La liberta' religiosa nei luoghi di lavoro, tra nuove esigenze e multidimensionalita' della tutela
Laura Torsello, Ricercatore di diritto del lavoro nell’Università Politecnica delle Marche
La libertà religiosa in Italia e in Europa ha una solida base normativa in quanto costituisce una delle espressioni più intime della personalità di un individuo e, allo stesso tempo, è un indice del grado di tolleranza di una comunità e, come tale, in un contesto democratico, merita un riconoscimento legale e una protezione (correlata) del rango primario.
L’attuazione dei principi di libertà religiosa è dovuta all’attività della Corte costituzionale in Italia e in Europa all’attività della Corte di giustizia europea e della Corte EDU. Nelle decisioni emerge la difficoltà di bilanciare da un lato le esigenze di protezione dell’individuo ad esprimere le proprie convinzioni religiose, dall’altro la necessità di proteggere, nel campo del diritto del lavoro, l’immagine di neutralità dell’azienda o i requisiti generali di sicurezza e di ordine pubblico. Ad oggi, le esigenze di coesistenza tra i vari casi non sono ancora soddisfatte e le Corti europee, nonostante i riferimenti reciproci, che dimostrano la volontà di una fruttuosa collaborazione, non hanno dettato principi chiari e inequivocabili che possono guidare gli Stati membri verso soluzioni comuni come sviluppare un’integrazione multiculturale, ancora difficile da raggiungere (non solo sul posto di lavoro).
Religious freedom in Italy and in Europe has a solid legal foundation as it constitutes one of the most intimate expressions of an individual’s personality and, at the same time, is an index of the tolerance of a community and, as such, in a democratic and pluralist order, deserves a legal recognition and a (related) protection of primary rank.
The implementation of the principles of religious freedom is due to the activity of the Constitutional Court in Italy and in Europe to the activity of the European Court of Justice and the ECHR (European Court of Human Rights). In the decisions of said Courts it emerges the difficulty to guarantee on the one hand the needs for the protection of the individual to express his/her religious beliefs, on the other hand the need to protect, in the field of labor law, the image of neutrality of the company or the general security and public order requirements. To date, the need of coexistence between the various judicial cases are not yet met and the European Courts, despite the reciprocal references, which demonstrate the will of a fruitful collaboration, have not dictated unambiguous and clear principles that can guide the Member States towards common solutions such to develop a multicultural integration, still difficult to achieve (not only in the workplace).
Keywords: religious freedom – multi-dimensionality of protection – European Courts.
1. The multidimensionality of the protection of religious freedom in Italy and Europe - 2. Religious freedom in the ECHR system - 3. The decisions of the European Court of Human Rights between 'goods' and 'values' - 4. Religious freedom in EU law - 5. Conclusive remarks - NOTE
1. The multidimensionality of the protection of religious freedom in Italy and Europe
According to an old definition, religious freedom is configurable as the “faculty of the individual to believe what he likes most, or not to believe, if he likes most, nothing” . What is certain is that such freedom represents one of the most intimate expressions of an individual’s personality and, at the same time, is an indication of the degree of tolerance of a community and, as such, in a democratic and plural order, deserves a legal recognition and a (related) protection of primary rank. It is therefore no coincidence that religious freedom is widely recognized nationally by art. 19 Italian Constitution, according to which “everyone has the right to freely profess his/her religious faith in any form, individual or associated, of propagandize and to worship in private or in public, provided that they are not rites contrary to morality”, thus affirming the secular character of our State which does not make an official choice in favor of a particular worship, does not admit any form of religious discrimination . Art. 8 of the Italian Constitution, again, establishes the principle of neutrality and secularity of the State in implementing the principle of confessional pluralism and religious freedom, affirming that “all religions are equally free before the law”, adding that also the other religious confessions can organize according to their own statutes, if they are not in contrast with the Italian legal [continua ..]
