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  • February 2019 : Religion-inspired terrorism and religious freedom in Italy

In response to the need to prevent terrorist attacks, during these last years in Europe the legislators tend to emphasise that terrorism implies additional activities, such as those enabling groups to maintain and further develop radical ideas about Islam and Islamic precepts. Such behaviour should be punishable when it leads to the danger that terrorist acts could be committed. This means that the penal laws are here focused on the dangerous criminal tendency. In other words, when a person endangers the basic elements of a constitutional democracy, the penal sanctions may be imposed against him or her, even though his/her conduct is not directly connected with the (terrorist) attacks that cause injuries, deaths and other material damages. Under the strategy to prevent violent and indiscriminate assaults, even the mere dissemination of messages or images glorifying terrorism may itself be considered a criminal (terrorist) activity. In the lights of the existing terrorist emergency, it could be judged as a heinous crime that, as such, leads to the application of penal sanctions, including restrictions on personal liberties, such as religious liberty.
Moreover, in this field, Italy has developed high-level skill legal tools which, not surprisingly, are now also being used to challenge religion-inspired terrorism. The sophisticated system of “preventive measures” (regulated by the legislative decree of 6 September 2011, better known as ‘the anti-mafia code’) is an illustrative example of that.
The aim of preventive measures is to integrate the Italian system of criminal law. The basic idea is that the protection of fundamental interests of the State (like the maintenance of a good level of security against potential threats) cannot be delegated exclusively to the repressive function of the penal law. This explains why the application of preventive measures is based on ‘symptoms of dangerousness’. In other words, the need to prevent some persons from committing or supporting heinous crimes justifies preventive ante delictum measures.
It remains that, even though the penal law does not formally regulate the preventive measures, the practical consequences of their sanctions are not very different from those related to the penal rules. For example, the application of the preventive measures imply either the prohibition of residence (divieto di soggiorno) in one or more given cities or, in the case of particularly dangerous persons (persona di particolare pericolosità), an order for compulsory residence in a specified municipality (obbligo di soggiorno in un determinato comune). The violation of these provisions is punishable with imprisonment.
Now, after the Italian Parliament approved the 2015 anti-terrorism decree, the preventive measures system can also be applied to combat the current forms of religion-inspired terrorism. More specifically, these measures can be applied to “those who, working in groups or individually, are engaging in preparatory acts, objectively relevant, directed to take part in a conflict in a foreign territory in support of a terrorist organization which pursues the aims laid down in article 270 sexies of the Italian penal code”. This complicates the relationships State-Islam(s), especially in the light of other pressing problems, like those related to immigration.
In this sense, the climate of fear and insecurity has produced some sort of epistemological obstacles, based on which media, many politicians, and public actors, tend to consider Islam and the corresponding groups unable of a factual collaboration with the State. This is because the Islamic organizations are considered ‘others’, different from the denominations deemed more compatible with the traditional system of State-confessions relationship established in Italy until now : a system that has been determined through the implementation of Articles 7 and 8 of the Constitution as well as the 1159/1929 Law, approved during the fascist regime.
In brief, the ways of addressing these problems are now being strongly influenced by the current threat of religion-inspired terrorism. A threat that is accentuated according to the 2018 security decree (no. 113) – also called Salvini decree, named after Matteo Salvini, interior Minister and leader of the far-right League, won a vote in Parliament last December 2018. Not surprisingly, this decree stresses the need to prevent illegal acts perpetuated by both mafia-type organizations and terrorist groups (Articles 16-23). The fact that the 2018 decree does not mention Islam is very significant ; in reality, that absence is notable only for its deafening silence.
On other words, when facing issues regarding religious freedom and the relative constitutional provisions, the attitude of policy-makers is often subject to issues concerning Islam. In the light of the emotional wave resulting from the climate of insecurity and fear, these issues could be influenced, if not manipulated, by the artificial and sensational analyses regarding both the current forms of religion-inspired terrorism and the pressing process of immigration.

