by Francesco Alicino — Abstract — This article analyzes the role of religious freedom and the principle of state secular-ism in Italy under the Covid-19 pandemic. In particular, the author focuses on the Government’s anti-Covid-19 restrictive measures that have limited some fundamental rights, including the right to freely profess and celebrate religious rites in community; which has led to a lively debate. However, unlike in other Western countries, in Italy the debate has been confined to the sphere of scholarly disputes, while judicial scrutiny has been nearly nonexistent. That stimulates interesting questions concerning the pandemic long-lasting effects on important factors of Italy’s principle of secularism, including the method of (state-church) bilateralism and its connections with the right of religious freedom.
Keywords: Italy – Covid-19 – religion – freedom – secularism – emergency
1 Introduction
It is tough to make sweeping generalizations about the COVID-19 (also known as SARS-CoV-2) pandemic outbreak. This is particularly true when taking into account Italy, where in the early 2020 the number of infected persons, the incidence rate, the hospitalization rate and the fatality rate varied dramatically from elders to youth, from north to south, from region to region, and even from one town to another. One thing was certain though: the virus spread quickly, crossed the peninsula and put the country in an unprecedented emergency. This was true not only in terms of the outbreak itself, but also in terms of responses from public authorities, starting with the Government that, during that period, imposed extraordinary restrictive measures. At the very beginning of the outbreak these measures regarded a few cities of Northwest. Afterwards they were expanded to the entire nation. [1] Like the problem at stake, the Government’s intervention was without parallel in the history of the Italian Republic. The most telling evidence is the fact that those measures suspended some fundamental rights, including the right to freely profess and celebrate religious rites in community.
From here stemmed a lively debate especially in relation with the limitations imposed on the public liturgical life (masses, funerals, baptisms, marriages) of the Catholic Church, the majority religion in Italy. [2] However, unlike in other Western countries, in Italy the debate has been confined to the sphere of scholarly disputes, while judicial scrutiny has been nearly nonexistent. [3]
All of this stimulates intriguing questions concerning both the place of religious freedom under the COVID-19 crisis (section 2) and the procedure through which the restrictive measures on spiritual gatherings were adopted (section 3). In particular, the debate leads us to wonder whether the activities concerning the right to freely profess religious belief and celebrate rites were downgraded from essential—i.e. fundamental—to a lower level of legal interest during and after the COVID-19 crisis (section 4). At the same time, Italy’s pandemic experience raised queries over the role of Articles 7 and 8 of the Constitution regulating state-religions cooperation and the recognition of churches’ autonomy, which did not influence the implementation of the restrictive measures under the 2020 early outbreak phase. These queries also lead to focus on the pandemic long-lasting effects on important factors of Italy’s principle of secularism, including the method of (state-church) bilateralism (sections 5 and 6).
As we will see, the analysis of these issues will also provide insight into the reasons behind judicial (non)reaction in this field. (sections 2–4).
2 Freedom to Profess Religion as Essential Right
The Italian Constitution recognises all religious denominations as equally free before the law. [4] The Constitution also states that all individuals are entitled to freely profess their religious belief in any form, individually or with others, [5] without discrimination. [6] In addition, the Constitution affirms that the religious character or the religious aim of social groups cannot justify special legal limitations for their foundation, their status or any of their activities. [7]
All these provisions underscore the essential-fundamental nature of religious freedom, in the individual and collective sense of the expression. This nature, however, is also enshrined in Article 32 of the Constitution under which ‘[t]he Republic safeguards health as a fundamental right of the individual and as a collective interest’. As the Italian Constitutional Court (ICC) ruled in the 2018 ILVA case, the prompt removal of any factors that constitute a hazard for inviolable rights set forth in Article 32 requires the State to pay the utmost attention to the protection of human health and physical integrity of individuals. [8] In other words, the safeguarding of health requires public authorities to defend the salus rei publicae which, in the emergency situations in general and in the case of SARS-CoV-2 pandemic disease in particular, may assume the characteristics of suprema lex. Indeed, in cases like these the old formula salus rei publicae suprema lex esto seems to be appropriate; which does not mean that this lex can assume a tyrannical penchant. [9]
The constitutional protection of fundamental rights is grounded on their mutual integration. If this is not the case ‘the result would be an unlimited expansion of one right, which would “tyrannize” other legal interests recognized and protected under the Constitution’. [10] The conflicts between competing rights must be solved by balancing one against another. The balancing test, however, does not always produce a win-win solution. It happens many times that one fundamental right must prevail over the others, depending on the existing situation and concrete circumstances. That is exactly the case of the protection of health that, during a pandemic emergency, tends to prevail over some aspects of religious freedom, such as those referring to the right to freely profess religious belief with others and celebrate rites in public.
In a constitutional democracy this right is always essential. But, despite its essentiality, freedom to worship must be subjected to the pandemic emergency’s contextual (necessary) constraints, under which the Constitution’s balance tilts towards health protection, however temporary. This does not mean that religious freedom stops being essential, nor that this freedom should be interpreted in a way that discriminates against believers and non-believers or a certain religion or belief. Freedom of religion must be selectively limited in light of reasonable standards of proportionality between the necessary measures used and the pursued aims. This forces to take into serious account the very real costs and harms that the emergency situation might involve. Accordingly, the most compelling source of evidence for understanding whether the limitations on religious freedom are reasonably appropriate requires first ascertaining whether the restrictive measures are necessary for the management of emergency situations. Of course, one cannot underestimate the risks of abuse of power that these situations offer to public authorities. However, the mere opportunity for this abuse is not enough to prevent the implementation of necessary measures in response to real-life dangers. The risk of potential abuses must be avoided through disseminating accurate information concern-ing both empirical data on public health and the job of legal entities, including the Government.
These considerations are even more relevant when considering that the Italian Government’s responses for the containment of the COVID-19 were not exempt from legal concerns. The massive use of the administrative acts called DPCMs (decrees of President of the Council of Minister or PM’s decrees) to adopt the anti-COVID-19 measures is one the most tangible evidences of that. [11] Another important indication comes from the fact that many times the content of DPCMs was not clear insofar as they were frequently accompanied by non-legal biding sources like the Minister of the Interior’s FAQs and internal memos (circolari). [12] Furthermore, for many scholars it was constitution-ally inappropriate to use DPCMs and even law-decrees for delegating to the Government and the other branches of public administration a consistent bulk of powers encroaching upon fundamental rights and freedoms. [13]
It is also important to note that during the COVID-19 crisis national and local politicians have been seeking to add credibility to their actions by means of scientific advice. The difficulty with this attitude is that scientists do not always have concrete answers and can feel pressured by politicians to go beyond what is actually known. As a result, all political spectrums have tended to weaponize every bit of (uncertain) information that, for this same reason, would open the door to litigations. This is especially the case when the subject of dispute is the combination between the protection of health and the multifaceted nature of religious freedom which, not for nothing, are not always easy to balance.
