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Religious Offences in Italy: Recent Laws Concerning Blasphemy and Sport

Published online by Cambridge University Press:  26 April 2011

Anna Gianfreda
Anna Gianfreda
Affiliation:
Research Fellow in Canon and Ecclesiastical Law Università Cattolica del Sacro Cuore, Piacenza, Italy
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Abstract

Religious offences in Italy, as in many European countries, have a long and complex history that is intertwined with the events in the history of the relationship between church and state and the institutional and constitutional framework of a nation.

This article is divided into three parts. The first part aims to offer some historical remarks concerning the rules on the contempt of religion and blasphemy in Italian criminal law from the end of the 19th century to the present day. The second part focuses on changes to the law on vilification introduced in 2006 and the third part deals with the recent developments in blasphemy law in the context of sport.

The article shows that, on the one hand, reforms of the offences grouped under vilification of religion are anachronistic and do not stand up against the religious freedom of individuals, yet on the other, despite the traditional rules for the protection of religion being considered obsolete, they are applied in new areas of law, for example sport, and are used to curb bad manners and bad behaviour. The relationship between the new functions of these criminal rules and the traditional ones, however, remains uncertain and fluctuating, and reveals a moralistic approach to religious offences.

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Articles
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Ecclesiastical Law Journal , Volume 13 , Issue 2 , May 2011 , pp. 182 - 197
Copyright
Copyright © Ecclesiastical Law Society 2011

HISTORICAL BACKGROUND

The Italian legal system has traditionally provided for two types of criminal offence to protect religion: ‘vilipendio’ (vilification) and ‘bestemmia’ (blasphemy). They constitute the two traditional sets of rules, on which I will focus. I will not address problems concerning criminal offences against religious hatred and discrimination.

The differences between vilipendio and blasphemy offences, before the second half of the 1990s, were, firstly, the mens rea (the intention to offend religion in the case of vilification, and the intention or the recklessness to offend God, symbols or persons of the Catholic religion in the case of blasphemy); and, secondly, the object of the insult (for vilification – ‘catholic religion as such’, ministers of religion, believers, sacred things and objects; for blasphemy – God, persons and symbols of the state religion).

These rules have been reformed several times following constitutional and institutional reforms and developments in relations between the Italian state, on the one side, and the Catholic Church and other religious denominations on the other. Such reforms have focused on two areas: the protected values and the extent of the offence. In particular, during the second half of the nineteenth century (the so-called ‘liberal era’ when there was a systematic separation of church and state in Italy),Footnote 2 the Zanardelli Criminal Code of 1889 did not contain the offence of blasphemy and punished only the vilification of believers and ministers of religion, the destruction of worship-related objects and the disturbance of worship.Footnote 3 The provisions applied to all ‘admitted cults’ (culti ammessi) in Italy, as well as to the Catholic Church.Footnote 4 All religions, in the Criminal Code, were considered equal and there was no discrimination between the Catholic religion and other religious minorities. Even though the Constitution of 1848 distinguished between the Catholic Church (Catholicism being the sole religion of the Italian state) and the other religious denominations – that is, the tolerated cults – it should be remembered that the process of Italian unification entailed a struggle against the Catholic Church and the attempt (albeit at times inconsistent) to establish separation of religion and the state. As a consequence, in this period, the state did not mean to protect a specific religious denomination, but only the right to religious freedom. In fact, the 1889 Criminal Code devoted a section to ‘Offences against freedom of cults’.Footnote 5

With the advent of Fascism (1923) and the new confessional character of the Italian state following the Lateran Pacts of 1929, the situation changed. The constitutional provision stating that the Catholic religion was the only religion of the state, which was formally binding in the liberal era but never really applied, was reaffirmed and finally enforced by the fascist regime.Footnote 6 Since the 1920s, the state placed the Catholic Church in a privileged position and gave it, as far as criminal law is concerned, a stronger protection than minority religions.Footnote 7 The 1930 Criminal Code introduced the offence of blasphemy against God, persons and symbols venerated by the state religion and punished exclusively the vilification of the Catholic religion.Footnote 8 The vilification of Catholic believers and the ministers of the Catholic Church, the destruction or damage to Catholic worship-related objects and the disturbance of Catholic worship were punished with imprisonment. The same acts committed against religious minorities were punished only with a fine.Footnote 9

In the new regime, the Catholic faith was seen to be the root of society's political and moral behaviour,Footnote 10 and was regarded as an ‘instrumentum regni’. Therefore, to challenge or offend against it was understood as a serious threat to the very fabric of political and moral society which had to be punished more severely than offences against the admitted cults. These norms provided the dogmas of the Catholic faith, as the state religion, with an immediate protection; the dimension of religious freedom was completely neglected. The 1930 Criminal Code protected the institutional dimension of Catholicism, that is, the Catholic Church as an organised institution, against any offences, because the church was allied with the state in the affirmation of the Nation's new ethic values. This resulted in giving the Catholic religion a privileged institutional role in Italian law.Footnote 11

With the promulgation of the Republican Constitution (1948), the provisions of the Criminal Code became clearly incompatible with new principles of the right to religious freedom and non-discrimination.Footnote 12 The amendment to the Concordat in 1984, which entailed the explicit repeal of the principle of the Catholic religion as the state religion, made these rules even more outdated. Fascist-era provisions concerning religious offences were also difficult to reconcile with the supreme principle of secularism, declared by the Constitutional Court in 1989.Footnote 13 Nevertheless, for almost thirty years the Constitutional Court considered offences against the Catholic religion to be consistent with the Constitution because Catholicism was still regarded as the religion of the majority of the Italian people.Footnote 14 Between 1995 and 2005 (because of continuing legislative inaction) the Constitutional Court made a series of declarations that the legal provisions concerning religious offences were unconstitutional.Footnote 15

