Case: Francesco Sessa v. Italy
Judgement date: 3 April 2012
Topic: Freedom of religion
Aspect: Religious holidays

Summary of the facts:
The applicant was a member of the Jewish faith and a lawyer by profession. In his capacity as representative of one of the complainants in a case, he appeared before an investigating judge at a hearing concerning the production of evidence. As the judge was prevented from sitting, his replacement invited the parties to choose between two dates for the adjourned hearing. The applicant pointed out that both dates corresponded to Jewish religious festivals and that his religious obligations would prevent him from attending. The hearing was set down for one of the two dates in question and the applicant applied for an adjournment. The prosecution and counsel for the defendants objected to the application on the ground that there was no legally recognised reason for granting an adjournment. The applicant alleged that the refusal by the judicial authority to postpone the hearing set down for the date of a religious festival prevented him from taking part in his capacity as the representative of one of the complainants and infringed his right to manifest his religion freely.

Summary of the Court's findings:
The Court held that there had been no violation of Article 9 of the Convention. It was in particular not convinced that holding the hearing in question on the date of a Jewish holiday and refusing to adjourn it to a later date amounted to a restriction on the applicant’s right to freely manifest his faith. Even supposing that there had been an interference with the applicant’s right under Article 9 § 1, the Court considered that such interference, prescribed by law, was justified on grounds of the protection of the rights and freedoms of others – and in particular the public’s right to the proper administration of justice – and the principle that cases be heard within a reasonable time. The interference had observed a reasonable relationship of proportionality between the means employed and the aim pursued.

The facts:
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1955 and lives in Naples.
6. The applicant is Jewish and a lawyer by profession. On 7 June 2005 he appeared before the Forli investigating judge at a hearing concerning a request for the immediate production of evidence (“ incidente probatorio ”) in his capacity as representative of one of the two complainants in criminal proceedings against several banks. The investigating judge in charge of the case was prevented from sitting and his replacement invited the parties to choose between two dates for the adjourned hearing – either 13 or 18 October 2005 – already identified by the investigating judge.
7. The applicant pointed out that both dates coincided with Jewish religious holidays (Yom Kippur and Sukkot respectively) and stated that he would be unable to attend the adjourned hearing because of his religious obligations. He explained that he was a member of the Naples Jewish community, and alleged a breach of sections 4 and 5 of Law no. 101 of 8 March 1989 governing relations between the State and the Union of Italian Jewish communities.
8. The investigating judge set the hearing down for 13 October 2005.
9. The same day the applicant lodged an application with the investigating judge in charge of the case to have the hearing adjourned. On 20 June 2005, after examining the application, the judge decided to add it to the case file without ruling on it.
10. On 11 July 2005 the applicant lodged a criminal complaint against the investigating judge in charge of the case and his replacement, alleging that they had breached section 2 of Law no. 101 of 1989. The same day he informed the Supreme Council of the Judiciary about the complaint.
11. At the hearing of 13 October 2005, the investigating judge noted that the applicant was absent for “personal reasons” and asked the parties to express their views on the application for an adjournment made on 7 June. The prosecution and counsel for the defendants objected to the application, arguing in particular that it was not based on any of the statutory grounds for adjournment. However, counsel for the other complainant supported the applicant’s request.
12. In an order issued the same day the investigating judge rejected the application for an adjournment. He noted at the outset that, under Article 401 of the Code of Criminal Procedure, only the prosecution and counsel for the defendant were required to be present at hearings concerning the immediate production of evidence; the presence of counsel for the complainant was optional. He went on to observe that the Code of Criminal Procedure did not oblige the judge to adjourn a hearing where counsel for the complainant had legitimate reasons for being unable to appear. Lastly, he stressed that a large number of individuals were involved in the proceedings (the defendants, the complainants, court-appointed experts and experts appointed by the parties) and that, “in view of the heavy workload of the office, which would [have meant] adjourning the hearing until 2006, the application, submitted by an individual with no legitimate reason to request an adjournment, ha[d] to be rejected in accordance with the principle that cases should be heard within a reasonable time”.
13. On 23 January 2006 the Supreme Council of the Judiciary informed the applicant that it was not competent to examine the matter since the applicant’s complaints related to the exercise of judicial activity.
