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Religious freedom and inviolable lines in pluralist societies: the case of cultural crimes

Pluralist societies pose new challenges to legal systems, having to find trade-offs between accommodating the necessities of minorities and security concerns. Religions often impose prescriptive rules on the behaviour of their believers, leading to
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    Rivista telematica ( www.statoechiese.it ), fascicolo n. 30 del 2019 ISSN 1971- 8543   Alessandro Negri (dottorando di ricerca in Diritto ecclesiastico e canonico presso l’Università degli Studi di Milano, Dipartimento di Scienze giuridiche “Cesare Beccaria”)   Religious freedom and inviolable lines in pluralist societies: the case of cultural crimes * SOMMARIO: 1. Multicultural societies and conflicts of loyalty: cultural crimes - 2. The Italian reaction to cultural crimes - 3. The case of kirpan : the recent judgment of the Court of Cassation - 4. A questionable decision: the fundamental role of pluralism in Western societies - 5. Conclusions: the centrality of human dignity. 1 - Multicultural societies and conflicts of loyalty: cultural crimes Multiculturalism and religious pluralism constantly pose new challenges to Western societies. From a juridical point of view, one of the main concerns is the management of the double belonging of “faithful citizens”, at the same time subject to the laws of the State and to the ones of their religious community. Religions also impose rules to be observed by their adherents and the compliance with these rules, sometimes very far from the traditional framework of secular legal systems, risks degenerating into misunderstandings and possible “conflicts of loyalty”.  Actually, this type of moral conflict is not totally new: the phenomenon recalls some typical traits of the problem of conscientious objection, even if they differ for an essential aspect 1 . In the case of conscientious objection, the collision 2  between mutually incompatible duties that bind the individual is characterized not only by the contradiction  between the two precepts, but also for the subject's attitude of ideological opposition to the State rule, whose conformity to a superior ideal of justice * Il contributo, sottoposto a valutazione, riproduce, aggiorna e amplia il testo della relazione presentata nell’ambito della Summer Doctoral School “ Religion and atheism in  pluralist societies ” dell’IPRA - Institut du Pluralisme Religieux et de l’Athéisme (Nantes, 17 -19 giugno 2019), ed è destinato alla pubblicazione negli Atti. 1   A. LICASTRO , Il motivo religioso non giustifica il porto fuori dell’abitazione del kirpan  da  parte del fedele sikh  (considerazioni in margine alle sentenze n. 24739 e n. 25163 del 2016 della Cassazione penale) , in Stato, Chiese e pluralismo confessionale , Online review ( www.statoechiese.it ), n. 1, 2017, p. 5. 2   R. BERTOLINO , L’obiezione di coscienza  moderna , Giappichelli, Torino, 1994, p. 18.    176 Rivista telematica ( www.statoechiese.it ), fascicolo n. 30 del 2019 ISSN 1971- 8543   is disputed and whose observance is, therefore, considered in itself negative 3 . On the contrary, this paper aims to analyse a completely different circumstance, where religious believers are not intimately opposed to the duty imposed by secular law. They simply are led by their moral conflict to  break State criminal laws, supposing they are allowed to do so in the name of religious freedom and the related right to express their religious identity. From a strictly legal perspective, this is what doctrine has described as “cultural crime” or “culturally motivated crime”. The most commonly accepted definition of cultural crime is the one formulated by Jeroen Van Broeck almost 20 years ago: an act by a member of a minority culture, which is considered an offence by the legal system of the dominant culture. That same act is nevertheless, within the cultural group of the offender, condoned, accepted as normal behaviour and approved or even endorsed and promoted in the given situation 4 . The concept of “culture” has notoriously multiple meanings, but its first (and so far, only) legally relevant definition at international level is affirmed in UNESCO Universal Declaration on Cultural Diversity of 2001: “culture sh ould be regarded as the set of distinctive spiritual, material, intellectual and emotional features of society or a social group, and that it encompasses, in addition to art and literature, lifestyles, ways of living together, value systems, traditions and beliefs ” 5 . Therefore, religion, as a belief, is certainly an aspect, and an essential one, of culture. At the same time, criminal law is the branch of law that more than any other is influenced by the so-called dominant culture, the culture which provides the ideological basis of the penal rule on which the defendant is tried 6 . This “cultural non - neutrality”, due to which criminal law is imbued 7  with culture and particularly affected by the identity profile of a particular population at a given historical moment 8 , leads to another typical feature of it: its “localism”, so that this branch of law has been efficaciously described as “typical local product” 9 . Given these two specificities, it is easy to 3   A. LICASTRO , Il motivo religioso ,   cit.,   p. 6. 