The outcomes of the Constitutional Court's interventions resulted in deleting the expression ‘state religion’ from vilification and blasphemy offences, and in making the penalties for the offences against the Catholic religion equal to those against all ‘admitted cults’.Footnote 16

According to the Constitutional Court's new interpretation, the values protected by the law are believers' religious feelings, regarded as an expression of the fundamental right of individual freedom of religion:

… the constitutional principles of secularism and non-confessional state … do not mean indifference to religious experience, but it means impartiality of the legislation in respect of all religious denominations … The protection of religious feelings has come to assume the meaning of a corollary of the constitutional right of freedom of religion, which must embrace in the same way the religious experience of everybody in their individual and community dimension, irrespective of the different content of different communities of faith.Footnote 17

The law on blasphemy was amended by the Constitutional Court through a declaration of the unconstitutionality of the words ‘The Persons or the Symbols venerated by the State Religion.’Footnote 18 In this way, this provision currently protects only the deities of all religions against blasphemy. Blasphemy was decriminalised in 1999.Footnote 19 Currently, it is an administrative offence and therefore it is punished with an administrative fine, imposed by administrative authorities (the prefect) and not by criminal courts.

THE REFORMS OF 2006

The 2006 Act reformed most comparable crimes under the 1930 Criminal Code, for example the offences of insult of or damage to the flag or other symbols of the state (article 5), the offence of disrespect to the flag or other symbols of a foreign country (article 6) and some offences against the state and its institutions. Here I will only deal with the criminal offences of vilifying religion.

In the first place, the new law has reformed the title of the relevant section of the Criminal Code, which used to be ‘Offences against the State religion and admitted cults’, and which is now ‘Offences against religious denominations’. Thus, the expression ‘religious denominations’ has been substituted for terms such as ‘state religion’ and ‘admitted cults’.

Secondly, the Act, reforming specific sections of the criminal code concerning ‘Offences against the State religion and admitted cults’, has taken into account prior rulings of the Constitutional Court. It has not reintroduced the provision on ‘the vilification of the religion as such’, but it has partially reformulated the offences concerning the ‘indirect vilification’ of persons, ministers of religion and worship-related objects. The innovations are the use of the words ‘confessioni religiose’ (religious denominations), which have thus become a specific object of protection under the criminal law; the equal protection of all religions;Footnote 20 and punishment of such crimes by fines rather than imprisonment.

However, these innovations seem to be more formal than substantive. The use of the words ‘religious denominations’, whilst consistent with Article 8 of the Italian Constitution, according to which ‘all religious denominations are equally free before the State’, raises some concerns both in terms of compatibility with the principle of legal certainty in criminal law and of impact on protected values under the criminal law.

As to the former, the long-standing legal debate which has attempted to develop some criteria to identify the often blurred line of distinction between a simple association and a ‘religion’ has not yielded yet satisfactory results. The concept of ‘religious denomination’ does not yet allow determination of when a group may be called a ‘religious denomination’, nor to distinguish between an institutionalised religion, a visible and organised community, and a poorly organised and barely institutionalised one.

A further problem is found in the difficulty of determining individuals' religious membership and grounding legal protection on the sole requirement of belonging to a religious institution. In fact, the sociological paradigm interprets the phenomenon of religion mainly in its institutional aspect – that of belonging to a religion – and seems today unable to respond adequately to religion-related questions (and their protection).Footnote 21 Silvio Ferrari is correct when he states that, in the age of globalisation, belonging to a religion represents a new identity that can cross national borders. Nonetheless, grounding legal protection on this identity risks exacerbating those conflicts stemming from the belief that different religious identities are necessarily a source of rifts.Footnote 22 In other words, focusing religious legal protection solely on identity or belonging to a religious denomination may strengthen one of the factors that most often causes interreligious conflicts; that is, religious identity and otherness becoming elements of cultural alienation.Footnote 23

As to this latter objection, the use of the expression ‘religious denominations’ seems to revive the former approach to religious offences, being as it is grounded on an institutionalised approach to religion.Footnote 24 In other words, a believer is protected against insults only insofar as he or she belongs to a ‘religious denomination’. As a consequence, the Criminal Code provides religious denominations and not individual believers with direct protection. The provision concerning aggravating circumstances for the insults against ministers of religion further demonstrates that lawmakers have first and foremost given religion an institutional role in society.

Beliefs and choices about the ultimate meaning of life which cannot be attributed to the legal category of religion, are excluded from any form of protection. From this point of view, the new law is based on prejudice, according to which theistic-oriented views and membership of a religious community with some institutional structure and regarded as a ‘religion’ in the legal sense, have a special added value. Using Simmel's distinction, as elaborated by the Italian sociologist Cipriani, the 2006 Act seems to have chosen to give protection to the sole dimension of ‘religion’ and not of ‘religiosity’.Footnote 25

To strengthen these objections we may add the following observations.

The actus reus of religious offences has not changed; it is still the act of vilification. However, there were already quite a few difficulties in defining the concept of vilification in the uniform society of the 1930s, when it was somehow possible to make a distinction between the ‘acceptable’ and the ‘unacceptable’, as based on a shared set of ethical, legal and religious or moral values. In today's pluralistic and secularised society, it has become even ‘more complex to determine when the actual blasphemous expression originates. Ethic and socio-cultural parameters to determine a blasphemous or contemptuous conduct are in a constant change, because the society experiences the dimension of the sacred in very different forms’.Footnote 26

There is another element of the actus reus that has not changed: in some cases the criminal act must be committed in public. For example, according to article 403 of the Code, the conduct relates to anyone who insults a religion in public, with contempt of those who profess it. This requirement is not prescribed by the second part of the same article, which applies to the contempt of ministers of religion. Therefore, in the first case the offence may be punished only if the insult is public, and in the second case, because the minister of religion is protected as a religious institution.Footnote 27

According to prevailing scholarly opinion, the new religious offences protect in the first instance ‘the institutional dimension of the religious phenomenon’, that is, the traditional civic value of religion articulated in a multi-faith context.Footnote 28 In other words, a state religion has been replaced by a multi-religious society of many organised religious denominations.

