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La dispensa fa riferimento alle lezioni di Diritto Costituzionale Avanzato, tenute dal Prof. Francesco Cerrone nell'anno accademico 2011.
Il documento riporta il testo della sentenza di una Corte di Appello inglese contro una decisione di una corte amministrativa in merito alla questione della libertà religiosa, dei simboli... Vedi di più

Esame di Diritto Costituzionale Avanzato docente Prof. F. Cerrone

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vi. The form of dress should not in any way resemble that of a man;

vii. It should not resemble that of non­believers;

viii. Garments should not reflect worldly honour.

37. Dr Belouafi said that these basic requirements must be observed in any garments that women wore under the Islamic dress code, and that it was clear that the shalwar kameeze shown

to him by the claimant’s solicitors did not comply. (Unfortunately he had been sent a photograph of a girl in a shalwar kameeze whose arms were not covered, whose kameeze stopped at the

knees, and whose shalwar consisted of ordinary trousers, rather than loose trousers gathered at the ankle: it may be that the opinions of other people consulted by the claimant’s advisers

might have been different if they had seen the School’s actual design).

38. Dr Belouafi annexed to his response a copy of an article drawn down from the Internet. Although it is entitled "Hijab in the Light of the Quran and Hadith", it is clear that Sheikh Al­Albani

also drew from other early texts when he drew up his "eight rules of hijab".

39. Dr Abushudy, for his part, had told the School that because the interpretation of sayings sometimes differed, what he described as the Seven Conditions of Hijab were not totally accurate

and therefore not valid for all.

40. These two differing viewpoints, one more liberal, the other more strict, recurred again and again in the opinions expressed by other consultees, and sometimes within the same

organisation. For instance, within the Muslim Council of Britain (which was founded in 1997 and now has over 350 institutions affiliated to it) there was a striking difference of approach

between the chair of its Social Affairs Committee and the Chair of its Mosque and Community Affairs Committee.

41. The former, when consulted by the Comparative Religion Centre, produced a list of about 20 guiding principles entitled "Dress Code for Woman in Islam". This code said that Islam was a

very practical and pragmatic religion. It allowed flexibility within its prescribed tenets. "Follow the middle path" was the proper approach. The wardrobe of a young Muslim girl or woman could

be as varied as one would like it to be. Modesty should be observed at all times. If the headdress did not cover the bosom it could be covered by a separate cloth, scarf or jacket, and

trousers with long tops and shirts for school wear were absolutely fine. A Muslim schoolgirl’s uniform did not have to be so long that there would be a risk of tripping over and causing

accidents.

42. The latter, however, said that in order to fulfil the obligation prescribed by the Holy Quran a Muslim woman must wear an outer garment, such as a jilbab, that was loose­fitting and did not

show her body or shape in public. He said that the majority view of ulama (jurists) was that the shalwar kameeze would not be sufficient to fulfil the requirements of Shari’a, because the

shape of the bodily parts was not hidden, although it was accepted culturally as the female dress of many South Asian Muslims. His own considered opinion, in the light of rulings of Shari’a,

was that the shalwar kameeze did not fulfil the Islamic dress requirement in public.

43. This opinion was shared by the Muslim Welfare House in Seven Sisters Road, London, who gave advice along the lines of that given by Dr Belouafi. They said that descriptively these

requirements could be translated as a headscarf to cover the head and an outer body garment similar to at least a three­quarter length coat. They added that the Pakistani clothing known as

shalwar kameeze dress did not meet the requirement of an outer garment. There is no evidence that they were shown the School’s design.

44. In December 2002 the Imams of two local mosques in Luton advised the School that the shalwar kameeze was the dress that fulfilled the requirements of Islamic dressing and that for a

lady it was not an anti­Islamic dress. However, when they were each approached by the claimant’s solicitors six months later they qualified this advice. The Imam of the Madinah mosque in

Luton quoted not only from a translation of the Holy Quran which refers to the jilbab ("Jalbaab") but also from a commentary on the Quran in these terms:

"It is related from the son of Abbasthat the definition of Jalbaab is that it be a long cloak in which a woman be covered from head to toe."

(Commentary of Huwair in refce from Al Quran, vol 7, p 217)

45. After reciting advice similar to that given by Dr Belouafi he said that in his opinion the claimant was correct in relation to the rights she was demanding from the School.

