Alexander Kyrlezhev

"The Case of Crucifixions" in the European Court: a Postsecular Reading

Alexander Kyrlezhev - Consultant of the Synodal Biblical and Theological Commission of the Russian Orthodox Church, kyrlezhev@gmail.com

This article is devoted to the analysis of the case about the presence of crucifixions in public schools ("Lautsi and others v. Italy") in European court for human rights (and the prehistory of this case). The author concentrates on the logic of participants of this case and analyses this logic in a broad cultural and ideological context. On the base of the ECHR decisions for the "Lautsi case" three positions and three corresponding groups of actors are outlined: strict secularists, representing projective ideology; soft secularists, orienting on culture and representing reactive ideology; and the followers of religious ideology. This last group in current postsecular situation, characterized by new ideological struggles, tend to form alliance with the second group. The postsecular reading of this case allows author to certify the crisis of traditional European secularism and of the sense of justice in the sphere of interaction between religion and society.

Keywords: European court on human rights, law, law enforcement, religious symbol, religion, ideology, secularism, postsecular.

The case of Lautsi v. Italy before the European Court of Human Rights is a very interesting and important precedent. A precedent is not only in the narrow sense of "judicial precedent", that is, such a court decision that becomes a model for subsequent court decisions in similar cases and therefore-one of the ip-

tochnikov is right. The whole story of the "crucifixion case" - from the proceedings in national Italian courts to the two directly opposite decisions in the European Court of Human Rights-is a "story of law enforcement" that reveals a certain unstable, uncertain and mobile "state of affairs" in the sphere of the relationship between law and various manifestations of religiosity/anti-religious attitudes at the current stage of European development.

We can say more: this incident points to a crisis, or rather-crises: first, the European legal consciousness in this area; second, the European "cultural consciousness"; and, third, the dominant European public ideology.

The order of these "crises" can and probably should be changed, since the Lautsey Case takes us out of the purely legal sphere and raises the question of the philosophy of the current law - in a specific thematic area. Because the opposite decisions of the ECHR in the "Lautsi case" cannot be comprehended, remaining exclusively in the sphere of international law and in the space of the "bird language" of jurisprudence.

In our opinion, this is a potentially fruitful situation. It draws attention to the question of the relationship between law and the context in which law enforcement is carried out. That is, it returns to the "beginnings", to the very foundations of law as a specific regulator (one of the regulators) of social existence.

But before we try to analyze the case in question from a broader-religious-social, "cultural" - point of view, we should focus on the actual circumstances of the case, which are not sufficiently known in our country, especially in detail.

Circumstances of the case

On 27 July 2006, Soile Lautsi, an Italian national, filed a complaint with the European Court of Human Rights against the Republic of Italy, stating that she was acting on her own behalf and on behalf of her children Datayko and Sami Albertina (they were minors at the time, but later became applicants, so that in the second hearing the case was referred to as "The Court of Human Rights").Lautsi and others v. Italy").

The essence of the complaint was as follows. In the 2001/2002 school year, Soile Lautsi's children attended the" Vittorino da Feltre Public School " (Institute comprensivo statale Vittorino da Feltre) in Abano Terme (Veneto region, province of Padua), where there was a crucifix on the wall of each classroom. First the applicant and later the applicants claimed that this violated their right to education, guaranteed by article 2 of Protocol No. 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the Convention or the ECHR).¹. They also claimed that these facts violated their right to freedom of thought, conscience and religion as set out in article 9 of the Convention.² On 3 November 2009, the Second Section Chamber examined the application and ruled unanimously in the applicant's favour. ³

The Italian Government requested that the case be referred to the highest instance of the ECHR, the Grand Chamber. A number of European Governments, non-governmental organizations, and a group of members of the European Parliament were allowed to participate as third parties in the second review of the case.⁴ As a result of two meetings (June 30, 2010

^1. " No one can be denied the right to education. The State, in exercising the functions it assumes in the field of education and training, respects the right of parents to provide such education and training as is consistent with their religious and philosophical beliefs."

^2. " 1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change one's religion or belief and freedom to manifest one's religion or belief, either individually or in community with others, in public or in private, in worship, teaching, practice of religion or worship. 2. Freedom to manifest one's religion or belief is subject only to such restrictions as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others."

^3. См. Case of Lautsi v. Italy (Application no. 30 814/06) 3 November 2009 [http://hudoc.echr.coe.int/sites/eng/pages/search. aspx?1=001-95589, accessed 22.05.2013].

^4. Paragraph 8 of the Grand Chamber's decision reads: "Permission to participate in the written procedure (article 36, paragraph 2, of the Convention and rule 44, paragraph 2) was granted to 33 members of the European Parliament acting jointly, to the non-governmental organization Hellenic Helsinki Monitor, which had previously participated in the Chamber's consideration of the case, and to the non-governmental organization National Association of Associazione nazionale del libera Pensiero, the non-governmental organization European Center for Law and Justice, the non-governmental organization Eurojuris, the non-governmental organizations International Committee of Jurists, Interwrites and Human Rights Watch, acting jointly, the non-governmental organization European Center for Law and Justice, the non-governmental organization Eurojuris.-

and on 16 February 2011), the Grand Chamber of the ECHR issued a final ruling on the case, dismissing the applicants ' claim, that is, quashing the previous judgment.⁵

Below, based on the texts of the first and second judgments of the European Court, we will set out the logic of the parties, taking into account this case as a whole, that is, the substantive aspect of the claim and the corresponding reactions of various judicial instances, including Italian ones.

Therefore, the background of the "Lautsi case" before the European Court of Justice should be briefly reported.

For the first time, such claims regarding the placement of crucifixes in school classrooms were made by Soile Lautsi's husband in April 2002 directly to the school administration, which later rejected them (at the school's board of governors, as a result of a vote of 10 for, 2 against, 1 abstention).

In July 2002, Ms Lautsi appealed this decision to the Veneto Administrative Court "for violating the principle of secularism" ^.6

In October 2002, the Italian Minister of Education, Universities and Research took part in the proceedings in this case and declared that the complaint was unfounded, referring to the rules ⁷ in force in Italy; moreover, a few weeks earlier, the Minister himself issued a special directive obliging the relevant educational authorities to ensure that crucifixes are available in school classrooms.

for services to the Central Committee of German Catholics (Zentralkomitee der deutschen Katholiken), Semaines sociales de France (Semaines sociales de France) and Associazioni cristiane lavoratori italiani (Associazioni cristiane lavoratori italiani), acting jointly, and to the authorities of Armenia, Bulgaria, Cyprus, the Russian Federation, Greece, Lithuania, Malta, Monaco, Romania and San Marino. The authorities of Armenia, Bulgaria, Cyprus, the Russian Federation, Greece, Lithuania, Malta and San Marino were also allowed to participate jointly in the oral procedure."

^5. См. Case of Lautsi and others v. Italy (Application no. 30814/06) 18 March 2011 [http://www.echr.coe.int/echr/resources/hudoc/lautsi_and_others_v_italy.pdf, доступ от 22.05.2013].

^6. Citing violations of articles 3 (principle of equality) and 19 (freedom of religion) The Italian Constitution and article 9 of the ECHR, as well as the principle of impartiality of public administrative bodies (article 97 of the Constitution).

^7. Article 118 of Royal Decree No. 965 of 30 April 1924 (Internal rules for secondary schools) and Article 119 of Royal Decree No. 1297 of 26 April 1928 (approval of the general rules governing primary education).

The Veneto Administrative Court has challenged the Constitutional Court on the constitutionality of the rules in force in Italy (confirmed in a special decree of 1994) concerning the placement of crucifixes in school classrooms, from the point of view of the secular nature of the State and a number of articles of the Constitution. However, the Constitutional Court rejected this request on the grounds that in this case it was not about laws, but only about rules.

In March 2005, the Administrative Court rejected S. Lautsi's complaint, which in response appealed to the Supreme Administrative Court-the State Council, but the latter confirmed the previous court decision (for reasons , see below).

It was only after the whole Italian "law enforcement story" that S. Lautsi filed a complaint with the European Court of Human Rights in July 2006.

