Italy
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The following text is taken by permission from Frank Cranmer’s “Notes on Church and State . . .” – see this introductory note.
Article 3 of the Constitution guarantees all citizens equality before the law ‗without distinction of sex, race, language, religion, political opinion, personal and social conditions‘. Article 8 provides that–
(1) All religious denominations are equally free before the law.
(2) Denominations other than Catholicism have the right to self-organisation according to their own statutes, provided these do not conflict with Italian law.
(3) Their relations with the State are regulated by law, based on agreements [intese] with their respective representatives.
Article 19 guarantees the right freely to profess “religious belief in any form, individually or with others, and to promote them and celebrate rites in public or in private, provided they are not offensive to public morality”, while Article 20 guarantees freedom from limitations or special fiscal burdens “on the establishment, legal capacity or activities of any organisation on the ground of its religious nature or its religious or confessional aims”.
Prior to the adoption of the 1947 Constitution, Italy‘s relations with the Roman Catholic Church were governed by the Lateran Pacts of 1929. Article 1 of the Conciliation Treaty declared that
Italy recognizes and reaffirms the principle established in the first Article of the Italian Constitution dated March 4, 1848, according to which the Catholic Apostolic Roman religion is the only State religion.
A 1984 revision of the Concordat, the Accord of Villa Madama ratified in 1985, formalised the principle of a non-confessional State as follows:
On the occasion of the signing of the Agreement that modifies the Lateran Concordat, the Holy See and the Italian Republic, desiring to assure, by means of appropriate specifications, the best application of the Lateran Pacts and the agreed upon amendments, and willing to avoid any difficulties of interpretation thereof, herein jointly declare: In relation to Article 1 [t]he principle of the Catholic religion as the sole religion of the Italian State, originally referred to by the Lateran Pacts, shall be considered to be no longer in force…
Nevertheless, the practice of State support for religion was maintained, including payment for teachers of religion appointed by the Church to give religious instruction in State schools – though there are no theological faculties in State universities.
Under the revised arrangements, the Government has the power to conclude an accord [intesa] with an individual denomination, whose ministers then gain access to State hospitals, prisons, and military barracks. The signing of an accord, which requires parliamentary approval, also results, inter alia, in civil registration of religious marriages by the denomination concerned. The 1984 revision also made it possible to provide State support for non-Catholic denominations: 0.8 per cent of the income-tax paid is handed over at the option of the taxpayer either to the Roman Catholic Church, to one of the other denominations that has concluded an intesa with the Italian State or . . . to the Italian State itself to be use for the relief of world hunger and natural disasters, assistance to refugees and the conservation of cultural property. The first such accord was made with the Waldensian Church. [Note by EHF: If taxpayers do not indicate a preference, their 0.8% is distributed according to the choices of only those who did express a choice. The vast majority of Italians do not express a choice. Of those who do, most choose the Church. For this reason, most of the .8% of those who do not choose actually goes to the Church.]
Currently, the Government has concluded intese with the Confederation of Methodist and Waldensian Churches, the Seventh-Day Adventists, the Assemblies of God, the Jews, the Baptists and the Lutherans. In 2007 the Government signed draft accords with the Buddhist Union, the Jehovah’s Witnesses, the Mormons, the Apostolic Church, the Orthodox Church of the Constantinople Patriarchate and the Hindus, and at the same time amended previous intese with the Confederation of Methodist and Waldensian Churches and the Adventists. In May 2010 the Council of Ministers approved the new and the amended intese but they were not ratified by Parliament in 2010. Negotiations remained suspended with the Soka Gakkai pending their reorganisation. (IRFR 2010: Italy).
The legality of the 0.8 per cent income-tax transfer was challenged before the European Court of Human Rights in Spampinato v Italy [2010] ECtHR 644 (No. 23123/04) (29 April 2010). In that case the Court concluded that the provision was within the margin of appreciation accorded to national authorities. Its grounds for doing so were that decisions on such matters would commonly involve political, economic and social questions which the Convention left to the competence of the states parties – a fortiori in the area of religion because there was no common European standard governing the financing of churches. Nevertheless, at the time of writing the European Commission was investigating some of the tax concessions that the Italian State makes to “non-commercial entities”, among which is included the Roman Catholic Church. In particular, the Commission has expressed concern that the municipal tax exemption granted by Italy for real property used by non-commercial entities for specific purposes might constitute a state aid in contravention of EU law, as its formal communication with the Italian Government demonstrates. It has been suggested that the Roman Catholic Church is a particular target for the Commission‘s investigation; according to a report by Aoife White in Business Week the overall concessions are worth €2 bn to the Holy See.
Silvio Ferrari suggests that Italian public law divides religious organisations into three categories. The Roman Catholic Church has a preferential position, partly because of its traditional significance in civil society and partly because of the 1984 Accord. The groups that have concluded intese occupy an intermediate position. At the lowest level are the unrecognised groups, which are regulated by the general law on associations and which do not, therefore, benefit from any particular financial privileges. (Ferrari 2005: 213).
Ferrari‘s contention that the Roman Catholic Church enjoys a preferential position over other religious groups is given some support by the facts in Lautsi & Ors v Italy. In 2009[1] the Second Section ECHR had held that routinely to display crucifixes in State schools was incompatible with the State‘s duty of neutrality in the provision education and in breach of Article 2 of Protocol No. 1 ECHR (education) in conjunction with Article 9. On appeal to the Grand Chamber, however, that decision was reversed by fifteen votes to two (Malinverni and Kalaydjieva JJ dissenting): see [2011] ECtHR (GC) (No. 30814/06) (18 March 2011) on the grounds that the display of crucifixes in the classrooms of Italian state schools was within the margin of appreciation accorded to member states of the Council of Europe.
This content last updated 13 November 2011 @ 12:46 pm