14. In the meantime, on 9 January 2006, the Ancona public prosecutor’s office had requested that no further action be taken on the applicant’s complaint. The applicant objected to this request on 28 January 2006.
15. On 21 September 2006 the Ancona investigating judge made an order discontinuing the proceedings concerning the applicant’s complaint, noting that the applicant had not objected to the request for no further action submitted by the public prosecutor’s office.
16. On 19 January 2007 the applicant lodged an appeal on points of law, complaining of the investigating judge’s failure to take account of the objection he had lodged on 28 January 2006. The Court of Cassation, observing that the failure to take the applicant’s objection into account had probably been due to a registry error, set aside the order of 21 September 2006 and referred the case back to the Ancona District Court.
17. On 12 February 2008 the applicant and the prosecution attended a hearing before the Ancona investigating judge. On 15 February 2008 the latter issued an order discontinuing the proceedings. He noted that there was nothing in the case file to suggest that the investigating judge in charge of the case or the judge who had replaced him at the hearing of 7 June 2005 had had any intention of infringing the applicant’s right to practise his Jewish faith freely or of offending the applicant’s dignity on account of his religious faith.

Relevant law and the Court's assessment:
II. RELEVANT DOMESTIC LAW
18. Law no. 101 of 8 March 1989 contains provisions governing relations between the State and the Union of Italian Jewish communities. Section 2 recognises the right to practise and manifest the Jewish religion freely. Under section 4, Italy grants persons of Jewish faith who so request the right to observe the Sabbath, in the context of flexible working arrangements and without prejudice to the requirements of the essential services provided for by the State legal system.
Section 5 of Law no. 101 states that Yom Kippur, Sukkot and other Jewish religious holidays are to be treated in the same way as the Sabbath.
19. According to the fifth paragraph of section 2 of the Law, manifestations of religious intolerance and prejudice are punishable by the penalties provided for in section 3 of Law no. 654 of 1975, which is the Law ratifying the International Convention on the Elimination of all Forms of Racial Discrimination. Under the latter provision, anyone who disseminates ideas based on superiority or on racial or ethnic hatred, or incites others to commit acts of racial, ethnic, national or religious discrimination, is liable to a prison sentence of up to eighteen months.
20. The first paragraph of Article 401 of the Code of Criminal Procedure, which governs the procedure for the immediate production of evidence (“ incidente probatorio ”) reads as follows:
“The hearing shall take place in private. The public prosecutor and counsel for the defendant shall be required to attend. Counsel for the injured party shall also have the option of attending.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION
21. The applicant alleged that the refusal of the judicial authority to adjourn the hearing in question, which had been listed for a date corresponding to a Jewish religious holiday, had prevented him from appearing in his capacity as representative of one of the complainants and had infringed his right to manifest his religion freely. He relied on Article 9 §§ 1 and 2 of the Convention, which provide:
“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
22. The Government contested that argument.
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B. Merits
1. The parties’ submissions
29. The applicant contended that the judges dealing with his case had acted with the intention of infringing his right to manifest his religion freely.
30. In his view, he was entitled under Law no. 101 of 1989 to be absent from work on official Jewish religious holidays in order to be able to practise his religion freely. Furthermore, no indispensable-service requirement could be relied upon in the instant case as justification for restricting that right, since the hearing of 13 October 2005 could have been adjourned for another date without adversely affecting the proper conduct of the proceedings and the rights of the other participants in the trial. Since it had not related to a detention measure or to the rights of a person in detention, the hearing in question had not been in any way urgent. As the request for an adjournment had been made four months in advance, the authorities had had ample time to organise the timetable of hearings in such a way as to ensure respect for the various rights at stake.
31. The Government, for their part, submitted that there had been no interference with the applicant’s right to manifest his religion freely since he had never been prevented from taking part in Jewish festivals and practising his religion freely. The authorities had simply sought to ensure that the applicant did not hamper the smooth operation of essential State services in exercising his right to request that the hearing be adjourned.
