CONCURRING OPINION OF JUDGE POWER

This case raises issues as to the scope of certain provisions of the Convention and the Grand Chamber ' s rectification of a number of errors in the Chamber ' s Judgment was both necessary and appropriate. The core correction consists in the finding that the decision as to whether crucifixes should be present in state-school classrooms is, in principle, a matter falling within the margin of appreciation of a respondent state (§ 70). In exercising its supervisory role, the Court has confirmed its earlier case law [5] to the effect that the ' preponderant visibility ' within a school environment which a state may confer on a country ' s majority religion is not, in itself, sufficient to indicate a process of indoctrination such as would establish a breach of the requirements of Article 2 of Protocol No. 1 (§ 71).

The Grand Chamber has also corrected the rather speculative conclusion in the Chamber judgment (see § 55) as to the “particularly strong” risk of emotional disturbance which the presence of a crucifix may pose to ch ildren of minority religions or none. Given the critical role of “ evidence ” in any Court proceedings, the Grand Chamber has correctly noted that there was no evidence opened to the Court to indicate any influence which the presence of a religious symbol may have on school pupils (§ 66). While acknowledg ing as “understandable” the first applicant ' s perception of a lack of respect for her rights , the Grand Chamber has confirmed that her subjective perception is not sufficient to establish a breach of Article 2 of Protocol No 1. The first applicant may have taken offence at the presence of a crucifix in classrooms but the existence of a right ' not to be offended ' has never been recognised within the Convention. In reversing the Chamber ' s judgment, the Grand Chamber does no more than confirm a body of settled jurisprudence (notably under Article 10) which recognises that mere ' offence ' is not something against which an individual may be immunized by law.

However, there was another fundamental and, in my view, erroneous conclusion in the Chamber ' s Judgment upon which the Grand Chamber did not comment and which, to my mind, merited clarification. The Chamber referred, correctly, to the State ' s duty to uphold confessional neutrality in public education (§ 56). However, it proceeded, to conclude, incorrectly, that this duty required the effective preference or elevation of one ideology ( or body of ideas ) over all other religious and/or philosophical perspectives or world views. Neutrality requires a pluralist approach on the part of the State, not a secularist one. It encourages respect for all world views rather than a preference for one. To my mind, the Chamber Judgment was striking in its failure to recognise that secularism (which was the applicant ' s preferred belief or world view) was, in itself, one ideology among others. A preference for secularism over alternative world views—whether religious, philosophical or otherwise—is not a neutral option. The Convention requires that respect be given to the first applicant ' s convictions insofar as the education and teaching of her children was concerned. It does not require a preferential option for and endorsement of those convictions over and above all others.

In his separate opinion, Judge Bonello has pointed to the fact that within the European tradition, education (and, to my mind, the values of human dignity, tolerance and respect for the individual, without which there can be no lasting basis for human rights protection) is rooted, historically, inter alia, within the Christian tradition. To prohibit in public schools, regardless of the wishes of the body politic, the display of a symbol representative of that (or indeed any other religious) tradition and to require of the State that it pursues not a pluralist but a secularist agenda, risks venturing towards the territory of intolerance – a concept that is contrary to the values of the Convention.

The applicants complain of an alleged violation of their rights to freedom of t hought, conscience and religion. I can find no interference with their freedom to manifest their personal beliefs. The test of a violation under Article 9 is not “offence” but “c oercion ”. [6] That article does not create a right not to be offended by the manifestation of the religious beliefs of others even where those beliefs are given ' preponderant visibility ' by the State. The display of a religious symbol does not compel or coerce an individual to do or to refrain from doing anything. It does not require engagement in any activity though it may, conceivably, invite or stimulate discussion and an open exchange of views. It does not prevent an individual from following his or her own conscience nor does it make it unfeasible for such a person to manifest his or her own religious beliefs and ideas.

