Home > Public space > Italy > 2011-03-14 - Court of cassation, n. 5924

2011-03-14 - Court of cassation, n. 5924

Public space · Italy · Crucifix · Religious symbol

Legal Revocation of a judge who refuses to hold hearing in a courtroom displaying crucifixes

Key facts of the case - An Italian judge who repeatedly refused to hold hearings because of the presence of crucifixes in Italian courtrooms was permanently removed from his office by the CSM (Consiglio Superiore della Magistratura - Supreme Judiciary Board) on May 25th, 2010.
The judge repeatedly refused to hold hearings even in a courtroom in which no crucifix was displayed on the ground of the protection of the secular character of the State and the protection of the right to religious freedom of other individuals who were in other courtrooms of the nation, where the crucifix was displayed.

Main reasoning of the court - The Court of cassation recognised the “laicità” of the State as a widespread interest of the population as a whole. Generally, the case law of the Court of cassation (Court of cassation, United Sections n. 2207/1978; Court of cassation, United Sections n. 1463/1979) recognised that, alongside the widespread interests of the community considered as a unicum, there are also individual interests that can be claimed by their individual owners.
The disciplinary section condemned the applicant for the disruptions occurred for his refusal to hold hearings in courtrooms without the crucifix. The Supreme Court considered that in these situations, there was no injury to his individual right to freedom of religion, conscience or conviction. So claiming the protection of the “laicità” of the state or the right to religious freedom of other individuals who were in other courtrooms of the nation, where the crucifix was displayed, cannot justify his refusal to hold hearings.
Within the employment relationship, the infringement of a subjective inviolable right justifies an action of self-defense (in this case the refusal to work), but when that violation is excluded, the infringement of a widespread interest cannot be invoked as a justifying cause. Even the missed permission to display the menorah (a symbol of the Jewish religion) cannot justify the refusal of the applicant. In order to accommodate such a claim, in fact, it is necessary a discretional decision of the legislator, which at present does not exist.
In theory the principle of secularism can be implemented either in the form of “secularism by addiction”, that allows each person to see the symbols of their religion shown in public places, or in the form of “secularism by subtraction”, i.e. the removal of all religious symbols from public places. This legislative choice, however, requires the evaluation of a number of factors, first of all the practical feasibility and the balance between the exercise of religious freedom by the believers that use a public place with the same exercise of religious freedom by the atheists or agnostics, as well as the balance between ensuring pluralism and possible conflicts that can raise between mutually incompatible religious identities.
The Supreme Court confirmed the disciplinary measure, rejecting the appeal brought against the Ministry of Justice by the dismissed judge.

See the decision (in Italian): 2011-03-14 - Court of cassation, n. 5924.