to profess any religion of their choice, to change their religion, not to have any religion at all or to manifest their beliefs, if any, by worship, teaching and observance, or with their right to reject outright anything they may consider insipid superstitious junk.
2.9 With or without a crucifix on a schoolroom wall, the Lautsis enjoyed the most absolute and untrammelled freedom of conscience and religion as demarcated by the Convention. The presence of a crucifix in a State classroom might conceivably be viewed as a betrayal of secularism and an unjustifiable failure of the regime of separation between Church and State – but these doctrines, however alluring and beguiling, are nowhere mandated by the Convention, nor are they necessary constitutive elements of the freedoms of conscience and of religion. It is for the Italian authorities, not for this Court, to enforce secularism if they believe it forms part, or should form part, of the Italian constitutional architecture.
2.10 Seen in the light of the historical roots of the presence of the crucifix in Italian schools, removing it from where it has quietly and passively been for centuries, would hardly have been a manifestation of neutrality by the State. Its removal would have been a positive and aggressive espousal of agnosticism or of secularism – and consequently anything but neutral. Keeping a symbol where it has always been is no act of intolerance by believers or cultural traditionalists. Dislodging it would be an act of intolerance by agnostics and secularists.
2.11 Millions of Italian children have, over the centuries, been exposed to the crucifix in schools. This has neither turned Italy into a confessional State, nor the Italians into citizens of a theocracy. The applicants have failed to unfurl before the Court any evidence at all that those exposed to the crucifix forfeited in any way their complete freedom to manifest their individual and personal religious belief, or their right to repudiate any religion. The presence of a crucifix in a schoolroom does not seem to have hindered any Italian in his or her liberty to believe or to disbelieve, to embrace atheism, agnosticism, anti-clericalism, secularism, materialism, relativism, or doctrinaire irreligion, to recant, apostatise, or to embrace whatever creed or “heresy” of their choice they find sufficiently appealing, with the same vigour and gusto others freely embrace a Christian faith. Had any such evidence been adduced, I would have been strident in my voting for finding a violation of the Convention.

What rights? Right to education?

3.1 Article 2 of Protocol No. 1 guarantees the right of parents to ensure that the teaching their children receive is in conformity with their own religious and philosophical convictions. The Court has to supervise and ensure respect for this right.
3.2 Does the mere silent and passive presence of a symbol in a classroom in an Italian school amount to “teaching”? Does it hinder the exercise of the guaranteed right? Try hard as I might, I fail to see how. The Convention specifically and exclusively bans any teaching in schools unwelcome to parents on religious, ethical and philosophical grounds. The keyword of this norm is obviously “teaching” and I doubt how far the mute presence of a symbol of European cultural continuity would amount to teaching in any sense of that fairly unambiguous word.
3.3 In my view, what the Convention prohibits are any indoctrination, arrant or devious, the aggressive confiscation of young minds, invasive proselytism, the putting in place by the public educational system of any obstacle to the avowal of atheism, agnosticism or alternative religious options. The mere display of a voiceless testimonial of a historical symbol, so emphatically part of the European heritage, in no way amounts to “teaching”, nor does it undermine in any meaningful manner the fundamental right of parents to determine what, if any, religious orientation their children are to follow.
3.4. But, even assuming that the mere existence of a mute object should be construed as “teaching”, the applicants have failed to answer the far more cardinal question of proportionality, intimately related to the exercise of fundamental rights when these conflict with the rights of others – the weighting to be given to the various competing interests.
3.5 All the parents of all the thirty pupils in an Italian classroom enjoy equally the fundamental Convention right to have their children receive teaching in conformity with their own religious and philosophical convictions, at least analogous to that of the Lautsi children. The parents of one pupil want that to be “non-crucifix” schooling, and the parents of the other twenty-nine, exercising their equally fundamental freedom of decision, want that schooling to be “crucifix” schooling. No one has so far suggested any reason why the will of the parents of one pupil should prevail, and that of the parents of the other twenty-nine pupils should founder. The parents of the twenty-nine have the fundamental right, equivalent in force and commensurate in intensity, to have their children receive teaching in conformity with their own religious and philosophical convictions, be they crucifix-friendly or merely crucifix-indifferent. Ms Lautsi cannot award herself a licence to overrule the right of all the other parents of all the other pupils in that classroom, who want to exercise the same right she has asked this Court to inhibit others from exercising.
3.6 The crucifix purge promoted by Ms Lautsi would not in any way be a measure to ensure neutrality in the classroom. It would be an imposition of the crucifix-hostile philosophy of the parents of one pupil, over the crucifix-receptive philosophy of the parents of all the other twenty-nine. If the parents of one pupil claim the right to have their child raised in the absence of a crucifix, the parents of the other twenty-nine should well be able to claim an equal right to its presence, whether as a traditional Christian emblem or even solely as a cultural souvenir.

An aside

4.1 Very recently, this Court was called upon to determine whether a ban ordered by the Turkish authorities on the distribution of Guillaume Apollinaire's novel Les onze mille verges could be justified in a democratic society. That novel would only fail to qualify as fierce pornography through the most lavish disregard of contemporary standards of morality. Yet the Court manfully saved that smear of transcendental smut on the ground that it formed part of European cultural heritage.
4.2 It would have been quite bizarre, in my view, for this Court to protect and redeem an under-the-counter, over-the-borderline discharge of nauseous obscenity on the ground of its distinctly faint “European heritage” merit, and, in the same breath, deny European heritage value to an emblem recognised over the centuries by millions of Europeans as a timeless symbol of redemption through universal love.

Ware woorden van een wijze rechter. Gelukkig heeft het Hof laten zien dat het althans in hoogste instantie binnen zijn bevoegdheden blijft en rechtvaardige beslissingen neemt.