The Grand Chamber has found that the presence of the crucifix is, essentially, a passive symbol and it regards this point as being of great importance having regard to the principle of neutrality. I agree with the Court in this regard insofar as the symbol ' s passivity is not in any way coercive. However, I would have to concede that, in principle, symbols (whether religious, cultural or otherwise) are carriers of meaning. They may be silent but they may, nevertheless, speak volumes without, however, doing so in a coercive or in an indoctrinating manner. The uncon test ed evidence before the Court is that Italy opens up the school environment to a variety of religions and there is no evidence of any intolerance shown towards non-believers or those who hold non-religious philosophical convictions. Islamic headscarves may be worn. The beginning and end of Ramadan are “often celebrated”. Within such a pluralist and religiously tolerant context, a Christian symbol on a classroom wall presents yet another and a different world view. The presentation of and engagement with different points of view is an intrinsic part of the educative process. It acts as a stimulus to dialogue. A truly pluralist education involves exposure to a variety of different ideas including those which are different from one ' s own. Dialogue becomes possible and, perhaps, is at its most meaningful where there is a genuine difference of opinion and an honest exchange of views. When pursued in a spirit of openness, curiosity, tolerance and respect, this encounter may lead towards greater clarity and vision as it fosters the development of critical thinking. Education would be diminished if children were not exposed to different perspectives on life and, in being so exposed, provided with the opportunity to learn the importance of respect for diversity.

DISSENTING OPINION OF JUDGE MALINVERNI JOINED BY JUDGE KALAYDJIEVA

(Translation)

1. The Grand Chamber has reached the conclusion that there has not been a violation of Article 2 of Protocol No. 1 on the ground that “ the decision whether crucifix es should be present in State-school classrooms is, in principle, a matter falling within the margin of appreciation of the respondent State ” (see paragraph 70, and also paragraph 69).

I have difficulty following that line of argument. Whilst the doctrine of the margin of appreciation may be useful, or indeed convenient, it is a tool that needs to be handled with care because the scope of that margin will de pend on a great many factors : the right in issue , the seriousness of the infringement , the existence of a European consensus , etc. The Court has thus affirmed that “t he scope of this margin of appreciation is not identical in each case but will vary according to the context ... . Relevant factors include the nature of the Convention right in issue, its importance for the individual and the nature of the activities concerned ” . [7] The proper application of this theory will thus depend on the importance to be attached to each of these various factor s. Where the Court decrees that the margin of appreciation is a narrow one , it will generally find a violation of the Convention; where it considers that the margin of appreciation is wide , the respondent State will usually be “acquitted” .

In the present case it is by relyin g mainly on the lack of any European consensus that the Grand Chamb er has allowed itself to invoke the doctrine of the margin of appre ciation ( see par agraph 70). In that connection I would observe that , besides Italy, it is in only a very limited number of member States of the Council of Europe (Au stria , Pol and, certain regions of Germany ( Länder ) – see par agraph 27) that there is express provision for the presence of religious symbols in S tate schools. In the vast majority of the member States the question is no t specifically regulated . On that basis I find it difficult, in such circumstances, to draw definite conclusions regarding a European consensus.

With regard to the regulations governing this question, I would point out in passing that the presence of crucifixes in Italian S tate schools has an e xtremely weak basis in law : a very old royal decree dating back to 1860, then a fascist circular of 1922, and then royal decrees of 1924 and 1928. These are therefore v ery old instruments, which, as they were not enacted by Parliament, are lacking in any democratic legitimacy .

What I find more important, however, is that where they have been required to give a ruling on the issue, the European supreme or constitutional courts have always, without exception , given precedence to the principle of State denominational neutrality: the German Constitutional Cour t, th e Swiss Federal Court , the Polish Con stitution al Court and, in a slightly different context, the Italian Cour t of C assation ( see par agraphs 28 and 23).

Be that as it may, one thing is certain: the doctrine of the margin of appreciation should not in any circumstances exempt the Court from the duty to exercise the function conferred on i t under A rticle 19 of the Convention, which is t o ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto. Now, t he wording of the second sentence of Article 2 of Protocol No. 1 confers a positive obligation on States to respect the right of parents to ensure education and teaching in conformity with their own religious and philosophical convictions.

That positive obligation derives from the verb “ respect ” , which a p pears in Article 2 of Protocol N o . 1. As the Grand Chamber has rightly pointed out, “ in addition to a primarily n e gati ve undertaking , this verb implies some positive obligation on the part of the State (see paragraph 61). Such a positive obligation can, moreover, also be inferred from Article 9 of the Convention. That provision can be interpreted as conferring on States a positive obligation to creat e a climat e of tol er ance and mutu a l respect among thei r population.