4    J. VAN BROECK , Cultural Defence and Culturally Motivated Crimes (Cultural Offences) , in European Journal of Crime, Criminal Law and Criminal Justice , vol. 9/1, 2001, p. 5.   5   UNESCO,  Universal Declaration on Cultural Diversity, 2001. 6    J. VAN BROECK , Cultural Defence, cit., p. 5. 7   F. BASILE , I reati cd. “culturalmente motivati” commessi dagli immigrati: (possibili) soluzioni giurisprudenziali , in Questione Giustizia , n.1, 2017, p. 127. 8   G. FIANDACA , Populismo politico e populismo giudiziario , in Criminalia , 2013, p. 103. 9   F. BASILE , Immigrazione e reati culturalmente motivati , Giuffrè, Milano, 2010, p. 76.    177 Rivista telematica ( www.statoechiese.it ), fascicolo n. 30 del 2019 ISSN 1971- 8543   understand their implications with respect to the phenomenon of crimes committed by immigrants for cultural or, more specifically, religious reasons: crimes, that is, committed by people who move from one State to another and that consequently find, in the place of arrival, a criminal law very different from that in force in the place of srcin. Faced with this conflict between the criminal rule and the religious one rooted in the culture of the defendant, which accepts or endorses the same conduct, a legal system has necessarily to wonder whether or not it should recognise culture as a defence and to what extent. 2 - The Italian reaction to cultural crimes In Italian criminal law, there are no general rules that give specific importance to the cultural factor 10 . This gap, however, is not surprising: both the Western countries that adopted, with regard to cultural diversity, a “multiculturalist” model (e.g. United Kingdom, Canada, USA) and those who otherwise chose an “assimilationist” approach (above all, France) have not introduced any clarification on the point yet 11   and certainly Italy, with its “hybrid” policy 12 , could not make exception to this inactivity. The legislator's indifference in dealing with this topic thus led to the search for immediately usable solutions in the courtrooms 13 . From this point of view, the jurisdiction seemed to constitute a more accessible passage for new instances such as the multicultural ones, proving to have more adequate means available to intercept and incorporate social questions differently excluded from decision-making places. In this way, courtrooms have become the privileged channel for the resolution of issues raised by cultural crimes, a topic at the meantime broadly analysed by Italian scholars 14 . 10   P. DI FRESCO, A. NEGRI   I reati culturalmente motivati , in Il Penalista , Giuffrè, Online review, 28 July 2017, p. 3. 11  About these two models, L. BELLUCCI , Immigrazione e pluralità di culture: due modelli a confronto , in Sociologia del diritto , n. 3, 2001, p. 131 ss., F. BASILE , Società multiculturali, immigrazione e reati culturalmente motivati (comprese le mutilazioni genitali femminili) , in Stato, Chiese e pluralismo confessionale , cit., October 2007, pp. 17-22. 12   G. CASUSCELLI , Il diritto penale , in G. Casuscelli (ed.), Nozioni di diritto ecclesiastico , 5ª ed., Giappichelli, Torino, 2015, pp. 372-373.   13   E. OLIVITO , Giudici e legislatori di fronte alla multiculturalità  in Stato, Chiese e pluralismo confessionale , cit., May 2001, p. 17. 14   C. DE MAGLIE , I reati culturalmente motivati. Ideologie e modelli penali , ETS, Pisa, 2010, A. BERNARDI , Il “fattore culturale” nel sistema penale , Giappichelli, Torino, 2010, F.    178 Rivista telematica ( www.statoechiese.it ), fascicolo n. 30 del 2019 ISSN 1971- 8543   First of all, it could be worthwhile to clarify which crimes could be “cultural” or “culturally motivated”. Looking at the concrete procedural dynamic, the notion of “cultural crime” could seem indeed particularly  broad, covering all the cases where the defendant asks an extension of  judge’s knowledge to his cultural ba ckground, so that the court can reach a more correct reconstruction of the facts and, therefore, in the defendant's expectations, a decision more favourable to him 15 . In the light of this wide definition, doctrine suggests to "shatter" it in some criminological sub-categories 16 , which