28 Jan religious exculpators and the secular state

The principle of secularism expressed by the Consulta with sentence n. 203 of the 1989, it was later clarified by other judgments, including those on the subject of crimes against religious sentiment, like the no. 508 of the 2000, with which the art. 402 c.p. . In religious matters the principle of secularism can deploy more intense power, greater scope of application, to the point that the doctrine has come to define crimes against religious sentiment as a matter of "secularism in the strict sense" . In this sector, secularism is certainly not just a feature of criminal law, but it is a real principle, with a conceptual and regulatory statute of constitutional origin capable of binding the legislator. The main questions to be answered here: crimes relating to religion are compatible with a secular model of criminal law? It still makes sense today, in a secularized society, the penal protection of religious sentiment? To be able to answer these questions, it is advisable to start with an analysis of the legal asset protected by crimes in this matter. In 1948, with the entry into force of the Constitution, a process of redefinition of the protected legal asset has begun, and there were essentially two orientations: collective religious sentiment (not always clearly distinguishable from religion as a 'good of civilization') and religious sentiment (also) individual. Following the reform of the 2006 the legislator does not seem to have taken a position on the subject. However, the insistent reference to religious confessions, the prosecution of the office, the necessary publicity of the conduct, the difference in penalty between the first and second paragraph of the article 403 c.p., they favor the majority doctrine for the first orientation and therefore for a supra-individual juridical good. The principle of state secularism, as identified by the Constitutional Court, it does not exclude religion by relegating it to a mere private fact. The Constitution itself protects religious denominations (art. 8) and the freedom to profess a faith (art. 19). Therefore, the principles of our state do not exclude the direct penal protection of religions . The protection of feelings is also not incompatible with a secular criminal law: this last, despite being of a "psychic-emotional" nature, however, they are undeniable personalist realities» widely present in the special section of penal legislation. However, since the legal asset is protected the collective religious sentiment of all the "co-religionists" of the offended person, not only does a protection of religion as such return surreptitiously and partially, as a 'good of civilization', but above all the content of the offense is rendered much more evanescent. Secular criminal law and "substantial" democracy, cit. (use 114), 441. 88 individual certainly has its own consistency, the collective sentiment loses much of that depth, unless it is the mere sum of individual feelings directly affected by the offense. A very large part of the doctrine in fact, both before and after the reform, she stated against, albeit with different nuances, to the maintenance of a specific and autonomous nucleus of crimes for the protection of religious sentiment. Almost all doctrine today believes that, under the principle of extrema ratio, religious sentiment (individual) can be effectively protected "by making recourse to ordinary criminal law in defense of common goods such as honour, freedom, public tranquillity" . Furthermore, the majority doctrine, noting the low statistical incidence of the crimes in question, resulting from a diminished importance of the sacred in today's society, comes to support the abolitionist hypothesis on the basis of a supervening loss of the social damage deriving from the violation of the juridical assets on which the crimes against religious sentiment are based. This doctrinal hypothesis, retrieving an address of the Constitutional Court, seeks to ensure greater proximity of the matter to the principle of secularism, as it would have the aim of avoiding dangers for public tranquillity (legal good undoubtedly more secular than religious sentiment), deriving from the dangerous reactions of the faithful offended in their religious sentiment. In reality, the problem here lies in the distance between the conduct of vilification of people or things capable of offending a religion, and the purpose of protecting public tranquility from the emotional reactions that could be generated by such conduct. The final result would be that all religious crimes would become crimes of abstract danger and what they would gain in secularism they would lose in offensiveness.. It is said that this minority orientation seems to have been strengthened by the eruption on the international scene in recent times of fundamentalisms refractory to understanding and dialogue between the different faiths. This is a common theme, to the long debate, not only of legal doctrine, on the limits of satire e, more generally, on the limits of freedom of expression of thought, mainly following the terrorist attack on the Charlie Hebdo headquarters of 7 January 2015 in France. First of all, according to the writer, while Islam is certainly a religious confession admitted in our country and therefore protected by laws, including penal ones, the Islamic fundamentalism that is practiced (also) by ISIS terrorists, it