46. The Imam of the Central Mosque in Luton, Professor Masood Akhtar Hazarvi, made a distinction between his earlier answer to the effect that the shalwar kameeze was not anti­Islamic

and his new answer that it did not comply with the Islamic rules for the dress required of a mature Muslim lady in a public place (like a school). He was of the opinion that the claimant’s jilbab

was "a requirement from Islam".

47. This was clearly the professor’s personal view as a theologian. He also happened to chair the Luton Council of Mosques, which was formed in April 2003 as an umbrella organisation

representing about 36,000 local residents who embraced the Muslim faith. In that capacity he told the School in March 2004 that the council believed that the School’s uniform policy was

satisfactory for the majority of the Muslim community.

48. From all this evidence one can see clearly the two main schools of thought (I exclude, for instance, those who rely on the interpretation of other ancient texts for their belief that a

woman’s face should also be covered). The first, which represents mainstream opinion among South Asian Muslims, from whom most of this country’s Muslim population are descended, is

that a garment like the shalwar kameeze (coupled with a headscarf) complies sufficiently with Islamic dress requirements, and that there is no need to go any further. The other, which is a

minority view among Muslims in this country, but is nevertheless sincerely held, is that the shalwar kameeze, even when it goes down to mid­calf, is not compliant, and that a garment like the

jilbab, which disguises the shape of the wearer’s arms and legs, is required. This minority view received respectable support among those who were consulted during the course of this

dispute. It was no doubt what Professor Masood Hazarvi had in mind when he told the School that the Luton Council of Mosques believed that the School’s uniform policy was satisfactory

"for the majority of the Muslim community".

49. The sincerity of the claimant’s belief in the correctness of the minority view was not in issue in these proceedings. She believed that her religion prohibited her from displaying as much of

her body as would be visible if she was wearing the shalwar kameeze, particularly if she was not wearing the school jumper over it in hot weather. So far as the legitimacy of her belief is

concerned, in Hasan and Chaush v Bulgaria (26th October 2000: Appln No. 30985/96) the European Court of Human Rights said (at para 78):

"[The court] recalls that, but for very exceptional cases, the right to freedom of religion as guaranteed under the Convention excludes any discretion on the part of the State to determine

whether religious beliefs or the means used to express such beliefs are legitimate."

It follows that her freedom to manifest her religion or belief in public was being limited, and as a matter of Convention law it would be for the School, as an emanation of the state, to justify

the limitation on her freedom created by the School’s uniform code and by the way in which it was enforced.

50. I turn now to the third question. For the purposes of this case, SB’s freedom to manifest her religion or beliefs may only be subject to limitations that are prescribed by law and are

necessary in a democratic society in the interests of public safety, for the protection of public morals, or for the protection of the rights and freedoms of others. There was no suggestion that

the protection of public morals had any relevance, and a justification on health and safety grounds was dismissed by the judge and not resurrected on the appeal once evidence had showed

that other schools (including the local school which the claimant now attends) had been able to accommodate girls wearing the jilbab without any serious concern being raised on that

ground.

51. Three witness statements from the School addressed this issue. Mr Moore, the Assistant Headteacher, devoted most of his evidence to explaining why he was concerned to enforce the

School’s uniform policy, and the support that policy had received from those the School had consulted, both locally and nationally. His witness statement ends in these terms:

"Several staff have been approached by non­Muslim pupils saying that they are afraid of people wearing the jilbab, as they perceive this form of dress to be associated with extreme views.

This makes them feel vulnerable. Whilst I would not consider it right to pander to the prejudices or fears of some pupils, I think it would be most unfortunate if some pupils were to be held in

fear by others, or regarded as in some way separate, because of the clothes they wear.

Similarly this view has also been reflected by some Muslim girls who have indicated to staff that they do not wish to wear the jilbab, as this would identify them as belonging to extreme

Muslim sects. They do not wish to be identified with such people.

In a recent pupil survey, not connected with wearing of the jilbab, there was a space for further comments. Many pupils indicated how much they liked Denbigh High School and the uniform

in particular. One pupil suggested that the school introduce the jilbab. She did not suggest that she wanted to wear one. As she wears trousers to school and not the shalwar kameeze, I think

it unlikely that she would wish to adopt the jilbab. There have been no other suggestions from pupils, parents, governors or teachers that we adopt the jilbab.