emerge directly from the analysis of case law 17 : -   domestic violence; -   honour killings; -   child rights violations (slavery or refusing to send children to school); -   sex crimes; -   female genital mutilations and male circumcisions; -   drug-related crimes; -   crimes concerning ritual clothing. As it could be easily seen, almost all these types of crimes share at least one element: the relevance of family and interpersonal relationships, which, just like conceptions of honour and behaviour in the sexual and reproductive sphere, always constitute a dominant theme in the traditions and rules of different cultures and religions 18 . Family is undoubtedly the primary site in which these traditions and cultural rules are practiced and transmitted and so it can’t be surprising if the imprint left by the culture of srcin can re-emerge in an overbearing way, when it comes to these issues, with its ancestral charge. Since cultural crimes, as previously said, are mainly dealt with by  judges in absence of a criminal law rule, major disparities in case law are BASILE , Immigrazione , cit., F. PARISI , Cultura dell’«altro» e diritto penale , Giappichelli, Torino, 2010, A. PROVERA , Tra frontiere e confini. Il diritto penale dell ’ et   multiculturale ,  Jovene Editore, Napoli, 2018. 15   F. BASILE , Dialogo tra un penalista e i cultori della disciplina giuridica del fenomeno religioso: reati contro il sentimento religioso e reati c.d. culturalmente motivati , in P. Consorti (ed.), Costituzione, religione e cambiamenti nel diritto e nella società , Pisa University Press, Pisa, 2019, p. 433. 16   F. BASILE , Le principali categorie di reati culturalmente motivate. Profili criminologici e normativi , in DPU - Diritto Penale e Uomo , Online review, 2019, pp. 6-7.   17   F. PARISI , Cultura , cit., pp. 103-120; for the most recent cases, see F. BASILE , Ultimissime dalla giurisprudenza in materia di reati culturalmente motivati , in Stato, Chiese e  pluralismo confessionale , cit., n. 30, 2018, pp. 3-6. 18   F. BASILE , Immigrazione , cit., pp. 161-162.    179 Rivista telematica ( www.statoechiese.it ), fascicolo n. 30 del 2019 ISSN 1971- 8543   unavoidable 19 . Exactly in order to avoid such uncertainties, since the ’90s the American and Canadian jurisprudence developed so- called “cultural tests” 20 , which aim specifically at proceduralising judge’s arg umentative process in a series of logical steps that allow him, in the face of multicultural conflicts, to be able to decide with a greater degree of certainty, organizing and directing the reasoning towards less random rulings. Italian doctrine has recently suggested a new cultural test 21 , to be adopted on a regular basis by the Court of Cassation or to be included in a handbook which should be provided to judges who deal with cultural crimes. Here are its thirteen points: 1. Is the "culture" category usable in this case? 2. Describe the cultural practice and the characteristics of the group. 3. Insert the single cultural practice in the broader cultural system of srcin. 4. Is the practice essential to the survival of the group, mandatory or optional? 5. How much is the practice shared by the group? Or is it disputed? 6. How would the model agent of that culture behave? 7. How sincere and consistent is the person who claims the practice? 8. Is the group discriminated in the society? 9. Is there a cultural equivalent of that practice in the dominant culture? 10. Does the practice cause damage? 11. Does the practice perpetuate patriarchy? 12. What impact does the practice have on the dominant culture? 13. What good reasons does the cultural group have to continue the practice? 19  See e.g., on the one hand, Court of Cassation, n. 32436, 1 August 2008 (Pakistani charged with homicide): “The different culture of srcin can be taken into positive consideration only to the extent that it does not conflict frontally with the values expressed  by our Constitution which (...), if it is rightly open to the plurality of different cultures, it is not to the extent of appreciating the death given in the name of them”. On the other hand, Court of Cassation, n. 22708, 17 March 2017 (Romani charged with homicide): the judge underlined how the personality of the defendants was correctly evaluated in consideration of a shared subculture, marked by an “insane sense of protection of the family order”.   20  The first cultural test was developed by Canadian Supreme Court in 1996 in R. v. Van Der Peet, [1996] 2 S.C.R. 507 . It was useful to make cultural rights recognized to natives by art. 35 Cost. effective. 21   I. RUGGIU , Il giudice antropologo e il test culturale , in  Questione Giustizia, Online review, n. 1, 2017, pp. 226-232.
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