It is important to note that the Italian background of the "Lautsi case" is reflected in both ECtHR decisions. The only difference is that in the text of the first decision, its presentation takes up one and a half pages, while in the text of the second decision - more than six pages with a lengthy quotation of the reasoning part of the relevant court decisions, as well as the arguments of the aforementioned minister.

We will be interested not so much in the legal, including the procedural, aspect of the incident under consideration, but, first and foremost, in the content-ideological aspect. To do this, we will focus, as mentioned above,on the logic proposed by various participants in this long process - first "national", and then "European".

In the following pages, we will successively present various positions that have a certain interpretation of the issue under consideration: (1) the logic of the Italian courts; (2) logic in favour of the applicant: the applicant (s) himself in the first and second proceedings; the first-member Court that ruled in favour of the applicant; third parties in the second proceedings; (3) logic against the applicant's claim: the Italian Government in the second proceedings; third parties in support of Italy; the Court in the second case the team that rejected the first decision. Then (4) the judges ' dissenting opinions in favor of and against the final Court decision will be summarized (we have put them in a separate section, since although they are published in the official Court decision, they are published as an appendix - after the court decision itself).

Logic of Italian courts

Administrative Court Veneto

Explaining its decision, the court pointed to "the thread connecting the Christian revolution two thousand years ago and the establishment in Europe of the right to personal freedom and key elements of the Enlightenment (despite the fact that this movement from a historical point of view strongly opposed religion), namely the freedom and inviolability of every person, the proclamation of human rights and, ultimately, modern education." a secular state." Referring the principles of human dignity, tolerance and freedom, including religious freedom, to the core of the Christian faith as one of the sources of the secular nature of the State, the court pointed out that "in modern social reality, the crucifix should be considered not only as a symbol of historical and cultural development and, consequently, the identity of our people, but also as a symbol of the values... on which our Constitution is based." Accordingly, the court noted that "it would be a kind of paradox to exclude a Christian sign from a public institution in the name of secularism, one of the remote sources of which is precisely the Christian religion."

In addition, noting that many non-EU students currently attend Italian public schools, to whom it is important to convey the principles of openness to diversity and rejection of religious or secular fundamentalism, the court stated::

Our era is characterized by a ferment caused by the union of different cultures with our own, and preventing this union from turning into a clash is extremely important for confirming our identity, even symbolically, especially if it is characterized precisely by the values of respect for the dignity of each human being and universal solidarity.

The court further expressed the view that "the logical mechanism for excluding a non-believer is inherent in every religious belief", but "the only exception is Christianity - when it is properly understood", since " in Christianity, even faith in an omniscient God is secondary

in relation to charity, which means respect for other human beings." Therefore, "the cross as a symbol of Christianity cannot exclude anyone without denying itself"; moreover, it is "a universal sign of acceptance and respect for every human being as such, regardless of belief, religious or other."

State Council (Supreme Administrative Court)

In its reasoning, the Court focused on the specifics of the form of secularism that is inherent in the Italian state. The Court stressed that "secularism is the highest principle of our constitutional order", which, although "not explicitly stated in our Constitution", is derived from a number of its articles (2, 3, 7, 8, 19, 20). The Court further noted that the linguistic symbol used to express this principle ("secularism") in a concise form indicates certain provisions, the content of which determines the operating conditions of this symbol, that is, how it should be understood. In isolation from the specific conditions of application, the principle of "secularism" is limited to the sphere of ideological conflicts and can hardly be used in a legal context. And in this context, as the court pointed out, the conditions of application are determined by the cultural traditions and customs of each nation, since these traditions and customs are reflected in the legal order, and they do not coincide among different peoples.

Regarding the crucifixion, the Court noted that the symbol has many meanings that serve different purposes. The crucifix is actually a religious symbol in the space of worship, while in the non-religious educational space its demonstration "can represent and awaken... values that are important for civil society", including those that reflect "our constitutional order", and therefore "implement - even in a "secular" perspective... - a high educational symbolic function, regardless of the religion professed by students."

The Court further noted that "in Italy, the crucifix expresses - symbolically, of course, but appropriately - the religious origin of these values.": tolerance, mutual respect, the value of the individual and the affirmation of his rights, respect for his freedom, the autonomy of his moral conscience before others-

It is a symbol of power, human solidarity and rejection of any discrimination-values that characterize Italian culture." These values, according to the court, "permeate the traditions, way of life and culture of the Italian people, form the basis and derive from the fundamental norms of our fundamental charter... defining "the form of secularism inherent in the Italian state".

Further, the court simultaneously asserts both the religious (Christian) origin of the above - mentioned values, namely their "transcendent sources", and the autonomy of temporal power in relation to spiritual power-but not their opposition, which is assumed by the ideological interpretation of secularism, which is not typical of the Italian Constitution. The Court asserts the secular or civil nature of these values "regardless of the commitment to the teachings that inspire and protect them." Accordingly, according to the court's logic, the crucifixion at school should be considered as a symbol of values that, although they have a religious origin, now determine the secularism of the modern legal state system.

Italian Minister of Education

The Minister of Education, Universities and Research, in his instruction of 3 October 2002 (No. 2666), stated "that the presence of crucifixes in classrooms is based on the existing provisions, that it does not infringe on religious pluralism or on the goals of multicultural education in Italian schools and cannot be considered a restriction on the freedom of conscience guaranteed by the Constitution, because it has nothing to do with a particular faith, but is only an expression of Christian civilization and culture, and that, thus, it represents part of the universal heritage of humanity." The instruction provided for both the placement of crucifixes in school classrooms and the allocation of premises in schools "for the contemplation and reflection of those members of the school community who so wish."

Conflict of enforcement interpretations

The conflict of interpretation occurred due to the fact that the Court of Cassation challenged the position of the State Council in the case of the presence of the crucifix at the polling station. In your Re-

According to the decree of March 1, 2000 (No. 439), the demonstration of the crucifix violates the principles of secularism and the impartiality of the state, as well as the principle of freedom of conscience, rejecting the interpretation of the crucifix as a symbol of "the entire civilization or collective ethical consciousness", as well as "a universal value independent of a particular religious belief" (the last quote is from the decree State Council of April 27, 1988, No. 63).

Logic in favor of the applicant (s)

Applicant/applicants ' logic

Argumentation in the presentation of the first Court order:

Crucifixes are placed in the classrooms of Italian public schools in accordance with the regulations (1924 and 1928), which date back to the period before the adoption of the Italian Constitution (1948), as well as before the conclusion of the Concordat with the Catholic Church (1984), according to the protocol to which (1985) Catholicism is no longer the state religion in Italy. These decisions were based on the religious understanding of the State, but currently contradict the secularism of the State and violate the rights protected by the Convention. The main meaning of the crucifixion is religious, despite the possibility of other interpretations. Displaying this symbol in a public school gives students the impression that the state supports certain religious beliefs, which is contrary to the principles of the rule of law. The principle of secularism requires the State to be neutral and equidistant from all religions, so as not to give the impression that it is closer to some citizens than to others.⁸

Additional argumentation in the second Court ruling:

By expressing a preference for one religion, the State neglects its duty to specifically protect minors from any propaganda or indoctrination. The same applies for-

^8. §§ 30-33.

shields the beliefs of the minority in order to protect it from the "despotism of the majority". The Italian legal system does not give grounds to consider the crucifix as a symbol of national identity. Although the Italian authorities insist that removing crucifixes from public school classrooms is an attack on one of the elements of Italian cultural identity, the presence of crucifixes there is incompatible with the foundations of Western political thought, with the principles of a liberal state, with a pluralistic open democracy, and with respect for individual rights and freedoms. ⁹

Logic of the first-person trial

Argumentation in the first Court ruling: Pluralism in education is essential for a democratic society, and the State is called upon to ensure it. Open school spaces should be inclusive, not exclusive. The school is not a place for missionary work and preaching; it is a meeting place for different religions and philosophical beliefs. The State is obliged to refrain from imposing faith (indoctrination), even indirectly. "In countries where the vast majority of the population adheres to a particular religion, displaying symbols of that religion can put pressure on students who are not adherents of this or any religion at all." The religious meaning of the crucifixion is predominant among its other meanings. The presence of crucifixes can easily be perceived by students of different ages, especially members of religious minorities, as a religious sign and give the impression that they are studying in a school where a certain religion is present. "Negative religious freedom is not limited to the absence of religious services or religious education. It applies to practices and symbols that express, in particular or in general, a particular faith, religion or atheism." "The Court does not see how the display in public school classrooms of a symbol that is reasonably associated with Catholicism (the majority religion in Italy) can serve the educational pluralism essential to the preservation of a 'democratic society' in the sense that the Convention understands it. "¹⁰

^9. §§ 41 - 46.