The fact that religious denominations as such are regarded as legally protected does not seem to resolve the concerns about the consistency of these provisions with the 1948 Constitution. A secular state has no reason to protect religious denominations as such, but it must protect the freedom of religion. As many scholars have noted, these rules ‘have not lost their confessionalist inspiration’Footnote 29 and they have created an outdated model of ecclesiastical law that neglects its nature of legislatio libertatis. The 2006 reform has been clearly confined to adapting such rules to a simple requirement of equal treatment between different faiths, but lawmakers have abstained from creating a system of protection of religious freedom against the wrongs that are really offensive to individuals' human dignity, regardless of their ideas about the ultimate meaning of life. However, the creation of just such a system would have ensured greater consistency with constitutional provisions. In fact, Articles 2, 3 and 19 of the Constitution are based on a notion of religion as an aspect of the development of the individual's personality and as a portion of his or her freedoms. However, offences against religion harm the individual dimension of religion and not its institutional side.

On the other hand, the criminal penalties for religious offences should be devised in a non-afflictive way. They should include the possibility of reconciliation between the parties and convey awareness of the offence and of the offensiveness of the act concerned. Facilitating a meeting between the offender and the victim is a crucial step in order to prevent these incidents (often not objectively very serious) from degenerating into hatred or religious conflict. Restorative JusticeFootnote 30 is a promising method for the resolution of this type of ‘conflict crime’.Footnote 31 This method promotes the acknowledgement of the wrong suffered by an individual in his religious dimension, and may meet, in a dialogical way, those requests made by a number of Muslim states and organisations for tighter anti-defamation policies restricting freedom of expression.Footnote 32

The inadequacy of the Italian criminal law in this field is also evident from the paucity of case law. Even before 2006 the lack of case law revealed a decreased social reaction to this type of offences and was a test of the functional collapse of traditional punitive instruments in cases concerning offences against religion. After the reform, this trend has not changed. Today's criminal protection of religion unveils a symbolic and institutional context, which is even stronger than before. This will produce a progressive failure in the application of these provisions and an increasingly high incidence of religious offences that will not be prosecuted.

Such conclusions can be drawn from analysis of the first rulings following the enactment of the 2006 Act.Footnote 33 A decision of 2006 concerned three cartoons published on a website and depicting the Pope and other Catholic clergymen involved in sexual acts.Footnote 34 According to the Court of First Instance, the publishers of the website were exercising their right to the freedom of expression. The cartoons were not regarded as obscene, because the representation of sexual acts was seen as the satirical expression of criticism against the church leadership's position on sexuality. Thus, the cartoons were not regarded as breaching individual dignity because of their ironic and satirical content, and they did not constitute vilification because of the lack of mens rea. In fact, the publishers did not mean to offend either religion as such or ministers of religion, but simply to satirise and criticise leading figures such as the Pope. Furthermore, criticism was not directed to the faith community but to the website's frequent users, who were supposed to lack particular religious feelings.

Two judgments of the Court of Appeal offer further remarks. The first case concerned the offence against a religion as caused by insulting people, according to article 403 of the Criminal Code.Footnote 35 The Court of Appeal ruled that expressions of contempt did not have to be directed necessarily to a particular believer, but had simply to refer generally to the believers' community. The relevant provision protects religious feelings as such. According to this interpretation, religious offences are not crimes against persons, but are crimes against an abstract entity (religious feeling). The second judgment, delivered in 2009,Footnote 36 stated that the expression turbatio sacrorum according to article 405 of the Criminal Code meant both preventing the start or the exercise of worship, and disturbing it. The case originated with upset caused when the defendants disrupted a funeral with shouts and insults against some political figures attending the service, causing the celebrant to call for restoration of order.

In conclusion, the reform of the offence of vilification is unsatisfactory and outdated, as it fails to give effective protection to the religious freedom of those who are offended by violently anti-religious behaviour, and it uses uncertain and outdated concepts, which are not easily applicable by judges.

SOME RECENT DEVELOPMENTS IN SPORTS LAW

Whereas the debate on the vilification of religion has continued over time, discussions of blasphemy (which was not reformed by the 2006 Act) seem to be doomed to oblivion after its decriminalisation in 1999. The scarcity of judgments against blasphemy, however, does not mark the death of the offence. The same observation applies to the British case law before the repeal of the blasphemy laws. In England, between 1979 (the year of the Gay News case)Footnote 37 and 2007 (the year of the case of Jerry Springer The Opera),Footnote 38 there were only two proceedings that dealt with the offence of blasphemy: the Satanic Verses caseFootnote 39 and the Wingrove case.Footnote 40 Despite the paucity of case law on blasphemy (and the paucity of successful prosecutions), ‘prior to its abolition [in 2008]Footnote 41 the law continued to have some bite'Footnote 42 through political debates, controversies about freedom of expression and even forms of self-censorship.

In Italy, despite the almost total absence of administrative proceedings for blasphemy after its decriminalisation, there has recently been some debate concerning blasphemy in a context which might perhaps surprise: that is sport, and specifically football.

Here, as in other countries, issues of religious significance have increasingly become topics of debate. For example, the obligation of fasting during Ramadan has in some cases affected some Muslim players' performance, and has created conflicts with their respective sports clubs.Footnote 43 Measures taken against hooliganism, which often encompass sanctions against incitement to racial or religious hatred, should also be noted.Footnote 44 New rules came into force in Italian sports law in February 2010. In addition to condemning violent behaviour, they single out blasphemous utterances of both players and others on the playing field. These rules are contained in three inter-related sports sources: the internal rules of the FIGC (Italian Football Federation), the applicable rules of the game of football itself and the Sports Justice Code.

