Marco Ventura

Law and Religion Beyond National Borders: The Virtue of the European Court of Human R19hts

Marco Ventura - Professor (professore ordinario) at the Faculty of Law, University of Siena (Italy); Professor at the Faculty of Canon Law of Katholieke Universiteit Leuven. marco.ventura@unisi.it

The paper observes the long evolution of the European Court in Strasbourg since the late 1980-s up to early 2010-s, examining, in particular, the logic of court ruling on religion-related conflicts and the protection of religious freedoms. The author shows that the main problems in this field were, among others, the management of the r19hts of majorities (sometimes, the state churches) and minorities (and individuals); the correlation of European norms and principles, based on the Convention of human r19hts, and the different national legal systems, reflecting on special aspects of national and cultural identities. Drawing upon analysis of a few key cases in the Court, the author reveals major trends in the Court's approach to religion-related conflicts.

Keywords: European Court of Human R19hts, religious freedom, state church, state-church legislation, European integration and the margin of appreciation, secularism.

European integration has led to the introduction of new rules, new principles and new types of claims in the field of religious freedom in Europe. European Court of Justice

The article was sent to the editor by the author.

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The European Court of Human Rights in Strasbourg (ECHR) has become increasingly important, especially after the fall of the Berlin Wall and the attack on the Twin Towers in New York. This provoked a reaction from national governments and parliaments, which increasingly challenged the ECtHR's intervention. Many scholars have criticized the extension of European jurisdiction to human rights. The subject of discussion is the functioning of the European justice system. But the very legitimacy of European jurisdiction over religious freedom raises even more questions: in this area, European jurisdiction comes into conflict with the legal systems of individual countries.

In this paper, I will refer only to a few of the many cases that were considered in Strasbourg: I will analyze those cases that seem to me the most significant in the framework of the course of reasoning that I intend to offer the reader. I have covered some other topics in other writings1.

I have divided the text into three sections, each of which corresponds to one of the stages of the most recent phase in the history of the ECtHR's work in the field of religious freedom. The first part concerns the contrast that we can observe after 1989: on the one hand, we have the first violations of religious freedom identified by the European Commission (the Darby case in 1989) and the European Court of Justice (the Kokkinakis cases in 1993, the Larissis cases in 1998, and the Manoussakis cases in 1999), on the other - the persistent defense of religious freedom by national prerogatives (Preminger in 1994 and Wingrow in 1996). During this decade, the premises laid down by the European Commission and the European Court of Justice in the seventies and eighties led to conflicts of interpretation, which particularly relate to national priorities and European subordination-

1. I will allow myself a link to my work, which gives a general vision of the problem: Ventura M. La laicita dell' Unione europea. Diritti, mercato, religione. Torino: Giappichelli, 2001. As for a more direct consideration of the interaction between European and national courts, in this paper I intend to develop the considerations expressed in my other work: Ventura M. La religione tra Corte costituzionale e giurisdizioni europee / / Diritto ecclesiastico e Corte costituzionale/A cura di R. Botta. Napoli: ESI, 2006. P. 367 - 379. In addition, the paper Ventura M. Religione e integrazione europea is devoted to the general problem of correlation between European integration and religious issues.// Lo stato secolarizzato nell'eta post-secolare/A cura di G. E. Rusconi. Bologna: il Mulino, 2008. P. 327-337; and also in this connection, see Ventura M. The Changing Civil Religion of Secular Europe//The George Washington International Law Review. 2010. N. 4. P. 947 - 961.

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This includes the question of discretion, the problem of proportionality of restrictions, and, finally, the competence of the ECtHR regarding the compatibility of a particular system of ecclesiastical law with the Convention on Human Rights (hereinafter referred to as the Convention).

The second part deals with the changes that began after 2000, when the Court's task was to outline the contours of the State as a neutral and impartial organizer, as a result of which it had to deal with the interpretation of the principle of secular organization; I will mainly refer to the Zaoui, Dahlab and Welfare Party cases of 2001, the Grand Chamber's decision on in the case of the "Welfare Party" of 2003 and in the case of Leyla Shaheen, decisions on which were issued in 2004 and 2005.

In the third part, I intend to understand the conflict between the European supervisory system and the national identity of individual States. This tension began with the Folgere and Zengin cases of 2007 and culminated in the Lautsi decision of 2009. In conclusion, I will try to explain why, in my opinion, the ECtHR's judicial practice is of great importance, what is its positive role, and what is the significance of the entire European experience of protecting religious freedom, which turned out to be "stronger" than the protectionism of individual states.

Conflict between the prerogatives of individual States and European jurisdiction after 1989

After the fall of the Berlin Wall in 1989, access to the European Convention for the Protection of Human Rights and Fundamental Freedoms was granted to countries whose experience in the legal and religious spheres was strikingly different from that of other European States. At the same time, after the fall of European communism and the triumph of neoliberalism, religious freedom and relations between different States and churches began to take on a new meaning.

The first violation of religious freedom declared by the European Commission in 1989 and confirmed by the ECHR in 1990,2 the Darby case served as a link between the non - public statements of the European Commission and the European Court of Human Rights.-

2. Darby v. Sweden, European Commission on Human Rights, 9/05/1989 (Application No. 11581/85), ECHR, 23/10/1990.

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There were numerous experiments in this area in the Strasbourg authorities in the 1970s and 1980s, and a rapid upsurge in the 1990s (the Preminger, Wingrow and a number of Greek cases). The Darby case was typical of many cases rejected by the European Commission in the 1980s. It concerned Sweden, a country with a state church and all the resulting problems in terms of infringement of rights. The case began with a motion based on strong personal motivation, but reflecting a broad layer of social tension. It concerned old confessional privileges, over which public opinion was divided. Darby's case was clear in its form: It concerned a rule that was particularly vulnerable to criticism, which, among other things, the State had changed unilaterally without waiting for the Commission's decision. In addition, the Darby case coincided with a turning point in European history - the collapse of communist regimes and the fall of the Berlin Wall.

The petition of the Finnish doctor Peter Darby concerned the obligation to pay a special tax in favor of the state church of Sweden, imposed on him despite the fact that Darby did not belong to this church, but only carried out labor activities on Swedish territory. The law provided for tax exemption for non-Swedish citizens, but only if they were registered as permanent residents in this country. Darby, on the other hand, lived in the Aland Islands, and for many years he had to pay the church tax, until finally, including as a result of his legal action, the relevant amendments to the law were adopted (entered into force in 1987).

In its report of May 9, 1989, the Commission elaborated on the decisions of the 1970s and 1980s and for the first time formulated the principle of compatibility with the Convention of national legal systems based on the recognition of the State status of a particular church. Such systems, the Commission clarified, are not incompatible with the Convention, but only if they guarantee individual freedom of religion.:

The State church system itself cannot be considered to violate article 9 of the Convention. Indeed, a similar system exists in several of the States Parties and already existed in them at the time of the Convention's drafting and their becoming members. However, to meet the requirements of-

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According to article 9, the State church system must provide special guarantees for individual religious freedom. In particular, no one may be forced to join the state church or be prohibited from leaving it.3
Peter Darby found himself in a different situation. He was in the position of a person who did not belong to the church, but was obliged to make certain payments in its favor. In this regard, the Commission considered that article 9 protects the right of an individual not to be forced to engage in activities related to a religion to which he or she does not belong:

In the Commission's view, this right protects anyone from being forced to engage directly in religious activities against their will, if they are not a member of the religious community engaged in such activities. Payment of taxes to the church for its religious activities in the circumstances described above (...) it should be considered as this kind of involvement 4.