^10. §§ 47 - 58.

Regarding the first decision, the second Court decision reads, in part::

As the Chamber pointed out, the state was obliged to observe confessional neutrality in the context of public education, if class attendance is mandatory regardless of religion, taking into account the goal-to promote the development of critical thinking among students. (...) The Chamber concluded that "the mandatory display of the symbol of a particular denomination in the exercise of public duties in specific situations under State control, especially in classrooms, restricts the rights of parents to raise their children in accordance with their beliefs and the right of children to believe or disbelieve." ¹¹

Logic of third parties acting in favor of the applicant during the second hearing of the case

NGO Hellenic Helsinki Monitor ¹²: The crucifix cannot be perceived as anything other than a religious symbol, so its display in public school classrooms can be seen as an institutional message in favor of a particular religion; concerned children or parents may have refrained from protesting because they feared persecution.

NGO "National Association of Freedom of Thought"¹³: The demonstration of the crucifix in public school classrooms was not provided for by law, but by rules adopted during the fascist era, which cannot apply in the era after the adoption of the Constitution (1948) and the Protocol to the Concordat (1985) - the Criminal Division of the Court of Cassation issued a corresponding instruction in a similar case concerning the demonstration of the crucifix at the polling stations (Judgment of 1 March 2000), as well as on the issue of displaying crucifixes in courtrooms (Judgment of 17 February 2009). "Thus, there was a conflict between the case-law of the Council of State (which, on the contrary, considered that the relevant rules were applicable) and the Court of Cassation, which affects the principle of the use of crucifixes in the courtroom (Judgment of 17 February 2009).

^11. §§ 30 - 32.

^12. § 50.

^13. § 51.

legal certainty, which is the mainstay of a State governed by the rule of law."

NGO "Eurojuris" ¹⁴: the presence of crucifixes in the classrooms of Italian public schools is not prescribed by law, but by rules inherited from the fascist era, which reflected the confessional concept of the state, incompatible with the principle of secularism established in positive constitutional law; the crucifix is a religious symbol with which non - Christians are not associated.

NGOs International Committee of Jurists, Interwrites and Human Rights Watch ¹⁵: The case law of the European Court of Justice points to the duty of the State to maintain neutrality and impartiality in relation to religious beliefs in the provision of public services, including education; such neutrality is particularly important in school premises (including the organization of the school environment), as there, due to compulsory school education, there is a risk of indoctrination of children.

Logic against the claim of the applicant (s)

The logic of the Italian Government ¹⁶

The first judgment lacks a pan-European approach, i.e. a comparative legal study on State-religious relations and on the display of religious symbols in public schools; such a study would indicate the wide margin of appreciation of States parties to the Convention.

Neutrality requires the State to take into account all religions. In the first judgment, there was a confusion of "neutrality" (as an "inclusive concept") and "secularism" (as an "exclusive concept"). However, States should refrain from instilling not only a particular religion, but also atheism; "secularism" on the part of the State is no less a problem than any religious proselytism. The first decision was the result of a misunderstanding

^14. § 53.

^15. § 54.

^16. Second judgment, paragraphs 33-40.

and encouraged a non-religious or anti-religious approach, "of which the applicant is alleged to be a militant supporter as a member of the Union of Atheists and Agnostic Rationalists".

The sign of the cross can be perceived not only as a religious symbol, but also as a cultural symbol associated with identity, as a symbol of the principles and values that created the basis of democracy and Western civilization; it is this symbol that is present on the flags of a number of European countries. This symbol is an expression of the" national peculiarity " of Italy, which is characterized by particularly close relations between the state, the people and Catholicism, related to the historical, cultural and territorial development of the country. The question of the presence of crucifixes is a question of preserving a centuries-old tradition. The Court should recognize and protect national traditions and prevailing popular sentiment, and leave it to the discretion of each State to strike a balance between opposing interests.

The rights of parents to respect their "family culture" should not conflict with the rights of society to transmit their culture and the rights of children to perceive it. Having crucifixes in classrooms is the wish of most parents in Italy, and removing crucifixes would be an abuse by a minority.

The Court must respect constitutional traditions and principles related to the relations between the State and religions, including the special approach to secularism that dominates in Italy. The predominance of attention to the religion of the majority in school curricula does not in itself indicate improper influence on the part of the State or on attempts at indoctrination. The Convention does not prohibit States parties from having a State religion, or giving preference to a particular religion, or offering students more extensive information about the dominant religion. The presence of crucifixes in classrooms helps students understand the national community they are meant to integrate into. The crucifix is a "passive symbol" that does not affect the content of education in Italy. In the school environment, openness and respect for various manifestations of religiosity are practiced. Thus, it is allowed to wear Islamic headscarves and other types of clothing or symbols of a religious nature.-

the end of Ramadan; students of the Jewish faith have the right not to take exams on Saturdays; in addition, all recognized religions are allowed to study.

Logic of third parties in favour of Italy

Joint position of the Governments of Armenia, Bulgaria, Cyprus, the Russian Federation, Greece, Lithuania, Malta and San Marino ¹⁷: the reasoning behind the first decision is based on a misunderstanding of the "neutrality" of the State, which should not be equated with "secularism". Secularism is a political position that is worthy of respect, but not neutral. In Europe, there is a significant variety of types of church-state relations; more than half of the European population lives in non-secular states, where the presence of religious symbols in public space is perceived by secular people as an element of national identity. An important factor is the degree of contextualization of the curriculum, as well as teaching children tolerance and pluralism.

Monaco's position ¹⁸: The crucifix is a "passive symbol" that appears on the coats of arms and flags of many States, and in the present case reflects a historically established national identity; the principle of State neutrality requires the authorities to refrain both from introducing a religious symbol that was previously absent and from removing a symbol that has always been present.

Romania's position ¹⁹: The case-law of the European Court of Justice, in particular, recognizes that States enjoy a wide margin of appreciation regarding the presence of religious symbols in public schools.

NGO "European Center for Law and Justice"²⁰: As it was impossible to detect an infringement on the" inner or personal views " of the first applicant's children due to the presence of the crucifix in the classrooms, the Court in its first decision proposed a new obligation - to provide full light-

^17. § 47.

^18. § 48.

^19. § 49

^20. § 52.

This was beyond the scope of the complaint, as well as beyond the jurisdiction of the Court.

NGOs "Central Committee of German Catholics", "Public Weeks of France" and "Italian Association of Christian Workers" ²¹: it is necessary to establish a balance between the rights and interests of believers and non-believers, between the fundamental rights of individuals and the legitimate interests of society, as well as between the adoption of standards related to fundamental rights and the maintenance of existing diversity in Europe.

Position of the 33 members of the European Parliament acting jointly ²²: The European Court of Justice is not a constitutional court; it must respect the principle of subsidiarity and recognize the broad margin of appreciation of participating States not only in relations between the State and religions, but also in the exercise of its functions in the field of education. The presence of religious symbols in public spaces should be considered not as a form of indoctrination, but as an expression of cultural unity and identity. In this particular context, religious symbols have a secular dimension and therefore should not be eliminated. A demand to remove the crucifixes would be a radical ideological message.

Logic of the Court in the second composition ²³

The Grand Chamber of the ECHR (that is, the Court that adopted the second decision) first indicated that it does not consider the presence of crucifixes in places other than public schools, and does not undertake "to resolve the issue of compatibility of the presence of crucifixes in public school classrooms with the principle of secularism embodied in Italian law."

The Court further pointed out that the complaint submitted should be considered mainly from the point of view of the second sentence of article 2 of Protocol No. 1 to the Convention, which reads as follows:: "The State, when exercising the functions it assumes in the field of education and training, respects the right of parents to provide free access to children.-

^21. § 55.