Nevertheless, despite the potential area of legal disputes, in Italy the judicial scrutiny of the COVID-19 emergency legislations has been almost nonexistent. A possible explanation for this may be that the issues at stake are matters of constitutional contention which, as such, are subject to the control of the Italian Constitutional Court. This control is centralized and in most cases only “incidental”: the question of constitutionality arises as an “incident” during ordinary legal proceedings and is certified to the ICC by judges presiding over these proceedings. The result is less dynamism on the part of the ICC which, during the COVID-19 crisis, had no chance to intervene on anti-pandemic restrictive measures concerning religious freedom.
A further—and in my opinion more realistic—explanation is that, given the high degree of scientific knowledge required by the issues at stake, health experts have acted as a filter for potential judicial appointments. The most important example is the role played by the Technical Scientific Committee (Comitato Tecnico Scientifico or CTS). Based at the PM’s Civil Protection Department [14] and together with the Superior Institute of Health (Istituto Superiore di Sanità or ISS), CTS has gained a normative function by being intensely involved in the implementation of anti-COVID-19 restrictive measures, including those related to religious ceremonies. It would suffice to mention the 2020 ‘Protocols Concerning the Resumption of Public Masses’ which, not by chance but rather by necessity, CTS approved before going to the State’s authorities [15] and religious representatives [16] for their signature. [17]
I do think that the absence of judicial oversight is due to the multiplicity of factors that I have tried to analyze so far. At least this is what emerges from reading the only judicial decision that has been issued in the field to date. This decision refers to the 29 April 2020 decree of TAR Lazio (Lazio’s Regional Administrative Tribunal), which rejected a petition against DPCMs’ anti-COVID-19 restrictive measures on religious ceremonies. Without underestimating the individuals’ fundamental right to participate in spiritual gatherings, TAR Lazio held that the protection of health must take precedence over other rights. This is self-evident, the Tribunal clarified. Furthermore, TAR Lazio said that this is even more evident when there are temporarily alternatives (i.e. online live-streamed ceremonies) which could help remedy the sacrifice of the applicant and all religious believers who are not allowed to attend worship with others and in religious buildings. In other words, aiming to protect health from the virulent pathogen, the governmental measures had a huge margin of discretion in so far as these measures were normally designed to prevent the judiciary from control. [18]
The absence of judicial appeals also suggests that, complied with the can-ons of proportionality, the Government’s restrictive measures appeared to be taken in order to ensure that the right to freely profess religious belief was relatively limited, but not eliminated. The Government’s measures were based on public health concerns and not used to quash dissent or target religious groups, whether majority or minority. The restrictive measures did not limit freedom of worship of believers as persons. These measures only pertained to the public exercise of worship of religions as collective institutions. To put it in other words, the anti-COVID-9 restrictive measures, while limiting libertas ecclesiae, have never called into question libertas fidelium. [19]
In the emergency context, spiritual rites and gatherings are essential opportunities for people to practice and exercise their right to religious freedom. And, of course, the inability to participate in such ceremonies can provoke discomfort, if not health problems. It remains that during the first phase of the 2020 crisis the threat came from a virus that made no distinction between believers and non-believers. At the same time, SARS-CoV-2 did not make distinction between buildings of worship and other places such as restaurants, bars, theatres, arenas, sports stadiums, stores. In normal conditions this similarity may be unacceptable to many people: you cannot compare spaces of religious worship to other areas like bars and restaurants. Under a global pandemic, this comparison is somehow necessary to keep the spread of the deadly virus under control. All gatherings, including religious ones, are potential vectors for transmission of disease, which endangered not only participants but everyone with whom they interact.
This position could also be supported by interpreting some religious texts, including Codex Iuris Cononici where it is affirmed (canons 213 and 843.1) that ‘the right to receive sacraments—and therefore the obligation for priests to administer them—is subject to personal and objective circumstances of both time and place’. So, Catholics ‘must take into account the individual and collective right of health care’, which was ‘under attack by the outbreak of the coronavirus-associated severe acute respiratory syndrome or SARS-CoV-2’. The Catholic doctrine ‘considers that in certain circumstances the civil authority can legitimately limit the public exercise of freedom of religion’. [20]
It remains that this situation affected the autonomy of churches and their representatives, who in the first phase of the COVID-19 pandemic were not involved in the preparation and implementation of anti-pandemic measures restricting the right to profess religious belief. This explains why the Italian debate has reflected in a more general discussion on the method of bilateral state-churches cooperation (hereinafter bilateralism method) as enshrined in Articles 7.2 and 8.3 of the Constitution. Here again, the debate has been relegated to the context of doctrinal dispute without any judicial reaction. Even the bilateralism method, therefore, seems to be strongly influenced by a broad mar-gin of political discretion that, as such, ‘cannot be subject to judicial review’. [21]
3 Church Autonomy under Emergency Conditions
It is important to note that Article 7 of the Italian Constitution establishes the mutual independence and sovereignty for both the State and the Roman Catholic Church. Albeit less strong, this principle is also enshrined in Article 8.2 recognizing the right to self-organisation to minority religions, defined as denominations other than Catholicism (confessioni diverse dalla Cattolica). At the same time, Articles 7.2 and 8.3 regulate the state-churches relations. Based on what scholars typically refer to as the bilateralism method (in Italian metodo della bilateralità pattizia), these Articles promote legislative rules that aim at combining respect for general constitutional obligations and attention to specific religious claims. [22]
More specifically, Article 7.2 declares that the 1929 Lateran Pacts [23] govern the relations between the State and the Catholic Church. However, this Article also affirms that any change to those Pacts, when accepted by the Holy See and the State, does not require the procedure of constitutional amendments. [24] This helps explain the content of the Villa Madama’s agreement (hereinafter 1984 Agreement) which the Government and the Holy See signed in 1984 and the Italian Parliament ratified a year later. [25]
Taking into account Article 7.1, the 1984 Agreement enjoys special constitutional protection, as it cannot be contravened by unilateral legislation. [26] Moreover, the 1984 Agreement is viewed as the legal prototype of the bilateral-ism method, which is also incorporated into Article 8.3 of the Constitution. [27] Accordingly, only legislative acts can regulate the relations between minority religions and the State. [28] Nevertheless, these acts must be based on intese, which can be translated into ‘understandings’ between the State and confessions other than Catholicism. [29] In other words, once the Italian Government and the representatives of a given religion have signed an agreement (related to the Catholic Church) or an understanding (referring to minority religions), these two documents need to be ratified (for the agreement) or approved (for the understanding) by specific legislative acts of the Parliament.
