Video and text of the paper by Professor Nicola Colaianni, University of Bari, former Judge of the Suprem Court of Cassation, at the International Convention, Law and Freedom of Belief in Europe, an arduous journey, held in Florence on 18-19 January 2018.
Freedom of Belief in Europe to the test of immigration and terrorism
ABSTRACT: Europe – understood as the Council of Europe or the European Union – guarantees freedom of belief. But the absoluteness and scope of this right have been seriously put to the test by immigration, which has introduced new ways of living, including visible changes such as in women’s clothing. The European Court of Human Rights’ extensive use of its margin of appreciation as well as the recent rulings handed down by the Court of Justice of the EU risk curbing this freedom. Similarly, lowering the punishability threshold as a way of combating terrorism, when the perpetrators claim religious inspiration, risks shrinking spaces of religious freedom. The European Parliament Resolution of 25 November 2015 contains guidelines for reinstating protection of civil liberties by promoting prevention and deradicalisation, which this article examines some examples of.
SUMMARY: Old and new limits to the freedom of belief – 2. The limit of religious organisations – 3. The limit of business organisations and their management of different beliefs – 4. The limit of business organisations tout court – 5. The limit of migration – 6. The limit of terrorism – 7. Prospects for a rebalance
1. Europe guarantees widespread freedom of belief. After the Second World War, the Council of Europe met and approved the Convention for the Protection of Human Rights (enshrined in article 9 of which is the freedom of religion or belief), and the European Union, although originally created to guarantee other freedoms, promptly reproduced this provision in the Charter of Fundamental Rights, which was proclaimed in Nice in 2000 and given the same legal status as the treaties in 2007 with the Treaty of Lisbon. It could not have gone any other way given the historical debt contracted through the religious wars that infested our continent more intensely and ferociously than others. Religions became nations: cuius regio eius et religio. There was no freedom of religion or, more specifically, this was tied to the freedom to move from one region to another, that in which one’s beliefs were shared by the king. There were no guarantees of habeas corpus, as demonstrated by the symbolic case of Michael Servetus, a heretic who, seeking refuge in Calvinist Geneva, managed to escape the Catholic but not the Protestant pyre.
This debt to freedom was certainly not settled by the subsequent liberal attitude of States. In Italy, for example, although the Albertine Statute confirmed the principle of Augsburg in favour of Catholicism, the Sineo Law simultaneously established that at any rate, “a difference in beliefs should not compromise a person’s civil and political rights or his/her eligibility for civil and military positions.” Then in the 20th century, religious persecution started back up against the Jews (“Are you a religion or a nation?”, Mussolini asked them) and, growing into racial persecution, was a powerful contributing factor to the introduction of mass exterminations.
The Second World War left a desert in its wake, along with the need to start over by drawing on resources that were available but buried, rising to the surface like an underground river. Space was made for international declarations of freedom, but in Europe these had one important characteristic: they made the conduct of States governable by law. States would retain full sovereignty over judging the conduct of individual citizens, including with regard to freedoms and, as a result, religious freedom, but they would agree to submit their final judgments to an international court, if not for auditing then for compensation purposes. In an order of sovereign states it was perhaps the most sovereignty that could have been handed over. And the subsequent conferral on the Charter of Nice of the same status as the treaties paved the way for not only judicial review, but for references for preliminary rulings to be sent to the Court of Justice.
The scope of protection, which is certainly not unlimited but has limits that in turn have counter-limits, started to shrink when case law started placing individual freedoms and the freedom of religious organisations on an equal footing. In European law the latter appears only as a projection of individual rights in a social context: a power, namely, that is part of the freedom of the individual and not, as it has instead been used, an autonomous right of the organisation, which could conflict with the rights of the individual. Of course, national law also leaves room for recognising the autonomy of religious organisations, but as per dedicated rules (in Italy, for example, articles 7 and 8 of the Constitution) and not the individual right to religious freedom (provided for by article 19 of the Italian Constitution as it is by article 9 of the European Convention on Human Rights.)