cannot receive recognition and protection in our system as a religious denomination, as contrary to our constitutional principles, exactly as a satanic cult cannot obtain recognition and protection. The phenomenon of Islamic fundamentalism that is manifested today, unfortunately, almost daily with terrorist attacks on the western world, it's something so extreme, external, detached from our social rules and expression of a world different from ours, which cannot be considered by us Westerners a manifestation of a religious sentiment to be taken into account. The terrorist attacks of these fanatics must undergo an assessment of "legal inadmissibility", such that they cannot in any way affect our legislation e, mostly, our freedom of expression of thought. A final issue to address is understanding whether crimes relating to religion, using a term such as 'vilification', comply with the principle of legality referred to in the article 25 comma 2 the Constitution. The lemma 'vilification' comes from the crasis between the Latin terms vilis and pendere, and therefore etymologically means "to consider of little value". In common language the term 'contempt' is also used to indicate "a judgment of negative value pronounced with contumely or mockery"., which in the crimes in question indicates the modality of the conduct in order to offend religion, it is an extra-juridical normative concept of an ethical-social nature. Regulatory elements of this type, they tend to be imprecise and respect the precision principle (or taxability) only if they do not give rise to uncertainties about the social norm referred to and about the content and scope of application of this norm . The typical conduct in the offenses of contempt, assuming that the latter is an extrajuridical regulatory element, it will present itself with «different nuances depending on the material object of the conduct», in relation to the different social evaluations that will be given., Crimes against religious confessions after the law 24 February 2006, n. 85, cit., 57. 91 so it can be understood whether the concrete vilification falls within the socially acceptable or not. However, the most authoritative criminal law doctrine, doubts that the judge is always able to carry out this adaptive function, anyway, this operation will always present itself with wide margins of uncertainty in a modern and pluralistic society where ethical rules do not have univocal outlines. The vilification, according to many, is therefore a manifestly imprecise element and the most authoritative doctrine has invoked the abolition of the crimes in question for violation of the principle of precision, as a corollary of the constitutional principle of legality. Ma, as Giovanni Conso taught, "the unbearable vagueness of offenses against religion" has a historical reason: in the 19th century, the rights of freedom had just been recognized and the principle of secularism was making its way, and so the legislator, for fear of losing political power, decides to insert "ambiguous and imprecise" rules, where everything can enter according to likes and dislikes and where everything smells of arbitrariness. That is, we are in the presence of a typical way devised to hypocritically block the rights of freedom, to mortify the typicality of common cases, replacing them, in the matter of penal protection of religion, with more rarefied and imprecise case models» . In the 70s, to compensate for the silence of the legislator, the Constitutional Court had to intervene with an interpretative sentence of rejection to clarify the meaning of contempt: « [esso] consists in holding in cowardice, in denying any ethical or social or political value to the entity against which the demonstration is directed so as to deny it any prestige, respect, confidence in a suitable way to induce the recipients of the event […] to contempt for institutions or even to unjustified disobediences […] with evident and unacceptable disturbance of the political-social order". It is also necessary to distinguish vilification of religion from discussions on religious topics, protected by art. 21 the Constitution: «I am instead contempt […] the insults, mock him, the offense, so to speak, an end in itself". These interventions of the Consulta, if on the one hand they are fundamental in order to allow the application of the more indefinite rules, on the other, accomplished through interpretative judgments of rejection, which, as is known, are not effective erga omnes, they are simply palliatives that do not solve the problem. At the notice of the writer, it would have been more useful to make a declaration of unconstitutionality for violation of the principle of precision, so as to allow the legislator to awaken from his torpor and become aware of the problem around the vilification present since the 1889. To date, the methods of concretizing the contempt are different: eg, the public expression of speeches, written, mocking depictions, insulting and showing contempt for the believer. In conclusion, it is possible to state that in the matter of religious crimes there have been and still are glaring violations of the principle of secularism and equality, which determine its current unconstitutionality for the aforementioned reasons, but above all there are serious doubts about the legitimacy of its maintenance within the penal code, for the vagueness of the provisions, the evanescence of the protected