^22. § 56.

^23. §§ 57 - 81.

encourage such education and training that is consistent with their religious and philosophical beliefs." At the same time, the Court also pointed out that this provision should be interpreted in the light of not only the first sentence of the same article, but, in particular, also of article 9 of the Convention.

The Court further noted that "States parties enjoy a wide margin of appreciation in determining what measures should be taken to ensure compliance with the Convention, taking due account of the needs and resources of society and individuals", and that "the development and approval of training programmes are within the competence of States parties", provided that "information on the implementation of the Convention is provided for by the or the knowledge included in the school curriculum was transmitted in an objective, critical and pluralistic way, which would allow students to develop critical thinking, especially in relation to religion, in a calm environment that is alien to any proselytism. The State is prohibited from pursuing the goal of indoctrination, which can be considered as disrespecting the religious and philosophical beliefs of parents."

Turning directly to the case at hand, the Court stated that it did not accept the Government's argument that the State's obligation concerned only the content of school curricula and that therefore the issue of the presence of crucifixes in public school classrooms was not its responsibility; according to the Court, this responsibility also extended to the organization of the school environment, including and the demonstration of crucifixes, if national legislation assigns this function to the relevant authorities.

The court recognized that the crucifix is primarily a religious symbol. At the same time, he pointed out that there was no "evidence that the display of a religious symbol on the classroom walls could have an impact on students", and that "the applicant's subjective perception in itself is not a sufficient basis for establishing a violation" of the relevant norms.

The Court's judgment goes on to read: "The Court considers that the decision on whether or not to perpetuate the tradition is in principle within the respondent State's discretion." In addition, the Court pointed out the need to take into account the fact of significant cultural and historical differences between European States. At the same time, the Court stressed that the reference to tradition

does not relieve the State party of its obligation to respect the rights and freedoms set out in the Convention and its Protocols.

Referring to the Government's view on the significance of the crucifixion, the Court noted that it "should not take a position in the domestic dispute of the domestic courts", bearing in mind the difference in decisions previously taken by the Italian courts.

The Court also stated that it is a matter of principle to respect the decisions of States parties regarding the organization of the school environment, as well as the planning and approval of school curricula, including the place given to religion, provided that these decisions do not result in any form of indoctrination.

In the operative part, the Court concluded that "the decision on the presence of crucifixes in public school classrooms is in principle a matter within the respondent State's discretion" and that this approach is supported by "the fact that there is no European consensus on the presence of religious symbols in public schools". At the same time, the Court ruled that in this case "the margin of appreciation must be accompanied by European supervision".

As a justification for its decision, the Court pointed out that although a crucifix in a school space specifically visually indicates the religion of the majority of the population, this is not sufficient to establish the fact of indoctrination (referring to the cases of Folgere and Others v. Norway and Hasan and Eilem Zengin v. Turkey ²⁴). According to the Court, the crucifix on the wall of the school auditorium is rather a passive symbol and in this sense does not contradict the principle of State ownership.

^24. See paragraph 71: "In the case of Folgere and Others v. Norway, in which it [the ECtHR] had to examine the content of the lessons on 'Christianity, religion and philosophy', it held that the fact that the programme paid more attention to the study of the Christian religion in comparison with other religions and philosophies, In itself, it cannot be considered as a departure from the principles of pluralism and objectivity, which constitutes indoctrination. He explained that, in view of the place that Christianity occupied in the history and tradition of the respondent State, Norway, this question should be considered as falling within the State's discretion in planning and establishing a programme (see Folgere et al.v. Norway, § 89). He reached the same conclusion about the course on "religious culture and ethics" in Turkish schools, where the curriculum gave more space to the study of Islam on the grounds that, despite the secular nature of the State, Islam is the majority religion in Turkey (see Hasan and Eilem Zengin v. Turkey, § 63).".

neutrality, which is evidenced by the fact that Italy simultaneously opens the school environment to other religions. Conclusion: In the present case, the Italian authorities acted within the limits of the respondent State's discretion.

Final decision: "The Court accordingly concludes that in the present case the requirements of article 2 of Protocol No. 1 to the Convention in respect of the first applicant were not violated. It also considers that a separate issue does not arise under article 9 of the Convention." This decision was adopted by the Grand Chamber of the ECHR with fifteen votes in favor and two against.

Dissenting opinions of Grand Chamber judges

Concurring dissenting opinions

Judge Christos Rozakis in his dissenting opinion (joined by Judge Nina Vaic), in particular, drew attention to the "right of society" and the role of the majority religion in Italian society, noting that "the main concern of the state is to offer children an education that will ensure their fullest integration into the society in which they live."". In his opinion, in the current situation of a multicultural and multiethnic society, "children are used to receiving information about a variety of often conflicting ideas, and the role of schools and parents in these issues is relatively less influential." Accordingly, " the State's responsibilities have shifted significantly from addressing parental concerns to caring for society as a whole, which has reduced the ability of parents to determine, outside of the home, the type of education their children receive." He also noted that in the absence of a European consensus on the issue of public display of religious symbols, the European Court of Justice should be guided by existing norms (be a court of law), and not act as a legislative body.

Judge Giovanni Bonello spoke in an expressive manner. Here are some characteristic quotes from his dissenting opinion: "The European Court of Justice should not bankrupt centuries of European tradition. No court, including this one, should deprive Italians of a part of their cultural identity."

"The presence of the crucifix in Italian schools... it shows an indisputable millennial historical reality - it can be argued that it has been there since the school existed. Now, a court in a glass jar a thousand kilometers away is engaged in a sudden ban on what has survived countless generations. The European Court is asked to become an accomplice in a gross act of cultural vandalism."

"The Convention gave this Court the right to enforce freedom of religion and conscience, but it did not authorize it to force States to secularism or impose systems of religious neutrality on countries. Each individual State has the right to choose whether or not to be secular, whether or not to separate the Church from governance, and to what extent. What the state should not do is deny anyone freedom of religion and conscience."

"Freedom of religion is not secularism. Freedom of religion is not a separation of church and state. Freedom of religion is not religious equidistance. These are all tempting concepts, but no one has appointed this Court to be the controller of any of them. In Europe, secularism is optional, but religious freedom is not."

"Keeping the symbol [of the crucifix] where it has always been is not an act of intolerance on the part of believers or cultural traditionalists. Its removal would be an act of intolerance on the part of agnostics and secularists."

"No one has given a reason why the will of the parents of one student should prevail, and the will of the parents of the other 29 students should be ignored."

Judge Ann Power, among other things, made the following observations: "The first applicant may have been offended by the presence of a crucifix in classrooms, but the existence of the right not to be offended has never been recognized under the Convention. In rejecting the Chamber's ruling, the Grand Chamber only confirmed the existing legal practice (especially with regard to article 10 of the Convention), according to which mere "insult" is not something against which a person can be legally immunized."

"Neutrality requires a pluralistic approach on the part of the state, not a secularist one. It encourages respect for all worldviews, rather than giving preference to one of them. In my opinion, the Chamber's ruling strikes a chord with unspo-

failure to recognize that secularism (which is the applicant's preferred belief or worldview) by itself, it represents one ideology among many. Giving preference to secularism over alternative worldviews-religious, philosophical, or otherwise-is not a neutral choice."

In addition, she drew attention to the fact that a truly pluralistic education implies a situation in which a person is exposed to different ideas, including those that he does not share.

Conflicting opinions

In the dissenting dissenting opinion of Judge Giorgio Malinverni, joined by Judge Zdravka Kalaijieva, in our opinion, no new arguments were made in comparison with those already given. Their position is summarized as follows: "Effective protection of the rights guaranteed by Article 2 of Protocol No. 1 to the Convention and Article 9 of the Convention obliges States to observe the strictest religious neutrality. This applies not only to school programs, but also to the "school environment". Since primary and secondary school education is compulsory, the state should not impose on students, against their will and in the absence of their ability to withdraw, a symbol of a religion with which they do not associate themselves."