So far as organizations without intese are concerned, they are subject to the 1159/1929 law on ‘admitted religions’ (culti ammessi). [30] Having been approved during the Fascist regime, this law is not always congruent with constitutional provisions. [31] However, the 1929 law is still in force, as the Parliament has not been able to replace it with a more constitutionally inclined legislation. [32] These findings help to clarify why many religious groups are still regulated by more generic laws on recognised and non-recognised associations, [33] in so far as these groups are not only excluded from intese, they are also impeded from being legally recognised under the 1159/1929 law on admitted religions. [34]
It is also important to remark that the bilateralism principle is part of Italy’s principle of secularism that is not expressly mentioned in the Italian Constitution. This has not prevented the ICC from implying otherwise. On the basis of a series of constitutional provisions (namely Articles 2, 3, 7, 8, 19 and 20), the ICC has demonstrated that secularism is one of the supreme principles (principi supremi) of the Italian legal order. While recognizing that all persons are equal before the law and entitled to freely profess religious belief in any form, individually or with others, the supreme principle of secularism does not imply indifference towards religions. Conversely, Italy’s principio supremo di laicità confers a special legal status to religious denominations while still maintaining the equidistant and impartial relationship between the State and individual religions. [35]
The supreme principle of secularism is thus legally delineated through the combination of favor libertatis, as stated in Articles 2, 3 and 19 of the Constitution, and favor religionis, as illustrated in Articles 7, 8 and 20 of the same Charter. While favor libertatis puts emphasis on individuals’ rights and freedoms to choose and practice their religious and nonreligious beliefs, favor religionis gives special attention to religious denominations and institutions, starting with the majority one. The fact is that the favor libertatis-favor religionis relation does not always result in harmonious coexistence. The complex and contradictory debates on the Government’s restrictive measures for the containment of the COVID-19 outbreak and its impact on the state-church relations are illustrative examples of that. Here it is important to recall the comments of some authors who criticized the Government’s emergency measures for the prevention and the containment of super-spreading events occurred during the early phase of the COVID-19 outbreak in Italy. These critics relied on three main arguments.
First, the bilateralism principle is strictly connected with the fundamental right to religious freedom that, in accordance with Articles 8.1 and 19 of the Constitution, implies two other inviolable rights: the right of all religious denominations to be equally free before the law, which is important to meet the peculiar needs of all religions and their adherents, including Catholics; [36] and the right of each person to freely profess religious belief in any form, individually or with others, [37] and to celebrate rites in public or in private without government coercion. [38]
Second, the 1984 Agreement is not only protected under article 7 of the Italian Constitution. The Agreement also falls within the frame of the old-est principle of international law known by the Latin formula pacta sunt servanda. [39] This interpretation, it is argued, is confirmed by article 7.1 of the Constitution, which establishes that the State and the Catholic Church are independent and sovereign each within its own sphere. [40]
Last but not least, the Government’s restrictive measures infringed the principle of church autonomy, which implies the freedom of organization, the public exercise of worship as well as the exercise of jurisdiction in religious- ecclesiastical matters.
Even though they appear compelling, these arguments reveal interconnected difficulties.
4 The Method of Bilateralism under the Emergency
It should be clarified that Article 7.2 of the Constitution regulates state-church relations in rex mixta areas, meaning where the State and the Catholic Church have some interests in common. [41] This Article does not, and cannot, regulate all legal matters. Certainly, Article 7.2 cannot include health protection, in respect to which the State has exclusive competence. [42] This is because the right to health and the protection of public safety concern all persons; there-fore, this right and the relative protection cannot be eligible for variable geometry depending on the state-church relation arrangements. [43]
Regarding the pacta sunt servanda rule, it undoubtedly falls into the inter-national law. It is equally clear, though, that this rule forms part of a peculiar source known as international customary laws. [44] Article 10 of the Italian Constitution calls them ‘generally recognized principles’ that, as enshrined in the ICC’s jurisprudence, do not regard the 1984 Agreement. [45] It is obvious that this Agreement is assimilable to an international treaty. However, as the ICC has affirmed many times [46] and Italian scholars have demonstrated through comprehensive studies, the 1984 Agreement’s international status does not make it a legal binding source of constitutional rank. [47]
The pacta sunt servanda principle cannot be applied automatically in the Italian legal system, so the 1984 Agreement does not fall into Article 10 of the Constitution. In this respect, it is sufficient to mention what the ICC has been affirming since 1989: ‘[t]he thesis according to which international treaties that are introduced into the Italian legal system by ordinary legislation would assume constitutional or a higher rank has never been shared by the jurisprudence of the Supreme Court (Corte di Cassazione) nor by this [Constitutional] Court’. [48] The same can be said about the considerations according to which ‘the international treaties cannot be abrogated or modified by ordinary legislation by virtue of the pacta sunt servanda rule’. [49]
Thus, the rules of international treaty, including those concerning the 1984 Agreement, ‘do not fall into Article 10 of the Constitution’. [50] Moreover, unlike the 1929 Lateran Pacts, the 1984 Agreement does not fall into Article 7.2 of the Constitution as well. This is evident for other two interconnected reasons. First, ‘Article 10 and Article 7.2 of the Constitution refer to precisely identified agreements, which concern respectively the legal status of foreigners and the relations between the State and the Catholic Church’. Hence these two Articles ‘cannot be referred to treaty norms other than those expressly mentioned’. [51] Second, since 1978 the ICC has stated that Article 7.2 shall be understood as a fixed-referral law (norma di rinvio fisso), meaning it makes ‘a precisely identified reference to the Pacts stipulated and entered into force in 1929’. [52] The fact is that the 1984 Agreement has entirely replaced the 1929 Lateran Pacts, with the only exception of the first part called Treaty which, as such, does not really concern religious matters, in the strict sense of the term: the Treaty recognizes Vatican as the City-State. For these reasons, unlikely the 1929 Pacts, the 1984 Agreement cannot fall into the scope of Article 7.2. This exclusion in turn implies that, unlike the 1929 Pacts that were subject only to the parts of the Constitution called supreme principles (principi supremi), [53] the 1984 rules are subject to all constitutional provisions.
More specifically, the 1984 Agreement is subject to Article 117.1 of the Constitution, which states that the ‘legislative powers shall be vested in the State and the Regions in compliance with the Constitution and with the constraints deriving from European Union’s legal order and international obligations’. It means that the 1984 Agreement does not produce provisions directly applicable into the Italian legal order, precisely because the rules of this Agreement have the status of international obligations, albeit with peculiar characteristics. [54] Furthermore, from a legal point of view, the 1984 Agreement has the same status of the European Convention of Human Rights (ECHR), [55] under which freedom to manifest one’s religion or beliefs is indeed subject to specific limitations, including the protection of health and the interests of public safety. [56]
For all these reasons, it is unreasonable to regard the 1984 Agreement as a test for establishing the constitutionality of the Government’s lock-down measures due to the COVID-19 crisis. These measures should instead be tested on the basis of an appropriate balance between the right of religious freedom and the State’s duty to protect individual and public health.