From this, according to the Commission, it followed that in the State church system, where the church had the right to a mandatory church tax, article 9 prescribed the creation of mechanisms to protect persons who did not belong to the State church:

Article 9, paragraph 1 (articles 9-1) of the Convention requires the State to respect the religious beliefs of those who do not belong to the Church, in particular by ensuring that they can be exempted from the obligation to make contributions to the church for [financing] its religious activities. 5
In its report of 9 May 1989, the Commission decided by ten votes to three that there had been a violation of article 9 and by nine votes to four that there had been a violation of article 9 in conjunction with article 14. The following year, the European Court of Justice confirmed this decision, but ruled out article D. The ECtHR judges did not mention a single word about the state church system

3. Darby v. Sweden, European Commission on Human Rights, 9/05/1989 (application no. 11581/85), par. 45.

4. Ibid., par. 51.

5. Ibid., par. 58.

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and the violation of Peter Darby's religious freedom. Instead, the case was considered in the context of freedom from discrimination and property rights. On 23 October 1990 the Court unanimously held that only article 14 in conjunction with Article 1 of Protocol No. 1 had been violated:

With regard to the right to exemption from this tax, Mr. Darby's position was considered to be similar to that of other persons who are not members of the Church of Sweden. The Court considered, and the Government accepted, that making a distinction in the exercise of this right between persons formally registered as permanent residents and those who did not have such a status did not have a legitimate purpose under the Convention. There has thus been a violation of article 2 of the Convention in conjunction with article 1 of Protocol No. 1-6.

At the same time that the Commission was investigating Darby's case, the Strasbourg Chancellery received a complaint from Minos Kokkinakis, a Greek member of Jehovah's Witnesses who had been convicted of proselytizing. On 7 December 1990 the Commission declared his application admissible and on 21 February 1992 referred the case to the court. In its famous decision of April 19, 1ddz, the ECHR declared a violation of Article d 7 for the first time since its establishment. This decision was a new, pivotal step; as Judge Pettiti wrote in his dissenting opinion,

The Kokkinakis case is of particular importance. This is the first case that actually concerns freedom of religion submitted to the European Court of Justice since its establishment.8
However, this decision also represented a development of the assumptions that the Strasbourg authorities had laid down in previous years. Thus, the Kjeldsen case provided the basis for defining religious freedom as a fundamental right in a democratic society, which was used in the Kokkinakis case:

6. Darby v. Sweden, ECHR, 23/10/1990 (application no. 11581/85), par. 180 - 181. [A]

7. Kokkinakis v. Greece, ECHR, 19/04/1993 (application no. 14307/88).

8. Ibid.

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As stated in article 9, freedom of thought, conscience and religion is one of the foundations of a "democratic society" as defined in the Convention. In its religious dimension, it is one of the most important elements that make up the identity of believers and their worldview, but it is also the most valuable asset for atheists, agnostics, skeptics and the indifferent. It is the foundation of a pluralism that is inseparable from a democratic society and has been won at great cost over the centuries.9
Although the Kokkinakis decision did not refer to legal precedents, the entire construction of religious freedom presented in it was based on the work of the Strasbourg authorities in the past decades. The ruling made no reference to the Grandarat 10 case, but echoes of the pages of the 1966 decision on the rights of Jehovah's Witnesses were caught between the lines. There were no references to the Handyside case, 11 but the fragment of the Kokkinakis judgment dealing with the balance between individual State discretion and European jurisdiction appears to be a copy from a similar passage in 1976.

The Court has consistently recognized that States parties to the Convention should retain a certain margin of appreciation in assessing the existence and degree of necessity of interference, but that such margin should be subject to European supervision, covering both legislation and decisions applying it-even those made by an independent court. The Court's task is to determine whether the measures taken at the State level are in principle justified and proportionate.12
The Kokkinakis decision was even more closely related to the Darby case - and all the more striking is the lack of reference to it. This silence of the Court is understandable: in the case of Greece, it was impossible to apply the solution that was found in the case of Sweden, namely, to resolve the case concerning religious freedom without allowing it to become a direct subject of the proceedings, i.e., without reference to article D. Both in the case of the state church system in Sweden and in the case of Greece, the ECtHR did not become a cri-

9. Ibid., par. 31.

10. Albert Grandarat v. Federal Republic of Germany, case 2299/1964.

11. Handyside v. Great Britain, ECHR, 7/12/1976, (application No. 5493/72).

12. Kokkinakis v. Greece, par. 47.

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tick the system itself. On the contrary, it even adopted the concept of unacceptable proselytism, 13 even though it contradicted what the judges had stated in their decision regarding the inseparability of the right to promote one's religion and religious freedom in general.14 The violation of article 9 found was limited to the disproportionality of the sentence imposed on Kokkinakis by the Greek court, i.e. the extent to which the ban on proselytism was applied in this particular case.

The novelty of the decision against the State party under article d was balanced by the preservation of the confessionalist system as such. This point was identified and criticized by Judge Pettiti, who is not without reason known as an ardent exponent of the idea of Europe as a territory of human rights. In his dissenting opinion, Pettiti articulated a contradiction in interpretation that was destined to become crucial in the following decades: the contradiction between the ECtHR as a case-by-case court and the ECtHR as a norm-setting court. Pettiti argued in favor of the second option just in connection with the view of the majority of judges in the Kokkinakis case:

I voted with a majority that there was a violation of article 9, (...) But I also believe that the criminal legislation currently applied in Greece to the issue of proselytism is inherently contrary to article 9. (...) In my opinion, the very norm of [Greek] law contradicts article 9. I admit that what is provided for in it can sometimes happen. But the qualification of acts is set out in such a way that it allows you to punish a person at any time for the slightest attempt to convince the interlocutor to share his views. The reasoning behind the majority's decision reduces the case to a question of assessing the actions of a State judicial body in relation to the severity of the penalty imposed, whereas the subject of dispute here is the very principle of punishment. 15
According to Judge Pettiti, this ruling, which would seem to have already gone very far, for the first time imposing sanctions on the state for violations of religious freedom, should

13. Kokkinakis v. Greece, par. 48.

14. Ibid., par. 31.

15. Ibid.

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it was necessary to go much further, condemning the relevant norms themselves, in order to prevent similar violations in the future.

Indeed, the Kokkinakis decision, on the one hand, defined the democratic value of freedom of religion and established Europe as a defender of this freedom with unprecedented force; on the other hand, it highly sanctioned a State system that was itself repressive of freedom of religion, and significantly limited the jurisdiction of the ECHR. This is what the dissenting judge emphasized in his dissenting opinion:

The wording adopted by the majority of the Court to conclude a violation, namely that the punishment of the accused was unjustified, taking into account the circumstances of the case, leaves too wide a field for further repressive interpretation by the Greek judicial authorities in the future, while the way in which criminal proceedings are carried out should also be regulated. harassment. In my opinion, it was possible to define abuses, coercion and deprivation of liberty more precisely, and to outline more satisfactorily the whole field of activity that should be reserved for freedom of religion and testimony of faith16.

The differences between Pettiti and the other justices will be further reflected in similar differences between Governments, plaintiffs, and interpreters. What did the Kokkinakis decision mean? Is the step too long or too short?

The ECHR's silence on legal precedents has affected the interpretation of the case, depriving it of its own history. Of course, the Kokkinakis case was the first of a series of decisions on religious freedom that were directed against Greece and then extended to other Orthodox states, resulting in a real confrontation between the jurisdiction of Strasbourg and the Orthodox experience of state-church relations. But we can say that the Strasbourg jurisdiction was a kind of measure of individual countries ' ability to transform. In Sweden, when the Darby case was discussed, there were protests about-

16. Ibid.

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The state church's privileges were revoked, and a reform was initiated that eventually led to the separation of church and state in 2000. However, Greece, in the era of the Kokkinakis case and other cases of the 1990s, still did not dare to get rid of the confessionalist principles adopted in the 1930s during the Metaxas dictatorship. Spain could serve as a model for comparison: Spain ended the confessionalist dictatorship in the same years as Greece, but in Spain, unlike Greece, the church-state law was modified in accordance with the legal systems of other Western European countries and with the Convention: new articles of the Constitution were adopted; the law on freedom of Religion was adopted. new agreement with the Catholic Church; agreements with other faiths. The punishment of Sweden and Greece for violations based on outdated norms showed that the relationship between the Strasbourg jurisdiction and national legal systems in this area depended on the interpretation of the Convention that the ECtHR chose on the issue of religious freedom in regimes with a State church, but even more so on the degree of development of the national legal systems themselves.

