JUSTICE - No. 68

11 Summer 2022 May it please the Court, 1. My name is Joseph H.H. Weiler, Professor of Law at New York University and Honorary Professor at London University. I have the honour to represent the Governments of Armenia, Bulgaria, Cyprus, Greece, Lithuania, Malta, The Russian Federation and San Marino. All Third Parties are of the opinion that the Second Chamber erred in its reasoning and interpretation of the Convention and its subsequent conclusions. 2. I have been instructed by the President of the Grand Chamber that the Third Parties must not address the specifics of the case and be limited to the general principles underlying the case and its possible resolution. Time allocated is 15 minutes. I will, thus, only mention the most essential arguments. 3. In its Decision the Chamber articulated three key principles with two of which the Intervening States strongly agree. They strongly dissent from the third. 4. They strongly agree that the Convention guarantees to individuals Freedom of Religion and Freedom from Religion (positive and negative religious freedom) and they strongly agree on the need for a class room that educates towards tolerance and pluralism and is bereft of religious coercion. 5. The Chamber also articulates a principle of “neutrality:” “The State's duty of neutrality and impartiality is incompatible with any kind of power on its part to assess the legitimacy of religious convictions or the ways of expressing those convictions. [paragraph 47] 6. From this premise the conclusion is inevitable: Having a crucifix on the walls of classrooms was obviously found as expressing an assessment of the legitimacy of religious conviction – Christianity – and hence violative. 7. This formulation of “neutrality” is based on two conceptual errors which are fatal to the conclusions. 8. First, under the Convention system all Members must, indeed, guarantee individuals freedom of religion but also freedom from religion. This obligation represents a common constitutional asset of Europe. It is, however, counter balanced by considerable liberty when it comes to the place of religion or religious heritage in the collective identity of the nation and the symbology of the State. 9. Thus, there are Members in which laïcité is part of the very definition of the State, such as France and in which, indeed, there can be no State endorsed or sponsored religious symbol in a public space. Religion is a private affair. 10. But no State is not required under the Convention system to espouse laïcité. Thus, just across the Channel there is England (and I use this term advisedly) in which there is an Established State Church, in which the Head of State is also the Head of the Church, in which religious leaders, are members, ex ufficio, of the legislative branch, in which the flag carries the Cross and in which the National Anthem is a prayer to God to save the Monarch, and give him or her Victory and Glory. [Sometimes God does not listen as in a certain football match a few days ago…] 11. In its very self definition as a State with such an established Church, in its very ontology, England would appear to violate the strictures of the Chamber for how could it be said that with all those symbols there is not some kind of assessment of the legitimacy of religious belief? 12. There is a huge diversity of State-Church arrangement in Europe. More than half the population of Europe lives in States which could not be described as laïque. Inevitably in public education, the State and its symbols have a place. Many of these, however, have a religious origin or contemporary religious identity. In Europe, the Cross is the most visible example appearing as it does on endless flags, crests, buildings etc. It is wrong to argue, as some have, that it is only or merely a national symbol. But it is equally wrong to argue, as some have, that it has only religious significance. It is both – Given history that is part of the national identity of many European States. [There are scholars who claim that the 12 Stars of the Council of Europe has this very duality too!] ORAL SUBMISSION BY PROFESSOR JHH WEILER ON BEHALF OF AREMENIA, BULGARIA, CYPRUS, GREECE, LITHUANIA, MALTA, THE RUSSIAN FEDERATION AND SAN MARINO – THIRD PARTY INTERVENING STATES IN THE LAUTSI CASE BEFORE THE GRAND CHAMBER OF THE EUROPEAN COURT OF HUMAN RIGHTS JUNE 30TH, 2010

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