The FIGC's internal rules prescribe that persons within the arena (including players, officials and coaching staff) must always behave in a proper way, and therefore must not use offensive, abusive, threatening or profane language.Footnote 45 Assistant referees are required to report immediately to the referee when a player or person in the arena uses a blasphemous expression.Footnote 46 Furthermore the rules of the game underline the importance of these provisions, especially to prevent the game from becoming violent. The use of blasphemous expression by a player allows him or her to be sent off. The Sports Justice Code, finally, prescribes penalties for the use of blasphemous expressions during the game, lays down rules of procedure and evidence for investigating such offences, and regulates the use of video evidence, which can be accessed until 4 pm on the working day following the game.Footnote 47

The ratio of such rules has been explained by the FIGC's President and endorsed by the President of the CONI (Italian National Olympic Committee) in a statement released in February 2010: ‘the visibility of football and the educational message that sports should convey to new generations […] require a steady stance against all violent, abusive and threatening behaviour on the pitch; this also includes the offence of blasphemy’.Footnote 48

These new rules concerning blasphemy offences have been immediately applied, so that during the 2009/2010 season a few coaches and players were fined for their breach.Footnote 49 However, the reactions of players' trade unions have been swift. The main trade union, AIC, has regretted the consequences of these provisions, and another one, FIFPro, has maintained that they breach the fundamental right to the freedom of expression. The use of video footage as evidence has in particular been a source of great annoyance. The FIGC is being sent numerous images and has even recruited lip readers.Footnote 50 FIFPro is the most disgruntled, with lawyer Wil van Megen declaring, ‘just like everyone else, footballers have the basic right to the freedom of expression. Sometimes this may be unpleasant, like with the utterance of swearwords, but this does not change the fact that everyone is entitled to say what he wants’.Footnote 51 He has also added that, on the basis of national and international legislation, freedom of speech and its restrictions may only be regulated by an act of parliament. According to the FIFPro, the FIGC may only pursue this objective with the help of the Ministry of Justice; the power of a sports federation cannot encompass the right to restrict basic freedoms. In fact, the issuing of a red card for swearing is a penalty which breaches a fundamental right and neither the referee nor the FIGC have the right to do so. It has also been maintained that the solution for excessive cursing in the arena should rather be the adoption of measures to ensure that players have a better education. When people are aware of the need to behave decently, a better outcome is achieved than following punishment of their behaviour. For this reason, the FIFPro supports suitable training programmes for young players.Footnote 52

Having examined, albeit briefly, the terms of such a debate in sports, I will take now into account some important legal questions raised by the new rules on blasphemy.

THE CONCEPT OF BLASPHEMY IN SPORTS LAW

The new sports regulations provide penalties for blasphemous utterances and regulate the admissibility of evidence, but they do not give a definition of either blasphemous expression or blasphemy. The common understanding of blasphemy includes all expressions offensive to God, the Virgin Mary and the Saints, but this would create problems with the punishment of blasphemy against the deities or important figures of other non-Christian religions. On the contrary, if the meaning of ‘blasphemous expression’ is to be inferred from a normative source, then we should take into account article 724 of the Italian Criminal Code, which punishes ‘public blasphemy against a deity’ with an administrative penalty.

As mentioned above, such wording is the outcome of several interventions by lawmakers and courts, which first eliminated discrimination grounded on the prosecution solely of insults against God, the Virgin Mary and the ministers and symbols of the state religionFootnote 53 and subsequently decriminalised this provision, by prescribing a fine as a penalty and submitting it to the prefect's jurisdiction.Footnote 54 Thus, in this case, only blasphemous words directed against the deity (of any religion) would be punished, whereas those against the Virgin Mary or the Saints would not. This would apply also on the sports field.

However, since a clear interpretation is lacking, the court must still take into account the will expressed by sports bodies, which, as already seen, have identified the rationale for the new rules in the need to curb the phenomenon of immorality. In this way, prosecution for blasphemy becomes the symbol of the fight against immorality in sport and on television.Footnote 55 However, as we shall see below, it is simplistic to reduce the phenomenon of immorality or vulgarity in sport or television to mere control of language. Nonetheless from an educational perspective, there should be no difference between blasphemy against God and blasphemy against the Virgin Mary, the Saints and sacred persons.

This view seems to be confirmed by the wording of the new sports rules, which mention blasphemy along with offensive, abusive and threatening utterances. It can therefore be concluded that sports rules are grounded on the common understanding of the notion of blasphemy rather than the legal one.

The broad definition of ‘blasphemous expression’ also highlights the autonomy of sports rules with respect to the provisions of the Criminal Code, but this raises a problem of excessive discretion being vested in sporting authorities in the definition of the scope and mechanism for censorship of verbal expressions.

PROCEEDINGS AND SANCTIONS AGAINST BLASPHEMY IN SPORTS AND CIVIL LAW

The Federal Court of Justice (the appellate court for sports law matters) is competent to hear and decide appeals against decisions taken by referees in cases concerning the use of blasphemous expressions.Footnote 56 This raises the question of whether the organs of state administrative justice possess a residual jurisdiction to determine sports-related blasphemy cases and infringements of article 724 of the Criminal Code.

This is not a simple problem, because, in some cases, blasphemy, as regulated in sports law, may actually constitute an offence under the Criminal Code. In fact, blasphemy against God uttered during a football match certainly constitutes an offence in public under the Code. There may be, therefore, a double prosecution of the same act or offence; a public one carried out by the prefect, who can impose a fine according to article 724 of the Criminal Code, and a private one that must be notified to the prefect by the referee that verified the blasphemous behaviour.Footnote 57 A situation might, therefore, have been created where blasphemy offences in sport become more high profile, as criminal suits for blasphemy are seldom tried.

