One of the human rights protected by the European Convention of Human Rights is the right to freedom of thought, conscience and religion (article 9). This right is exercised both individually and collectively for example through a Church.
... the decision ignores the real nature of the status of priests...- Robert Tufigno
It has been invariably held by the European Court of Human Rights that “since religious communities traditionally exist in the form of organised structures, article 9 must be interpreted in the light of article 11 of the convention, which safeguards associative life against unjustified state interference. Seen in that perspective, the right of believers to freedom of religion, which includes the right to manifest one’s religion in community with others, encompasses the expectation that believers will be allowed to associate freely, without arbitrary state intervention… The way in which national legislation enshrines this freedom and its practical application by the authorities reveal the state of democracy in the country concerned” (Moscow branch of the Salvation Army v Russia).
The jurisprudence of the ECHR has generally stressed judicial restraint as well as respect for Church autonomy. The same approach is taken in the United States of America under the principle referred to as the “ministerial exception”.
On January 31, the Third Section of the ECHR delivered a decision in the case Sindicatul Påsrtorul cel Bun v Romania that makes a significant departure from the principles outlined above with far-reaching consequences. In such circumstances, one would have expected the Court to relinquish its jurisdiction and refer the case immediately to the Grand Chamber in terms of article 30 of the convention.
This case concerned 35 clergy and lay staff of the Romanian Orthodox Church who sought to form a union that would represent and defend their rights (economic, social and cultural) and professional interests in their dealings with the hierarchy of the Church and government and would organise and fund religious activities.
These then filed with the court of Craiova for the granting of legal personality to the union and its registration in the register of trade unions. The court of first instance upheld the request. The Archdiocese of Craiova, which opposed the claim, appealed.
The County Court of Dojl, in upholding the appeal, held that recognising the union would amount to the introduction of a foreign body into the traditional hierarchical structure of the Church. The union then appealed to the ECHR claiming a violation of article 11 of the convention that seeks to protect the right of association including the right to form and join trade unions.
In its decision, awarded on January 31, the Third Section of the ECHR found for the union.
Former Romanian totalitarian regimes would have gladly welcomed this decision as it sanctions one method that they used in 1945 to control the Romanian Orthodox Church. This decision, being at most flawed and in the least subject to criticism, warrants referral to the Grand Chamber of the ECHR for reversal.
In the first place, the decision ignores the real nature of the status of priests, called to their mission within the Church through a religious ordination, and their specific vocational character.
It also ignores that those who collaborate within the structures of the Church are an organic part of the Church itself.
The court’s misunderstanding of what the Church and priesthood are led it to adopt a secularised approach and treat the relationship between the Church and priests as a mere employment relationship when, indeed, its nature is other. In so doing, it epitomised the incompetence of the state in religious matters that is the basis of the principle of the institutional autonomy of Churches.
“Through the rights granted to its members under article 9, the Church itself is protected in its right to manifest its religion, to organise and carry out worship, teaching practice and observance, and it is free to act out and enforce uniformity in these matters.”
The priests’ individual right to freedom of religion “is exercised at the moment they accept or refuse employment as clergymen and their right to leave the Church guarantees their freedom of religion in case they oppose its teachings” (X v Denmark).
In Baudler v. Germany and Reuter v. Germany – decided in December, 2011 (concerning two Protestant ministers who, on disciplinary grounds, were placed on leave of absence by the Church authorities and had their income reduced) – the ECHR did not even allow the petitions admissible on the basis of the principle of “Church autonomy”.
In the Sindicatul Påsrtorul cel Bun case one would therefore have expected the Court to have followed the generally accepted principle of not intervening in a matter that, with a backdrop of dissension, although apparently of a labour and industrial nature, was substantially of an organisational nature of the Church.
The Third Section’s limited interpretation of article 9, in reducing the principle of religious autonomy to the protection of dogmas and religious beliefs, indicates a poor knowledge, if not complete ignorance, of how religious communities are organised. In so doing, all other aspects of religious freedom of the individual would become vulnerable. In such circumstances, the Third Section should have relied more on the findings of the national courts, which are certainly better placed to assess the facts of the case, and respect the principle of subsidiarity rather than act as a court of fourth instance.
Another worrying aspect of the decision is that the Third Section did not address the main problem raised by the facts, namely the conflict between the principle of autonomy of religious communities (protected by articles 9 and 11) and the right to form a union (protected by article 11).
Rather than discussing this “conflict” between rights and determining in the complexity of the case where to strike the balance, the Court simply ignored the right to religious freedom and the inherent principle of religious autonomy and considered only the right of the “employees” to form a union.
It concluded that there was no pressing social need that would justify the refusal to recognise the union. In other words, rather than discussing the effect of the right to form a union on the right of the autonomy of religious communities as a dialectic between rights of equal dignity, the Third Section downgraded the right to religious freedom as a right worthy of protection only by way of exception if another conflicting right constitutes a threat to public order and democracy. This betrays an ideological bias against the right to religious freedom.
The implications of such reasoning are far reaching.
Dr Tufigno is a lawyer by profession.