Francesco Alicino
  • May 2017 : The Italian Case of Kirpan : “You must adapt to our values”

On 15 May 2017, the Italian Court of Cassation ruled against a Sikh migrant who wanted to carry a kirpan (a small sword considered a sacred symbol in Sikhism, one of five articles of faith called the punj kakkar) in public : hearing an appeal filed by the Sikh migrant who was fined 2,000 Euros for carrying a 20 cm. long dagger, the High Court said that public safety must be ensured (see the 110/1975 Law). This has shaken the Sikh community all over the world. Most Sikhs consider the ceremonial dagger (kirpan) an essential part of their religious identity along with their unshorn hair, a small wooden comb, a cotton underwear, and a metal bangle, since the end of 17th century when the tenth Sikh master, Guru Gobind Singh, established the Khalsa Panth by giving the followers of Sikhism a distinct identity.

While seeking the case to be referred to UN Human Rights Committee, legal director of the United Sikhs, Mejinderpal Kaur, said that “it’s regrettable that the Italian Supreme Court judgment is based on the view that immigrants should live in Rome as Romans do when religious freedom is global and across borders.”

From its part, the Italian High Court said that it is important to acknowledge the religious-cultural diversity in a multi-ethnic society. Nevertheless, migrants must ensure that their beliefs are legally compatible with host countries. So the Italian judges ruled that public safety from weapons was of paramount importance and superseded an individual’s rights. In order to justify and sustain this position, the Court also affirmed that migrants who choose to live in the Western world have an obligation to conform to the values of the society they have chosen to settle in, even if its values differ from their own. So, in this manner, the Court did not refer to the legal principles, including the supreme principle of secularism (as the Italian Constitutional Court has called it), as one might expect from a judiciary power. They referred to the generic “values” of the Western society (see also : Corte Suprema di Cassazione, Sez. I penale, sent. 14 June 2016, no. 24739, and 16 June 2016, no. 25163. On the decision A. Licarsto, Il motivo religioso non giustifica il porto fuori dell’abitazione del kirpan da parte del fedele sikh (considerazioni in margine alle sentenze n. 24739 e n. 25163 del 2016 della Cassazione penale)).

In addition, the Court confused a religious identity with immigration. In other words, it did not consider that, in the name of the fundamental right to religious freedom as well as the principle of secularism, some Italians might decide to convert, for instance, to Sikhism. In brief, the Court has set a precedent under which all migrants must ‘adapt’ to traditional (i.e. Western) values that, on the ground of the State-confessions relations, are in Italy strongly influenced by the Catholicism and other few (traditional) beliefs.

For all these reasons, the 15 may 217 judgment has raised a heated debate, also fuelled by some political parties, like the North League (Lega Nord) and Brothers of Italy (Fratelli d’Italia), which in the last years have been protesting against both immigration and the “new” (i.e. different) religious groups that are usually made up of immigrants.

Francesco Alicino, Vera Valente
  • April 2017 : Easter Blessings on the State School Grounds in Italy

It is legitimate to offer religious blessings at public schools. This is now established by the decision of the Italian Council of State (CoS), which has reversed the decision of the Administrative regional tribunal of Emilia-Romagna (TAR Emilia-Romagna). One year ago, this tribunal had suspended the decision of the 16 board members of Giosuè Carducci Elementary School of Bologna, who had agreed to let a Roman Catholic priest offer an Easter prayer at their public school.
From a general point of view, the CoS states that the blessing cannot in any way affect the progress of public teaching and school life. As far as the case of Carducci Elementary School is concerned, the religious rite is provided for activities other than official ones. For these reasons, the blessing cannot infringe, directly or indirectly, the religious freedom of those who, while belonging to the same school community, do not belong to Catholicism : if they fear to be harmed by these religious rites, they can choose not to attend them.
In addition, the CoS affirms that the blessing is not in contrast with the supreme principle of secularism (principi supremo di laicità). As the Italian constitutional court stated in a historical decision of 1989 (n° 203), this principle does not imply indifference towards religions, but equidistance and impartiality towards the different religious denominations. In other words, the supreme principle of laicità is based on the State’s positive attitude towards all religious communities. That is the point, have replied the members of the school community who disagree with the CoS’s decision : if we interpret the supreme principle of laicità the way the CoS did, then all religious rites should have the opportunity to be held on school ground. As matter of fact, the supreme principle of secularism also implies the prohibition of discrimination on grounds of religion or belief.
All this shows that the case over the blessing at the school is part of an enduring debate in Italy on where exactly the church-State boundary lies. The argument is that such rituals, which include the blessing, are part of the cultural legacy of Italy, a point contested by a group of parents and teachers who filed a legal action to the European Court of Human Rights (ECHR). It should be noted that, in 2011 the Great Chamber of the ECHR overturned an earlier decision of the ECHR’s Second Section, and ruled that State schools in Italy could hang up crucifixes, concluding that they were “an essentially passive symbol whose influence on pupils was not comparable to that of didactic speech or participation in religious activities.”
Thus, it does not matter what the ECHR will decide in the case of Giosuè Carducci Elementary School. In the light of the above considerations, we are sure that, once again, the decision will have an impact.