Under this aspect, it is important to note that those who criticized the Italian Government’s emergency COVID-19 measures also referred to the Church’s autonomy as enshrined in Article 2 of the 1984 Agreement, under which ‘the Republic shall recognize the full freedom of the Church to develop its pastoral, educational, and charitable mission, of evangelization and sanctification; in particular, the Church shall be assured the freedom of organization, of public exercise of worship, of exercise of its magisterium and spiritual ministry as well as of exercise of jurisdiction in ecclesiastical matters’. [57] Moreover, according to Article 14 of the 1984 Agreement, when there is a problems of interpretation, the provisions of this Agreement are subject to ‘the search for an amicable settlement through a joint Commission, appointed by the two [the State and the Holy See] parties’. [58] The problem with this argument is that Article 2 of the 1984 Agreement does not actually relate to freedom of worship for Catholics as persons. Article 2 of the 1984 Agreement only pertains to the public exercise of worship for the Catholic Church as a religious institution. In other terms, Article 2 deals with the so-called libertas Ecclesiae and not with libertas fidelium. And the Government’s emergency measures have never called into question libertas fidelium. [59]
Nevertheless, some authors have affirmed that the Government’s restrictive measures infringed the procedures stipulated by the 1969 Vienna Convention. Those measures, they said, were unilaterally imposed without the collaboration of the Holy See, as requested by Articles 2 and 14 of the 1984 Agreement, whose provisions were then infringed too: since the 1984 Agreement is assimilable to an international treaty, this also resulted in the infringement of the Vienna Convention. [60] The fact is that the domestic procedure of Article 14 of the 1985 Agreement derogates and excludes the Vienna Convention, which procedure is in contrast with the canonical principle of the Prima sedes a nemine iudicatur (the First Holy See is judged by none). Thus, in the light of the principle of Kompetenz-Kompetenz (under which the State holds the ulti-mate competence), [61] when the “amicable settlement” of Article 14 of the 1984 Agreement is not possible, the interpretation of the Italian State will prevail. [62] And if these considerations are not enough, one can remember the procedure of the Vienna Convention, under which ‘a party that … invokes either a defect in its consent to be bound by a treaty or a ground for impeaching the validity of a treaty must notify the other parties of its claim’; [63] this notification ‘must be made in writing’. [64] In relation to the Government’s measures due to the COVID-19 emergency, the Holy See has never notified its claims. Hence, from a legal point of view, the issue of applicability of the Vienna Convention does not arise here. [65]
5 Administrative State-Religions Cooperation
In the early 2020 the Council of Ministers declared the state of emergency. [66] The Government did so under the civil protection code (codice della protezione civile) that, in cases of natural calamities, allows the Government to adopt exceptional measures without parliamentary scrutiny. [67] At this stage of the COVID-19 crisis, places of worship were open to the public and individuals were allowed to enter, provided that they had to practice social distancing and keep at least one meter away from other people. In fact, going out to enter places of worship in order, for example, to pray did not qualify as an essential or primary need. [68] On 26 April 2020, the President of the Council of Ministers, Mr Giuseppe Conte, announced the Government’s cautious plans for a slow- placed end to Italy’s long Corona-virus lockdown. He stated that restricting measures, which had been put in place seven weeks, would be eased from 4 May 2020, when parks, factories and construction sites would reopen. So far as places of worship were concerned, the conditions for their opening continued to be subject to the adoption of precautionary measures, such as the inter-personal safety distance of at least one meter. Civil and religious ceremonies remained suspended until 18 May 2020. [69]
The Italian Bishops’ Conference (CEI) responded shortly after the PM’s announcement, addressing the policies that would continue to restrict the Church’s ability to carry out the pastoral activity. The Bishops made it clear that they had been in constant negotiations with the State’s authorities. As a result, CEI had proposed guidelines and protocols ‘in full compliance with all health regulations’. However, the Government, CEI said, ‘arbitrarily excludes the possibility of celebrating mass with the people’. For these reasons, CEI reminded the Government and its Technical Scientific Committee advisory board ‘of the duty to distinguish between the State responsibility to give precise indications related to health matters and the Church’s responsibility to organize the life of the Christian community; which implies that the Church will respect the measures laid down, but in the fullness of its own autonomy’. [70] Pope Francis did not completely agree with that. Two days later, during the morning Mass at Casa Santa Marta, a Vatican hostel, he said that ‘at a time when people are starting to get instructions to emerge from quarantine let us pray to the Lord that He may give His people, to all of us, the grace of prudence and obedience to the rules so that the pandemic does not return’. [71]
In fact, the COVID-19 crisis did not prevent the Church and other religions from cooperating with the State, as clearly demonstrated by the Government’s coronavirus phase 2 lockdown measures.
The attention focuses on the ‘Protocol Concerning the Resumption of Public Masses’, which was signed on 7 May 2020 by Mr Giuseppe Conte, the Ministry of the Interior Luciana Lamorgese and the CEI’s President Cardinal Gualtiero Bassetti. The document stated that Masses for the public would resume on 18 May 2020, but under strict conditions and that religious ministers deter-mine the maximum number of people who can fit in a church while staying at least one meter apart. If there was demand, additional masses would be held, rather than allowing more people into the church for one service. The faith-ful would have to wear masks in church. Priests celebrated most of the Mass without masks but they would have to wear one, as well as gloves, when they distributed the eucharist. The Protocol also stated that choirs be banned, holy water fonts remain dry, and the traditional exchange of a sign of peace, usually in the form of a handshake, was eliminated. [72] It is worth pointing out that in this occasion Cardinal Bassetti reiterated the Church’s commitment to over-coming the current COVID-19 crisis by saying that ‘the Protocol is the result of profound collaboration and synergy between the Government and the Italian Bishops’ Conference, where everyone has played their part responsibly’. [73]
It is also important to note that few days later very similar (copy & paste) documents were signed by other religious leaders, including those representing groups without intese or even not legally recognized as religions. [74] These initiatives are in line with what are called mini-understandings (mini intese), such as those referring to the relations between the State Department of Penitentiary Administration (DAP) and Jehovah’s Witnesses, Protestant Churches, Islamic Conference (IIC), Union of Islamic Communities and Organizations of Italy (UCOII), whose religious ministers are now allowed to enter prisons. [75]
Another example refers to the issues of Islamic burial ground in public cemeteries, in which separate sectors must be reserved for the burial of people belonging to religions other than Catholicism. [76] Muslim migrants often prefer to repatriate the body of a loved person to their country of origin. This was impossible during the Covid-19 pandemic emergency: in the first phase of the outbreak the Government stopped allowing bodies to be sent out of the country. Consequently, many Muslims had to be buried on Italian soil. However, the Islamic requirement of burial within 24 hours of death could not always be honoured. Moreover, in the province of Brescia in the Region of Lombardy, a Macedonian family had to keep the body of one of its members enclosed in a coffin at home for more than a week; this was because the City in which they lived lacked an Islamic burial ground. [77] Just one year earlier (February 2019), the Lombardy Regional Council had approved an amendment that negated a provision of the regional 2009 funerary law [78] compelling private associations to allow burials in their allocated spaces in public cemeteries, regardless of sex or religion. [79] Muslim leaders replied that the law would likely only limit space for Islamic burials, thus creating further segregation. On 4 July 2020, under the COVID-19 crisis, the Council of San Donato Milanese, a Milan suburb, reserved spaces for Islamic burials in Monticello’s public cemetery, which was a result of a collaboration between local authorities and religious communities.