2. Religious freedom in the ECHR system
Taking up the formulation used by art. 18 of the Universal Declaration of Human Rights, art. 9 of the ECHR provides in paragraph 1 that “every person has the right to freedom of thought, conscience and religion; this right includes the freedom to change religion or belief as well as the freedom to manifest one’s religion or belief individually or collectively, in public or private, through worship, teaching, practices and observance of rituals”. This statement finds a limitation under paragraph 2, through the provision of certain restrictions provided for by law and justified by the need to guarantee “a democratic society”, from the requirements of “public security”, “protection of order”, “health or public morality”, or finally the “protection of the rights and freedoms of others”. The provision is connected to the following art. 10, which provides for the right of every individual to express himself and receive or communicate information freely, thus guaranteeing the right to criticize, and therefore to have opinions. This is a series of guarantees aimed at allowing the person to be able to express himself freely and this also in the context of the workplace, where these personal characteristics and conditions will be respected and not placed at the basis of unfavorable or even discriminatory treatments, unless these are elements incompatible with the nature of the employer’s [continua ..]
3. The decisions of the European Court of Human Rights between 'goods' and 'values'
The Strasbourg jurisprudence on the rights of the ECHR, which are an integral part of EU law “as general principles” (art. 6 of the Lisbon Treaty), intervened specifically on the theme of religious symbols and work, but it represents an unconsolidated jurisprudence and limited to a few judgments. One of the most relevant precedents is that of the Leyla Sahin c. Turkey , in which the European Court of Human Rights considered legitimate the prohibition of wearing the veil at the university on the assumption that said limitation was necessary to protect the peaceful coexistence of the different groups in society, in a context, such as the Turkish one, of intolerance between religious groups. The case is useful not only because it confirms a new series of case law on religious freedom, but also because the Court, aware of the attention of public opinion on this issue, elaborates a particularly articulated and precise reasoning. The theme of neutrality emerges as a decisive criterion, although this approach is not free from criticism especially for having operated in an abstract way, outside of a real demonstration of the concrete potential of risk connected to wearing the veil, in reality difficult to prove also because, as the appellant said, the choice to wear the veil was not aimed at protesting against the republican principle of secularism and, rather, this prohibition was discriminating against the religious Muslim female students (see paragraphs 87 [continua ..]
4. Religious freedom in EU law
The guarantee of religious freedom and conscience, like other fundamental rights, must be guaranteed by the European Union in a manner corresponding to the ECHR Convention and its jurisprudence, unless, in accordance with Article 52 paragraph 3 of the Charter of Fundamental Rights, a more extensive protection is guaranteed . The specific EU regulations on freedom of conscience and religion are found in the regulation on the prohibition of discrimination based, inter alia, on religion and personal convictions limited to the area of employment and working conditions . The Court of Justice, using Article 10 of the Charter of Fundamental Rights, and Article 21 regarding the prohibition of discrimination, follows the hermeneutical indications coming from the European Court of Human Rights. If at first the Court of Justice established that members of a religious community can move freely between Member States, as the benefits they render to the community in exchange for their livelihood can make them equate to workers , it is more directly focused on religious freedom the sentence which states that the community institutions, in announcing their contests, must avoid setting dates that can discriminate against subjects belonging to certain religions , if the interested party notifies such membership, even if such a statement would put perhaps a contrast with the jurisprudence of the European Court of Human Rights regarding the [continua ..]
5. Conclusive remarks
We have seen how the religious symbol affirms the person’s cultural identity also in the workplace and as if on the one hand it is necessary to ensure adequate forms of protection of religious freedom at the time of access to work as well as during the course of the working activity, on the other hand it is necessary to consider the employer's needs, which may be linked to reasons of safety and hygiene of the working of the products or the physical integrity of the workers, or to reasons connected to the corporate image, for example motivated by the need to wear a uniform to immediately identify the worker's duties. Harmonizing the different decisions is a very delicate operation. With reference to the relationship between the national judges and the judges of Strasbourg it must be considered that they are not part of a single order hierarchically structured from the point of view of the system of remedies, even if the jurisprudence of the European Court of Human Rights, as an external source, can guide the internal judge in the application to concrete cases of principles and norms to the respect of which the State is conventionally obliged. With reference to the relationship between the European Courts, even if it possible to highlight different reconstructive hypotheses according to the different factual circumstances that characterize the cases, which may be linked to direct or indirect discrimination, at the end of the present reflection it can be considered that [continua ..]