"Lautsi case" as a focus of ideological confrontation

The question of the nature, purpose, and function of law can be answered in many different ways, and legal experts know this. However, this is sometimes forgotten by some commentators of specific "cases", not bothering themselves with the philosophy of law, because they believe that the problems of this philosophy have long been known in the "society "(="world community") everything has already been decided regarding its correct interpretation.

Lautsi's case in the ECHR shows that this is not the case at all. It shows that history continues and that at its new turns we are again faced with problems not of "standard" law enforcement, but of the philosophical justification of this law enforcement. Therefore, we must think again about how they arise.,

legal norms inherited from the past are being transformed and applied; the extent to which the existing international legal norms were determined by the specific historical context of their origin and approval; and the extent to which they correspond to current socio-cultural processes.

For the norms of secular law, no matter how this law itself is understood, are not and cannot be a kind of" divine revelation "that determines the" earthly " order of social life. Legal norms - both national and international-are intended to be regulators of the historically specific "state of public affairs", that is, to work, so to speak, at the intersection of ideal and reality. Neither the laws of Hammurabi, nor the canons of the Council of Trull in the current European legal context, that is, in the sphere of responsibility of the ECHR, have any legal force. In this area, the European Convention is a standard that is only a few decades old. No one disputes this standard. Still, this is a historically defined standard. Its legal and law-enforcement (judicial) interpretation necessarily involves taking into account the current social configuration (configurations), because the meaning of legal regulation in a" secular society " is to regulate religious and ideological diversity. Including those conflicts that arise or may potentially arise in the situation of this my2006raziya.

To put it very briefly: law, and especially law enforcement, should follow real life, ordering it. Secular law (that is, not "revealed", but pragmatic) is called upon to fulfill this and only this social function. Legal fundamentalism( or formalism), and even more so legal "ideologism", do not contribute to the fulfillment of this function of modern law.

You should pay special attention to the latter. Law, or rather legal consciousness, is necessarily connected not only with the "real life" that it is designed to regulate through its specific tools, but also with the "ideology" in accordance with which the life of a particular society/community is built. Law is ideological to the extent that any society is ideological. But ideologies compete, fight for hegemony, assert themselves as dominant, and then come to grips with new ideological trends that can also act as contenders

to the hegemony. In this sense, no law is ideologically neutral, much less the logic of law enforcement, which is always backed by a kind of" comprehensive worldview " (comprehensive doctrine in the terminology of John Rawls).

Today we are witnessing a new historical dynamic, which, despite all the claims about the "end of ideologies", is characterized by a new ideological struggle. The crucifixion case is a typical example that reveals a new confrontation of ideologies in the course of a trial, or rather, a whole series of such trials. In this case, we can talk about three types of ideologies: secular, religious and "mixed", or hybrid, which is post-secular ²⁵.

The specific situation considered in connection with the "Lautsi case" is that from the very beginning, even in the national Italian context, we see a judicial and ideological dispute over an obviously religious issue between supporters of two secularisms. In the course of this litigation, two logics collide - rigidly secularist and secular-culturological. This can be called a "bifurcation of secularism", which is a sign of post-secularism, which just grows out of such an interpretation of secularism, which takes into account the historical and cultural, including religious, traditions of specific societies. (In the case-law of the ECtHR, this consideration has been reflected in the cases referred to by the Grand Chamber in the "Lautsi case" judgment; see footnote 24.)

From a post-secular point of view, it is very interesting and significant that in this case the Italian authorities (judicial and other), justifying their position in favor of the presence of crucifixes in schools, persistently and in detail develop a kind of secular theology. As we have seen, the very first legal reaction to Lautsi's claim - rather unexpectedly for an abstract secular approach-was a certain interpretation of Christianity by a fundamentally secular body. "Secular "is not opposed to the" Christian faith " here, but, on the contrary, is deduced from it, while facts that contradict this approach are discarded as insignificant. This is the most post-secular strategy, that is, one that rejects secularism as a counter-religious ideology and co-operates with other countries.-

^25. For information on "post-secular hybrids", see Dmitry Uzlaner's article published in this issue of the journal.

It interweaves modern secular ideas and standards with historical and current religious factors. Religion (namely, Christianity) appears in this logic to be a source of secularism, and not its antagonist. The justification of this thesis by a secular court is striking in that the court appeals to theological arguments: Christianity, understood correctly, says the court, is inclusive; "the cross as a symbol of Christianity cannot exclude anyone without denying itself." The theological arguments included in the logic of the court defending secularism are a characteristic manifestation of post-secular "hybridity". The authorities of the secular state justify modern European " secularism "in the mode of" peace with religion", even to the point of directly rejecting the actual significance of the historically recognized" conflict with religion " of the Enlightenment era.

In this case, this is the law-enforcement logic of a modern provincial Italian court. This logic was confirmed and reinforced by the highest national court, the State Council, which, without any hesitation, directly pointed out the religious origin of modern secular values (their "transcendent sources") and the fact that the implementation of the principle of secularism is determined not by" ideas", but by the cultural traditions and customs of a particular society. In addition, the Italian court used a very archaic language to describe church-state relations, referring to secular (earthly, "temporal") power and spiritual power and asserting their mutual autonomy, rather than opposition (it is obvious that the discourse of "authorities" hardly fits into the discourse of the Convention with its fundamental emphasis on the rights of the individual). individual rights-against any "authority", since it tends to encroach on these rights). Thus, the Italian supreme court also quite freely resorted to theological arguments in favor of its understanding of "secularism".

However, the position of the Italian Government in the second trial before the ECHR is no longer supported by theological arguments. Here the emphasis is placed on the national tradition and the rights of the majority, which do not contradict religious freedom and diversity, including in the educational space. However, the "nerve" of this argument is the distinction (and, in fact, the opposition) between "neutrality" and "secularism", which in this case indicate two different principles: inclusive and exclusive, respectively (see the above statement).-

the logic of the Italian government). This is precisely the "split secularism" (for there is no logical or discursive opposition between secularism and antisecularism).: one secularism, in this case "Italian", acts in the mode of inclusivity, that is, it includes the "cultural aspect" (historical tradition, national identity," popular sensitivity " plus the religious component); the other secularism is abstract, putting all these dimensions of social life out of brackets. But it is important to emphasize that both are "secularisms". And the logic of the Italian courts is precisely to confirm all modern European secular values and norms, consistently juxtaposing and even linking them with Christianity. (Let's repeat: what is this, if not an example of the latest "secular theology" - as a post-secular phenomenon?!)

It is rather difficult to use the term "ideology"to describe this situation. On the one hand, the clear desire of the " Italian side "to separate positive secularism ^and negative secularism26, understanding the former as the consistent neutrality of the state, and the latter as" implanting not only a specific religion, but also atheism", indicates a certain conflict within secularism (laicism) - precisely as an ideology. But, on the other hand, something else is also clear: the "Italian" interpretation offers a certain "culturological" vision of the problem, which is opposed to the rigid, abstract understanding of secularism as an "ideology" in a narrower," purely " sense

^26. I quote Carlo Cardia, an influential Italian expert on church-state relations, who said this about the first decision: "Among other things, the court avoids considering the notion of positive secularism in the Italian Constitution, which differs from negative secularism in France or (at least from an institutional point of view) in Turkey. The Court does not apply to Italy the same hermeneutic approach as was stated in its previous proceedings." At the same time, the author refers to Augusto Barber, who once stated that the first decision of the ECHR is "amazing", since the court "adopts the approach to secularism that is present in other legal systems, in particular in France and Turkey. It is no coincidence that the decisions of the Strasbourg Court were different when it had to defend the decisions of these countries prohibiting the use of religious symbols in public, in particular the hijab. Using this approach, the Court does not respect the "assessment limits" when applying the European Convention. That is, he has moved away from the direction of judicial practice, the purpose of which is to respect national constitutional traditions" (Cardia K. European religious and cultural Identity. The question of Crucifixion, Moscow: Center of Books Rudomino, 2011, pp. 29, 28).

(recall the statement of the Italian Council of State: "In isolation from the specific conditions of application, the principle of "secularism" is limited to the sphere of ideological conflicts and can hardly be used in a legal context.")