The Kokkinakis case was decided on the eve of the conclusion of the Maastricht Treaty 17. European legal integration became more and more relevant. After the fall of the Berlin Wall, freedom of religion was no longer a hallmark of the democracies of Western Europe, which they all shared, despite their differences. The war in the former Yugoslavia has shown what a national religion that defines identity can mean. The end of the Northern Ireland conflict was still a long way off. According to some, this confirmed and reinforced the need for a European body to harmonize and amend national legal systems, including in the area of freedom of religion. Others, on the contrary, believed that the cause of the conflict was the excessive amount of power in Europe and the bureaucratization that emanated from it, the suppression of the rights of local and national communities, the predominance of political power in Europe.-

17. Treaty of Maastricht (officially known as the "Treaty on European Union") - one of the main constituent documents of the EU, which entered into force on November 1, 1993.

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the recognition of the idea of a "secular Europe" over a religious identity that is integral to many European communities. The Kokkinakis case coincided with the beginning of a period of confrontation between the European-type church law and the national-type church law; the church law of freedom and equality and the church law of different identities and traditions. It wasn't just about different ideologies. It was about specific interests. Large churches and religious majorities, for whom the change in traditional state-church systems meant heavy losses, had more and more reason to fear the Strasbourg authorities; on the contrary, infringed rights of plaintiffs - both believers and non - believers-saw supranational jurisdiction as an opportunity for marginals and members of minorities.

Over the next two years, the ECtHR had to deal with the reaction of governments that were jealous of their own prerogatives and the religious feelings of the majority of the population of their countries, and build a more organic theory of the freedom of discretion of a particular state as a guarantee of protecting the national characteristics of state-church relations. It was in this vein that the Otto Preminger Institute case was decided on August 23, 1994, confirming the decision of the Austrian authorities to seize and confiscate the "blasphemous" film 18. In one passage of the Preminger judgment, the Court invoked the principle of discretion to justify the existence of a dependency of religious freedom on the rights of the majority placed above it:

The Court cannot ignore the fact that the Roman Catholic faith is the religion of the vast majority of Tyroleans. By seizing the film, the Austrian authorities were acting in the interests of ensuring religious peace in the region and to prevent individuals from feeling that their religious beliefs were being targeted for unjustified and offensive attacks. First of all, it is up to the national authorities, who are in a better position than the international Court of Justice, to assess the need for such a measure in the light of the current situation in the given place and time. In all the circumstances of the present case

18. Otto Preminger v. Austria, ECtHR, 23/08/1994 (application No. 13470/87).

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At no time did the Court consider that the actions of the Austrian authorities could be considered as going beyond their discretion in this respect.19
In the 1990s, the religious conflicts that the Strasbourg authorities have faced since the 1960s became more acute. Traditional religions faced a threefold challenge: both more liberal and more conservative forces were attacking from within the churches themselves; on the one hand, opponents of religion had to resist from the outside, and on the other, representatives of religious minorities. In this context, the Preminger case clearly revealed an alternative between a Europe that protects the majority religion, the prerogatives of nation States, and a Europe that supports competition between sovereignties, jurisdictions, and religions. In this alternative, the conflict between secularism and laicism, between secularism and secularism, was once again evident.

On 22 October 1996, the ECtHR decision in the Wingrow 20 case confirmed the trend shown in the Preminger case. As in the case of Austria, the case against Great Britain concerned censorship of a "blasphemous" cinematographic work. In rejecting Nigel Wingrow's appeal, the ECtHR applied the same method as in the case of Preminger, recognizing the state's discretion.:

The Court recognizes that the crime of blasphemy, by its very nature, does not lend itself to a precise legal definition. National authorities should therefore be given flexibility in assessing whether the circumstances of a particular case fit within the accepted definition of the crime in question.21
Of particular note in the Wingrow case is the issue of differing attitudes towards the Church of England and other religions: the law protects only Anglicanism from blasphemy. This wasn't a purely theoretical question. Just five years earlier

19. Otto Preminger vs. Austria, par. 56.

20. Wingrow v. United Kingdom, ECHR, 25/11/1996 (application no. 17419/90).

21. Ibid., par. 42.

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The Commission declared inadmissible the complaint of a British Muslim against Salman Rushdie, who allegedly insulted Islam with his "Satanic Verses", agreeing with the position of the government, which ruled that by law English law protects only Christians, or more precisely, people belonging to the Church of England, from blasphemy.22 In this matter, the ECtHR gave a restrictive interpretation of its powers and theoretically defined the limits of its jurisdiction within the framework of one specific case, without referring to the incompatibility of a particular domestic legal system with the Convention in general:

It is true that English blasphemy laws apply only to the Christian faith. The anomaly of this state of affairs in a multi-confessional society was recognized by the High Court division ( ... ). However, the European Court cannot speak in abstracto about the compatibility of domestic [national] law with the Convention. The extent to which other religions are protected under English law is not a matter for the Court to focus on in this case (...). The indisputable fact that the blasphemy law does not equally regulate the various religions practised in the United Kingdom does not detract from the legitimacy of the objective pursued in the circumstances.23
The Wingrow decision also echoed the doctrine applied in the Darby case concerning compatibility with the Convention and with the State Church, but it also reflected the lack of a European consensus on moral issues. As in the Kokkinakis case, the lack of direct references to legal precedents may have concealed from the analyst the historical perspective of case law in the Strasbourg bodies.

The single line of Strasbourg jurisdiction was again attested to in the Commission's decision in 1998, when it decided to declare inadmissible the complaint of the Sivananda Yoga Vedanta association against the decision of the French tax authorities

22. Choudhary v. United Kingdom, European Commission on Human Rights, 5/03/1991 (application No. 17439/90).

23. Wingrow v. United Kingdom, ECHR, 25/11/1996, (Application no. 17419/90) par. 50.

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to recognize it as a commercial association, and therefore to deny it the status that is granted to religious associations. 24 Articles 9 and 14 were applied in this case as follows::

The Commission notes that this provision does not prohibit any difference in treatment with regard to the exercise of recognized rights and freedoms; equality of rights is violated only if such a difference does not have an objective and reasonable basis (cf. the ECtHR decision in Rasmussen v. Denmark, 28 November 1984, series A N 87, pp. 12, 13, par. 29, 35). The Commission does not consider it possible to recognize that an applicant who does not have the status of a religious organization is in a position similar or comparable to that of religious organizations such as the Catholic Church25.

The emergence of new religious subjects spoke of a new context, clearly demonstrating the inconsistency of the old systems of state-church law with modern conditions and putting judges and interpreters in a difficult position. The application of article 9 increasingly threatened to discriminate against minorities or less widespread religious practices in Western Europe.

On 14 October 1999, the ECtHR issued a judgment in the Riera Blume case, 26 condemning Spain for the unlawful deprivation of liberty and psychological influence ("pro-programming") inflicted on several young people suspected of belonging to a sect. Despite the fact that some of the applicants mentioned an aspect related to freedom of religion, the Court did not consider this aspect, finding only a violation of the right to personal freedom and inviolability enshrined in article 5. Nevertheless, the case epitomized the shifting boundaries of European religious freedom.

