Italian Constitutional Court, No. 39/1965, 13 May 1965

Criminal protection of religious sentiment. Defamation of the State religion.

Art. 3 Italian Constitution
Art. 8 Italian Constitution
Art. 19 Italian Constitution
Art. 20 Italian Constitution
Art. 402 Criminal Code

1. The greater breadth and intensity of the criminal protection of the Catholic religion (Article 402 of the Penal Code) corresponds to the greater breadth and intensity of the social reactions aroused by offences against it and does not conflict with Articles 8 and 19 of the Constitution, since it is based on the special position that the Constitution recognises for the Catholic Church. Article 402 of the Criminal Code, moreover, does not protect a sphere of capacity and activity of religious denominations because the protected good is not the legal capacity of the Catholic Church to act, but the religious feeling of the majority of Italians, and is therefore not in conflict with Article 20 of the Constitution.

2. Article 3 of the Constitution explicitly excludes that the difference in religion may give rise to a difference in the treatment of citizens, but Article 402 of the penal code does not give rise to a distinction in the legal position of citizens based on religion. The criminal provision refers indiscriminately to all recipients, whatever their religion, so that religious faith has no relevance in identifying the active subject of the offence. The provision does not protect, on the passive side, the Catholic religion as an individual good of those who belong to it, nor does it attribute to them a legally assessable advantage: the individual Catholic is not the holder of the protected interest.

3. The equal protection of the freedom of religions does not exclude that a religious denomination may be considered differently in relation to its different importance in the state community, provided that the distinction does not imply a limitation of the freedom of each denomination. The equal right to freedom does not mean the right to equal protection under criminal law.