As far as penalties are concerned, the undisputed autonomy of sports law does not exclude an analogy with the provisions of the Criminal Code. In both cases, the sanction is a fine.Footnote 58 This is the only penalty imposed in the civil jurisdiction, but other sanctions may be levied by a sports tribunal.

CONCLUSIONS: BLASPHEMY AND OTHER RELIGIOUS OFFENCES IN THE ITALIAN LEGAL SYSTEM.

The offence of blasphemy in sports law looks like a moralistic rule when it is viewed in relation to other religious offences in the context of Italian criminal justice system, insofar as it seeks to curb the phenomenon of immorality, which in fact only concerns the offences against the Catholic religion – just like blasphemy under the Criminal Code of the 1930s.

The current wording of blasphemy law under article 724 remains problematic because, despite the interpretation of the Constitutional Court in 1995, it was not reformed by the 2006 Act, and it is still grounded on the same discriminatory approach that existed in the age when it was first framed. It punishes blasphemous words against God that are uttered in public, and protects only theistic beliefs. It is focused on the protection of believers' religious feelings, and coincides with the explicit ratio of the new sports rules.

In conclusion, the new sports rules appear outdated and moralistic, when they are viewed in the light of the reform on religious offences in Italy, as well as in the European context, where the repeal of blasphemy laws has been recommended.Footnote 59

However, if the prohibition of blasphemy is regarded as part of the rules of fair play in sport (and this interpretation should be preferred), it finds a rationale as a means of educating the population. Nonetheless, it is largely unsatisfactory and ineffective in circumstances where educational standards are neglected in controlling not only language, but also bad behaviour shown on television or displayed in sport. As far as blasphemy goes, there is a lack of consistency of rationale between the rules of sporting bodies and those of the criminal and administrative law. Sanctions against hooliganism and incitement to racial and religious hatred in sport, on the other hand, can help to strengthen and to make more effective the system of sanctions against similar offences in Italian criminal law.Footnote 60

A paradoxical conclusion emerges from an analysis of the practical reality of religious offences in Italian criminal and sports law. Recently reformed criminal norms on the vilification of religion and blasphemy are obsolete and ineffective, and therefore there has been no case law on blasphemy since 1999. On the contrary, the traditional understanding of the offence of blasphemy finds a rationale in the educational function of sport, although in a formal way and with a moralistic approach.

These remarks show that the ideological and moralistic orientation of religious offences in Italian criminal and sports law is no longer able to meet the needs of protection of freedom of religion. Neither the institutional dimension of religion nor good education can be the immediate interests protected by law. By contrast, the values to protect in pluralistic societies should be peaceful coexistence among different religions and respect for others' religious freedom. In my opinion, as far as religious conflict and intolerance are concerned, a proper criminal policy should first of all have a social-educational purpose, by promoting the value of respect and understanding between different religious options available in our societies.Footnote 61

Thus, as an instrument of extrema ratio, the state's criminal law should intervene only by penalising statements that ‘intentionally and severely […] call for a person or a group of persons to be subjected to hatred, discrimination or violence on religious grounds.’Footnote 62 In other words, neither blasphemyFootnote 63 (which is too easily applied in a discriminatory manner and with a moralistic approach) nor religious vilification, as it is now conceived, (that is, reminiscent of a model of criminal law focused on the protection of institutional aspects of religion) should be deemed criminal offences.

The Council of Europe's institutions ‘firmly recall that “hate speech” against any religious group is not compatible with the fundamental rights and freedoms guaranteed by the European Convention on Human Rights and the case law of the European Court of Human Rights’,Footnote 64 but recognise some uncertainty regarding the definition of ‘hate speech’Footnote 65 and that freedom of expression as protected under article 10 of the European Convention on Human Rights ‘constitutes one of the essential foundations of a democratic society, one of the basic conditions for its progress and for the development of every man’Footnote 66 and that it ‘should not be further restricted as a result of increasing sensitivities of certain religious groups’.Footnote 67

In conclusion, Italian law on religious offences has been phased out to make room for a system of protection of ‘religiosity’ that is more consistent with the Italian Constitution and with European indications, in particular with the need to grant an effective protection of freedom of conscience and religion, and a peaceful coexistence of the believers of different religious denominations, without neglecting the fundamental right of freedom of expression.

References

2 See Jemolo, A, Chiesa e Stato in Italia negli Ultimi Cento Anni (Turin, 1949), pp 146 ffGoogle Scholar.

3 Noseda, E, ‘Dei delitti contro la libertà’ in Pessina, E (ed), Enciclopedia del Diritto Penale Italiano, vol VI (Milan, 1909), pp 317–441Google Scholar; Crespolani, R, ‘Reati contro la libertà dei culti’ in Enciclopedia Giuridica Italiana, vol III, part IV, (Milan, 1906), pp 1027–1056Google Scholar; Lombardi, G, ‘Intorno ai delitti contro la libertà dei culti’ in Rivista Penale [Supplemento], 1895–1896, III, pp 110 ffGoogle Scholar.

4 This expression may be roughly translated as ‘cults’, that is, something more restrictive than ‘religious denominations’.

5 Garlati, L, ‘Dalla tutela della religione di Stato alla difesa della libertà dei culti: la svolta liberale del Codice Zanardelli’ in Ceretti, A and Garlati, L (eds) Laicità e Stato di diritto. Atti del IV Convegno. Università di Milano-Bicocca, 9–10 February 2006 (Giuffrè, 2007), pp 73 ffGoogle Scholar.

6 Art 1 Lateran Treaty: ‘Italy recognises and reaffirms the principle enshrined in Article 1 of the Charter for the Kingdom of March 4, 1848, according to which the Catholic, Apostolic and Roman is the only State religion’.