Interpreters who were increasingly interested in the case law of the Strasbourg authorities tried their best to understand the meaning of this decision. They looked in vain and groundlessly for signs of a consistent development of judicial practice from-

24. Sivananda Yoga Vedanta v. France, European Commission on Human Rights, 16/04/1998 (application no. 30260/96).

25. Ibid., par. 2 (en droit).

26. Riera Blume v. Spain, ECHR, 14/10/1999 (application No. 37680/97).

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countries, within which their views were formed. Questions of form and content, a detailed analysis of a particular case, and a conflict of fundamental principles intersected here. The court looked technically inaccurate, politically influenced, and insufficiently authoritative. However, criticism in this regard, in turn, was often driven by the critics ' interest in limiting jurisdiction that was inconvenient for the defenders of the status quo. "Europeists", on the other hand, often turned a blind eye to the weakness of the Strasbourg judicial practice and to the manifestations of technical inconsistency in it in cases where, for example, the ECtHR decision stimulated the fight against the church tax in Germany, religious marriage in Italy, the rigid model of secularism in France, and so on.

Understanding that the Court of Justice of the European Union, if requested, could also conflict with the systems of state-church law of individual states; the discussion of the Treaty of Amsterdam 27 and the adoption of Declaration No. 11 28; the beginning of the creation of the European Constitution and the related question of the religious roots of Europe-all this made the work of the Strasbourg bodies even more more politically sensitive. There was not a single value judgment on the case law of the Strasbourg Court, nor a single discussion on the role of Europe in European ecclesiastical law, in which the technical and legal aspect was clearly separated from legal policy.

In the second half of the 1990s, those who feared that European jurisdiction would encroach on national legal and religious specifics received a new reason for concern in connection with decisions on violations of religious freedom in Greece. If you look closely, these decisions did not represent anything particularly new in comparison with previous judicial practice and did not show signs of any particular bitterness towards Greece. The point is not only that the established violations occurred in circumstances whose objective gravity is indisputable. After all, the Court, for its part, about-

27. The Treaty of Amsterdam is a document that significantly amended the Maastricht Treaty on the European Union; it entered into force on 1 May 1999. - Approx. transl.

28. Declaration N and-Annex to the final Act of the Treaty of Amsterdam, which expressed the EU's respect for the status of churches and religious communities, which was recognized by each of the participating States at the time of signing the agreement. - Approx. transl.

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He was extremely careful in his interpretation of Greek laws. In the Manoussakis case, which was decided on 29 August 1996,29 the ECtHR judges refrained from expressing their view on the position of the Greek Government, according to which the oppressed situation of religious minorities and the repression against them were justified by the "national characteristics" of Greece, a State that relies on the Orthodox majority and opposes the"national identity" of the Greek people.dangerous " religious sects for the country 30. The Larissis 31 case concerned the criminal conviction of several Greek military men accused of proselytizing for the Pentecostal Church; here, on 24 February 1998, the Court found a violation of article d, and this part of the case concerning religious freedom was described in great detail.

The cases against Greece brought a number of innovations. Thus, in the 1999 decisions in the Manoussakis and Sherif cases, the ECHR interpreted article 9 in such a way that new aspects of the State's neutrality towards religion were defined. In the Manoussakis case, the ECtHR condemned the Greek system of issuing permits for opening places of worship for religious minorities. After reviewing Greek regulations that provide administrative authorities with broad discretion in assessing religious beliefs, the Court for the first time - and this is a significant innovation - formulated a ban addressed to the State to control the legality of certain religious systems. As for the methodological innovation, the ECtHR has essentially taken a step in the direction indicated by Pettiti: indeed, by putting aside the interpretation of a specific Greek norm, European judges have moved to criticize the entire regulatory structure, going far beyond the analysis of a single case. These two innovations - substantive and methodological-were implemented in a single formulation:

The right to freedom of religion, as guaranteed by the Convention, precludes a State's assessment of the legitimacy of religious beliefs or modes of expression. Therefore, the Court considers that the system

29. Manoussakis v. Greece, ECHR, 29/08/1996 (application No. 18748/91).

30. Ibid., par. 39.

31. Larissis v. Greece, ECHR, 24/02/1998 (application No. 23372/94; 26377/95; 26378/95).

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The procedure for issuing permits established by Law No. 1363/1938 and the Decree of May / June 1939 is compatible with article 9 of the Convention only insofar as it allows the Minister to monitor compliance with the formal conditions provided for in these regulations. 32
In the unanimous decision in Sherif 33 of 14 December 1999, a violation of article 9 was found in the sentencing of the applicant for allegedly usurping the authority of the Mufti of Rhodope (Thrace). The intervention of the Greek State in the internal organization of Thracian Muslims in order to unify them was considered incompatible with the Convention. In this case, the Court also identified a number of new aspects of the restrictions that the Convention imposes on States. In particular, the Court refused to recognize the legitimacy of state intervention aimed at protecting a particular institutional structure of a particular denomination:

The Court does not consider that in democratic societies it is necessary for the State to take measures to ensure that religious communities are brought under unified leadership or that such leadership is maintained. 34
The Court also clarified that the state's performance of its task in religious conflicts cannot lead to the destruction of the coexistence of multiple beliefs, to the "destruction of pluralism":

While the Court recognizes that tension can arise when a religious or any other community is divided, it considers that this is one of the inevitable consequences of pluralism. The role of public authorities in such circumstances is not to eliminate the cause of tension by destroying pluralism, but to ensure that opposing groups treat each other with tolerance.35
32. Manoussakis v. Greece, ECHR, 29/08/1996 (application No. 18748/91), par. 47.

33. Sheriff v. Greece, ECHR, 14/12/1999 (application No. 38178/97).

34. Ibid., par. 52.

35. Ibid., par. 53.

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A year later, in 2000, the ECtHR ruled in the case of Hasan and Ceaush v. Bulgaria 36 in favour of the applicants, finding that Bulgaria's actions had unlawfully interfered with the internal organization of a religious group. This decision was a turning point.

In the late 1990s, the Strasbourg judicial practice was a stratified whole, consisting of principles and techniques that were not always systematic and organic. The contrast between the two trends of judicial activism and cautious pragmatism has become increasingly apparent in the Court's working methods.

If we talk directly about the interpretation of religious freedom, then the Arrowsmith doctrine has been established as a cornerstone: not everything that religion recognizes as proper deserves state protection.37 But around such key concepts as pluralism, equality, secularism, and the state church system, two different trends have emerged and come into conflict. The former pointed to the need for State neutrality in relation to all manifestations of religious phenomena in a democratic, pluralistic, tolerant context, in which the rights of minorities are respected and religious discrimination is subject to the most severe restrictions; the protection of these principles required that European supervision, if necessary, be placed above national prerogatives. Another direction, fueled by globalization and the transformation of Europe into a multicultural space, recognized, on the contrary, the priority of national characteristics, their moral and religious aspects; this direction accepted historical and social inequality between the majority and minorities as a sufficient basis for legal inequality.

In the next decade, the legal and political tension between these two areas will only increase.

36. Hasan and Ceaush v. Bulgaria, ECHR, 26/10/2000 (N30985 / 96).

37. The Commission considered Arrowsmith v. the United Kingdom in 1978, finding that the applicant's pacifist beliefs did not constitute grounds for evading civil duty, including military service, since the term "rites" as used in article 9, paragraph 1, of the Convention did not apply to all acts performed in accordance with the Convention. motivated by or influenced by religion or belief (Arrowsmith v. United Kingdom, European Commission on Human Rights, 12/10/1978 (application No. 7050 / 75), para. 71).

