Caution is needed

“Caution, a virtue that must be cultivated at the European Court of Human Rights”: this is the title (and the conclusions) of the reflections of Pierre de Charentenay, Jesuit priest and director of the French review of contemporary culture “Études”, published on the Catholic daily “La Croix” (on January 4 2010). At the centre of the scholar’s reflections lies the debate on the “true content” of the fundamental rights of man, the limits of subsidiarity, and the principle of European law. The cases of Italy, Spain and Ireland. “ On three occasions the European Court of Human Rights, which is part of the Council of Europe in Strasbourg, received distinct reception by the public opinion” de Chantenay remarked. He recalled that the Court recently condemned Italy “for still ‘tolerating’ crucifixes in public schools. The ruling was invoked also in Spain to repeal crucifixes in public schools”. The Court was consulted by “Irish citizens who wish that their Country be condemned for rejecting a pro-abortion legislation”. The Court of Strasbourg, states the author of the article “has been the object of intense lobbying over the past years on the part of pressure groups who intend to influence their own countries’ legislation with the rulings of a higher organism, namely the Court”. “It can be understood that the lack of a legal framework in the enforcement of one or more fundamental rights in one of the 47 CoE States may constitute the object of legal recourse at the European Court”, states the editor of Études. Indeed, for this reason, “France was condemned for having mistreated people under arrest in its police stations”, and the Court’s influence prevented the execution of the Kurdish leader Ocalan, sentenced to death by Turkey’s authorities. According to father de Charentenay, “in recent cases the Court addressed petitions regarding local traditions in national frameworks”. Clarifying the “content” of fundamental rights. Italy and Spain, he said, “are countries with a strong presence of practicing Catholics”. But in view of these countries’ “enforcement of religious pluralism I don’t see why they should be sanctioned for not having yet removed all crucifixes from public places, notably classrooms?”. In Italy and in Spain, he underlines, “the presence of crucifixes in public places does not debase religious freedom”. Indeed, crucifixes are rather “the expression of a specific culture and the sign of national identity”. In the two cases, according to the Jesuit, “the Court’s respect for subsidiarity should be questioned”. Recalling the European Parliament debate – in the plenary of past December 14-17, among other things MEPs were called to cast their votes on the resolutions on the principle of subsidiarity inspired by the above-mentioned Strasbourg ruling on exposing the crucifix in public schools. However the voting was postponed to discussion in the ongoing EP session (until Jan 21) but was rejected by MEP majority vote – the author of the article underlines the profound divisions within the Euro-Chamber and states, “the debate highlights the ambiguity of the Court’s rulings”. In fact, the Court “is called to act when fundamental rights fail to be adopted by one of the 47 Member States, but the precise content of these rights, and its related area of intervention is not defined”. An attitude of caution. Going beyond the question of religious symbols in schools, father de Charentenay asks whether abortion, homosexual marriage or adoption by same gender couples are to be viewed as fundamental rights. Indeed, by turning to the Court of Strasbourg, “a number of lobbies want to force national legislations to endorse such requests, if they are rejected at national level”. Ireland did not legalize abortion: “is it the task of the European Court to compel Ireland to endorse it thus going against local culture and national debate? – he asks -. Who is in charge of producing legislation to this regard, the national parliament or a European body?”. According to the Jesuit this last question triggers two further debates: “what is the limit of subsidiarity?” And “according to which principles of European law do the latter’s capacities extend to legalizing claims in a Country when these were banned at national level?”. “These are crucial questions, and the debate is still open. Instead of intervening in the name of principles that would fail to be understood at national level” and which “justly constitute the object of debate, it would be important – concludes the director of “Études” – that the Court of Strasbourg adopted an attitude of caution and discretion to this regard”.