It is however true that article 17 of the Treaty on the Functioning of the European Union was supplemented with a provision, originally laid down in a declaration with no binding legal value, on the recognition of churches and non-confessional philosophical organisations as partners of the Union for the purposes of an “open, transparent and regular” dialogue. And this rule, although it refers the governance of these organisations to national law, inevitably had an expansive effect, recognising the existence of new collective interlocutors that could oppose individual citizens in exercising their religious freedom. Hence the regulatory basis was laid for the right to freedom of belief, initially recognised only to individuals – who may certainly also exercise this freedom in groups, but not relinquish it in the name of the association they have contributed to creating – could be exercised by religious organisations too. As a result, in the event of a dispute the extent of this right must be gauged, and it does not always automatically dominate, as demonstrated by trends in case law that I will now move on to describe.
2. This new limit to the freedom of belief emerged passim in case law, but perhaps never before like it did in Fernandez Martinez [1] in which, with a 9-8 split decision, the judges of the European Court of Human Rights made history, ruling that the religious freedom of an ideological organisation prevails over that of a worker even when the organisation does not run a business itself but operates through the State system, which the worker works for even though they are appointed by the ecclesiastical authorities.
The case was about the decision not to renew an employment contract with the State of a religious education teacher – a former priest who applied for dispensation, married and fathered five children – on the grounds that he was ecclesiastically unfit following the “scandal” that broke out when a newspaper reported that he attended a meeting of an organisation in favour of the optional celibacy of priests, which also openly supported positions contrasting with the official positions of the Catholic Church on abortion, divorce and contraception.
The question brought before the Court in Strasbourg was about whether or not this intrusion into the applicant’s private life, penalising the right to work of a European citizen, was “necessary in a democratic society” or, in other words, whether the balance between the religious freedom of confession and religious freedom, the freedom of thought and the freedom of association of the citizen was reasonable and balanced. More specifically, it was about deciding whether or not the duty of devotion of the member of an ideological organisation could be extended to the same extent to a person employed by State, although appointed by the ecclesiastic authorities. A narrow majority of the Court believed so: the difference in status doesn’t matter. It was an unreasonable decision, that does not at any rate take into consideration that in ideological organisations too, conflict is resolved before it can break out by the voluntary subscription of the worker to the organisation’s ideology, this being an essential requirement for the job whilst being “within the narrow limits in which it is functional to allowing” the implementation of the ideology. [2]
This counter-limit deriving from the application of the principle of proportionality is all the more valid when these rights are exercised not within the context of duties assigned but in terms of relationships outside the workplace. Indeed, sometimes the nature of an employee’s job involves affording them a wide margin of trust extending to conduct in their private lives, but, as established by Court of Cassation ruling no. 3822 of 6.2.2011, generally speaking “when the worker behaves in a way that expresses freedom of thought, the protection afforded to values protected by the Constitution (under article 21) is such that it dominates over rights and duties established in an employment contract, which are essentially not compromised by the way in which the censored behaviour is expressed.” [3]
This series of limits and counter-limits to the religious freedom of an employee in an ideological organisation cannot not be valid, and should actually be applied even more rigorously, in hybrid situations like in the case at hand, in which the worker is employed by the State but is appointed – given the unique nature of his duties – by the ecclesiastical authorities. The latter, in this case, does not run its own business but, in accordance with contracts and agreements with the State, operates through State structures. It therefore must be called into question whether or not such an organisation can exercise its own collective freedom or “objection of conscience” against an employee of the State to the same extent.
