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Legal framework

International and European sources

The general principles of the Italian law on religions are derived from international and European sources on the one hand, and the Constitution of 1947 (in effect in 1948) and its interpretation (...)

The general principles of the Italian law on religions are derived from international and European sources on the one hand, and the Constitution of 1947 (in effect in 1948) and its interpretation by the Constitutional Court on the other hand.

Regarding international and European law, it is important to mention the standards that protect religious freedom (particularly article 18 of the Universal Declaration of Human Rights of 1948 and article 18 of the United Nations International Covenant on Civil and Political Rights of 1966 and especially article 9 of the European Convention on Human Rights) and prohibit discrimination on the grounds of religion (article 14 ECHR).
Fully recognising the European Convention on Human Rights system also implies that Italy recognises the jurisdiction of the European Court in Strasbourg (see an example in the case of Pellegrini v. Italy of 20 July 2001).
At the same time, as a member of the European Union, Italy recognises and applies Community law in all of its aspects including its repercussions on internal law on religions (refer to M. Ventura, La laicità dell’Unione europea. Diritti, mercato, religione, Torino, Giappichelli, 2001 and M. Ventura, "Protectionnisme et libre-échangisme. La nouvelle gestion juridique de la religion en Europe" Conscience et liberté, 64, 2003, p. 122-132, on this subject).

Constitutional principles that should be mentioned:

The principle of equality: "All citizens have equal social status and are equal before the law, without regard to their sex, race, language, religion, political opinions, and personal or social conditions" (article 3§1);

The principle of freedom of religion: "Everyone is entitled to freely profess religious beliefs in any form, individually or with others, to promote them, and to celebrate rites in public or in private, provided they are not offensive to public morality" (article 19);

The principle of freedom of religious associations: "For associations or institutions, their religious character or religious or confessional aims do not justify special limitations or fiscal burdens regarding their establishment, legal capacity, or activities" (article 20);

The principle of mutual recognition of State sovereignty and Church sovereignty: "State and Catholic Church are, each within their own reign, independent and sovereign" (article 7§1);

The principle of bilateral pacts in relations between the Catholic Church and the Italian State: "Their relationship is regulated by the Lateran pacts. Amendments to these pacts which are accepted by both parties do not require the procedure of constitutional amendments" (article 7§2);

The principle of the "equal freedom" of religious denominations: "Religious denominations are equally free before the law" (article 8§1). A Constitutional court decision of 18 April 2005 has declared the unconstitutionality of article 403 of the penal code which sets out heavier sanctions for offences against the Catholic religion than those which are applied for the same offence committed against other religions (Sentenza 18 aprile 2005, n.168);

The principle of religious autonomy: "Denominations other than Catholicism have the right to organize themselves according to their own by-laws, provided they do not conflict with the Italian legal system" (article 8§2);

The principle of bilateral relations between non-Catholic religious denominations and the State: "Their relationship with the State is regulated by law, based on agreements with their representatives" (article 8§3).

Subsequently the Constitutional Court deduced an absolute principal of secularism from the explicit constitutional standards (decision of 12 April 1989 No. 203).

D 27 September 2012    AMarco Ventura

The Constitution of 1947

Article 7 of the Italian Constitution of 1947 (adopted in 1948) concerns the relationship between the State and the Catholic Church. The organization and structure of the catholic Church are (...)

Article 7 of the Italian Constitution of 1947 (adopted in 1948) concerns the relationship between the State and the Catholic Church. The organization and structure of the catholic Church are considered in Italy as the “prototype” of religious denomination. The first section of Article 7 establishes the mutual independence and sovereignty of both the State and the Church. The second section of Article 7 states that the relations between the State and the Catholic Church is regulated by the Lateran Pacts: changes to the Pacts that are accepted by both parties shall not require a constitutional amendment.
At the same time the first section of Article 8 states that: 1) all religious confessions enjoy equal freedom before; 2) religious confessions other than Catholicism have the right to organise themselves in accordance with their own statutes, to the extent that these are not in conflict with the Italian legal system; 3) relationship between minority religions and the State is regulated by legislation, but these legislative acts must be based on specific agreements called “intese”, which literally can be translated into “arrangement” (between State and denominations) on the specific needs concerning confessions.
It is important to underline that Article 2 of the Italian Constitution affirms: “the Republic recognises and guarantees the inviolable rights of the person, as an individual and in the social groups within which human personality is developed. The Republic requires that the fundamental duties of political, economic and social solidarity be fulfilled”. Aricle 3 states that “All citizens have equal social dignity and are equal before the law, without distinction of sex, race, language, religion, political opinions, personal and social conditions.”. Article 19 of the Italian Constitution also affirms that “everyone has the right to profess freely their religious faith in any form, individually or in association, to disseminate it and to worship in private or public, provided that the religious rites are not contrary to public morality”. Besides, article 20 states that “no special legislative limitation or tax burden may be imposed on the establishment, legal capacity or activities of any association or institution on the ground of its ecclesiastical nature or its religious or worship purposes”.

D 22 January 2016    AFrancesco Alicino

CNRS Unistra Dres Gsrl

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