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The problem of secularism and a neutral, impartial State (2001-2005)

The year 2001 promised to be a turning point from the very beginning. On January 18, in their ruling in the Chapman case, European judges expressed their concern that the ECtHR's position is becoming more and more unstable: the Court is forced to oscillate between precedent and interpretation, innovation and the rule of law. The question on the agenda was destined to become extremely relevant in the coming decade: should the ECtHR also strive for the new in a rapidly changing Europe,or should it serve as an anchor that keeps the connection with the past? The answer was a formula of balance, a compromise between two poles - legal guarantees and flexibility of interpretation. January 18, 2001 The Court has developed its own synthesis: on the one hand, precedent, predictability, legal certainty, equality before the law; on the other hand, flexibility:

The Court considers that, although it is not formally bound by its previous decisions, in the interests of legal certainty and predictability, as well as equality before the law, it should not - without good reason - deviate from the precedents established in previous cases. Since the Convention is the basic and supreme system for the protection of human rights, the Court must take into account the changing situation in the States parties to the Convention and respond, for example, to any emerging consensus on the standards to be met. 38
Thus, 2001 began with a crucial question about the role and methodology of the ECtHR. At the same time, it was already clear at the beginning of the year that Islam was coming to the fore, which would call into question the essence of European judicial practice in relation to freedom of religion. On 18 January 2001, the same day as the Chapman judgment, the ECtHR declared the application of Ahmed Zaoui v. Switzerland inadmissible.39 Zaui,

38. Chapman v. the United Kingdom, ECHR, 18/01/2001 (application no. 27238/95), par. 70.

39. Zaoui v. Switzerland, ECtHR, 18/01/2001 (application no. 41615/98).

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A member of Algeria's Islamic Salvation Front party has fled to Europe to escape a death sentence for terrorism. A number of measures were taken against him to restrict his propaganda activities (in particular, his Internet access was blocked), and Zaoui claimed a violation of articles 9 and 10. Of course, this was not the first time that one of the Strasbourg authorities dealt with Islam40. However, the context has changed: Europe has become an arena of political Islamism, and it has become increasingly difficult to come to terms with increasingly large and prominent Islamic groups. Europe increasingly felt the challenge of security and the protection of democracy. Referring to article 9, Ahmed Zaoui pushed the Court to a new boundary between the political and the religious. The challenge before the Court was different from the one that had once arisen in connection with the pacifist Arrowsmith case or with the Vienna associations of Reform Catholics. However, the Court did not distinguish between politics and religion in this case - especially since, as the judges who supported the Swiss authorities admitted, it was impossible to understand the Algerian chaos and determine who was responsible for what. The complaint was declared inadmissible. ECtHR applied the Arrowsmith doctrine: article 9 protected freedom of conscience and religious practices; political propaganda was not part of the concept of religious freedom:

The Court finds that (...) that the confiscation of media used for political propaganda purposes does not affect religious freedom 41.

A month later, on 15 February 2001, the Court issued another decision declaring inadmissible the complaint of a violation of freedom of religion filed by a Muslim woman.42 It was again about Switzerland: the Department of Primary Education of the Canton of Geneva banned-

40.In 1993 the Commission declared inadmissible a complaint by a Turkish student against the decision of the Ankara University administration to refuse to accept a photograph of her wearing a headscarf for her graduation certificate; see Karaduman v. Turkey, European Commission on Human Rights, 3/05/1993 (application no. 16 278/90). The Court later rejected a complaint by a Turkish military officer who wanted to challenge his discharge from the reserve because of his involvement in an Islamist group; see Kalac v. Turkey, ECHR, 23/06/1997 (application No. 20704/92).

41. Ibid., par. 1 (en droit).

42. Dahlab v. Switzerland, ECHR, 15/02/2001 (application no. 42393 / 98).

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lo teacher Lucia Dahlab to wear a headscarf when performing official duties. The State Council of the canton confirmed this measure, and in the course of making the decision, the Swiss judges of the Administrative Court demonstrated their loyalty to the principles of European legal pluralism, taking into account, among other things, the Koran and the European Convention. The decision of the European Court of Human Rights started a period of conflicts of interpretation regarding, on the one hand, the Muslim headscarf and, on the other, religious symbols in general. The approach was not the most successful. The arguments presented by the Court contained lacunae and were inaccurate with regard to the concept of a "strong external symbol" and the alleged harmful influence of this symbol. Indeed, the Court, like the authorities in Geneva, considered that there had been a violation of the rights of the school's students by wearing a headscarf as such, since it had not been allowed to do so.:

...is an established injunction for women, which is formulated in the Koran and which, as the Federal Court noted, is difficult to reconcile with the principle of gender equality. Consequently, it is obviously difficult to reconcile the wearing of a Muslim headscarf with the ideas of tolerance, respect for others and, above all, equality and non-discrimination that all teachers in a democratic society are required to impart to students. 43
This issue will also play a crucial role in the future, when in the Lautsi case, the Court will have to assess the extent to which the mandatory placement of the crucifix in school classrooms can violate the rights of students.

In the Dakhlab case, the Strasbourg judges for the first time directly confronted the principle of secularism. Indeed, the ECtHR recognized the legality of the restriction based, according to the Swiss authorities, on the principle of secularism. Thus, although the Court did not directly examine this principle for its compatibility with the Convention, it ultimately implicitly accepted it. However, neither the Swiss Government nor the Court have outlined this principle. Moreover, the main text in French moved freely from the term "laicite" [secularism] to the term "neutralite confessionnelle" [confessional neutrality], from "neutralite de l'etat"

43. Ibid., no par.

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[state neutrality] to "neutralite religieuse" [religious neutrality]. We see even more confusion in the official English translation. "Le principe de la laicite des ecoles publiques "becomes" the principle that State schools were non-denominational" [the principle that public schools were non-denominational]; a few lines later, the obligation of public schools to "observe the principle of secularism" becomes "to observe the principle of secularism"; finally, the expression " la neutralite de l'etat en matiere de concept religieuse "[the state's neutrality in the sphere of religious beliefs] was rendered as" State's neutrality as regards religious beliefs " [the state's neutrality in the sphere of religious beliefs].

The confusion in the texts was a precursor to the subsequent confusion faced by commentators who questioned the real intentions of the Strasbourg judges behind their references to secularism. Indeed, the differences in terminology referred to shades of meaning, meanings, and concepts that differed significantly depending on the legal culture, vocabulary, and specifics of relations between States and churches in each individual country and, consequently, for each individual interpreter. Thus, the French legal school saw in the reference of Europeans to the concept of "laicite" the inevitable spread of the French model, quite unnecessarily taking for granted that this concept had the same meaning in Europe as in Paris. The German school, on the other hand, saw in the term "laicite" a purely French concept that could not be extended to the whole of Europe. The Anglo-Saxon school was quite alarmed when it found the term "secularism" in the decisions of the European Court of Justice - a synonym for anti-religious polemics, separatism, and challenging the state church.

Terminological ambiguity has become a new embodiment of the contradictions between Europeists and protectionists. The scope of its use in ECtHR decisions was expanded by those who considered recognition of the secular nature of Europe inevitable-

44. The non-denominational status of an institution means that access to it is not restricted to representatives of any one denomination. - Approx. transl.

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This is a new phase in the development of the legal system in the direction of pluralism, a democratic society, restrictions on confessional nationalism, and the protection of minorities.

The Dakhlab decision was the beginning of this trend, 45 but it did not really take off until a few months later, forty days before the attack on the Twin Towers, in the Refah Partiey ("Welfare Parties") case, 46 which again made reference to the principle of a secular society enshrined in the Turkish Constitution. As before, the ECtHR did not declare secularism a general principle deriving from the Convention, limiting itself to a comment on compatibility with the Convention of the Turkish principle on secular society, in connection with which the "Welfare Party" was dissolved on the eve of its triumph in the elections.

While confirming the 2001 decision, in 2003 the Grand Chamber expressed its support for the Turkish principle of secularism in the following way::

The principle of a secular State is undoubtedly one of the fundamental principles of States that are in harmony with the norms of law and respect for human rights and democracy. Views that do not respect this principle (...) they will not have protection (...) by the Convention 47.

