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).

SOMMARIO:

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” [1]. 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 [2]. 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 system. An additional guarantee of religious freedom is found in art. 20 of the Italian Constitution. which states that “the ecclesiastical character and purpose of religion or of worship of an association or institution cannot be the cause of special legislative provisions, nor of special tax burdens for its constitution, legal capacity and any form of activity”. These are principles that we also find at a supranational level, that is, remaining within the European context, under art. 9 of the European Convention on Human Rights (ECHR), as well as under article 6 of the European Union Treaty, and under articles 10, 21 and 22 of the Charter of Fundamental Rights of the European Union, in the matter of freedom of conscience and religion and prohibition of discrimination for these reasons. However, despite the primary relevance of its legal “foundations”, the full and effective affirmation of religious freedom has been, over time, far from obvious; and so, at a closer [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 activity [4]. The judgement on religious freedom must also be linked to art. 14 of the ECHR, with reference to prohibition of discrimination: in fact, there may be regulations or even state measures which, even if they are not detrimental to these freedoms, still cause a difference in the enjoyment of freedom of religion [5]. In the framework of the ECHR, the principle of non-discrimination set forth under art. 14, expression of the (universal) principle of equality in the European context [6], assumes undisputed relevance. Based on the literal formulation used, in which the principle of non-discrimination is affirmed in relation to the “enjoyment” of the “rights” and “freedoms” of the Convention, it has been inferred that art. 14 cannot be invoked independently but in conjunction with (and in addition to) other provisions of the ECHR and its Protocols, in relation to the violation of the “substantial” legal situations protected [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 [17], 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 and 88) [18]. The most recent and known case is the Eweida case and a. c. United Kingdom [19] which brought together four similar cases. The only case accepted by the European Court of Human Rights is the one in which it was discussed the freedom to wear a necklace with a crucifix by a British Airways hostess. In this hypothesis, the European Court of Human Rights found the principles of the Convention, 9 and 14, violated on the assumption that the management's attitude had been more permissive towards other employees who had already been allowed to wear their own religious symbols; moreover, the religious symbol worn by the sanctioned female worker was discreet, so as not to conflict with the needs of the airline to guarantee an image of neutrality. The European Court of Human Rights has instead concluded for the legitimacy and proportionality of the dismissal of Ms. Chaplin, a nurse of an English hospital employed in a geriatric department, believing that the prohibition [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 [20]. 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 [21]. 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 [22], 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 [23], 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 prohibition of obligate the individual to declare his own religious affiliation. With respect to festive work, the Luxembourg Court annulled the EU rule that provided for Sunday as a weekly rest day, noting that this is a decision to be left to the appreciation of the Member States, taking into account the diversity of cultural, ethnic and religious factors of the different States [24]. To the detriment of religious freedom we recall the case of Bougnaoui [25] in which the employee, an IT engineer, was forced not to wear the veil, usually allowed, after a customer in favor of whom she had provided assistance had complained to this effect, and she was fired after refusing to comply with such request. In this case, the need to protect the employer’s interest in the pursuit of “neutral” corporate choices has affected the exercise of another fundamental freedom, precisely, religious freedom. The Court of Justice, in deciding the Achbita case [26], a matter [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 both European Courts in evaluating the issue of religious freedom in the workplace will attempt to harmonize with reciprocal references. However, the complexity of the issues and implications involved emerges, from which derives the difficulty in finding a balance between the need for the worker to freely express his or her religious beliefs, on the one hand, and the employer's need to make its activity not connoted from the religious point of view for business needs, on the other hand. In this framework, in which the protection of religious freedom is intertwined with that linked to the prohibition of discrimination, it is necessary to carefully assess the proportionality and necessity of the forbidden conduct, from which the Courts derive the obligation to adopt “reasonable solutions” or, in other words, to seek organizational solutions that avoid excessive compression of the worker's rights and, at the same time, an excessive prejudice to the needs of the entrepreneur. [continua ..]

NOTE