As for the substance, is it disloyal – as queried by the Court – for a teacher of religion who is married but a known former priest to express his opinions on the optional celibacy of priests, birth control or abortion legislation outside the school at a public meeting? And as for the publicity he received (photos and an article in a newspaper), which the Court recognises were not sought by the applicant, are such public statements enough to constitute the argument for behaviour “at odds” with making the religion taught at school seem credible? The Court’s answer is yes, on the basis of three precedents which nonetheless, as the Court itself recognises, concern workers employed by churches and not the State, and conclusively justifies the proportionate and constitutional nature of its ruling by citing the respect that should be given to the collective or community religious freedom of the Catholic church.
3. Turning to a phenomenon that is not European, but symbolic of a trend in case law that fits in with European case law, the next step is the dominance of rights of not a religious organisation but a business, and not a non-profit business but a for-profit business. At around the same time, the American Supreme Court handed down, again with a narrow majority of 5 to 4, a ruling on those qualifying from the exemption from paying insurance cover under Obamacare for contraception and abortifacients (the “contraceptive mandate.”) The guidelines only exempt religious non-profit organisations (charities, schools, hospitals), subscription to the ideals of which – with all the side effects that brings (like abstaining from using contraception and abortifacients) – is an essential and decisive requirement for the job. The Court did nevertheless enlarge the pool of those exempt rather excessively, including therein for-profit corporations, which produce and trade goods or services with no ideological undertones, so-called “neutral” companies (the case in question concerned a chain of large DIY superstores employing approximately 13,000 people, Hobby Lobby, and a kitchen and flat-pack furniture factory, Conestoga Woods Specialties.) The condition is that they are closely held corporations, or rather companies owned or managed by families or a small group of people at any rate (which account for over 80 percent of all American companies according to statistics reported by the press), which are influenced in their business activities through the “performance of (or abstention from) physical acts” that are “engaged in for religious reasons.” These acts also express the “exercise of religion”, according to the Court, – without even saying it: sincerely held, according to the Court, with reference, in this case, to the “religious belief that life begins at conception”. [4]
There is no doubt about this, but the convictions of the owner do not change the neutral nature of the business activities, just like how not distributing profits (which is not the case for companies that make use of the interpretation of the S.C.) would not change the for-profit nature of the business. Extending an ideology from objective activities to the subjective convictions of the business owner is a result of a deviation from the binary of peaceful logical interpretation and the paradoxical extension of the protection afforded by the Religious Freedom Restoration Act of 1993 (RFRA):
- to any person, so even artificial persons and legal persons, insofar as “furthering their religious freedom also furthers individual religious freedom” and
- for all indirect, future and uncertain and therefore merely potential purposes, of the burden placed on such persons, since the case at hand deals with “providing health insurance that covers methods of birth control that may result in the destruction of an embryo” and, therefore, in a “conduct that seriously violates their religious beliefs.” The fact that this is merely a possibility, as “that would occur only if an employee chose to take advantage of the coverage and to use one of the four methods at issue”, is of no importance to the Court: mere payment of the policy “is sufficient to make it immoral for them to provide the coverage.”
The legal person becomes a sort of artificial limb of the natural person that is the owner, whose conscience would have some bearing on the company’s activities, despite it being a for-profit company, to the extent that their religious convictions would make them indirectly object to the oppression being imposed their company. To prevent such disruption, a form of discrimination is generated against employees of the company of the objector compared to those of the companies of non-objectors or companies that are not closely held: this to give the beliefs of a person, just because they are the owner of a company, greater protection than people who end up falling victim to the beliefs of the business owner.