7 On the concept of state religion in Italian legal system, see Spinelli, L, ‘Religione dello Stato’ in Novissimo Digesto Italiano, vol VI (Turin, 1986), pp 624–625Google Scholar.

8 Italian Criminal Code 1930, art 402.

9 Ibid, arts 403–406, 724.

10 This approach is evident from the report presented in Parliament for the enactment of the Criminal Code of 1930. See Ministero della Giustizia e degli affari di culto, Lavori Preparatori del Codice Penale e del Codice di Procedura Penale. VII. Testo del nuovo Codice penale con la relazione a Sua Maestà il Re del Guardasigilli (Rome, 1930)Google Scholar.

11 On the relations between the Catholic Church and Fascism see Gentile, E, Contro Cesare: cristianesimo e totalitarismo nell'epoca dei fascismi (Milan, 2010)Google Scholar.

12 In the fifties the Italian Constitutional Court declared, in a series of decisions, the unconstitutionality of certain rules on admitted cults as discriminatory. See for example judgment no 45 of 18 March 1957, declaring the unconstitutionality of art 25 of the law on public security 1931 (Testo Unico della legge di Pubblica Sicurezza) which required prior notice for the meetings of non-Catholic religious denominations in places open to the public. See also judgment no 59 of 24 November 1958, which held, in accordance with art 19 of the Constitution, the partial unconstitutionality of Article 1 of Royal Decree no. 289 of 28 February 1930, insofar as it required an authorisation for the opening of non-Catholic places of worship; it also held the full unconstitutionality of art 2 of the same decree, which allowed the carrying out of religious ceremonies or acts of worship in non-Catholic places of worship only provided that they were chaired or authorised by a minister whose appointment had been duly approved by a state authority. However, in the same year, the Constitutional Court stated that the wider protection provided by criminal law to Catholics' religious feelings was constitutionally justified by the numerical majority of Catholics in Italy, and the relevance of the Catholic religion in the country for historical and sociological reasons. See also judgment no 125 of 1957 on art 404 of the Penal Code and judgment no 79 of 1958 on art 724 of the penal code.

13 In decision no 203/1989, the Constitutional Court stated that in the Italian legal system the principle of a secular state is one of the defining elements of the Italian state. This does not mean that the state must be indifferent towards religions but must safeguard religious freedom in a regime of the religious and cultural pluralism.

14 See, for example the decisions no 39/1965 (Giurisprudenza Costituzionale, 1965, pp 603–609); no 14/1973 (Giurisprudenza Costituzionale, 1973, pp 69–70); no 188/1975 (Diritto Ecclesiastico, 1975, II, pp 282–291); no 925/1988 (Giurisprudenza Costituzionale, 1988, pp 4294–4304).

15 See Constitutional Court decision no 440/1995 ruling the partial unconstitutionality of blasphemy offences (Diritto Ecclesiastico, 1996, II, pp 13–18); decision no 329/1997, affirming the partial unconstitutionality of the offence of vilification of sacred things (Quaderni di Diritto e Politica Ecclesiastica, 3/1998, pp 992–995); decision no. 508/2000, affirming the unconstitutionality of the offence of vilification of state religion (Quaderni di Diritto e Politica Ecclesiastica, 3/2000, pp 1040–1043); decision no. 327/2002, affirming the partial unconstitutionality of the offence of disturbing religious worship (Diritto Ecclesiastico, 2002, II, pp 179–181); decision no. 68/2005, stating the partial unconstitutionality of the offence of vilification of believers (Diritto Penale e Processo, 2005, pp 1531–1533).

16 On the evolution of the Constitutional Court's case law concerning religious offences in Italy, see Botta, R, ‘La tutela penale del sentimento religioso nella giurisprudenza della Corte Costituzionale’ in Botta, R (ed), Diritto Ecclesiastico e Corte Costituzionale (Naples, 2006), pp 29–39Google Scholar; Casuscelli, G, ‘“L'evoluzione della giurisprudenza costituzionale” in materia di vilipendio alla religione’, (2001) 3 Quaderni di Diritto e Politica Ecclesiastica 1119–1131Google Scholar; Visconti, C, ‘La tutela penale della religione nell'età post-secolare e il ruolo della Corte Costituzionale’, (2005) Rivista Italiana di Diritto e Procedura Penale, 1029–1068Google Scholar.

17 Constitutional Court decision no 329/1997.

18 See Constitutional Court decision no 440/1995.

19 See Legislative Decree no 507/1999, art 57 and art 724 of the Penal Code.

20 Art 406 of the Criminal Code, which detailed the mitigating circumstance for offences against admitted cults, is repealed.

21 D'Andrea, F, L'uomo Mediano: religiosità e Bildung nella cultura occidentale (Milan, 2005), p 17Google Scholar.

22 S Ferrari, ‘Religioni, diritto e conflitti sociali’, (2007) XXIII Anuario de Derecho Eclesiástico del Estado 44.

23 Ibid, p 47. On the simplification of the concepts of ‘religious identity’ and ‘religious belonging’ and on their dangerous effect in grounding the thesis of the ‘clash of civilisations’, see Sen, A, Identity and Violence (London, 2006)Google Scholar.