At the Appeal hearing the Claimant indicated that although she does not regard Muslims who wear the shalwar kameeze as bad people, she does think better Muslims wear the jilbab. I

would not wish to see the introduction of two classes of Muslim, the inferior class that wears the shalwar kameeze and the better Muslim who wears the jilbab. In my view that would lead to

real risk of pressure being brought upon Muslim girls to wear the jilbab or be regarded as religious inferiors. I would fear that this could lead to some girls feeling pressured into wearing the

jilbab when they would prefer to wear the shalwar kameeze and might wish to avoid being classified with the kinds of people they believe wear the jilbab."

He ended by expressing a concern that if the school uniform was changed in the way the claimant suggested, this would lead to divisiveness within the school and would threaten the

cohesion within the school.

52. Mr Connor, who has been the Deputy Headteacher since 1997, had six years’ experience in the culturally diverse London Borough of Brent in the late 1980s. The earlier part of his

statement was devoted to the concerns on health and safety grounds that are not now being pursued on this appeal. He then turned to explain that a major learning objective on the part of

the curriculum concerned with citizenship was for pupils to work together positively and co­operatively in a community that fosters respect for all.

53. In this context he drew on his experience of working in schools that incorporate wide diversity. He said there is the potential for pupils to identify themselves as distinct from other groups

along cultural, religious or racial grounds, and for conflict to develop between such groups. He recalled an earlier incident in this school which had involved a very difficult and potentially

dangerous situation of intransigent conflict between two groups of pupils who defined themselves along racial grounds. This was one of the reasons for a uniform policy that did not allow

pupils to identify themselves obviously as belonging to a particular religion or race.

54. It was important in his experience to recognise that many adolescents require a lot of support to understand the importance of inclusion, equal opportunities, mutual respect and social

cohesion, such as was fostered by the school’s uniform policy. He attested to the same concerns among a number of girls at the school as Mr Moore had mentioned, and he believed that the

school had a duty to protect these pupils from inappropriate peer pressures, or pressures from outside extremist groups. There had been an incident in February 2004 when some young

men who represented an extremist Muslim group had picketed the school gates and distributed leaflets to the pupils which exhorted Muslims not to send their children to secular schools. A

number of pupils understandably felt harassed by these activities.

55. At the end of his statement Mr Connor expressed a concern that any erosion of the uniform policy would make it more difficult for the school to recruit and retain staff. This was partly

because he believed that the present clear policy contributed to the school’s ethos of good behaviour and discipline. It was also partly because this was a secular school, and this was very

important to many teachers who believe strongly that they do not wish to be associated with promoting a particular faith. If a new school uniform policy resulted in a significant proportion of

pupils outwardly identifying themselves according to their faith, this could create the impression that this was a school which favoured that faith.

56. Mrs Bevan, the Headteacher, gave evidence similar to that given by Mr Moore and Mr Connor about the concerns expressed by children at the school, both Muslim and non­Muslim, and

also by a number of parents. She said that she had been given the firm impression that a number of girls relied on the school to help them resist the pressures from the more extreme

groups. She was afraid that if the school uniform were to be adapted to include the jilbab these girls would be deprived of proper protection and would feel abandoned by those upon whom

they were relying to preserve their freedom to follow their own part of the Islamic tradition. She also referred to the picketing that had taken place "by groups of mainly young men who would

appear to be from the more extreme Muslim traditions".

57. She said that all the requirements of the school uniform were well publicised before the claimant chose to attend the School. She was being treated in exactly the same way as all other

pupils, a very high percentage of whom were Muslim, and since the requirements of the uniform policy were satisfactory to her for two years, and were also satisfactory to all the School’s

other pupils both past and present, she did not see how the School was discriminating against her.

58. The reasons given by the Chair of the Governors and by the Governors’ Complaints Committee in the autumn of 2003 for rejecting SB’s complaints did not add significantly to the

reasons given by the School’s senior staff. The Complaints Committee observed that they did not purport to have the legal knowledge to interpret complex legislation.