This confirms our thesis stated above. In its motivational part, law enforcement practice (due to the very "nature" of this function) focuses on at least two significant factors: an abstract legal norm by definition and a specific social situation. Legal norms, by their very philosophical meaning, are abstractions from empirical reality and in this respect represent a "normative ideal". But their goal is to regulate empirical reality, and this is the task no longer of law as such, but of law enforcement.

The relation of "law" as a social subsystem to ideologies in the broadest sense - that is, dominant, opposing or marginal systems of social representations-is also twofold. On the one hand, the current legal norms arise in a certain socio-cultural context, and, on the other hand, their application in judicial practice involves taking into account the existing moods in society (because otherwise it is not clear what they are applied to). Accordingly, the ideological dimension of both law and law enforcement is unavoidable and logically legitimate.

Therefore, despite the ambiguity of the term "ideology", we propose (using this term in an extended sense) in the context of the problem under consideration the following scheme:

In the Lautsi case, two ideologies of secularism were revealed and collided-negative abstract secularism as a rigid anti-religious ideology and positive cultural secularism as a soft and non-anti-religious ideology, that is, not projective, but, on the contrary, reactive. The distinction between projective and reactive ideologies is very important. By introducing such "ideological modes", we can describe exactly the latest situation, which is not similar to the situation of the last century with its ideologies and corresponding confrontations.

Based on these considerations, the legal battle under consideration can be described as a new ideological confrontation between supporters of two "secularisms": hard secularists and soft secularists. The former represent a projective ideology that goes back to the ideals of the Enlightenment, and the latter is an ideology of

reactive, which is determined by the current "state of public affairs". And it is very significant (for post-secular analysis) that this confrontation manifests itself not just in the world of ideas, but in the space of law enforcement, that is, the motivations of court decisions that are important for the legal regulation of public life.

"Rigid secularists" are in favor of a clear (one might say formal) separation of the religious and secular, against any mixing of them, because otherwise the "secular" itself disappears, losing its borders.

"Soft secularists" - for a meaningful analysis and interpretation of the historical and modern relationship between religious and secular. They take into account the" cultural fabric "of society and verbalize the intuitive dispositions of the autochthonous "popular majority", both national and pan-European.

In the second case, we are faced with the latest "secular theology", and therefore with the manifestation of a post-secular approach, that is, one for which rigid secularism is no longer axiomatic, and therefore does not define criteria for evaluating modern socio-cultural phenomena and processes related to religion/religiosity.

Soft secularists can be called "culturologists". During the second hearing of the Lautsi case at the ECHR, Italy and its supporting states, as well as some other third-party participants (religiously oriented NGOs and a group of MEPs), played the role of such "secularists and cultural scientists".

The second case deserves our attention in several respects.

First, the European Court of Justice was confronted with the fact of conflicting decisions of the Italian national courts, that is, with a conflict of law enforcement interpretations, but it withdrew from this conflict on formal grounds. For this conflict itself is ambivalent. For the plaintiff's supporters, this "legal uncertainty" speaks in favor of the first Court decision (in the sense that, they say, "Italy itself cannot fundamentally understand the issue of crucifixes"). However, the same fact can also be interpreted in the sense that the inconsistency of the relevant court decisions indicates uncertainty, insufficient clarity of the "state of affairs"itself. That is, just about the post-secular situation: when something that does not allow-

It is not allowed to be used in polling stations and courtrooms, but for some reason it is allowed in a public school... Neither the Italian state, nor a significant part of Italian society, nor the Italian judges see rigid secularist decisions as the only correct and therefore binding ones. The boundary of religious presence in the public space turns out to be mobile. Therefore, there is no "legal certainty"...

Secondly, during the proceedings before the ECHR, the topic of majority and minority emerged, as well as the topic of "the balance between the rights and interests of believers and non-believers, between the fundamental rights of individuals and the legitimate interests of society". The last topic was presented by representatives of religious ideology acting as a third party-Christian NGOs. Here we also encounter a post-secular element: the interpretation of" the rights of believers "not in terms of religious freedom as a "fundamental right of individuals", but in terms of "legitimate interests of society". Believers, that is, those who are religiously motivated, argue in the European Court of Justice in support of the" culturological secularism " of the secular authorities, who protect the religious symbol as a source and sign of the modern secular order. In this case, there is a union of religious and post-secular actors who jointly oppose traditional (i.e. rigid) secularism, and it is important that we are not talking about individual or even collective rights, but about "the rights of society" - in the sense of tradition as an integral part of the majority culture.

Third, the confrontation of different positions in this case does not take place in a communicative and debatable democratic space-where pluralism of opinions is both a fact and a dogma, but at the same time no "final solution to the issue" is assumed, because democratic discussion by definition is endless. The confrontation takes place in the judicial - moreover, European - space, which presupposes some kind of, in this case, precedent-setting resolution.

Finally, in contrast to the first judgment, in the second judgment, the ECtHR did not adopt a position of rigid secularism and did not identify the latter with the required neutrality (that is, at the same time, it left the ideological position set by the Italian side, and, in essence, agreed with the proposed distinction between "secularism" and "neutrality" of the state). It is possible that the Court took into account the instructions of third-party participants, who-

They drew attention to the secularization intentions of the plaintiff and the first-class Court, ²⁷ and also to the fact that a ban on crucifixes would be a "radical ideological signal"^.28 These were indications that a political and ideological decision by a pan-European court was unacceptable, which in such a case would really go beyond the limits of its specific competence (that is, it would that is, it is law enforcement, and not "constitutional").

Enforcement strategy of the Grand Chamber of the European Court of Justice

The overall strategy of the Court during the second hearing of the "Lautsi case" is to avoid all the above - mentioned ideological problems.

The Court avoided "cultural studies", although it did provide examples of its past decisions that took into account the "cultural context" (see note 24). In this case, one can see both a logical sequence and some "cunning": crucifixion in school is not prohibited by the Court not as an element of tradition, but for other reasons... The Court attributed the right to preserve traditions to the discretion of States, reserving only European legal supervision.

More importantly, however, the Court did not address the issue of the relationship between religious and secular, immediately refusing to consider the issue of the presence of crucifixes in places other than public schools, as well as the compatibility of the presence of crucifixes in public school classrooms with the principle of Italian secularism. The Court has moved away from such theoretical and ideological issues (which were directly or indirectly raised in the positions of all the parties involved in the process), remaining in a law enforcement space that does not yet imply judgments about current religious and social processes that problematize historically defined norms of the European Convention adopted at the peak of European secularization. The postsecondary approach is quite pro-

^27. Let us recall the logic of the NGO "European Center for Law and Justice": "The Chamber created a new obligation to ensure a completely secular educational environment, which went beyond the scope of the complaint and its jurisdiction".

^28. The above opinion of MEPs.

appeared in the agreed dissenting opinions of the judges, but not in the Court's decision as a whole.

This is a sign of the Court's" ideological uncertainty", since it was forced to discuss the nature of the religious symbol (the crucifix), namely its passivity or activity, since this topic was already present in its case-law. The court had to compare the case under consideration with the case of Dakhlab v. Switzerland (then the ECHR confirmed the decision of the national court, according to which the school teacher was forbidden to wear a hijab during classes). The Grand Chamber rejected the case-law significance of this decision on the grounds that, in the context of that review, the "symbol" was rather active.

However, in essence, "shifting the arrows" from the question of the relationship between secular and religious, as well as the conflict between the two interpretations of secularism (inclusive and exclusive) declared during the process, to the question of the passivity/activity of a religious symbol is again nothing but cunning. It is clear that the Court's analysis of the relationship between religious and secular could hardly have detected any semitones. For in this matter, which is not purely legal, the Court would have to be guided by an "extra-judicial situation" in which supporters of each of the opposing ideological positions - religious and projective-secularist-always intuitively feel where and when the border is broken and where quantity has turned into quality. In such a value-based "trial", a reactive secular ideology (theological and cultural), deliberately rejected by the Court, could not have a decisive voice.