It should be pointed out that these kinds of cooperation do not fall under the method of bilateralism. From a legal point of view, it may be interpreted under unilateral law regulating public procedure stating that individuals, associations or committees (that have concrete interest for the defense of legally important situations and that could be prejudiced by the measure taken by pub-lic authorities) have the right to intervene during rulemaking proceedings. [80]
In any case, these examples show that the pandemic emergency has forced public institutions to find new solutions in the system of relations between the State and confessions. These solutions have indeed paved the way for development of more effective cooperation in order to affirm a more inclusive plural-ism, as requested by Italy’s supreme principle of secularism.
6 Conclusion
Italy’s secularism is based on the conception of a “plural secularism” (laicità pluralista). As such, the Italian laicità is different from other models of secularism, like those referring to the French militant secularism, bent on keeping religion out of the public sphere, or the communitarian secularism, in which high priority is given to collective self-government by each religious community within the State. [81] In this manner, various minority religions have long been part of Italy’s pluralism and often enjoyed a level of public consideration far superior to their numerical significance. [82]
However, the COVID-19 crisis has underscored some traditional challenges in implementing the Italian principle of secularism, especially in its part concerning favor religionis and the method of bilateralism, which have increasingly come to be seen in terms of “negative externalities”: while creating privileges for the Catholic Church and a small number of minority denominations, favor religionis in general and the method of bilateralism in particular have produced unreasonable discriminations against all other religions. This is the case of Muslim communities that, under other long-term emergencies, from immigration to religion-inspired terrorism, are viewed with greater suspicion by some prominent political actors and a section of the Italian population alike. [83] This also reminds us how endogenous and exogenous emergencies factors may impact on the constitutional postures of the Italian State towards religion, including those referring to the right of all individuals and all religious denominations to be equal and equally free before the law.
On the other hand, Italy’s pandemic experience also reminds us that no right is absolute. Some rights, however, seem to be immune from limitation or suspension, even in emergencies. This is the case of freedoms from torture, slavery, and inhuman or degrading treatment. These rights are deemed to be of vital importance not only for individuals, but also for the existence of constitutional democracies. Like the protection of health, these rights are strictly linked to the ius existentiae, meaning the essential precondition to exercise and enjoy all fundamental rights. Similarly, the safeguard of human health acts as a safeguard against the abuse of government power. These considerations gain further relevance when relating to religious freedom, which cannot be limited disproportionately in the name of health emergencies. For the same reason, though, religious freedom is not absolute, in so far as this freedom must be balanced against other rights, taking into account the existing condition and specific circumstances. [84]
In sum, the Government’s restrictive measures on religious freedom are constitutionally protected when they have a legal basis and are respectful of every person’s dignity, based on scientific evidence, reduced in duration, subject to judicial review, proportionate to achieve the objective of preventing-containing threats to both human life and public safety. In short, those restrictive measures are constitutionally justified when they are neither arbitrary nor discriminatory in application. [85]
Francesco Alicino | ORCID: 0000-0002-3363-7484
Professor in Public Law and Religion and Constitutional Law at the University of LUM Jean Monnet, Casamassima, Bari, Italy — alicino
lum.it (alicino[at]lum[dot]it)
Religion and Human Rights 17 (2022) 82–102
© Koninklijke Brill NV, Leiden, 2022 | doi:10.1163/18710328-bja10027
NOTES
[1] ⬆︎ Mara Sanfelice, ‘The Italian Response to the COVID-19 Crisis: Lessons Learned and Future Direction in Social Development’, The International Journal of Community and Social Development (1 July 2020), https://doi.org/10.1177/2516602620936037.
[2] ⬆︎ See ex plurimis all articles published in https://diresom.net/blog. See also all articles published in the Special Issue ‘Salute umana e tradizioni religiose di fronte alle emergenze sanitarie’, Quaderni di Diritto e Politica Ecclesiastica-Daimon (2021), pp. 1–324; Pierluigi Consorti, ‘Religion and Virus’, in Pierluigi Consorti (ed.), Law, Religion and Covid-19 Emergency (Pisa: DiReSoM, 2020); Pierluigi Consorti, ‘La libertà religiosa travolta dall’emergenza’, Forum di Quaderni Costituzionali (2020), p. 371; Angelo Licastro, ‘Il lockdown della libertà di culto pubblico al tempo della pandemia’, Consulta on line (2020), p. 229; Alessandro Tira, ‘Normativa emergenziale ed esercizio pubblico del culto. Dai protocolli con le confessioni diverse dalla cattolica alla legge 22 maggio 2020’, 35 Giustizia Insieme (8 June 2020); Gianfranco Macrì, ‘Brevi considerazioni in materia di governance delle pratiche di culto tra istanze egualitarie, soluzioni compiacenti e protocolli (quasi) “fotocopia”’, 11 Rivista telematica (2020), p. 75, www.statoechiese.it.
[3] ⬆︎ Adelaide Madera, ‘Some Preliminary Remarks on the Impact of COVID-19 on the Exercise of Religious Freedom in the United States and Italy’, 2 Rivista telematica (2020), pp. 71–140, www.statoechiese.it.
[4] ⬆︎ Article 8.1 of the Italian Constitution.
[5] ⬆︎ Article 19 of the Italian Constitution.
[6] ⬆︎ Articles 2 and 3 of the Italian Constitution.
[7] ⬆︎ Article 20 of the Italian Constitution.
[8] ⬆︎ Corte Costituzionale, 23 March 2018, No. 58. In this vein see the Court of Justice of the European Union (CJEU), Swedish Match AB v. Secretary of State for Health, Case C-151/17 (preliminary ruling), 22 November 2018, where it is stated that ‘the EU legislature must take account of the precautionary principle, according to which, where there is uncertainty as to the existence or extent of risks to human health, protective measures may be taken without having to wait until the reality and seriousness of those risks become fully apparent. Where it proves to be impossible to determine with certainty the existence or extent of the alleged risk because the results of studies conducted are inconclusive, but the likelihood of real harm to public health persists should the risk materialize, the precautionary principle justifies the adoption of restrictive measures’.
[9] ⬆︎ On this principle see Martin Loughlin, The Idea of Public Law (Oxford: Oxford University Press, 2004), p. 154.
[10] ⬆︎ Corte Costituzionale, 9 May 2013, No. 85.