32. In the Government’s view, the right relied on by the applicant was not of an absolute nature. Although Law no. 101 of 1989 concerned the professional relationship between lawyers and the courts, it was a fact that the second paragraph of section 4 of the Law stated explicitly that essential-service requirements took precedence over the right of individuals to practise their religion freely. The administration of justice was an essential State service which had to take priority in all circumstances.
Furthermore, the attendance of counsel for the injured party at a hearing concerning the immediate production of evidence was not compulsory. In any event, a lawyer who was prevented from attending a hearing for personal reasons could appoint a replacement under the terms of Article 102 of the Code of Criminal Procedure. In choosing not to avail himself of that option, the applicant had declined to reconcile his religious obligations with the requirements of the proper administration of justice.
33. Lastly, the adjournment of the hearing in question had been liable to affect adversely the proper conduct of the proceedings and to infringe the right of the twenty-one defendants to be tried within a reasonable time, since, had the request for adjournment been accepted, notice of the new hearing date would have had to be sent out to the large number of persons involved in the trial in various capacities.
2. The Court’s assessment
34. The Court reiterates that while religious freedom is primarily a matter of individual conscience, it also implies freedom to manifest one’s religion not only in community with others, in public and within the circle of those whose faith one shares, but also alone and in private (see Kokkinakis v. Greece, 25 May 1993, § 31, Series A no. 260-A). Article 9 lists a number of forms which manifestation of one’s religion or belief may take, namely worship, teaching, practice and observance. Nevertheless, Article 9 does not protect every act motivated or inspired by a religion or belief (see Kalaç v. Turkey, 1 July 1997, § 27, Reports of Judgments and Decisions 1997 ‑ IV, and Kosteski v. “the former Yugoslav Republic of Macedonia”, no. 55170/00, § 37, 13 April 2006).
35. Thus, for instance, the protection afforded by Article 9 was found not to extend to the dismissal of a public servant who failed to adhere to his working hours on the grounds that the Seventh-day Adventist Church, to which he belonged, prohibited its members from working after sunset on Fridays (see Konttinen v. Finland, no. 24949/94, Commission decision of 3 December 1996, Decisions and Reports (DR) 87-A, p. 68), or the compulsory retirement for breaches of discipline of a member of the armed forces with fundamentalist views (see Kalaç, cited above; see also Stedman v. the United Kingdom, no. 29107/95, Commission decision of 9 April 1997, DR 89-A, p. 104, concerning the dismissal of an employee by her private-sector employer for refusing to work on Sundays). In these cases, the Commission and the Court considered that the measures taken by the authorities in respect of the applicants had not been based on the applicants’ religious beliefs but had been justified by the specific contractual obligations between the persons concerned and their respective employers.
36. In the present case the Court observes that the rejection by the investigating judge of the applicant’s application for an adjournment was based on provisions of the Code of Criminal Procedure according to which the adjournment of a hearing concerning the immediate production of evidence is warranted only if the public prosecutor or counsel for the defendant is absent; counsel for the complainant is not required to be present at the hearing.
37. In view of the circumstances of the present case, the Court is not convinced that setting the case down for hearing on a date which coincided with a Jewish holiday and refusing to adjourn it to a later date amounted to a restriction on the applicant’s right to practise his religion freely. It is not disputed between the parties that the applicant was able to perform his religious duties. Furthermore, he could have expected that his request for an adjournment would be refused on the basis of the statutory provisions in force and could have arranged to be replaced at the hearing in question to ensure that he complied with his professional obligations.
Lastly, the Court notes that the applicant did not demonstrate that pressure had been exerted on him to make him change his religious beliefs or to prevent him from manifesting his religion or beliefs (see Knudsen v. Norway, no. 11045/84, Commission decision of 8 March 1985, DR 42, p. 247, and Konttinen, cited above).
38. In any event, even supposing that there was interference with the applicant’s rights under Article 9 § 1, the Court considers that it was prescribed by law, was justified on grounds of the protection of the rights and freedoms of others – and in particular the public’s right to the proper administration of justice and the principle that cases be heard within a reasonable time (see paragraph 12 above) – and that it observed a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see, mutatis mutandis, Casimiro and Ferreira v. Luxembourg (dec.), no. 44888/ 98, 27 April 1999).
39. Accordingly, there has been no violation of Article 9 of the Convention.
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