This time the decision is final: crucifixes may remain in Italian classrooms, according to the European Court of Human Rights. The 17 judges in Strasbourg on Friday overturned a different ruling ied in November 2009. Now no objection is possible.
The verdict of the Strasbourg judges, led by their president Jean-Paul Costa, was reached by a vote of 15 to 2. But it took them almost nine months to come to a conclusion after the oral hearing at the end of June 2010. Clearly, the judges were aware that they were dealing with a fundamental ie. What is surprising is the large majority with which they contradicted their seven counterparts, who in 2009 had still unanimously represented a contrary view.
Does a mother have to accept that her children are taught in a classroom with a crucifix on the wall?? Italy's highest judges had answered the question with a "yes". They argued that the crucifix had long since become a symbol of Italy's values.
"Clearly religious symbol"
The seven judges of the first instance of the Human Rights Court, on the other hand, declared that the cross is a clearly religious symbol. It has no place in state schools, because the students could feel disturbed in their sensibilities. This made headlines across Europe and led to partly outraged reactions in Italy and other European countries, but also on the part of the Catholic Church.
The final verdict ied on Friday is more than 30 pages long and, as expected, differentiated. The judges conclude that – as with other socially controversial ies – European states have a high degree of discretionary power. They therefore had to decide for themselves how they wanted to deal with crucifixes in classes. The 47 member states of the Council of Europe have different ways of dealing with the problem. The Human Rights Court had already acted in a similar way on ies such as the opening of marriage to same-sex couples, abortion or euthanasia.
The Grand Chamber, however, does not retreat to the position of a mere observer who has nothing to do with the matter. They did not accept the Italian line of argument that it was a time-honored tradition and that the crosses were more a symbol of democratic and civilizing values. Traditions, too, would very well have to submit to scrutiny for their compatibility with the European Convention on Human Rights, they note. And they emphasize that the cross leads to "increased visibility of Christianity in the school environment". It is "above all a religious symbol".
"No indoctrination"
But: As an "essentially passive symbol" this does not yet constitute indoctrination, which would be a prohibition against the Human Rights Convention according to the Strasbourg judges. There are no indications that the authorities are behaving intolerantly toward students of other denominations. Also for instance the carrying of the Islamic head cloth is not forbidden. Earlier, the Human Rights Court had found that it was permissible to give more space in the curriculum to a religion because it had a dominant importance in the history of a country.
The Swiss judge at the Human Rights Court, Giorgio Malinverni, expressed a dissenting reception; his Bulgarian colleague followed him. They argued that states must maintain "strict neutrality" when it comes to religion – and that a cross in the classroom is already too much. Among the 17 judges, however, this position remained a clear minority opinion.
The case is decided – appeal is no longer possible. However, the ie of the separation of religion and state has not been settled yet. For the Strasbourg judges fail to provide guidelines as to where the line is drawn between what they consider permissible "increased visibility" of a religion and what they consider impermissible "indoctrination".