Can it be maintained that the States properly comply with that positive obligation where they mainly have regard to the beliefs held by the majority? Moreover, is the scope of the margin of appreciation the same where the national authorities are required to comply with a positive obligation and where they merely have to comply with an obligation of abstention ? I do not think so. I incline , rather , to the view that where the States are bound by positive obligations their margin of a ppr e ciation is reduced .

In any event, according to the case-l aw , the margin of appreciation is subject to European supervision. The Court ' s task then consists in ensuring that the limit on the margin of appr ec iation has not been overstepped . In the present case, whilst acknowledging that by prescribing the presence of crucifixes in S tate-school classrooms the regulations confer on the country ' s majority religion preponderant visibility in the school environ ment, the Grand Chamb er has taken the view that “that is not in itself sufficient, however, to ... establish a breach of the requirements of A rticle 2 of Protocol No. 1 ” . I cannot share that view.

2. We now live in a multicultural society, in which the effective protection of religious freedom and of the right to education requires strict State neutrality in S tate -school education, which must make every effort to promote pluralism in education as a fundamental feature of a democratic society within the meaning of the Convention. [8] The principle of State neutrality has, moreover, been expressly recognised by the Italian Constitutional Court itself, in whose view it flows from the fund amental princip l e of equality of all citizens and the prohibition of any discrimination that the State must adopt an attitude of impartialit y toward s religious belief s. [9]

The second sentence of Article 2 of Protocol No. 1 implies that the State, in fulfilling the functions assumed by it in regard to education and teaching, must take care that knowledge is conveyed in an objective, critical and pluralistic manner. School s should be a meeting place for different religions and philosophical convictions, in which pupils can acquire knowledge about their respective thoughts and tradition s.

3. These principles are valid not only for the devising and planning of th e school curriculum , which are not in issue in the pre sent cas e, but also for the school environment. Article 2 of Protocol No. 1 specifies that in the exercise of any functions which it assumes in relation to e ducation and to teaching the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions. In other words, the principle of State denominational neutrality applies not only to the conten t of the curriculum, but the whole educational system. In the case of Folgerø the Court rightly pointed out that the duty conferred on the States under that provision “ is broad in its extent as it applies not only to the content of education and the manner of its provision but also to the performance of all the ' functions ' assumed by the State ” . [10]

This view is shared by other both domestic and international bodies. Thus, in its General Comment No. 1, the United Nations Committee on the Rights of the Child has affirmed that the right to education refers “not only to the content of the curriculum, but also the educational processes, the pedagogical methods and the environment within which education takes place, whether it be the home, school, or elsewhere” [11] , and also that “ the school environment itself must thus reflect the freedom and the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups”. [12]

The Supreme Court of Canada has also observed that the school environment is an integral part of discrimination-free education: “In order to ensure a discrimination-free educational environment , the school environment must be one where all are treated equally and all are encouraged to fully participate.” [13]

4. Religious symbols are indisputably part of the school environment . As such, they might therefore infringe the duty of State neutrality and have an impact on religious freedom and the right to e ducation. This is particularly true where the religious symbol is imposed on pupils, even against their will . As the German C onstitution al Court observed in its famous judgment: “ Certainly, in a society that allows room for differing religious convictions, the individual has no right to be spared from other manifestations of faith, acts of worship or religious symbols. This is however to be distinguished from a situation created by the State where the individual is exposed without possibility of escape to the influence of a particular faith, to the acts through which it is manifested and to the symbols in which it is presented” [14] . That view is shared by other s upreme or con stitution al courts.

Thus, the Swiss Federal Court has found that the duty of denominational neutrality incumbent on the State is of special importance in State schools, where schooling is compulsory. It went on to say that, as guarantor of the denominational neutrality of the school system, the State could not, where teaching was concerned, manifest its own attachment to a particular religion, be it a majority or a minority one, because certain people may feel that their religious beliefs are impinged upon by the constant presence at school of the symbol of a religion to which they do not belong. [15]

5. The crucifix is undeniably a religious symbol. The respondent Government argued that, in the context of the school environment, the crucifix symbol ised the religious origin of values th at had now become secular, such as tol e rance and mutual respect. It thus fulfilled a highly educational symbolic function, irrespective of the religion professed b y the pupil s, because it was the expression of an entire civilisation and universal value s.

