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Published online by Cambridge University Press: 26 April 2011
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.
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).