59. On the assumption (which he had rejected) that Article 9(1) was engaged in this case, the judge accepted the School’s case that the limitations on the claimant’s right to manifest her

religion or beliefs were necessary for the protection of the rights and freedoms of others. His reasons can be summarised in this way:

i. The School is a multi­cultural, multi­faith secular school;

ii. The school uniform policy clearly promoted a positive ethos and a sense of communal identity;

iii. There was no outward distinction between Muslim, Hindu and Sikh female students, and the shalwar kameeze also satisfied the right of Muslim female students to manifest their religion;

iv. Any distinction between Muslim students who wore the jilbab and those who wore the shalwar kameeze was avoided;

v. The present policy protects the rights and freedoms of not an insignificant number of Muslim female pupils who do not wish to wear the jilbab and either do, or will feel pressure on them to

do so from inside or outside the school;

vi. If the choice of two uniforms were permitted for Muslim female pupils, it could be readily understood that other pupils of different or no faiths might well see this as favouring a particular

religion.

60. The judge concluded in these terms (at para 91):

"In my judgment the school uniform policy and its enforcement has, and continues to have, a legitimate aim and is proportionate. The legitimate aim was the proper running of a multi­cultural,

multi­faith, secular school. The limitation was also proportionate to the legitimate aim pursued. The limitation was specifically devised with the advice of the Muslim community. Although it

appears that there is a body of opinion within the Muslim faith that only the jilbab meets the requirements of its dress code there is also a body of opinion that the Shalwar Kameeze does as

well. In my judgment, the adoption of the Shalwar Kameeze by the Defendant as the school uniform for Muslim (and other faiths) female pupils was and continues to be a reasoned,

balanced, proportionate policy."

61. I turn now to set out my conclusions on this appeal. In my judgment, the limitation on the claimant’s Article 9(1) freedom was one that was prescribed by law in the Convention sense. The

governors were entitled by law to set a school uniform policy for the School. They published a clear, written policy which was available to all who might be affected by it, and the requirements

of the ECHR for law that is both accessible and clear were satisfied in this respect. But was that limitation necessary?

62. The ECHR caselaw to which we were referred related to countries like Switzerland and Turkey which maintain a national policy of secular education in their state maintained schools. I

did not derive any assistance from the cases we were shown which related to employment disputes.

63. In Dahlab v Switzerland (15th February 2001; Appln No 42393/98) the court declared inadmissible a complaint by a primary school teacher who had been prohibited from wearing an

Islamic headscarf at her school. The court acknowledged the margin of appreciation afforded to the national authorities when determining whether this measure was "necessary in a

democratic society", and explained its role in these terms (at p 11):

"The Court’s task is to determine whether the measures taken at national level were justified in principle that is, whether the reasons adduced to justify them appear ‘relevant and sufficient’

and are proportionate to the legitimate aim pursued In order to rule on this latter point, the Court must weigh the requirements of the protection of the rights and liberties of others against the

conduct of which the applicant stood accused. In exercising the supervisory jurisdiction, the court must look at the impugned judicial decisions against the background of the case as a

whole..."

64. In that case the need to protect the principle of denominational neutrality in Swiss schools was treated as a very important factor which militated successfully against the applicant’s case.

65. In Sahin v Turkey (29th June 2004; Appln No 44774/98) the applicant had been denied access to written examinations and to a lecture at the University of Istanbul because she was

wearing an Islamic headscarf. This was prohibited not only by the rules of the university but also by the Constitution of Turkey, as interpreted in 1989 and 1991 by the Constitutional Court of

Turkey. The European Court of Human Rights noted (in paragraphs 53 to 57) that attitudes towards wearing the Islamic headscarf in schools differed in different European countries. It

accepted (at para 71) that the applicant was motivated by her desire to comply strictly with the duties imposed by the Islamic faith. It found (at para 81) that there was a basis for interference

in Turkish law which was accessible and sufficiently precise in its views. The applicant conceded (at para 83) that in view of the importance of upholding the principle of secularism and

ensuring the neutrality of universities in Turkey, the interference could be regarded as compatible with the legitimate aims of protecting the rights and freedoms of others and of protecting

public order. She vigorously disputed, however, the contention that the interference was necessary in a democratic society.