4. From contraception to the veil: the trend in limits to religious freedom continues overseas and increases as we move from the religious freedom of a company to the freedom of business, tout court. There’s no doubt that the freedom of dress is a characteristic trait, and actually the most obvious, of personal identity, which manifests as the “right to be oneself”. [5] The European opinion is the same: “religious dimension it is one of the most vital elements that go to make up the identity of believers and their conception of life” [6] so “constraints imposed on a person’s choice of mode of dress constitute an interference with private life as ensured by Article 8(1) of the Convention”, as recognised in the case of a transvestite [7], and later confirmed in the case of a girl wearing a full veil (burka or niqab). [8]
With regard to laws prohibiting the veil in public, however, States are almost always absolved by the ECHR: Switzerland because teachers must not influence students of an impressionable age with such a powerful external symbol; Turkey because otherwise students wearing it to university would cause discrimination against fellow students not wearing it; and France because in hospitals you risk influencing patients in a state of fragility and psychological dependence, and above all because of the principle of neutralité de la puissance publique. This is why in another case it was even decided that wearing the full veil, even only on special religious occasions such as Ramadan, and at any rate only in the street and not during security checks, contrasts with “living together in French society”, or rather the French interpretation of democracy with its “ideal of fraternity”, which requires the face to be uncovered as “the minimum requirement of civility that is necessary for social interaction”. [9] Among other things, this means admitting varying national versions of democracy: indeed, in another context, the Turkish context, the Court recognised the illegitimacy of the ban on religious clothing (turbans, tunics and staffs, like the prophets wore, even with the face uncovered [10]), although justified it in the name of preventing terrorism.
The difference in the systems used across Europe becomes even more obvious of course in private relationships, referred to national law although limited by the ban on direct and indirect discrimination enshrined in framework directive 2000/78/CE on equal treatment in employment. Does religiously-motivated discrimination exist according to this directive? Cases brought before the Court of Justice for preliminary rulings involved the receptionist of a company providing reception services and an engineer who, despite being warned that wearing the veil could cause problems with clients, wore it anyway until a client, stating that it upset some of its associates, requested that there should be “no veil next time”, with management requesting, to no avail, that she stop wearing it.
The two judgments, which were handed down on the same day [11], similarly exclude (with the latter referring to the former) direct discrimination because article 2(2a) of the directive “must be interpreted as meaning that the prohibition on wearing an Islamic headscarf, which arises from an internal rule of a private undertaking prohibiting the visible wearing of any political, philosophical or religious sign in the workplace, does not constitute direct discrimination based on religion or belief” because it treats “all workers of the undertaking in the same way by requiring them, in a general and undifferentiated way, inter alia, to dress neutrally, which precludes the wearing of such signs.”
But only at first glance is the ban neutral, because although it applies to everyone, including Christians and people who aren’t religious, in practice it creates discrimination against not them, but Muslim women (as well as Jews wearing the kippah or sikhs wearing turbans.) This is obvious and needs no demonstration, but the Court nonetheless places the burden of proof on national courts, thus legitimising disparity between the interpretations of States of the Union on a fundamental right of European citizens.
The fact is that if we consider the power to unilaterally establish such invasive rules on the personality of others as part of the freedom of enterprise, guaranteed by the Charter of Nice as the Court takes the trouble to recall, the worker’s rights have already been written off. The rules may on paper be the same for everyone, but actually place restrictions on just certain workers. This perpetuates the model that Portalis complained of two centuries ago, in which everyone is free to sleep under the bridges of the River Seine, but only the vagabonds of Paris actually do. Indirect discrimination lies in the facts and is not at all balanced or justified by the formulaic distinctions of the Court, which once again ends up considering people as uti mercatores e non uti cives.
Wearing the hijab, which is just a scarf, and not the burka or the niqab, is a fundamental right that should not be restricted unless it causes irreparable damage to the image, finances or policies of a company: behind every hijab is a woman with a story – a gender, a religion, a culture and basically an identity –, which the court of a union of rights should not allow companies to demean.
5. Up until now we have referred to people who are mainly Muslims, but European citizens nonetheless. All the same, we cannot overlook the issue of the lack of protection of the religious freedom of illegal migrants, including asylum seekers in clear need of international protection, who come to Europe and, as far as Italy is concerned, are held in five centres across the country. Set up in 1998 under article 12 of Law No. 40/1998, these temporary reception centres, which then became CIEs (Identification and Expulsion Centres) under Law No. 189/2002 and were then renamed CPRs (Reception and Repatriation Centres) under Law No. 46/2017, are administrative detention centres, insofar as they deprive individuals who have committed an administrative offense, such as not having a residence permit, of their personal freedoms. The regime is one of duress, which, inter alia, prevents them from fully exercising their right to legal defence, which is severely reduced and made difficult by Law No. 46/17.