In my view, the presence of the cruc ifix in classrooms goes well beyond the use of symbol s in particular historical context s . The Court has moreover held that the traditional nature, in the social and historical sense, of a text used by members of parliament when swearing loyalty did not deprive the oath to be sworn of its religious nature. [16] As observed by the Chamber, neg ative freedom of religion is not restricted to the absence of religious services or religious education. It also extends to symbols expressing a belief or a religion. That negative right deserves special protection if it is the State which displays a religious symbol and dissenters are placed in a situation from which they cannot extract themselves. [17] Even if it is accepted that the crucifix can have multiple meaning s, the religious meaning still remains the predominant one . In the context of state education it is necessarily perceived as an integral p art of the school environment and may even be considered as a powerful external symbol . I note, moreover, that even the Italian Court of Cassation rejected the argume nt th at th e crucifix symbolised values independent of a particular religious belief ( see par agraph 67).

6. The presence of crucifixes in schools is capable of infringing religious freedom and schoolch i ldren ' s right to education to a greater degree than religious apparel that, for example , a teacher might wear, such as the Islamic headscarf . In th e latter example the teacher in question may invoke her own freedom of religion, w hich must also be taken into account, and which the State must also respect . The public authorities cannot, however, invoke such a righ t. From the point of view of the seriousness of the infringement of the principle of State denominational neutrality, this will accordingly be of a lesser degree where the public authorities tolerate the headscarf in schools than where they impose the pres ence of crucifix es .

7. The impact which the presence of crucifix es may have in schools is also incommensurable with the impact that they may have in other public e s tablishments, such as a voting b ooth o r a court . As the Chamber rightly pointed out, in schools “ the compelling power of the State is imposed on minds which still lack the critical capacity which would enable them to keep their distance from the message derived from a preference manifested by the State ” (see § 48 of the Chamber judgment).

8. To conclude, effective protection of the rights guaranteed by Article 2 of Protocol No. 1 and Article 9 of the Convention requires State s to observe the strictest denominational neutralit y . This is not limited to the school curricul um , but also extends to “the school environment” . As primary and secondary schooling are compulsory, the State should not impose on pupils, against their w ill and without their being able to extract themselves , the symbol of a religion with which they do not identify . In doing so , the respondent Government have violated Article 2 of Protocol No. 1 and A rticle 9 of the Convention.

[1] . Justin Marozzi, The Man who Invented History , John Murray, 2009, p. 97.

[2] Requiem for a nun , 1951.

[3] . Wikipedia classifies this work as “a pornographic novel” in which the author “explores all aspects of sexuality: sadism alternates with masochism; ondinism/scatophilia with vampirism; paedophilia with genrontophilia; masturbation with group sex; lesbianism with homosexuality ... the novel exudes an infernal joy”.

[4] . AkdaÅŸ v. Turkey , no. 41056/04, 16 February 2010.

[5] . See Folgerø and Others v. Norway [GC], no. 15472/02, § 89, ECHR 2007 ‑ VIII ; see also Hasan and Eylem Zengin v. Turkey , no. 1448/04, § 63, ECHR 2007 ‑ XI .

[6] . See Buscarini and Others v. San Marino [GC], no. 24645/94, ECHR 1999 ‑ I ; see also the Supreme Holy Council of the Muslim Community v. Bulgaria , no. 39023/97, 16 December 2004.

[7] . Buckley v. the United Kingdom , 25 September 1996, § 74, Reports of Judgments and Decisions 1996 ‑ IV.

[8] . Manoussakis and Others v. Greece , 26 September 1996, § 47; Kokkinakis v. Greece , 25 May 1993, § 31.

[9] . Italian Constitutional Court , judgment no. 508/2000.

[10] . Folgerø and Others v. Nor way , 29 June 2007, § 84. Our italics.

[11] Committee on the Rights of the C hild, General Comment No. 1, of 4 April 2001, “ The Aims of Education ” , para. 8. Our italics.

[12] Idem , para. 19. Our italics.

[13] Supreme Court of Canada , Ross v. New Brunswick School District no. 15 , para. 100.

[14] . German Constitutional C ourt , BVerfGE 93 , I I BvR 1097/91, judgment of 16 M ay 1995, § C (II) (1), non-official translation.

[15] Swiss Federal Court, ATF 116 Ia 252, Comune di Cadro , judgment of 26 September 1990, § 7.

[16] . Buscarini and Others v. San Marino [GC], no. 24645/94, ECHR 1999 ‑ I.

[17] . Lautsi v. Italy , no. 30814/06, § 55, 3 November 2009.