66. The Court first discussed the relevant principles and then applied them to the facts of this particular case. Although it made reference to the principle of gender equality, it placed most

weight on the principle of secularism in Turkey. It said (at para 99)

"In a country like Turkey, where the great majority of the population belong to a particular religion, measures taken in universities to prevent certain fundamentalist religious movements from

exerting pressure on students who do not practise that religion or on those who belong to another religion may be justified under Article 9(2) of the Convention."

67. It went on to say (at para 101) that where questions concerning the relationship between State and religion were at stake, on which opinion in a democratic society might reasonably differ

widely, the role of the national decision­making body had to be given special importance. In such cases it was necessary to have regard to the fair balance that must be struck between the

various interests at stake: the rights and freedoms of others, avoiding civil unrest, the demands of public order, and pluralism.

68. In applying these principles to the facts of the particular case the court said (at paras 104­6)

"104.It must first be observed that the interference was based, in particular, on two principles secularism and equality which reinforce and complement each other.

105.In its judgment of 7 March 1989, the Constitutional Court stated that secularism in Turkey was, among other things, the guarantor of democratic values, the principle that freedom of

religion is inviolable to the extent that it stems from individual conscience and the principle that citizens are equal before the law.Secularism also protected the individual from external

pressure. It added that restrictions could be placed on freedom to manifest one’s religion in order to defend those values and principles.

106.This notion of secularism appears to the Court to be consistent with the values underpinning the Convention and it accepts that upholding that principle may be regarded as necessary

for the protection of the democratic system in Turkey."

69. The court also noted (at para 107) the emphasis placed on the Turkish constitutional system on the protection of the rights of women. Gender equality recognised by the European Court

as one of the key principles underlying the Convention and a goal to be achieved by member States of the Council of Europe had also been found by the Turkish Constitutional Court to be a

principle implicit in the values underlying the Turkish constitution.

70. Matters the court took into account (at paras 108­109) when concluding that the national authorities in Turkey were entitled to prohibit the wearing of a Muslim headscarf in a university

included:

i. The impact which wearing a headscarf, which is presented or perceived as a compulsory religious duty, might have on those who chose not to wear it;

ii. The fact that Turkey was a country where the majority of the population, while professing a strong attachment to the rights of women and a secular way of life, adhered to the Islamic faith;

iii. In such a context, imposing limitations on freedom in this sphere might be regarded as meeting a pressing social need by seeking to achieve those two legitimate aims, especially since

the Muslim headscarf had taken on political significance in Turkey in recent years;

iv. The fact that there were extremist political movements in Turkey which might seek to impose on society as a whole their religious symbols and conception of a society founded on religious

precepts: a Contracting State was permitted, in accordance with the ECHR provisions, to take a stance against such political movements, based on its historical experience.

71. Against this background the court dismissed the applicant’s complaint, saying (at para 110) that it was understandable in such a context where the values of pluralism, respect for the

rights of others and, in particular, equality of men and women before the law, were being taught and applied in practice, that the relevant authorities would consider that it ran counter to the

furtherance of such values to accept the wearing of religious insignia, including, as in the present case, that women students cover their heads with a headscarf while on university premises.

72. I have considered the case of Sahin in some detail for four main reasons. First, it is a recent judgment in which the European Court of Justice has set out carefully the structured way in

which issues of this kind are to be considered under the Convention. Secondly, it shows that context is all­important: there are considerations to be applied in a state which professes the

value of secularism in its Constitution which are not necessarily to be applied in the United Kingdom. Thirdly and we did not receive any argument on this issue there are clearly potential

tensions between the rights and freedoms set out in a Convention agreed more than 50 years ago between Western European countries which on the whole adhered to Judaeo­Christian

traditions, and some of the tenets of the Islamic faith that relate to the position of women in society. And fourthly, it is clear that a decision­maker is entitled to take into account worries like

those expressed by the senior teaching staff of the School when it is deciding whether it is necessary to prohibit a person like the claimant from manifesting her religion or beliefs in public in

the way in which she would wish.

73. The United Kingdom is very different from Turkey. It is not a secular state, and although the Human Rights Act is now part of our law we have no written Constitution. In England and

Wales express provision is made for religious education and worship in schools in Chapter VI of the 1998 Act. Schools are under a duty to secure that religious education in schools is given

to pupils, and that each pupil should take part in an act of collective worship every day, unless withdrawn by their parent. Sections 80(1)(a) and 101(1)(a) of the 2002 Act require the inclusion

of religious education in the basic curriculum.