As a result, the ECtHR has become involved in what can be called "quasi-theological secular argumentation" (as opposed to the secular theology of Italian courts). Having established that the intensity of a religious symbol, that is, its ability to influence the perceiver, is difficult to fix externally, the Court nevertheless accepted the discourse of passivity/activity of a religious symbol, that is, it assumed the right to make a decision on a religious phenomenon. This can be understood as a way to pass between Scylla and Charybdis, namely, to still touch on the essence of the problem, but at the same time-in a neutral, "science-like", religiously unbiased way.

Such a departure from the deeper level of the issues already raised is symptomatic, but at the same time justified. Indeed, the Court cannot deal with "philosophy", including the philosophy of religion and the philosophy of secularism. This is not its task, since its function is the legal regulation of public life. But at the same time, the Court, taking into account social realities, has certainly encountered the fact that there is no "ideological consensus" in public life - both at the specific national level and at the pan - European level-on the issue under consideration and on issues related to it. This is what led him - quite logically - to take the path of maximum exclusion from conflicts and problems that go beyond the legal process itself.

The strategy of such suspensions, as might have been expected, had the effect of focusing the Court's attention on the most clear and uncontested issue - indoctrination, understood as "disrespect for the religious and philosophical views of parents" (under Article 2 of Protocol No. 1 to the Convention). None of the parties or any of the "European actors"objected to the ban on indoctrination, especially in the field of education. This prohibition is explicitly reflected in the European Convention and is recognized by default as "European consciousness". There is no problem here. And having confirmed for everyone the obvious ban on indoctrination, the Court "with a light conscience" was able to attribute everything else to the broad discretion of the States parties to the Convention, thereby responding to the main pathos of almost all participants in the process on the part of the defendant.

The strategy of removing dangerous and practically (through law enforcement) unsolvable issues allowed the Court to make a balanced decision.

On the one hand, the Court agreed with the "rigidly secularist" approach, recognizing that "the crucifix is primarily a religious symbol" ^.29

^29. We note in parentheses that the fact that the" cultural " interpretation of the crucifixion symbol in the arguments of the Italian national courts is given in great detail in the Grand Chamber's decision (as compared to the first Court's decision) may indicate completely different things: either that the Court deliberately brings to the attention of the pan-European community the relevant interpretation of the crucifixion symbol-

On the other hand, the Court refused to "objectify" the applicants ' claims, pointing out two circumstances: (1)" The Court has no evidence that the display of a religious symbol on the classroom walls can have an impact on students"; (2)" the applicant's subjective perception is not in itself sufficient to establish a violation " of these ECHR norms.

In this case, it is very important and revealing that the Court rejected subjective aspects, while recognizing objective ones and unequivocally expressing its attitude to " traditions "and their"perpetuation". Let's repeat with a quote:

The Court considers that the decision as to whether or not to perpetuate the tradition is, in principle, within the respondent State's margin of appreciation. Furthermore, the Court must take into account the fact that Europe is characterized by great differences between the States that make up it, especially with regard to their cultural and historical development. At the same time, the Court emphasizes that reference to tradition cannot relieve a State party of its obligation to respect the rights and freedoms set out in the Convention and its Protocols.

What is significant here-from a post-secular point of view? It is significant that national cultural and historical traditions (including religion in its various interpretations) are not opposed to the legal tradition established by the European Convention. In contrast to the" secularist "approach, for which the Convention (a standard from the middle of the last century) is the defining and shaping source of the modern" cultural and legal " tradition, which is opposed to other outdated (primarily religiously oriented) traditions, the Grand Chamber of the European Court of Justice has demonstrated an approach focused on current international law, and nothing more. It refrained from ideological (both religious and secular-cultural, as well as anti-religious-secularist) interpretations of the Convention, while recognizing the de facto pluralism of cultural and historical contexts in the States parties to the ECHR. Thus, the European Court of Justice, first of all, did not leave the field of law enforcement as a whole.

or that the Court specifically identified the argument that it rejected.

Second, it has remained within its own judicial jurisdiction, which covers Greater Europe with all its national diversity.

The Court's reference to "the lack of a European consensus on the presence of religious symbols in public schools" is more than appropriate in this case. It reflects the actual situation, i.e. the context of law enforcement. This situation is fixed, on the one hand, by pan-European case law, and, on the other, by case - law decisions of national courts corresponding to the margin of appreciation of the States parties to the Convention. The European Court of Justice rejects both the rigid universalism of international law and law enforcement, and the undue particularism of national law and law enforcement ("the margin of appreciation must be accompanied by European supervision"). Thus, an actual balance is achieved between competing positions-not as a result of the "ideological" victory of one of the parties, but by virtue of the decision of an authoritative European court that offered legal justification for its final decision.

On interpretation (as a conclusion)

Some interpreters of the ECtHR's second decision - supporters of strict secularism-say that this decision was made "under pressure", that is, that the Court changed its previous law enforcement strategy as a result of the influence of non-legal factors.³⁰ This interpretation deserves attention and even special consideration, but here we will limit ourselves to raising the questions that this position raises.

First, even if the court "actually" succumbed to external pressure, how can the court decision itself be interpreted as "extra-judicial"? And if this is possible, it means that the court has ceased to be a court, that is, we should note the collapse of the ECHR with its judicial practice and its transition, say, to a political non-judicial field. In other words, the talk that the second decision of the European Court in the " Lausti case "was" pushed through " no longer allows us to analyze this decision from the point of view of law enforcement logic.

^30. See, for example, M.'s articles. Ventura and L. Levinson in this issue of the journal.

On the other hand, and secondly, shouldn't the court, as a law enforcement agency, take into account the current state of the society whose vital activity it regulates? Not the mood of the "current moment", but the actual public configuration? Of course, to focus on the "state of society" means to go to the other extreme (in comparison with legal formalism) and create the danger of subordinating law to a certain self - sufficient "state of affairs", which is regulated by force in accordance with expediency-from the point of view of the authorities. But in such an extreme case, there can be no court as an independent authority, as evidenced by the history of many European and other societies and states, and therefore there can be no "pressure", because there are no longer any free social forces that could exert such pressure.

And finally, last but not least: the thesis of "pushing through" the second ECtHR decision loses its credibility if we carefully consider the special concurring opinions of the four judges of the Grand Chamber (out of fifteen who voted in favor) attached to the Court's decision. It is clear that they were the most "active" supporters of the decision and are a minority. But in their rather lengthy comments (all dissenting opinions in the text of the court's decision occupy 17 pages out of 51), they develop a certain argumentation (partly outlined by us), that is, they give a detailed justification for the decision adopted by a majority vote. The position is expressed there, and it is meaningful, and not just "situational-apologetic".

In our opinion, the issue of "pressure on the court" should be considered in a specific context. In the case of the Lautsi case, this context is European-pluralistically national and general. In this context, public opinion - if not a consolidated opinion, then at least a significant one, that is, expressing the preferences of solid segments of society-should be considered as a "pushing force" (if we use the "pushing discourse" at all, which is hardly appropriate, and not fall into conspiracy theory) ^.31

^31. The then Italian Foreign Minister, Franco Frattini, welcomed the decision of the Grand Chamber of the European Court of Human Rights, saying that "the popular opinion of Europe has won" and stressing that "this decision frees Italy from unfair accusations and reflects the desire of citizens to protect their own values and beliefs". And here is one of the svide-

The court does not have the right to impose a certain idea of right and wrong, true and false - which would be just a form of indoctrination-on society/societies through law enforcement mechanisms. In this sense, in the "Lautsi case", the Grand Chamber of the ECHR, refusing to interpret "secularism" and, as a consequence, to respond to the respondent's argument about the inadmissibility of state promotion of secularist ideology, essentially - and, so to speak, by default - took the position of "ideological exclusion". The Court did not take on the function of providing legal justification for rigid secularist claims and claims that reflect only one of the sectors of public opinion of the European community of Nations (the Lautsi and Others v. Italy claim was an expression of these claims).

It is quite obvious that the interpretation of the crucifix on the school wall as a" passive symbol "is derived from Italian school practice, since it" opens up the school environment in parallel to other religions". The real provision of religious freedom and respect for beliefs that takes place in Italian schools, as well as the arguments of the defendant and the Court regarding the freedom of parents in the case of "ideological education" and the fact that today the school has much less power to influence the minds of students than parents-all this makes the plaintiff's claims more grotesque.

