Simon Umek
Abstract
The European Court of Human Rights delivered a precedent decision in the case of Lautsi and Others v. Italy. Despite application of the margin of appreciation doctrine in that case, rationes decidendi are clearly expressed. The ECHR took the view that a crucifix in the classroom of a public school as a passive symbol does not violate the European Convention on Human Rights. The protection of the negative freedom of religion cannot be provided by an absolute restriction of the positive freedom of religion. The court decided that the negative freedom of religion in a school environment is protected when the pluralism of religious and other convictions is provided. The Slovenian Constitutional Court had previously decided that the state must prevent, especially in a school environment, every individual from coercion with religious or philosophical convictions. Regarding the Slovenian Constitutional Court's standard practice, the merits of the Lautsi case lead to a dilemma of whether such a court practice can legitimately and legally be used in future judicial reviews. The ECHR assures a minimum level of human rights protection. Due to the ECHR's viewpoint, Slovenian courts and state bodies are now bound, as part of the process of judging or estimating the positive or negative freedom of religion, by rationes decidendi in the case Lautsi and Others v. Italy.
Key words
European Court of Human Rights, Constitutional Court of the Republic of Slovenia, freedom of religion, public school, principle of proportionality, principle of neutrality, principle of pluralism