74. The position of the School is already distinctive in the sense that despite its policy of inclusiveness it permits girls to wear a headscarf which is likely to identify them as Muslim. The

central issue is therefore the more subtle one of whether, given that Muslim girls can already be identified in this way, it is necessary in a democratic society to place a particular restriction on

those Muslim girls at this school who sincerely believe that when they arrive at the age of puberty they should cover themselves more comprehensively than is permitted by the school

uniform policy.

75. The decision­making structure should therefore go along the following lines:

1)Has the claimant established that she has a relevant Convention right which qualifies for protection under Article 9(1)?

2)Subject to any justification that is established under Article 9(2), has that Convention right been violated?

3)Was the interference with her Convention right prescribed by law in the Convention sense of that expression?

4)Did the interference have a legitimate arm?

5)What are the considerations that need to be balanced against each other when determining whether the interference was necessary in a democratic society for the purpose of achieving

that aim?

6)Was the interference justified under Article 9(2)?

76. The School did not approach the matter in this way at all. Nobody who considered the issues on its behalf started from the premise that the claimant had a right which is recognised by

English law, and that the onus lay on the School to justify its interference with that right. Instead, it started from the premise that its uniform policy was there to be obeyed: if the claimant did

not like it, she could go to a different school.

77. The chair of the governors, whose decision is set out in full in paragraph 25 of Bennett J’s judgment, adopted this line. He ended his decision dismissively by saying that it would not be

appropriate "to make any further provisions for individuals’ interpretations of religious codes." The Complaints Committee, too, was satisfied that the shalwar kameeze constituted

"appropriate Islamic dress" or was "in accordance with the tenets of Islam", and while it accepted that the jilbab constituted proper Islamic dress for adult Muslim women, it did not explore the

reasons why the claimant sincerely believed that she must wear it. Indeed, the committee could see no good reason for the local mosques "apparently changing their minds", without

appreciating that the two Imams had been addressing two quite different questions (see paras 45­48 above), namely whether the shalwar kameeze was or was not inappropriate for Muslim

girls, and what in their view the teachings of Islam really required.

78. In my judgment, therefore, because it approached the issues in this case from an entirely wrong direction and did not attribute to the claimant’s beliefs the weight they deserved, the

School is not entitled to resist the declarations she seeks, namely:

i. That it unlawfully excluded her from school;

ii. That it unlawfully denied her the right to manifest her religion;

iii. That it unlawfully denied her access to suitable and appropriate education.

79. So far as this third matter is concerned, I am satisfied that the claimant is entitled to this declaration without the need for any inquiry into the rights and wrongs of what actually happened

during the two years in which she was away from school when the School maintained that it was trying to send schoolwork to her at home. Any such expedient would have been inferior to a

proper education, at best: compare A v Headteacher and Governors of Lord Grey School [2004] EWCA Civ 382 per Sedley LJ at [60].


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DESCRIZIONE DISPENSA

La dispensa fa riferimento alle lezioni di Diritto Costituzionale Avanzato, tenute dal Prof. Francesco Cerrone nell'anno accademico 2011.
Il documento riporta il testo della sentenza di una Corte di Appello inglese contro una decisione di una corte amministrativa in merito alla questione della libertà religiosa, dei simboli religiosi; in particolare al diritto di presentarsi a scuola con la jibab islamica.


DETTAGLI
Corso di laurea: Corso di laurea magistrale in giurisprudenza
SSD:
Università: Perugia - Unipg
A.A.: 2011-2012

I contenuti di questa pagina costituiscono rielaborazioni personali del Publisher Atreyu di informazioni apprese con la frequenza delle lezioni di Diritto Costituzionale Avanzato e studio autonomo di eventuali libri di riferimento in preparazione dell'esame finale o della tesi. Non devono intendersi come materiale ufficiale dell'università Perugia - Unipg o del prof Cerrone Francesco.

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Recensioni
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Altri appunti di Diritto costituzionale avanzato

Carta dei diritti fondamentali dell'Unione Europea
Dispensa
Transessualismo - Caso Goodwin
Dispensa
CEDU - Caso Scordino
Dispensa
Aborto donna consenziente - C.Cost. n. 27/75
Dispensa