This law, which was approved by Presidential Decree No. 394/1999, establishes that “without prejudice to the absolute ban on the foreigner leaving the centre”, their “personal fundamental rights” must be guaranteed and, more specifically, the “freedom of belief within the limits provided for by the Constitution” (which, as is well-known, bans the celebration of immoral rites) and the “freedom to meet (…) with religious ministers” (article 21.)
Reports drawn up by parliamentary commissions and voluntary organisations show frequent violations of fundamental rights with a series of incidents of violence, uprisings, acts of self-harm, suicides and deaths in Italian CIEs. There are no reports of violations of the right to religious freedom, understood in the specific sense of the freedom to follow one’s beliefs. Of course it is possible that this is due to the disinterest of the complainants in exercising a right perceived as minor when they are deprived of their personal freedom, but it is likely that this right isn’t actually limited because those running the centres see it as vital to integration and maintaining order.
But does the religious freedom exercised by people deprived of their dignity have the right and normal meaning? Is the migrant’s dignity kept intact by guaranteeing and facilitating the practice of their beliefs in a context that suppresses other freedoms, starting with the freedom of movement and the right of defence? [12] Guaranteeing, for example, practising Muslims being held in these Centres the right to profess their beliefs and then associating them, just because they’re Muslims, with an ethnic group and terrorist organisations, severely limiting their rights as a result, is of course disrespectful of their dignity. Indeed, article 14(d) of Legislative Decree No. 286/1998, amended by Law No. 189/2002, stipulates that in these Centres, foreigners shall be held “in such a way that ensures they get the assistance they need and fully respects their dignity.” And to this end, article 19(3) of Law No. 46/17 stipulates that these centres shall be “suitable for guaranteeing holding conditions that ensure that a person’s dignity is fully respected.”
6. The leap from immigration to terrorism is a small one. And terrorism today has a lot to do with religion, particularly Islam, and the freedom of religion. In actual fact, as the European Parliament stated in its Resolution of 25 November 2015, which is particularly significant as it is on the “prevention of the radicalisation and recruitment of European citizens by terrorist organisations” – “because of terrorism and radicalisation, there is much stereotyping of religions, which in turn is bringing about renewed upsurges of hate crimes and hate speech motivated by racism, xenophobia or intolerance of opinions, beliefs or religions”, where “it is the perverse misuse of religion, and not religion per se, that is one of the causes of radicalisation.”
This consideration heads in the right direction because it avoids ascribing terrorism to religious fundamentalism. This, in superficial cultural talk, is a synonym for fanaticism, in which, in a book on new terrorism, an American historian with German roots, Walter Laqueur, identifies an element of madness, “of the paranoid kind more specifically.” [13] Indeed, fundamentalism is a characteristic trait of ideological or theological movements above all, that (like the reformist movements of Melantone and Calvin, the first to be defined as such) propose a radical return to the “fundamentals” of doctrine, in the case at hand, those of Original Islam, deduced from a literal interpretation of traditional religious sources (the Koran and the Hadith.) And, as pointed out by Mahmood Mamdani, “could it be that a person who takes his or her religion literally is a potential terrorist?” [14] The problem lies in the fact that in Sunni Islam, which has provided the hotbed for the movements in question, there is no authoritative interpretation of scripture and therefore the Koran “is what Muslims think it is and what they want it to be”. [15] The hermeneutical polynomial of sacred texts in Islam means that for every thousand Muslim theologians that consider them as the ultimate and definitive proof that killing is a sin, there are at least another thousand that consider them as the ultimate and definitive proof that killing is a religious duty instead. [16] This explains why terrorists feel like they’re involved in a battle between good and evil, which inevitably leads to total war because “these are matters of faith. These are matters of life and death”. [17]
A lot of terms have been used to describe the phenomenon, like “religious terrorism” and “religious matrix” or, more directly, “Islamist” or “Jihadi terrorism”. [18] Preferable, because it is more neutral, is the term “religious inspiration,” which benefits from the disambiguations of the case law on legitimacy in which it frequently appears. [19] Indeed, as opposed to the wording used in the European Parliament’s Resolution, “religious matrix” gives the idea of a link that is not objective but merely subjective between terrorism and religion: it limits itself to acknowledging that certain terrorist movements and groups justify their conduct by referring to an allegedly religious model.