The extensive judicial practice of the Strasbourg authorities in previous years caused a lot of criticism for the abuse of synthesis, the use of the shortest paths and for simplifying cases with complex circumstances. In the Dakhlab cases, and in particular the Welfare Party, the Court overreached, issuing a mountain of general information, unverified and not used with due attention.

Not too careful methodology led to the fact that first in the Court, and then among the interpreters, there was a confusion of plans, namely, the Turkish principle of a secular state and the principle of secularism according to the Convention. Shallow knowledge of Turkish

45. Along with the case of Ch'are Shalom Ve Tzedek v. France of 27 June 2000, in which the Court had to deal with the French notion of a secular State. See Ch'are Shalom Ve Tzedek v. France, ECTHR, 27/06/2000 (application no. 27417/95).

46. Refah Partii v. Turkey, ECTHR, 13/02/2003 (complaints no. 41340/98, 41342/98, 41343/98 and 41344/98).

47. Refah Partii v. Turkey, Grand Chamber of the European Court of Human Rights, 13/02/2003 (complaints no. 41340/98, 41342/98, 41343/98 and 41344/98), par. 93.

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this added to the confusion. The Court had become accustomed to being informed about the specific features of a particular country by its government, and usually accepted this information in this form; this was the case, in particular, in Greek cases. But in the case of Turkey, the opposite was true. In order to protect the Turkish principle of a secular state, Ankara was silent about the specifics of the country.

The Strasbourg judges ' assessment of the Turkish principle of laiklik [laicism] was extremely superficial; just as in many other cases - especially in the Darby case report of 1989 - when the Strasbourg authorities decided that systems with a State church were fully compatible with the Convention.

Proponents of expanding the principle of secularism in Europe hailed the two decisions in the Welfare Party case as their victory. But over the next decade, as the Court remained inconsistent on secularism, and Turkey's own evolution to integrate Islamists into the democratic process, this success proved illusory.

The same limitation applies to two ECtHR decisions in 2004 and 2005 in the case of Leyla Sahin 48, a Turkish student who was expelled from Ankara University for refusing to remove her headdress.

As in the case of the" Welfare Party " (and even to a greater extent), the ECtHR did not consider the essential side of the issue of compatibility of the Turkish principle of a secular state with the Convention and reproduced the confusion (including terminology), where secularism, neutrality and impartiality were mixed up. The Court also refused to fulfil its task of providing European oversight, preferring an overly broad application of national discretion. The circumstances of the present case, which seem very sensitive in relation to the prospect of individual religious freedom, have demonstrated the unsatisfactory approach of the Court to the issue of discretion.

However, the most profound limitations of the two decisions in the Leyla Shaheen case were reflected in the method used by the Court to ensure that the restrictive measures tested by the applicant did not violate the second paragraph of article D.

48. Leyla Sahin v. Turkey, ECHR, 29/06/2004 (application No. 44 774/1998) and the Grand Chamber of the ECHR, 10/11/2005.

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This problem was the basis of the dissenting opinion of Judge Tulkens, who did not agree with the rejection of the appeal by the Grand Chamber. Judge Tulkens stressed in this connection that the application of restrictive measures taken against the applicant should have been monitored in concreto:

The Court's analysis had to be carried out in concreto, using three criteria: first, whether the intervention was adequate, by which it should be possible to protect the legitimate interest at risk; second, whether the measure chosen was the least restrictive of the affected right or freedom; and, finally, whether the measure chosen was adequate. a proportionate measure that requires weighing the conflicting interests 49.

Probably, the methodological crisis of the Court was a crisis of the entire system of Strasbourg jurisdiction, which could no longer be satisfied with the technicality and conciseness of the first decades, but was still unable to express the active political position to which it was being pushed by the new phase of European integration. However, this did not prevent the Strasbourg judges from synthesizing a wealth of experience in thinking about the limits of religious freedom in a pluralistic democratic society. The Court referred to its previous cases - long-standing (for example, the Kjeldsen case of 1976), not so long-standing (like the Kokkinakis case of 1994), and quite recent (the case of Hasan and Ceaush v. Bulgaria of 2000 and the Church of the Archdiocese of Bessarabia and Others v. Moldova of 2001,50). And so, in the decision on the "Welfare Party" case of 2003, the Grand Chamber defined the role of the state in relation to religion as follows::

The Court has repeatedly stressed the role of the State as a neutral and impartial organizer of the activities of various religions, creeds and beliefs, and has stated that in a democratic society, this role leads to public order, religious harmony and tolerance. The Court also considers that it is the duty of the State to remain neutral and free from discrimination.-

49. Leyla Sahin v. Turkey, Grand Chamber of the European Court of Human Rights, 10/11/2005 (application No. 44774/1998).

50. Metropolitan Church of Bessarabia and Others v. Moldova, ECtHR, 13/12/2001 (application No. 45701/99).

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passion is incompatible with any authority of the state to assess the legality of certain religious beliefs (...) and that it requires the State to ensure mutual tolerance between conflicting groups.51
As the critical comments on the judicial practice of the period 2001-2005 presented in this paper show, the problem was not so much in the formulation of the principles as in their subsequent application. It is in this respect that the Strasbourg case-law proved unsatisfactory: not in defining the State in relation to religion as a "neutral and impartial organizer" in relation to various religions, creeds and beliefs, but in a consistent and systematic interpretation of this principle.

Conflict between European standards and national identity

As if wanting to change the "vector" of its policy after a series of decisions rejecting complaints against Turkey, since 2007 the Strasbourg Court has moved away from the principles developed by that time - in particular, from the principle of the state as a "neutral and impartial organizer" - and recognized a number of violations of freedom of religion. This phase culminated in the adoption in 2009 of Soile Lautsi v. Italy in the crucifixion case.

The cases in question have little in common; different countries, different conflicts in essence; different legal strategies; appeal to different articles of the Convention. What was common was, first of all, a less accommodating attitude towards Governments and a less cautious, i.e., more limited use of discretion.

In 2007, the ECtHR adopted two applications against Norway and Turkey submitted by parents of children whose freedom of education and freedom of religion, in their opinion, were violated by the relevant public education systems.

51. Refah Partii v. Turkey, Grand Chamber of the European Court of Human Rights, 13/02/2003 (complaints No. 41340/98, 41342/98, 41343/98 and 41344/98), par. 91. This passage was already present in almost identical wording in the 2001 decision, par. 51.

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On 29 June 2007, in the Folgere 52 case, the Grand Chamber declared that the Norwegian authorities had violated the applicants ' (parents and children's) right to education by forcing them to attend a compulsory religious course. It was a very difficult decision, as evidenced by the balance of votes: nine judges against eight. The Grand Chamber considered that a partial exemption from the course did not sufficiently guarantee respect for the principle of pluralism in education, which the Strasbourg judges had begun to develop thirty years earlier in Kjeldsen 53, concerning the school system of the neighbouring Scandinavian country of Denmark. The Grand Chamber reached its conclusion based on a strong position on the protection of minorities in a democratic society:

Although the interests of the individual must in some cases be subordinated to the interests of the group, democracy does not mean that the majority opinion must always prevail: a balance must be struck that ensures fair and appropriate treatment of minorities and does not allow any abuse of the dominant position.54
The decision that the partial exemption option was illegal had three reasons: the existence of a "Christian clause" in the Danish Constitution and the existence of a state church in Denmark; the objective predominance of Christianity in the curriculum of the contested course; insufficient protection of the right to education of atheist parents or representatives of another denomination when using the partial exemption scheme from classes.

In the Zengin v. Turkey judgment of 9 October 2007,55 the Court also found that there had been a violation of article 2 of Protocol 1 [right to education]. According to the ECHR, the violation on the part of Turkey consisted in the fact that Eilem Zengin, belonging to the Alevi community, was obliged to visit

52. Folgere v. Norway, Grand Chamber of the European Court of Human Rights, 29/06/2007 (application no. 15472/02).

53. Kjeldsen, Bask Madsen and Pederson v. Denmark. ECHR, 07/12/1976 (application No. 5095/71; 5920/72; 5926/72).

54. Ibid., par. 84.

55. Hasan and Eilem Zengin v. Turkey, ECHR, 9/10/2007 (application No. 1448/04).

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classes on religious culture and ethics based on the Sunni current of Islam.