[11] ⬆︎ Antonio Fuccillo, Miriam Abu Salem and Ludovica Decimo, ‘Fede interdetta? L’esercizio della libertà religiosa collettiva durante l’emergenza COVID-19: attualità e prospettive’, 96 CALUMET—Intercultural Law and Humanities Review (2020).
[12] ⬆︎ It important to note that, even when considering those circolari and FAQs as “interpretative documents”—which remains and needs to be clarified—they are internal instructions for public administrations. Given that the primary goal of this article is to investigate the questions concerning legally biding acts, I think it is best not to focus my analysis on those circolari and FAQs. After all, the debate related to these documents has remained relegated to brief articles in newspapers and magazines online, with little impact and scientific evidence. See, for example, Simona Sotgiu, ‘Faq nuova fonte di diritto? Il governo faccia chiarezza. Parla Guzzetta’, Formiche (16 April 2020), https://formiche.net/2020/04/guzzetta-faq-restrizioni/ (accessed 2 January 2022).
[13] ⬆︎ Ugo Allegretti, ‘Osservazioni sulla lotta al coronavirus all’inizio della “seconda fase”’, 3 Forum di Quaderni Costituzionali (2020).
[14] ⬆︎ See Decreto del Capo Dipartimento No. 371 (5 February 2020) [Istituzione del Comitato Scientifico].
[15] ⬆︎ The President of the Council of Ministers and the Ministry of the Interior.
[16] ⬆︎ Starting with the President of the Italian Bishops’ Conference, Cardinal Gualtiero Bassetti.
[17] ⬆︎ See Italian Government, ‘Protocollo circa la ripresa delle celebrazioni con il popolo’, 63, where it is stated that ‘during the meeting of 6 May 2020 the Technical-Scientific Committee has analysed and approved this “Protocol concerning the resumption of public Masses”’ (il Comitato Tecnico-Scientifico, nella seduta del 6 maggio 2020, ha esaminato e approvato il presente ‘Protocollo circa la ripresa delle celebrazioni con il popolo’) (author’s translation).
[18] ⬆︎ Tar Lazio, decreto of 29 April 2020, No. 3453.
[19] ⬆︎ Nicola Colaianni, ‘Trent’anni di laicità (Rileggendo la sentenza n. 203 del 1989 e la successiva giurisprudenza costituzionale)’, 21 Rivista telematica (2020), pp. 52–66, www.statoechiese.it.
[20] ⬆︎ Giuseppe Dalla Torre, ‘Coronavirus. Gli ordini dati dallo Stato e gli ordini interni della Chiesa’, Avvenire (22 March 2020) (author’s translation).
[21] ⬆︎ Corte Costituzionale, 10 March 2016, No. 52.
[22] ⬆︎ Giuseppe Casuscelli, Post-confessionismo e transizione (Milano: Giuffrè, 1984), p. 55; Raffaele Botta, Tutela del sentimento religioso ed appartenenza confessionale nella società globale. Lezioni di diritto ecclesiastico per il triennio con appendice bibliografica e normativa (Torino: Giappichelli, 2002), p. 54; Carlo Cardia, La riforma del Concordato. Dal confessionismo alla laicità dello Stato (Torino: Einaudi, 1980), pp. 108–109; Giovanni Battista Varnier, ‘La prospettiva pattizia’, in Vincenzo Parlato and Giovanni Battista Varnier (eds.), Principio pattizio e realtà religiose minoritarie (Torino: Giappichelli, 1995), pp. 8–13; Jlia Pasquali Cerioli, ‘Interpretazione assiologica, principio di bilateralità pattizia e (in)eguale libertà di accedere alle intese ex art. 8, terzo comma, Cost.’, Rivista telematica (www.statoechiese.it) (16 July 2016); Giuseppe Casuscelli, ‘Il pluralismo in materia religiosa nell’attuazione della Costituzione ad opera del legislatore repubblicano’, in Sara Domianello (ed.), Diritto e religione in Italia. Rapporto nazionale sulla salvaguardia della libertà religiosa in regime di pluralismo confessionale e culturale (Bologna: Mulino, 2012), p. 23; Giuseppe D’Angelo, Repubblica e confessioni religiose tra bilateralità necessaria e ruolo pubblico: contributo alla interpretazione dell’art. 117, comma 2, lett. c) della Costituzione (Torino: Giappichelli, 2012), p. 13; Francesco Finocchiaro, Diritto ecclesiastico (Bologna: Zanichelli, 2012), p. 128; Giorgio Balladore Pallieri, Diritto costituzionale (Milano: Giuffrè, 1970), p. 124; Francesco Margiotta Broglio, ‘Dalla questione romana al superamento dei Patti lateranensi’, in General Director of President of the Council of Ministers, La revisione del Concordato. Un accordo di libertà (Roma: Istituto Poligrafico e Zecca dello Stato, 1986), p. 19; Salvatore Berlingò, ‘Fonti del diritto ecclesiastico,’ Digesto discipline pubblicistiche (1991), p. 459; Giuseppe Casuscelli, Concordati, intese e pluralismo confessionale (Milano: Giuffrè, 1974), p. 144.
[23] ⬆︎ Francesco Margiotta Broglio, Italia e Santa Sede dalla grande guerra alla conciliazione (Roma-Bari: Laterza, 1966), p. 77; Roberto Pertici, Chiesa e Stato in Italia. Dalla Grande Guerra al nuovo Concordato. Dibattiti storici in Parlamento (Bologna: il Mulino, 2009), p. 185.
[24] ⬆︎ This procedure is regulated by Article 138 of the Italian Constitution.
[25] ⬆︎ See legge 25 of March 1985, No. 121. It is interesting to note that since 1984 the Government and the religions other than Catholicism have signed thirteen intese, twelve of which have been ratified by the Parliament to date. See Marco Ventura, ‘Regolazione pubblica del religioso. La transizione tra simboli e realtà’, in Marco Parisi (ed.), Autonomia, decentramento e sussidiarietà: i rapporti tra pubblici poteri e gruppi religiosi nella nuova organizzazione statale (Napoli: Edizioni Scientifiche Italiane, 2003), pp. 215–216.
[26] ⬆︎ Francesco Alicino, ‘The Italian Legal System and Imams: A difficult Relationship’, in Mohammed Hashas, Jan Jaap de Ruiter and Niel Valdemar Vinding (eds.), Imams in Western Europe. Developments, Transformations, and Institutional Challenges (Amsterdam: Amsterdam University Press, 2018), pp. 359–38.
[27] ⬆︎ Nicola Colaianni, Confessioni religiose e intese. Contributo all’interpretazione sistematica dell’art. 8 della Costituzione (Bari: Cacucci, 1990), p. 132.
[28] ⬆︎ Francesco Modugno, ‘Norme singolari, speciali, eccezionali’, XXVIII Enc. dir. (1978), p. 508; Mario Ricca, Legge e Intesa con le confessioni religiose: sul dualismo tipicità-atipicità nella dinamica delle fonti (Torino: Giappichelli, 1996), p. 25.