24 This view is shared by most Italian scholars. See for example Chizzoniti, A, ‘La tutela penale delle confessioni religiose: prime note alla legge n. 85 del 2006 “Modifiche al codice penale in materia di reati d'opinione”’ (2006) 2 Quaderni di Diritto e Politica Ecclesiastica 437–450Google Scholar; Gamberini, A and Insolera, G, ‘Vilipendio alla bandiera e vecchi delitti. Mai più il carcere, ma restano le multe. Scatta la par condicio nella tutela delle confessioni religiose’, (2006) 6 Diritto e Giustizia 92–94Google Scholar; Mantovani, M, ‘L'oggetto tutelato nelle fattispecie penali in materia di religione’, in Indice Penale, 2006, vol I, pp 257–273Google Scholar; Marchei, N, ‘Sentimento religioso’ e bene giuridico. Tra giurisprudenza costituzionale e novella legislativa (Milan, 2006)Google Scholar; Massaro, A, ‘Modifiche al codice penale in materia di reati di opinione (e non solo): contenuti e limiti della l n 85 del 2006’ in Cassazione Penale, 2006, vol XI, pp 3857–3868Google Scholar; Notaro, D, ‘Modifiche al codice penale in materia di reati di opinione (l. 24.2.2006 n. 85)’ in Legislazione Penale, 2006, pp 401–418Google Scholar; Pacillo, V, I delitti contro le confessioni religiose dopo la legge 24 febbraio 2006, n. 85. Problemi e prospettive di comparazione (Milan, 2007)Google Scholar; Padovani, T, ‘Un intervento normativo scoordinato che investe anche i delitti contro lo Stato’, in Guida Diritto, 2006, no 14, pp 23–28Google Scholar; Pelissero, M, ‘Osservazioni critiche sulla legge in tema di reati di opinione: occasioni mancate e incoerenze sistematiche (II)’, in Diritto Penale e Processo, 2006, pp 1198–1208Google Scholar; Pulitanò, D, ‘Riforma dei reati d'opinione?’ (2006) VI Corriere Giuridico 745–746Google Scholar; Visconti, C, ‘Il legislatore azzeccagarbugli: le “modifiche in materia di reati di opinione” introdotte dalla l 24 febbraio 2006 n 85’, in Foro Italiano, 2006, pp 217–224Google Scholar. See, recently, the contributions in Brunelli, D (ed), Diritto penale della libertá religiosa (Turin, 2010)Google Scholar.

25 Relationships between individuals concern the dimension of religiosity, whereas the importance of the ‘form’ of the structure of the organisation prevails in the dimension of religion. It is ‘religiosity’ that offers a greater potential for cultural change. The ‘form’, that is a religion, tends to a certain institutional rigidity that hinders creativity and the originality of the individual. Cipriani, R, Simmel e la cultura moderna, vol 2 (Perugia, 2010), p 39Google Scholar. Therefore, an individual's freedom resides in his or her ability to break free from the cage of an institution. Cipriani, R, ‘Prefazione,’ in D'Andrea, F (ed), L'uomo mediano: religiosità e Bildung nella cultura occidentale (Milan, 2005), p 11Google Scholar.

26 See V Pacillo, I delitti contro le confessioni religiose, pp 58–59 and the sociological references cited.

27 This requirement is also prescribed by Article 404 relating to the vilification of religious objects in a public place or in a place open to the public; on the contrary, there is no requirement of publicity if the same conduct is committed during a religious service carried out (also in private) by a minister of religion. In the latter case, in fact, the religious service itself has a public and institutional function because of the presence of the minister of religion. In other cases, there is a terminology of Catholic origin. This is the case of the expression ‘things consecrated to worship’ in art 404.

28 Siracusano, P, ‘Vilipendio religioso e satira: “nuove” incriminazioni e “nuove” soluzioni giurisprudenziali’ (2007) 3 Quaderni di Diritto e Politica Ecclesiastica 997–1026Google Scholar.

29 Pacillo, I delitti contro le confessioni religiose, pp 58–59.

30 The United Nation's definition of Restorative Justice is: ‘[…] any process in which the victim and the offender, and, where appropriate, any other individuals or community members affected by a crime, participate together actively in the resolution of matters arising from the crime, generally with the help of a facilitator. Restorative processes may include mediation, conciliation, conferencing and sentencing circles’, ECOSOC Resolution 2002/12, <http://www.un.org/en/ecosoc/docs/2002/resolution%202002-12.pdf>.

31 ‘Conflict crimes are easily recognised by the controversy that surrounds them. Legal philosophers historically have referred to the behaviors involved as mala prohibita, or wrong by prohibition. The uniqueness of these behaviors is that while they are prohibited and punished by statute, the public is uncertain and divided in its thoughts about such statutes, with particular groups often feeling strongly opposed to one another on the issues involved’. Hagan, J, Crime and Disrepute (Thousand Oaks CA, 1994), p 16Google Scholar.

32 The claims for ‘protection of freedom of religion through the enactment or strengthening of domestic frameworks and legislation to prevent the vilification of religions and the negative stereotyping of religious groups’ have been recently accepted in the 65th session of the General Assembly of the United Nations, 21 December 2010. The draft resolution no XIX on combating defamation of religions was adopted by a vote of 79 to 67, with 40 abstentions (A/RES/65/224). The concept of ‘vilification of religions’ was introduced for the first time. According to some, such a concept is broader than that of ‘defamation of religions’, used in the UN's previous resolutions.

33 Tribunale Penale Latina, 24 October 2006, n 1725.

34 For a comment on this ruling, see Siracusano, Vilipendio religioso e satira.

35 Cassazione Penale, 11 December 2008, no 10535.

36 Cassazione Penale, 9 July 2009, no 28030.

37 R v Lemon, Whitehouse v Gay News Ltd [1979] AC 617; Gay News Ltd v United Kingdom (1982) 5 EHRR 123.

38 R (Green) v City of Westminster Magistrates' Court and others [2007] EWHC (Admin) 2785. In addition to these cases the Corway Independent Newspaper's case in Irish law should be remembered: Corway v Independent Newspapers (Ireland) Ltd and others [1999] 4 IR 484.

39 R v Chief Metropolitan Stipendiary Magistrate ex p Choudhury [1991] 1 QB 429; Choudhury v United Kingdom (1991) 12 HR LJ 172, EComHR.