Both decisions occurred in the year of the signing of the Lisbon Treaty, during which the European Union included in its founding treaty [Rome Treaty of 1957] article 17, which states the priority of domestic legal systems over EU law in matters of the status of religious denominations and philosophical organizations. This norm was of great importance in the structure of relations between States, European institutions and religions in Europe. To Governments increasingly concerned about protecting their own religious identity, the Court has responded with ambiguous jurisprudence - for example, it rejected a number of complaints against the ban on explicit religious symbols in a French public school; however, the Court's practice has certainly been far more threatening to national prerogatives. Sometimes the Court's decisions fit in with a steady course, as was the case with complaints against Orthodox countries for their refusal to recognize non-traditional religious denominations. This was the case, for example, with complaints against Russia filed by the Salvation Army in 2006, the Church of Scientology in 2007, and Jehovah's Witnesses in 2010.56

In other cases, the Court has developed new instruments , such as positive State obligations in cases of religious conflicts.57 There have also been cases where the acceptance of complaints has meant extending the Convention's rights to certain States without any regard for national specifics and with disregard for discretion.

This was the case, for example, with the adoption of applications against Italy received in 2009 - in the cases of Lombardi Vallauri and Lautsi.

On October 20, 2009, Luigi Lombardi Vallauri's complaint was accepted against the refusal to enter into an employment contract with him as a teacher at the Catholic University of the Sacred Heart of Milan 58. -

56. Moscow Branch of the Salvation Army v. the Russian Federation, ECHR, 5/10/2006 (complaint N72881 / 01); Church of Scientology of Moscow v. the Russian Federation, ECHR, 5/04/2007 (complaint N18147 / 02); Religious Community of Jehovah's Witnesses in Moscow v. the Russian Federation, ECHR, 10/06/2010 (final 22/11/2010) (complaint N302/02).

57. As in the case of 97 members of the Gldan Community of the Jehovah's Witnesses religious Organization v. Georgia, ECHR, 3/05/2007 (application no. 71156/01).

58. Lombardi Vallauri v. Italy, ECHR, 20/10/2009 (application No. 39128 / 05).

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It was based on the negative opinion of the Congregation for Catholic Education, the central body of the Vatican. In this regard, the ECtHR accepted the applicant's version, according to which this procedure did not guarantee him the right to a fair trial, which is prescribed in article 6 of the Convention, as well as freedom of expression, as set out in article 10. As regards article 10, the Court found that:

In itself, the applicant's ignorance of the reasons for his suspension made it impossible for him to challenge this decision through an adversarial discussion. Nor did this object become the subject of consideration by domestic courts. In the Court's view, judicial control over the application of the impugned measure in this case was not properly exercised 59.

The Court therefore determined that there had been a violation:

As a result, the Court considered that the university's interest in teaching on the basis of Catholic teaching should not have violated the very essence of the procedural guarantees provided to the applicant by article 10 of Convention No. 60.

The European judges adopted a similar approach on the issue of a violation of article 6:

The domestic courts did not consider the failure to indicate, firstly, the applicant's views, which were allegedly contrary to established teaching, and, secondly, the links between the views he expressed and his teaching activities. Furthermore, the fact that the applicant had not been informed of the reasons for his dismissal had in itself precluded him from having any opportunity to challenge the decision through an adversarial discussion. Nor did this object become the subject of consideration by domestic courts. In the Court's view, judicial control over the application of the impugned measure in this case was not properly exercised 61.

59. Ibid., par. 54.

60. Ibid., par. 55.

61. Ibid., par. 71.

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In this case, we can distinguish three levels of evolution of the European legal system in matters of religious freedom; these three levels seem to overlap.

The first level concerns the most important basic issues that have arisen in connection with the case: the conflict between the applicant's individual freedom and the collective freedom of Catholic academic institutions and, indirectly, the Catholic Church itself; the opposition between ecclesiastical and secular law; the restriction of the autonomy of religious organizations and churches; the search for a balance between national and religious specifics, fundamental rights and European integration.

The second level concerns the intertwining of competing regulatory and jurisdictional systems: as it happened in 2001, when in the Pellegrini case the Court expressed a negative assessment of the application of Italian religious marriage law, 62 and in this case the opposing forces were primarily the logic of ecclesiastical law, which is part of the Italian legal system, and the logic of the European supervisory system based on the Convention. In addition, the Lombardi Vallauri case (as well as the more recent cases of Obet and Schute v. Germany in 2010,63) indirectly affected the EU Anti-discrimination Directives of 2000 and therefore raised the problem of the coexistence of the legal systems of the Convention and the European Union.

The third level concerns the relationship between government policies, the role of European courts, and legal strategies, both individual and group; at this level, the collision of independent trajectories (each with its own logic and tools) of government religious policy, the development of national systems of religious law and the legal system of the European Union, as well as the European Commission, has become particularly obvious. the supervisory system of the Strasbourg Court.

The decision in the Lombardi Vallauri case was determined by the preponderance of the guarantee of procedural rights at each of the three levels, and this preponderance resulted in a number of technical inaccuracies and logical inconsistencies. If only

62. Pellegrini v. Italy, ECHR, 20/07/2001 (application no. 30882/96).

63. Voet v. Germany, ECtHR, 23/09/2010 (complaint N425 / 03); Shute v. Germany, ECtHR, 23/09/2010 (complaint N1620/03).

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The ECtHR wished to build the case differently, it would have had to completely deconstruct the claim of the applicant, who, guided by strategic considerations, left the ideological and religious aspect of the case in the background, preferring to focus on the procedural side of the case. The narrow range of powers of the ECtHR did not allow European judges to take a different path. Or, perhaps, the European judges decided to accept the scheme set out by the applicant because they found it convincing. In any case, the common law prevailed over the special law, and as a result, the interests of the Catholic University suffered.

Behind the procedural rights in the Lombardi Vallauri case was a desire for a more vigorous role for Europe. Two weeks later, on 3 November 2009, in its ruling in the Lautsi 64 case, the Court continued to move in this direction, only this time with regard to freedom of religion and State neutrality.

The decision to accept the complaint against the mandatory placement of the crucifix in Italian public schools was based on two premises.

The first was the Court's silence on the principle of national discretion, which in this particular case was not applied to Italy. It was an innovative move and not at all reprehensible. But the ECtHR made the mistake of not justifying a change in its attitude to a principle that it had never completely disregarded before. As a result, his silence became an obvious sign of a very political, overly synthetic and poorly motivated decision.

The second premise was the definition of State neutrality; although it was in line with previous jurisprudence on pluralism in education, starting with the Kjeldsen case and ending with the most recent decisions in the Folrege and Zengin cases two years earlier, this principle was expanded as never before, creating a veritable theory of secularism under the Convention. That was the gist of paragraph 56:

64. Lautsi v. Italy, ECHR, 3/11/2009 (application no. 30814/09). For more information about the Lautsi case, see articles by A. Kyrlezhev and P. Annikkino published in this issue of the journal. - Editor's note.

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The State has a duty to maintain confessional neutrality in public education if school attendance is compulsory regardless of religion, and it should strive to instill in students the habit of critical thinking.65
The 2009 Lautsi case sent an unprecedented signal of secularism, which went beyond the Convention and beyond all the Strasbourg precedents that called on the State as a "neutral and impartial organizer". However, this decision also marked the pinnacle of the path that the ECtHR had taken sixteen years earlier with the Kokkinakis decision: in response to the condemnation of the Greek ban on proselytism, introduced in the 1930s at the behest of Metaxas, it condemned the imposition of state Catholicism by means of a crucifix, the mandatory placement of which was legalized in the 1920s. G. at the behest of Mussolini. This reflects the deep rejection by European judges of the imposition of a majority religion.