In organisational terms, this type of terrorism has abandoned the traditional pyramidal model used by Al-Qaeda, which is without social roots and characterised by attacks on the “distant enemy,” to take on a “network”-based model. On the basis of The Global Islamic Resistance Call (Da‘wâ ilâ al-muqâwama al-islâmiyya al-‘âlamiyya) by the Syrian ideologist Abu Musab al-Suri, who worked closely with Osama Bin Laden before becoming the strongest critic of him, Gilles Kepel defined this phenomenon as “djihadisme de proximité”, “prône à sa place la guerre civile en Europe, appuyée sur des éléments de la jeunesse musulmane immigrée mal intégrés et révoltés”. [20] This has given rise to a capillary network and an individual terrorism, we can say “of grass-roots”, facilitated by social networks which allow for fishing of not just foreign fighters, but lone wolves too: all people need to do is make themselves available or mention an attack they intend to carry out for it to be claimed, as usually, by ISIS.
So why does religiously inspired terrorism endanger the guarantee of religious freedom too? It’s because of the contrasting rules that European States are forced to issue. A constitutionally driven response must be marked by the utmost asymmetry between the civility of law and the barbarity of criminal organisations: therefore, no to the criminal law of the enemy (Guantanamo), because taking away guarantees is the best gift we can give to terrorists. That said, we should take into account the degradation of the general and preventative effectiveness of sentences against those who see martyrdom as a way of successfully fulfilling their terrorist vocation (kamikazes.) Hence bringing forward repressive measures and applying them earlier on, classifying mere membership of an organisation, which in this case constitutes a “link” in the network, as a dangerous crime. Here we’re considering facts that take place before an attempted attack. Let’s look at some of the following:
Article 270-bis of the Italian Criminal Code: Anyone who promotes, founds, organises, directs or finances associations that propose committing acts of violence for the purposes of terrorism or subverting the democratic order (as per article 270-sexies);
Article 270-quinquies: Anyone who, excluding the cases described in article 270-bis, trains or at any rate provides instructions on how to prepare or use explosive materials, (…), for the purpose of terrorism. “anyone who, having bought, including autonomously, instructions for committing the acts described in the first paragraph above, engages in conduct aimed at committing the acts described in article 270-sexies”;
Article 270-quater Excluding the cases described in article 270-bis, and without prejudice to the case of training, the person enlisted is punished. Anyone who organises, finances or promotes travel for the purposes of carrying out such acts.
Italian Anti-Mafia Code article 4: anyone who carries out preparatory acts that are objectively significant and aimed at “participating in a conflict overseas in support of an organisation that pursues terrorist goals.”
It is not possible to go through all the case law that has accrued in recent years, even in summary form, which highlights a series of acts that could be deemed to be preparatory acts but, in isolation and without follow-ups, are criminally irrelevant, including religious acts such as carrying a text from the Koran, carrying out acts of proselytism or making apologies for behaviours such as the wearing of the veil and female genital mutilation.