Reference : N. Colaianni, "Laicità : finitezza degli ordini e governo delle differenze", in Stato, Chiese e pluralismo confessionale, n° 39, 2013.

Francesco Alicino
  • January 2015 : The New Lombardy Legislation “against” Mosques

With the exception of the Centro Islamico Culturale d’Italia (Islamic Cultural Centre of Italy), no Islamic organization is formally recognised by the State in Italy. The official recognition of confessions other than Catholicism must in fact be approved by a Decree of the President of the Republic, upon request of the Italian Minister of Interior (see La Lega Musulmana Mondiale – Italia e il Centro Islamico Culturale d’Italia). Such recognition does not merely depend on the number of followers of a given religion, it also requires congruence between the principles of the proposing confession and the Italian Constitution (see Imams and other Religious Authorities in Italy).
Any community with religious aims can operate within the Italian legal system without authorization or prior registration. In this sense, the only limit is the protection of public order and common decency. When following these restrictions, Islamic denominations and their legal entities may choose among various types of legal capacity. They may, for example, constitute themselves as “non-recognized associations”, in accordance with Article 36-38 of the Italian Civil Code, a status which is also used by political parties and trade union organizations. This model of association is the simplest, and does not involve particular control from the State’s authorities. According to Articles 14-35 of the Civil Code, and the 2000 decree of the President of Italian Republic (no. 361), communities with religious aims can also choose the form of “recognized associations”, which provides legal personality through registration at the local Prefecture. The civil capacity of Islamic organizations may also be obtained via Article 16 of the “Provisions on law in general” (Disposizioni sulla legge in generale) that, based on the principle of reciprocity, would grant foreign Muslim groups the same rights guaranteed to Italian legal bodies. In other words, these groups can enjoy the legal benefits guaranteed to all private associations devoid of religious coloring.
In sum, the Islamic groups can enjoy the legal benefits guaranteed to all other private associations without religious connotations. The problem is that Islam is a religion. Furthermore, apart from Catholicism, Islam is the largest religious creed in Italy (see La presenza islamica in Italia : forme di organizzazione, profili problematici e rapporti con le Istituzioni), although it is practiced by a minority of people. According to recent estimates, about 2% of the population adhere to the Islamic creeds. Despite the fact that illegal immigrants represent only a minority of Muslims in Italy, the issue of Islam in contemporary Italy is constantly linked by some political parties (particularly the North League) with immigration, and more specifically illegal immigration (see Lega Nord, Matteo Salvini : "Milioni di islamici pronti a sgozzare". Volantini con vignette di Charlie Hebdo). Just as in other European Countries, there is not in Italy a single national Islamic organization. Many Islamic groups are local, while others refer to some transnational Islamist movements or to a foreign State. Immigrants make up the large number of Italian Muslim organizations that, when wishing to operate in Italy, must respect the principles of the Italian Constitution. These principles, though, must be taken into serious consideration in order to establish a proper connection between the State and the Islamic organizations, which would solve some questions such as issues concerning the places of worships, namely the mosques (see Edilizia ed edifici di culto).
In this sense, it is important to notice that the Italian government has moved to block new religious building for Lombardy, the most populous region in Italy, with Act no. 62/2015. The Government has said that this legislation would make it virtually impossible to build any new mosques in this region. In fact, this new legislation has become known as the “anti-mosque” Act. It has been approved by the right-wing dominated regional Council at the end of January 2015 (see Legge anti-moschee Lombardia, il governo la impugna. Maroni : “Ritorsione”). Amid an outcry over what critics see as a blatantly discriminatory move in Lombardy, which includes its capital Milan, the centre-left Government (guided by the leader of the Democrat Party, Matteo Renzi) has decided to refer the new regional rules to the Constitutional Court for review.
The aim of the new act is clearly to impose stricter and tougher provisions on minority religious groups, for which it becomes nearly impossible to comply with the law. They would then be unable to erect any new religious buildings within the territory of Lombardy. Critics say that the Lombardy Act breaches the 1948 Constitution on several grounds, and that the new rules are bound to be overturned by the Constitutional Court.
Judges of the Consulta are in effect expected to consider whether the new measures breach guarantees of religious freedom (Articles 19 of the Italian Constitution), whether the region has exceeded its power by redrawing the relationship between State and Religion (Article 117 of the Italian Constitution), and whether the new Act leaves too much to the discretion of local mayors. The new law and its provisions introduce a series of new criteria, particularly in the field of urban and town-planning. Such new criteria are added to the previously enforced ones, namely concerning representativeness of the groups as well as other administrative aspects. More generally, are three main critic points in the new regional act : the groups to which they apply ; the powers of local authorities during the negotiations ; the additional requirements the communities have to meet in order to get a building license.
For example, one provision of the Lombardy act states that local mayors who are unhappy about the construction of a new mosque may seek to organise a local referendum before granting or refusing permission. This act also stipulates that the dimensions and architectural proportions of any new place of worship should be in keeping with Lombardy’s landscape ; this condition clearly appears custom-written to block any plans involving minarets, the tall slender tower that is most often part of a mosque. Under the Lombardi new act, anyone seeking to build a new place of worship for a religion not officially recognised by the State would be subject to an extensive list of special restrictions, ranging from the size of associated parking facilities, to the outward appearance of the buildings. Since Islam is the only major religion not recognised by the Italian Republic, the new rules are seen as being specifically targeted at Italy’s more than one million Muslims.
The Matteo Renzi Government’s decision to block Lombardy’s legislation plan prompted a scathing response from Matteo Salvini, the leader of the far-right Northern league : he has said that Renzi and the Interior Minister, Angelino Alfano, are the new imams. It should be noted that The Northern league is the dominant force in the coalition running the Lombardy Region.