The Court managed to strike a better balance a few months later, in the Ahmet Arslan case of 23 February 2010.66, when it accepted a complaint from several Turkish citizens belonging to the Aczimendi tarikat religious association regarding the sanctions imposed on them as a result of the application of the Turkish ban on religious clothing. This was the first decision against Turkey under article 9, and also on such a sensitive topic as the ban on religious clothing.

In recent years, as in previous decades, the Strasbourg legal practice has retained both traditional and innovative components. At the pan-European level, the polarization between the principles of neutrality and pluralism established by Europe and the religious identities defended by individual Governments became increasingly acute, and the tension spilled out into the European courts. But it is important that the rich jurisprudence of the ECHR provided the necessary resources for finding a balanced balance.

65. Lautsi vs. Italy, par. 56.

66. Ahmet Arslan v. Turkey, ECHR 23/02/2010 (application No. 41135/98).

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Positive role of European jurisdiction in the sphere of religious freedom

In recent decades, the socio-political and religious geography of Europe has changed. The European integration project has undergone a certain transformation. In its application of the 1950 Convention, the Strasbourg Court reflected both the interaction of European and national jurisdictions and the struggle between them. The Court interpreted its legal and institutional role in different ways - sometimes on its own initiative, sometimes under the pressure of circumstances. If we try to identify the most important trends, there were two of them.

The first trend concerns the gradual shift of the functions of the ECtHR (which some regard rather negatively) - from the consideration of a particular case to the role of an almost constitutional court, which oversees the norms and even the principles of law.

As a result of this shift, the Strasbourg judicial practice has increasingly been opposed to domestic legal systems and the will of a particular majority, especially the protectionist aspirations enshrined in article 17 of the Lisbon Treaty in 2007. The European Court's jurisprudence on religion has gradually acquired the features of a typical case of "anti-majoritarian dilemma" - when there are concerns that the historical and cultural heritage of states, their specifics, national and religious identity can be sacrificed for the sake of unity of European principles. Sometimes it seems that the European Court of Justice seeks not only to play the role of an almost constitutional arbiter, but even, in fact, interferes with national legislation.

The second trend is to transform the European Court of Justice from a collector and repeater of the consensus already reached by the participating countries into an independent developer of standards. This second transformation coincided with the transition of the European Court of Justice from the role of an arbitrator in matters of individual freedom of religion to the role of an arbitrator in relations between States and religious communities.

Thus, over the past fifteen years, these two transformations have brought the Strasbourg Court into direct conflict with national systems of state-church law (let's leave out the Court's leniency towards anti-Islamic ones).

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standards in France and Turkey). This provoked a reaction in the public opinion of various countries, in their governments, as well as in large churches and non-governmental organizations interested in protecting the religious majority.

The most significant protest was in the country where the Convention was taken most seriously - in the United Kingdom 67. On the opposite side of the spectrum, in many former Soviet bloc countries, the Court has been criticized for its permissiveness and disregard for religious traditions. These were mostly Orthodox countries, and their resistance to Strasbourg was a mixture of several elements: an illiberal and undemocratic political and legal system; a skeptical attitude towards the secular system as such - apparently due to the trauma of communism; and an unacceptable vision of a union between the state and the national church in Central and Western Europe.

It was this bloc, whose ideas were expressed by the Italian Government, that won the" battle against Europe " for the crucifixion: in 2009, the Grand Chamber reviewed the decision in the Lautsi case. The fact that the principle of State discretion in such matters was again brought to the fore also played a role.

The Lautsi judgment of 18 March 2008 68 can be considered simply as the return of the pendulum after passing the extreme point in 2009. It prescribes in black and white principles that contradict forty-five years of European judicial practice and, most importantly, key European values. The hasty identification of a religious symbol as cultural or passive, the recognition of the minority's obligation to submit to the majority, the freedom of discretion inflated as never before, the uncritical acceptance of an explicitly sweetened version of the government, the blindness to inconsistencies between the national norm and its application, and finally the explicit refusal to accept the principle of secularism as the supreme principle of the Italian constitutional order - all these are not signals of a temporary stop, but signs of a real "reverse gear".

67. Suffice it to recall the important resolution critical of the ECHR adopted by the House of Commons on 10 February 2011 in response to the Hirst decision.

68. Lautsi v. Italy, Grand Chamber of the European Court of Human Rights, 18/03/2011 (application no. 30814/09).

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Now, at this very moment, it is worth recalling that the experiment with mandatory supranational jurisdiction for fundamental rights was the ideal of Europe, moving towards overcoming all possible forms of nationalism, populism, intolerance and building a space of freedom and rights. The Strasbourg jurisprudence supported this project, constantly groping its way between interpreting the principles and considering specific cases.

Despite the inconsistencies, shortcomings and excesses, the history of the Strasbourg authorities clearly demonstrates the positive significance of European jurisdiction in relation to religious freedom and the State as a neutral and impartial organizer.

The positive role of European jurisdiction lies precisely in the constant effort to create a synthesis between the individual and the group, between local and universal, between individual action and general principle. This is partly the task of the courts of individual States. But the merit of the European instance - precisely because of its supranational nature-lies in the fact that it has developed a rich fundamental experience that does not abstract from national and regional experience, but, on the contrary, processes and synthesizes it. Thanks to the history of European jurisdiction, today we can no longer imagine a system of human rights protection closed within state sovereign borders, and perhaps this is the reason for the sometimes aggressive displeasure expressed by American jurisdiction with respect to the ECHR.

Article 9 and in general, the right to freedom of religion has already established itself as one of the firm foundations of this system. This is evidenced by the historic judgment against France in the Jehovah's Witnesses case, issued on 30 June 2011, condemning its anti-sectarian fiscal policy; it was the first against that country to violate article D.

A more subtle and therefore more valuable aspect of the positive significance of the Strasbourg jurisdiction concerns the definition of the role of the State in relation to religion. Indeed, decisions on systems with a State church and on secular states have shown a very clear approach. Whether it is a question of a State church or a secular State, or of any general system of relations between the state and religion, it is the Strasbourg Court, if requested, that is charged with the following matters:-

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It is important to determine the impact of a particular system on a particular case, to ensure that it does not violate freedom of religion or, in general, the human rights protected by the Convention.

The importance of European jurisdiction does not lie in the impartiality and technical and legal competence of the Strasbourg Court-on the contrary, there is still a lot of work to be done. Rather, it relates to the history of the European ideal, to the project of the economic, political and legal space, the development of which the ECHR recorded and accompanied. The high standard of protection of individual and collective religious rights developed on the continent, including thanks to the Strasbourg bodies, makes it possible to assess the strength of the ideals facing European peoples. And it's also a commitment to the future.

Europe is accused of being a "continent without God." European jurisdiction in matters of religious freedom, on the contrary, proves that Europe is the continent that most actively fights against the "oppression of God" and the oppression of anyone "in the name of God".

Bibliography/References

Ventura, M. (2001) La laicita dell'Unione europea. Diritti, mercato, religione. Torino: Giappichelli.

Ventura, M. (2006) "La religione tra Corte costituzionale e giurisdizioni europee", in R. Botta (ed.) Diritto ecclesiastico e Corte costituzionale, pp. 367 - 379. Napoli: ESI.

Ventura, M. (2008) "Religione e integrazione europea", in G. E. Rusconi (ed.) Lo stato secolarizzato nell'eta post-secolare, pp. 327 - 337. Bologna: il Mulino.

Ventura, M. (2010) "The Changing Civil Religion of Secular Europe", The George Washington International Law Review. No. 4: 947 - 961.

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