In her recent piece, Dr. Adina Portaru argues that Union of Atheists v Greece offers the European Court of Human Rights an opportunity to clarify its stance on “neutrality.” This piece will respond to her arguments and argue that Union of Atheists should succeed.

The Reach of Lautsi

Dr. Portaru compares the case to Lautsi v Italy, but that case was deliberately narrow and the analogy is drawn too far. The Grand Chamber ruled on crucifixes in classrooms, declined to determine whether the crucifix held cultural or Christian connotations, and focused exclusively on the educational context where the state holds significant discretion.

However, Orthodox icons, pictured here, are not crucifixes. They are theological portraits designed to facilitate spiritual encounters and induce worship. The gazing eyes of an icon cannot be equated with a crucifix, and doing so underplays their theological significance. Moreover, psychological research, as summarised in Ritter and Preston (2013), shows that priming individuals with concepts of the divine can produce numerous effects, from decreased anxiety to decreased prosocial behavior. Regardless, Orthodox icons are not passive symbols.

More importantly, Lautsi reasoned that crucifixes did not amount to indoctrination in educational settings. However, courtrooms are not educational spaces – they are coercive environments where the state exercises power over captive audience-members. Defendants, jurors, and litigants cannot leave, and nor can they seek justice elsewhere. There is no analogous alternative to Lautsi’s parental instruction beyond the classroom. The captive nature of the audience means that Lautsi should not directly apply.

Article 6 Issues

Dr. Portaru’s argument is framed in terms of Article 9, but the Court has also asked the parties to consider Article 6. The right to a fair trial is foundational in the Convention, and is a guarantee Strasbourg ensures.

The Piersack v Belgium standard does introduce two questions on objectivity and subjectivity, but Dr. Portaru misapplies the law. The Court asks whether actual bias exists first, and then whether any reasonable question of bias is raised from an objective point of view: “What is at stake is the confidence which the courts must inspire in the public in a democratic society.” [30(a)] This is a deliberately low bar, and requires only that an objective observer could doubt the impartiality of proceedings.

The positioning of an Orthodox icon over the judge’s bench, where non-Orthodox litigants seek justice, is exactly the kind of feature which creates doubt. It communicates that justice is administered under the auspices of a specific faith, and no amount of framing in terms of tradition changes this reality for an atheist, Muslim, or Jewish defendant. Article 6 is substantially engaged and the margin of appreciation is narrowed.

The Consensus Argument

Next, Dr. Portaru points to isolated examples across Europe, urging the Court to invoke the margin of appreciation doctrine. However, the question is not whether some states have retained religious symbols in some public places, but rather whether there is a consensus of iconography in courtrooms; which there is not.

Bavarian Kreuzpflicht are specifically only at entrances of public buildings, not in courtrooms. Even in Italy, the Constitutional Court removed religious symbols from its courtroom as a matter of internal regulation. The examples in Austria and Spain are isolated historical exceptions, which only prove the rule. The trend across Europe is courtrooms without religious symbols. Without a consensus in favour of courtroom iconography, the margin does not straightforwardly apply.

Concluding thoughts

The claim that “[a] symbol-free courtroom is not ideologically neutral but reflects a substantive secular vision of the public sphere” misframes the issue. The rights of the individual to manifest their religion should not be conflated with the state’s duty of neutrality. A courtroom should remain neutral and symbol-free – a neutrality which allows all – to be judged equally before the law. Article 9 should not be used to impose dominant religious norms because of culture and history. The logical conclusion of that argument calls for the erosion of the rights of religion and belief minorities, as well as other rights perceived to be at odds with religion.

Neutrality is not amnesia – it is a commitment. The state may remember its Orthodox heritage without insisting that all who seek justice do so beneath its gaze.