Simona Attollino
  • April 2012 : Sessa v. Italy at the ECHR

A Jewish lawyer requested that an audience not be held the day of Yom Kippur. He was told in response that he could send a substitute and that, in any event in view of the nature of the hearing, his presence was not mandatory. The Italian judges dismissed the lawyer’s appeal and the Strasbourg Court endorsed Italy’s position. However, three judges out of seven gave dissenting views, expressing their opinion that a reasonable work-around was possible and that consequently the Italian authorities had indeed infringed the lawyer’s religious freedom.

See the full article by Marco Ventura on the site of the Corriere (in italian).

  • 2004 : Islam, Minority Religious Communities and Legal Protection of the Status of Religions

The spreading of new religious movements and the Islam challenge highlight the limits of the Italian system of law on religions, which is founded on the difference of legal status between groups which signed an agreement with the government (thus enjoying a special status) and the others. The Jehovah’s Witnesses and Buddhists signed an agreement in 2000 (with a centre left government), but the Parliament (now made up of a centre right majority) refused to recognise this agreement and make it into a law. The result of this is that the status of these groups has not changed since then. There are huge problems concerning Islamic communities due to the current international situation. Muslims have been expelled for reasons that have more to do with politics than with the law, as no legal assessment was involved. Several sides, especially many Catholic bishops, have suggested that the law on immigration limit the access of Muslim immigrants who might not be able to integrate into a Catholic country.
In 2002 the Berlusconi government presented a bill on religious freedom (which resumes the projects of the Amato and Prodi governments) to reform the common law system that regulates the status of religious minorities.

See the Berlusconi government’s "on religious freedom" on reforming common law applicable to religious groups in Italy, presented on 18 March 2002.

Marco Ventura

D 29 mai 2017    AFrancesco Alicino AMarco Ventura ASimona Attollino AVera Valente

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