legal asset, the immateriality and absence of corpus and the irrelevance However, the very strong symbolic and political value that these crimes have cannot be hidden. If a proposal to abolish the crimes in question were brought to Parliament tomorrow, if it is almost certainly true, as the doctrine states, that the country would not suffer at all, a myriad of controversies would immediately rage both inside and outside Parliament, testifying to the fact that we live today in a post-secular society, where religions have a public role and heavily influence state activities. The result of a political attack directed against the rules for the protection of religions, most likely, therefore, it would produce the opposite effect of the intended one: an ideological and political strengthening of the rules referred to in Articles. 403 c.p. e ss., resulting in their survival, accompanied by a high risk for the party proposing the reform of losing social consensus and therefore votes. In fact, preliminarily it can be noted that they are present, in some rules of the special part with low offensiveness, of the special unlawfulness clauses (eg, "without just cause"). In the general part of the Criminal Code, although there are no rules specifically designed for 'cultural crimes', they can come into play, only for low offenses, some institutes. In the first place, the exercise of a right in the function of exoneration when there is a religious norm to impose a certain behaviour (art. 51 c.p.): both the Constitution and the ECHR in fact, guaranteeing the right to profess a faith, they can act as a justification cause. For example, one could cite the case of male circumcision. Another general party institution that can be used for these crimes, is the inevitable ignorance of the criminal law referred to in art. 5 c.p., following the re-reading of the Council with sentence no. 364 of the 1988480. Foreign citizens passing through or just arriving in Italy, who had committed petty crimes, they were in fact acquitted by the lower judges on several occasions, due to unavoidable ignorance of the Italian penal law. Furthermore, 'the error of fact which excludes the willful misconduct' pursuant to art. 47 c.p. can , in some cases, lead to absolution as the subject can be misled by misperceptions (factual error) or because of his own ignorance of Italian customs (error of law) . Such institutes, which can lead to acquittal outcomes in the case of low offensive cultural crimes, as anticipated, they cannot do the same for highly offensive crimes (mistreatment, injuries, sexual assaults, murders, ecc…), and this for several reasons. In the first place, rights harmed by highly damaging crimes, balanced with the right to religious freedom, they cannot but prevail over this. Indeed, according to the prevailing orientation, the exempting effect of the right to religious freedom must be denied in every case in which it "suffers from an external and insurmountable limit to its exercise, deriving from the contrast with an interest of predominant constitutional importance, incorporated in the juridical objectivity of the penal norm" . The exercise of the right to religious freedom comes "to be legitimately limited and circumscribed ab externo by penal provisions established to protect pre-eminent interests (o, at least, of equal rank), in terms of constitutional values, Which, first, the inviolable rights of the individual pursuant to art. 2 Cost.» . This topic will be explored in the next paragraph. Secondly, jurisprudence has denied the non-existence of willful misconduct in the case of highly offensive crimes, since the disvalue of the conduct would be universally perceptible, because it contrasts with "natural criteria of peaceful coexistence between human beings" . Finally, not even unavoidable ignorance of the criminal law could lead, for serious crimes, to an acquittal. According to the Court of Cassation, “It will be enough to recall evolution, Nowadays, of international relations, in terms of socio-cultural exchanges (diffusion of the means of communication, mutual knowledge of customs and traditions) and the phenomenon of immigration, to realize the aberrant consequences of the 'generalization' of the principle of excusable ignorance of the law of the host country, invoked on the basis of the diversity of penal protection compared to the country of origin» Summing up, there is a consolidated orientation of the Cassation for which, with respect to culturally motivated crimes c.d. 'highly offensive', any defensive strategy based on cultural diversity is rejected, aiming at the acquittal of the accused. Indeed, there has been talk, of «theory of the “impassable barrier”», according to which «the constitutional principles dictated: from art. 2 Cost. […] from art. 3 Cost. […], constitute an insurmountable barrier against the introduction, in law and in fact, in ordinary civil society, practice, costumes that are proposed as anti-historical in the face of the results obtained, over the centuries, to realize the affirmation of the inviolable rights of the person, citizen or foreigner" . The cultural factor, however, could emerge in the assessment of the sentence. Indeed, the Supreme Court, believes that the criteria set out in art. 133 comma 2 n. 1 e 4 c.p., of "reasons to commit a crime", and "individual living conditions, family and social life of the offender", are able to enhance the cultural motivation .