[29] ⬆︎ Giuseppe Casuscelli, ‘La rappresentanza e l’intesa’, in Alessandro Ferrari (ed.), Islam in Europa/Islam in Italia tra diritto e società (Bologna: il Mulino, 2008), p. 304.
[30] ⬆︎ Giorgio Bouchard, ‘Concordato e intese, ovvero un pluralismo imperfetto’, 1 Quaderni di diritto e politica ecclesiastica (2004), pp. 70–71.
[31] ⬆︎ Andrea Bettetini, ‘Alla ricerca del “ministro di culto”: Presente e futuro di una qualifica nella società multireligiosa’, 1 Quaderni di diritto e politica ecclesiastica (2000), p. 249; Angelo Licastro, I ministri di culto nell’ordinamento giuridico italiano (Milano: Giuffrè, 2005), p. 482; Cesare Mirabelli, L’appartenenza confessionale (Padova: CEDAM, 1975), p. 359; Onida Francesco, ‘Voce Ministri di culto’, XX Enciclopedia giuridica (1990), p. 6.
[32] ⬆︎ Roberto Zaccaria, Sara Domianello, Alessandro Ferrari, Pierangela Floris and Roberto Mazzola (eds.), La legge che non c’è. Proposta per una legge sulla libertà religiosa (Bologna: il Mulino, 2019).
[33] ⬆︎ Erminia Camassa, ‘Caratteristiche e modelli organizzativi dell’Islam italiano a livello locale: tra frammentarietà e mimetismo giuridico’, in Carlo Cardia and Giuseppe dalla Torre (eds.), Comunità islamiche in Italia. Identità e forme giuridiche (Torino: Giappichelli, 2015), pp. 123–149.
[34] ⬆︎ Valerio Tozzi, ‘Le confessioni religiose senza intesa non esistono’, in Aequitas sive Deus. Studi in onore di Rinaldo Bertolino (Torino: Giappichelli, 2011), p. 1033.
[35] ⬆︎ See essays in Andrea Cardone, Marco Croce (eds.), 30 anni di laicità dello stato: fu vera gloria? Atti del Convegno di Firenze del 27 e 28 settembre 2019 nel trentennale della s.n. 203/1989 della Corte costituzionale (Roma: Nessun Dogma, 2021).
[36] ⬆︎ Article 8.1 of the Italian Constitution.
[37] ⬆︎ Adrea Riccardi, ‘Il coronavirus e la sospensione delle messe: così c’è il rischio di sottovalutare la solitudine’, Il Corriere della Sera (8 March 2020).
[38] ⬆︎ Article 19 of the Italian Constitution. See Corte Costituzionale, 10 March 2016, No. 52.
[39] ⬆︎ Vincenzo Pacillo, ‘La libertà di culto al tempo del coronavirus: una risposta alle critiche’, 8 Rivista telematica (2020) www.statoechiese.it, pp. 84–94, which also refers to Francesco Finocchiaro, Diritto ecclesiastico (Bologna: Zanichelli, 2010), p. 72; Pasquale Lillo, ‘Art. 7’, in Raffaele Bifulco, Alfonso Celotto and Marco Olivetti (eds.), Commentario alla Costituzione (Torino: Utet giuridica, 2006), p. 185; Giuseppe Dalla Torre, Lezioni di Diritto ecclesiastico (Giappichelli: Torino, 2014), p. 117.
[40] ⬆︎ Fabio Adernò, ‘Il nuovo decreto-legge n. 19/2020: un suggerimento ermeneutico ecclesiasticistico’, 1 Diritti Regionali (2020), p. 484; Matteo Carrer, ‘Salus Rei Publicae e salus animarum, ovvero sovranità della Chiesa e laicità dello Stato: gli artt. 7 e 19 Cost. ai tempi del coronavirus’, 2 BioLaw Journal (2020).
[41] ⬆︎ Piero Bellini, ‘«Ordine proprio dello Stato», «ordine proprio delle Chiese»’, in Accademia Nazionale dei Lincei, Lectio Brevis (11 May 2012). See also Piero Bellini, ‘Diritti secolari e diritti religiosi’, 3 Daimon (2003), p. 220.
[42] ⬆︎ Nicola Colaianni, ‘Il sistema delle fonti costituzionali del diritto ecclesiastico al tempo dell’emergenza (e oltre?)’, 4 Rivista AIC (2020), p. 215.
[43] ⬆︎ See Consiglio di Stato, 30 March 2020, No. 1553.
[44] ⬆︎ Brian D. Lepard, Reexamining Customary International Law (Cambridge: Cambridge University Press, 2017).
[45] ⬆︎ Corte Costituzionale, 24 October 2007, No. 348, where it is stated that ‘the norms contained a bilateral or multilateral international treaty fall out with the normative scope of Article 10.1, even where they are general’.
[46] ⬆︎ See the following decisions of the Italian Constitutional Court: No. 348/2007; No. 349/2007;
No. 73/2001; No. 15/1996; No. 168/1994; No. 323/1989; No 153/1987; No. 96/1982; No. 188/1980; No. 48/1979; No. 104/1969; No. 32/1960; No. 323/1989.
[47] ⬆︎ See Antonio Cassese, ‘Art. 10’, in Giuseppe Branca (ed.), Commentario della Costituzione (Bologna-Roma: Zanichelli-Il foro italiano, 1977), p. 485; Nicola Colaianni, Diritto pubblico delle religioni: Eguaglianza e differenze nello Stato costituzionale (Bologna: il Mulino, 2012), pp. 153–174.
[48] ⬆︎ Corte Costituzionale, No. 323/1989.
[49] ⬆︎ Ibid. (author’s translation).
[50] ⬆︎ Ibid. (author’s translation).
[51] ⬆︎ Corte Costituzionale, No. 348/2007 (emphasis added).
[52] ⬆︎ Corte Costituzionale, 7 February 1978, No. 16 (emphasis added).
[53] ⬆︎ On the supreme principles of the constitutional order, see Corte Costituzionale, 1 March 1971, No. 30.
[54] ⬆︎ Colaianni, supra note 47, p. 166.
[55] ⬆︎ Corte costituzionale: No. 348/2007 and No. 349/2007.
[56] ⬆︎ Article 9.2 ECHR that also states (in Article 15.1) that ‘[i]n time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law stipulates that’. See the European Court of Human Rights (ECtHR), Lawless v. Ireland, Appl. No. 332/57, 1 July 1961.
[57] ⬆︎ Article 2 of the 1984 agreement (author’s translation).
[58] ⬆︎ Article 14 of the 1984 agreement (author’s translation). See Vincenzo Pacillo, ‘La sospensione del diritto di libertà religiosa nel tempo della pandemia’, olir.it (16 March 2020). See also Stefano Montesano, ‘L’esercizio della libertà di culto ai tempi del Coronavirus’, Olir.it (20 March 2020).