Nonetheless, most authoritative examples of case law are aware of the delicate nature of this border. We cannot anticipate every limit: more specifically, mere proselytism or indoctrination, “aimed at instilling a positive vision of martyrdom for the Islamic cause and making people generally willing to join fighters in its name”. [21] In re ipsa is however the risk of the focus shifting onto the psychological side of things and, therefore, the very profession of one’s religious beliefs.
7. I have described some of the limits to the freedom of belief in Europe. They belong to a new generation, either because they are not expressly attributable to article 9 of the European Convention on Human Rights or because they have sprung up under emergency law (immigration and terrorism.) They circumscribe, like concentric circles, the space of that freedom. Nonetheless, the first three circles – religious organisations, business organisations run by religious persons, and business organisations tout court – are guaranteed and subject to judicial review, even if they have been prevalent and overriding up until now. The courts instead make a big effort and frequently enter the last two circles, immigration and terrorism, to give judicial weight to the choices made by Parliament in defence of democracy. It seems that great political and cultural commitment is needed to overcome widespread prejudice on migrants and the terrorists=muslims binomial but also, where the terrorist network has more or less deep roots, the deradicalisation of citizens, Italians and those who have not yet been granted Italian nationality, who could support lone wolves or foreign fighters in some way. The aim is that of the Resolution: “To raise awareness among and inform and train frontline workers (teachers, educationalists, police officers, child protection workers and workers in the healthcare sector) in order to strengthen local capacity to combat radicalisation” (no. 37) and “strengthening understanding and tolerance, especially with regard to different religions” (no. 28.)
There are signs that things are moving in this direction: the Minister for the Interior promotes and funds a training course for citizens belonging to religions in which there is discord (mainly Muslims and Sikhs) [22], and one university (Bari) runs a well-attended Masters course on the subject. [23] These and other initiatives aim to combat radicalisation, promoting the conditions for social integration whilst respecting people’s cultural and religious beliefs: i.e., a “secular citizenship”, conscious and created on the back of the “distinction between distinct orders” [24] that characterises our constitutional state of law and can alone protect the freedom of belief from the threats of not only these new principles, which are religious and business organisations, but migration and terrorist emergencies too.
Immigration and terrorism are the real and present-day test bench of the freedom and particularly of the freedom of belief, the first well-established freedom. Towards those already citizens the problem relates to the continuous predominance of the freedom of the social organizations, in which the citizen’s personality unfolds under article 2 of the Constitution, with respect to the freedom of the individual. Those are the new “princes” which, constitutionally recognized as expansions of the individual freedoms, acquire a their own authority, that they want claim not only in the public space, because of subsidiarity, but also in the private space, prevaricating the people who belong to them voluntarily, subscribing to their birth or joining them, or are in their employ. This is a problem of structure, not exclusively european, but also of the United States and, we can say, of all countries of firmed democracy.
The epochal problem is the freedom in front of the most organization of necessary belonging, the State, and its laws of contrast to immigration and terrorism. On this ground not the freedom of citizens is trampled but really the freedom of not- citizens: such because of necessity or ideality, that is because whether the citizenship, although wished, was not acquired (these are the migrants) or, although acquired, is not wished because it’s more important, to put so, the “heavenly citizenship”, which the terrorists feel themselves destined to. In both cases it is not a point of trampled freedom but still before of disclaimed dignity: either to immigrants convicted in Italian CPRs and above all in Libyan displaced centres, financially borne by our country and with the UE support, and to the thousands of victims of terrorism. Which freedom, of belief or other kind, can we recognise to “not-men” (as Primo Levi described the muselmänner of Nazi concentration camps [25])? This is the damnation of our epoch: making mounting masses of people lifeless, nameless matter, remaining insensitive to their misfortunes, reasonably (the Reason that in the opinion of Rousseau should have to enlighten and free men!) justified as a price, to put it with Bauman, not «unreasonable to pay in order to cut short the path, to cut the expenditures and increase the effects». [26]
In order to hold back, if not to reverse, this dystopic trend the defence of the freedom of belief goes on being one of the leading indicators of the guarantees level in Europe.