40 Wingrove v United Kingdom (1996) 24 EHRR 1. In this case, the blasphemy law was enforced through the decision of a public institution, the British Board of Film Classification.

41 According to Criminal Justice and Immigration Act 2008 s 79(1), ‘the offences of blasphemy and blasphemous libel under the common law of England and Wales are abolished’.

42 See R Sandberg and N Doe, ‘The Strange Death of Blasphemy’, (2008) 71 MLR 971–986.

43 See Chizzoniti, A, ‘La tutela della diversità: cibo, diritto e religione’ in Chizzoniti, A and Tallacchini, M (eds), Cibo e Religione: diritto e diritti (Libellula Edizioni, 2010)Google Scholar.

44 See eg decision no 291/2003/EC of the European Parliament and the Council of Europe, 6 February 2003, establishing the European Year of Education through Sport 2004.

45 According to FIGC internal rules, people in the arena are required to observe proper behaviour as well as to avoid offensive, abusive, threatening or blasphemous language. The referee can exercise disciplinary powers in case of breaches (Art 66 §5).

46 Rule 6. FIGC Official Decisions.

47 According to Article 19 §3 of the Sports Code of Justice, when a blasphemous expression is used during the race the minimum penalty of one day suspension is prescribed for players and technical assistants, and the penalty of inhibition for other persons who are admitted, under federal law, to the arena. Further, according to article 35, when the referee has not observed or heard the behavior or words concerned and has thus been unable to make a decision, the Federal Prosecutor is required to report to the National Sports Judge by 4 pm on the working day following the event.

48 See <http://www.figc.it>.

49 Domenico De Carlo (coach of Chievo) and David Lanzafame (Parma player) were the first to be banned for blasphemy. They were both suspended for one match. Further suspensions followed. In one match, the referee issued three red cards for blasphemy within 15 minutes. One of the players had only been on the field for a minute.

50 Chievo's player, Michele Marcolini, narrowly escaped suspension when, following extensive examination of television images, was proved that he did not say ‘Dio’ (God), but rather ‘Diaz’.

51 See <http://www.figc.it>.

52 See <http://fifpro.org>.

53 Constitutional Court, decision no 440/1995.

54 Law no 507/1999. The prefect is an official of the state, with power delegated from the Minister of Internal Affairs, representing the government at provincial level.

55 The attempt to moralise society, through the punishment of blasphemy, has also involved Italian television. During some popular reality shows (Big Brother and Isola dei Famosi) some competitors were sanctioned or expelled from the show for spoken blasphemy against God or the Virgin Mary.

56 The Federal Court of Justice is a court hearing appeals against decisions of national sports judges. In addition (a) it judges in proceedings for review and revision; (b) on the application of the Federal President, it reviews the decisions taken by national sports judges or territorial and regional disciplinary committees; (c) on the request of the federal prosecutor, it assesses the eligibility requirements of candidates for federal offices and the incompatibility of federal managers; (d) on the request of the Federal President, it interprets the statutory rules and other federal regulations, provided they do not lie within the competence of the governing bodies of sports justice, or have already been judged; (e) it exercises any other powers as prescribed by federal regulations.

57 Sports law is a legal system autonomous from the civil system, but not self-sufficient. Therefore, it is necessarily related to the civil legal system. In the Italian system, the existence of sports law was officially recognised by art 1 of Law no 280 of 17 October 2003, in accordance with the provisions of art 2 (protection of social groups where human personality is developed) and art 18 (freedom of association) of the Constitution. In assessing the relationship between the state legal system and sports law, the jurist Giannini has identified three areas: an area governed exclusively by the rule of state law; an area governed exclusively by the rule of sports law; and an area governed by the rule of law prescribed by both state and sports law. The problems concerning the relationship between these two systems arise in the third area. Two types of conflicts can be envisaged: the first occurs when the two systems assess the same fact in different ways; the second takes place when the two systems link the same conduct to different effects. Blasphemy falls in the latter category. See Giannini, M, ‘Prime osservazioni sugli ordinamenti giuridici sportivi’ (1949) 1–2 Rivista di diritto sportivo 10 ffGoogle Scholar.

58 The administrative fine ranges from €51.65 to €309.87. (Art 724 of the Italian penal Code and art 19 of Sports Code of Justice.)

59 See the conclusions of the Venice Commission between 2006 and 2008 on blasphemy, religious insults and incitement to religious hatred and on the relationship between freedom of expression and freedom of religion. <http://www.venice.coe.int/site/dynamics/N_Opinion_ef.asp?L=E&OID=406>.

60 Law no 41, 4 April 2007.

61 Council of Europe, Committee of Ministers, Recommendation (97) 21, Media and the Promotion of a Culture of Tolerance (1997) <http://www.coe.int/t/dghl/standardsetting/media/doc/cm/rec%281997%29021&expmem_EN.asp> Council of Europe, Parliamentary Assembly, Recommendation 1720 (2005), Education and Religion (4 October 2005), <http://assembly.coe.int/main.asp?Link=/documents/adoptedtext/ta05/erec1720.htm>.

62 Council of Europe, Parliamentary Assembly, Recommendation 1805 (2007) Blasphemy, Religious Insult and Hate Speech against Persons on Grounds of their Religion (29 June 2007), <http://assembly.coe.int/main.asp?link=/Documents/AdoptedText/ta07/EREC1805.htm>.

63 Ibid.

64 Ibid.

65 On this issue, see Weber, A, Manual on Hate Speech (Strasbourg, 2009), p 3 ffGoogle Scholar.

66 Handyside v United Kingdom (1976) 1 EHRR 737, [1976] ECHR 5493/72 at para 49.

67 Council of Europe, Parliamentary Assembly, Resolution 1510 (2006), Freedom of Expression and Respect for Religious Beliefs (28 June 2006).