The claim of Ms. Lautsi and her grown-up children is equally grotesque against the background of the well-known facts that were mentioned during the trial: the existence of state religions in a number of European countries, as well as the presence of a cross on the flags of some European states. Of course, the plaintiff and her supporters would hardly argue that there is no religious freedom in the UK, where the Queen is formally the head of the Church of England. But, following their logic, it is quite possible to expect lawsuits

There is no evidence of the reaction in Italian society to the first ECHR decision: "Official officials, politicians of all currents - from the left to the right - and the people have spoken out and are speaking out clearly and clearly. Almost all municipalities in Italy had meetings of the city administration, and they voted against the decision of the Strasbourg Court. There were cases when crucifixes were not only left in schools, but also placed in halls and rooms of city halls, where they had not been before. Entrepreneurs offered their employees and workers to hang crucifixes in their offices and factories." (Luchenko K. Italians defend the Crucifixion (interview with Giovanna Parravicini, Cultural Attache of the Vatican Office in Russia)//Online publication Tatiana's Day, November 13, 2009 - http://www.taday.ru/text/240030.html,accessed on 22.05.2013).

in the European Court of Human Rights v. Greece, Norway, Switzerland, Georgia and other states that compulsively display on national flags (and sometimes on the logos of national airlines!) "Christian symbol". Although less likely-a lawsuit against Turkey with its "Islamic symbol" along with the star as a symbol of rather quasi-religious origin.

In order to understand the essence of the "Lautsi case" in its diachronic integrity, the plaintiff's motivation cannot be ignored. Clearly, this motivation is not just legal. Behind the appeal to certain norms of law is a certain interpretation of the normative good of society and its citizens, which should be sought. This interpretation cannot be put solely into the human rights logic of defending the good of the individual, groups, and minorities in the face of the superior forces of the state and the social majority as some impersonal, mass-like forces that by their very nature ignore individual freedom. Behind this interpretation is a certain socio-cultural ideal, namely the ideal of a totally secular society. And behind this ideal is a historiosophical ideology, which presupposes "the only correct understanding of the progress of humanity", which deliberately denies any positive participation of religion (in this case, Christianity) in this progress. In this regard, it is rather difficult to speak about the insensitivity of convinced and consistent secularists to the historical and cultural factors of life in modern European societies. On the contrary, they are more than sensitive to these factors, which encourage them to fight ideologically through the existing judicial instances.

Turning to law enforcement mechanisms in this fight for a better future is also significant. For in this case, by default, it is assumed that the norms of international law (the European Convention), which were established in the middle of the last century, that is, at the peak of European secularization, are a kind of successful symbiosis of law and ideology; that law, while remaining only law, by definition must work on the values of a certain unambiguously understood secularism as a projective ideology. However, today, not only on a global scale, but also in European contexts, a rigid secularist social project can no longer freely exploit law and enforcement for its own purposes. For the current European religious and social configuration is different in comparison

with the era of secularization triumph of the last century. This is a postsecondary configuration of ³². It is this new configuration that the whole story of the Lautsi case described above has discovered.³³

And, going back to the beginning - two more words about the "philosophy of law".

The traditional human rights "philosophy" - the protection of individuals and their private communities from the encroachments of the transpersonal power of state authorities and the "crowd" -is experiencing a crisis in the sphere of religious and social regulation. For today we are dealing with a new publicity of religions, with their resurgent "mass character" - both in the sense of increasing importance of religious identification, and in the sense of the prevalence of the most diverse, old and new, manifestations of religiosity. The liberal idea of individual religious faith and practice-a product of modernity-does not cover the modern religious field, does not correspond to its specifics. In the social space, personal faith is "supplanted" by individual-group confessional identity, and the pathos of protecting individual religious freedom fades into the background. And the hardline secularists themselves find themselves in this situation an ideological (quasi-religious) group, which, based on past victories, continues to defend its civilizational strategy on the scale of national societies, Europe and the whole world. Another group consists of supporters of religious ideology - " activists and actors of desecularization "(in the terminology of Vyacheslav Karpov ³⁴). And finally, the third is soft secularists ("culturologists") with their ideology of reactive secularism, who are looking for a new balance between the secular norms (ideological and legal) inherited from the past and the very uncertain, mobile"state of religious and social affairs". The Lautsi case only revealed a conflict of interpretation in the context of the new ideological struggle of the post-secular era.³⁵

^32. See the issue of the journal "State, Religion, Church in Russia and Abroad" with the main topic " Religion in the post-secular context "(N2, 2012).

^33. Let us repeat: if anything "pushed through" the decision of the Grand Chamber, it was precisely this new religious and social reality. With the post-secular approach in mind, I would like to raise a rhetorical question: is it reasonable to make an evaluative choice between the" pressure "of reality and the" pressure " of ideology?

^34. Karpov V. Kontseptual'nye osnovy teorii desekulyarizatsii [Conceptual foundations of the theory of desecularization]. 2012. N 2. pp. 114-164.

^35. I thank Alexander Sergeyevich Agadzhanyan and Dmitry Alexandrovich Uzlaner for their valuable comments made after reading the first version of this article.

Bibliography

Texts of judgments of the European Court of Human Rights

Case of Lautsi v. Italy (Application no. 30 814/06) 3 November 2009 [http://hudoc.echr.coe.int/sites/eng/pages/search. aspx?1=001-95589, accessed 22.05.2013].

Case of Lautsi and others v. Italy (Application no. 30814/06) 18 March 2011 [http://www.echr.coe.int/echr/resources/hudoc/lautsi_and_others_v_italy.pdf, доступ от 22.05.2013].

Literature

Cardia K. European religious and cultural identity. The question of Crucifixion, Moscow: Center for Books Rudomino, 2011.

Karpov V. Conceptual foundations of the theory of desecularization//State, religion, and Church in Russia and abroad. 2012. N 2.

Luchenko K. Italians defend the Crucifixion (interview with Giovanna Parravicini, Cultural Attache of the Vatican Office in Russia)//Tatiana's Day, November 13, 2009 [http://www.taday.ru/text/240030.html].

Pupp G. Lautsi v. Italy: An Alliance against Secularism//Osservatore Romano, July 28, 2010 [http://eclj.org/pdf/Lautsi_v_Italy_RUSSIAN.pdf].

Syrunina T. M. "Lautsi and others against Italy". Judgment of the Grand Chamber of the European Court of Human Rights of 18 March 2011//International justice. 2012. N1. pp. 20-24.

References

Cardia, C. (2011) Evropeiskaia religioznaia г kul'turnaia identichnost'. Vopros o raspiatii [European Religious and Cultural Identity. The Issue of Crucifixion, translated from Italian]. M.: Tsentr knigi Rudomino.

Karpov, V. (2012) "Kontseptual'nye osnovy teorii desekuliarizatsii" [Desecularization: A Conceptual Framework], Gosudarstvo, religiia, tserkov' v Rossiii za rubezhom. 30 (2): 114 - 164.

Luchenko, K. (2009) "Ital'iantsy zashchishchaiut Raspiatie (interv'iu s Dzhovannoi Parravichini, attashe po kul'ture Predstavitel'stva Vatikana v RF)" [Italians Defend Crucifixion (Interview with Giovanni Parravicini)], Tat'ianin den'. 13, November [http://www.taday.ru/text/240030.html, accessed on 22.05.2013].

Pupping, G. (2010) "Lautsi protiv Italii: Soiuz protiv sekuliarizma" [Lautsi against Italy: Alliance against Secularism], Osseruatore romano. 28, July. [http://eclj.org/pdf/Lautsi_v_Italy_RUSSIAN.pdf, accessed on 22.05.2013].

Syrunina, T. M. (2012) "'Lautsi (Lautsi) i drugie protiv Italii'. Postanovlenie Bol'shoi palaty Evropeiskogo suda po pravam cheloveka ot 18 marta 2011 goda" ["Lautsi and Othersv. Italy". Resolution of the Grand Chamber of the European Court of Human Rights, 18 March, 2011], Mezhdunarodnoe pravosudie. No. 1: 20 - 24.

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