Nicola Colaianni
University of Bari
NOTE
[1] ⬆︎ European Court of Human Rights, Fernandez Martinez v. Spain, 12 June 2014.
[2] ⬆︎ Court of Cassation, case n. 5832.
[3] ⬆︎ Court of Cassation, case n. 3822.
[4] ⬆︎ U.S. Supreme Court, Burwell v. Hobby Lobby Store inc., 573 U.S. (2014).
[5] ⬆︎ Constitutional Court ruling no. 13 of 3 February 1994.
[6] ⬆︎ European Court of Human Rights, Eweida and others v. United Kingdom, 15 January 2013).
[7] ⬆︎ European Commission on Human Rights, Kara v. United Kingdom, 22 October 1998.
[8] ⬆︎ European Court of Human Rights, S.A.S. v. France, 1 July 2014.
[9] ⬆︎ The four rulings of the European Court of Human Rights are: Lehila Sahin v. Turkey, 24 June 2004 and 10 November 2005 (Grand Chamber), Dahlab v. Switzerland, 15 February 2001, Ebrahimian v. France, 26 November 2015, and S.A.S. v. France, cit.
[10] ⬆︎ European Court of Human Rights, Ahmet Arslan and Others v. Turkey, 23 February 2010.
[11] ⬆︎ U.E. Court of justice, cases C-157/15 e C-188/15.
[12] ⬆︎ See amplius, if you like, N. Colaianni, L’Europa e i migranti: per una dignitosa libertà (non solo religiosa), in Diritto, immigrazione e cittadinanza, 2018, n. 1.
[13] ⬆︎ W. Laqueur, Left, Right and Beyond: The Changing Face of Terror, in J. Hoge and G. Rose (eds), How did this Happen? Terrorism and the New War, Oxford: Public Affairs, pp. 71 ff.: “Madness, especially paranoia, plays a role in contemporary terrorism. Not all paranoiacs are terrorists, but all terrorists believe in conspiracies by the powerful, hostile forces and suffer from some form of delusion and persecution mania”.
[14] ⬆︎ M. Mamdani, Musulmani buoni e cattivi, Laterza, Roma-Bari, 2005, p. 22.
[15] ⬆︎ G.E. Fuller, A World without Islam, Brown and Company, Little, New York, 2010.
[16] ⬆︎ M. Graziano, L’alibi religioso del terrorismo, in http://gnosis.aisi.gov.it/gnosis/Rivista50.nsf/ServNavig/50-23.pdf/$Fil…
[17] So Muhammad Shakir Auy, dean of the Karachi university, to journalist Faiza Rahman, 19 september 2014 (three months later, on 18 december 2014, the Professor was killed).
[18] This attribute is used in the D’Ambruoso A.C. 3558-A draft law but also in the penal law.
[19] See most recently Court of Cassation case 24103/2017: “The call to Islamic Jihad, which is the open and un-debated inspiration for the military inspiration of Islamic State.”
[20] G. Kepel, with A. Jardin, Terreur dans l’hexagone. Genèse du Djihad français, Gallimard, Paris, 2015, p. 52.
[21] Court of Cassation ruling no. 48001/2016, reforming ruling GIP BARI 14/7/2016.
[22] See http://corsoculti.it; http://www.interno.gov.it/it/notizie/dialogo-interreligioso-concluso-primo-corso-integrazione-e-valori-costituzionali
[23] It’s the university “Aldo Moro” of Bari: see http://www.uniba.it/master-universitari/prevenzione-radicalizzazione-terrorismo/master
[24] Constitutional Court ruling no. 334/1996.
[25] P. Levi, Se questo è un uomo. Einaudi, Torino, 1989, p. 81.
[26] Z. Bauman, Le sorgenti del male, Erickson, Trento, 2013, p. 74.