[59] ⬆︎ N. Colaianni, ‘La libertà di culto al tempo del coronavirus’, 7 Rivista telematica (www.statoechiese.it) (2020), p. 33; Alessandro Ferrari, ‘Covid-19 e libertà religiosa’, Settimana news (6 April 2020).
[60] ⬆︎ Pacillo, supra note 39, p. 90. In general see also Pasquale Lillo, ‘Note preliminari sui proto-colli concordatari’, Rivista telematica (2013), www.statoechiese.it, pp. 1–24.
[61] ⬆︎ Jose E. Alvarez, International Organization as Law-Makers (Oxford: Oxford University Press, 2005), p. 657.
[62] ⬆︎ Colaianni, supra note 47, p. 221.
[63] ⬆︎ Article 65 of the Vienna Convention.
[64] ⬆︎ Article 67 of the Vienna Convention.
[65] ⬆︎ Federica Botti, ‘Bagatelle per una pandemia’, 10 Rivista telematica (2020), www.statoechiese.it, pp. 1–21.
[66] ⬆︎ See ‘Dichiarazione dello stato di emergenza in conseguenza del rischio sanitario con-nesso all’insorgenza di patologie derivanti da agenti virali trasmissibili,’ 26 Gazzetta Ufficiale (1 February 2020).
[67] ⬆︎ See the 2018 Italian legislative decree, No. 1.
[68] ⬆︎ Licastro, supra note 2, p. 239.
[69] ⬆︎ See DPCM, ‘Ulteriori disposizioni attuative del decreto-legge 23 febbraio 2020, n. 6, recante misure urgenti in materia di contenimento e gestione dell’emergenza epidemiologica da COVID-19, applicabili sull’intero territorio nazionale’, 108 Gazzetta Ufficiale (27 April 2020).
[70] ⬆︎ CEI, DPCM, ‘La posizione della CEI, 26 April 2020’, Nota della CEI (9 May 2020).
[71] ⬆︎ Author’s translation. See Massimo Franco, ‘Coronavirus, perché il Papa e la Cei non hanno una linea univoca’, Il Corriere della Sera (28 April 2020).
[72] ⬆︎ The collection, in which a basket is passed around for offerings of money, is replaced by containers where the faithful can make contributions. All rooms and objects used will be sanitized at the end of each ceremony. See Italian Government, ‘Protocollo circa la ripresa delle celebrazioni con il popolo’, available at http://www.governo.it/sites/new.governo .it/files/Protocollo_CEI_GOVERNO_20200507.PDF (accessed 3 January 2022).
[73] ⬆︎ CEI, ‘Messe con il popolo: condivise le linee di un accordo’, Nota della CEI (2 May 2020).
[74] ⬆︎ This is the case of Muslim communities; Governo italiano, Protocollo con le Comunità Islamiche (18 May 2020): https://www.interno.gov.it/sites/default/files/2020.05.14_proto collo_comunita_islamiche.pdf (accessed January 3, 2022).
[75] ⬆︎ These protocols allow imams to offer spiritual assistance to Muslim inmates detained in Italian prisons. UCOII and IIC will provide prison administration with a list of people who ‘perform the functions of imam in Italy’ and who are ‘interested in guiding prayers and worship within prisons nationwide’. The list will also specify at which mosque or prayer room each imam normally performs his worship. Imams will have to indicate their preference for three provinces where they would be willing to lead prayers for inmates. See Marco Belli, ‘Religione in carcere: intesa tra Dap e Comunità Islamiche’, gNews (5 June 2020), <https://www.gnewsonline.it/religione-in-carcere-intesa-tra-dap-e-comunita-islamiche/> (accessed January 3, 2022). See also Francesco Alicino, ‘Italy Tested by New Religious Diversity: Religion in the Italian Prison System’, in Anne-Laure Zwilling and Martínez-Ariño (eds.), Religion and Prison in Europe (Cham: Springer, 2020), pp. 219–236; Silvia Angeletti, ‘L’accesso dei ministri di culto islamici negli istituti di detenzione, tra antichi problemi e prospettive di riforma. L’esperienza del Protocollo tra Dipartimento dell’Amministrazione penitenziaria e UCOII’, Rivista telematica (2018), p. 24.
[76] ⬆︎ See D.P.R. 10 sett 1990, n. 285, Approvazione del regolamento di polizia mortuaria, Art 100.
[77] ⬆︎ Anna Gianfreda, Tra cielo e terra. Libertà religiosa, riti funebri e spazi cimiteriali (Roma: Libellula, 2020), pp. 323–70.
[78] ⬆︎ Legge Regionale 30 dice 2009, No. 33, Testo unico delle leggi regionali in materia di sanità, Art 75.
[79] ⬆︎ See Legge Regionale 4 marzo 2019, No. 4 Modifiche e integrazioni alla legge Regionale 30 dice 2009, No. 33.
[80] ⬆︎ Legge 7 Agosto 1990, n. 241 Nuove norme sul procedimento amministrativo, 192 Gazzetta Ufficiale (18 August 1990). See Giovanni Cimbalo, ‘Il papa e la sfida della pandemia’, 9 Rivista telematica (2020), p. 15.
[81] ⬆︎ Susanna Mancini and Michel Rosenfeld, ‘Unveiling the Limits of Tolerance: Comparing the Treatment of Majority and Minority Religious Symbols in the Public Sphere’, 309 Benjamin N. Cardozo School of Law Working Paper (2010), pp. 3–4.
[82] ⬆︎ Stefano Allievi, ‘Multiculturalism in Italy: The Missing Model’, in Alessandro Silj (ed.), European Multiculturalism Revisited (London: Zed Books, 2010), pp. 147–80.
[83] ⬆︎ Fabrizio Ciocca, L’Islam italiano. Un’indagine tra religione, identità e islamofobia (Milano: Melteni, 2019).
[84] ⬆︎ Alec Stone Sweet and Jud Mathews, ‘Proportionality Balancing and Global Constitutionalism’, 47 Columbia Journal Transnational Law (2008), p. 72. See also Peter Lerche, Übermaß und Verfassungsrecht. Zur Bindung des Gesetzgebers an die Grundsätze der Verhältnismäßigkeit (Köln: Heymann, 1961); Giorgio Pino, ‘Diritti fondamentali e principio di proporzionalità’, Ragion pratica (2014), p. 541.
[85] ⬆︎ See ‘Derogations in a Public Emergency’, in American Association for the International Commission of Jurist, On the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (1985), pp. 5–6. See also ECtHR, Aksoy v. Turkey, 18 December 1996, Application No. 21987/93. See also Robert Alexy, ‘Constitutional Rights and Proportionality, 22 Journal for constitutional theory and philosophy of law (2014), pp. 51–65.
