Friday 13 June 2014

European Court of Human Rights supports right of Church to deal with dissent

The Journal is reporting that the European Court of Human Rights has found that it was lawful for the Spanish State to sack a religion teacher who had publicly rejected aspects of Catholic teaching.

This is a hugely significant judgment from the European Court of Human Rights.  The judgment gives some general guidance on the autonomy of Churches, including their rights to deal with dissent, and the extremely limited rights that the State has to interfere in these matters.

If you're reading, Brian D'Arcy and Tony Flannery - the ECHR says your right to dissent means you can leave the Church you no longer agree with.

Also interesting to note the respectful way the Court refers to the Church's Canon Law - clearly it doesn't think it's as meaningless as Irish politicians seem to think.

Below the extract from the Court's Press Release:

Decision of the Court

Article 8

The Court reiterated that there was no general right to employment or to the renewal of a fixed-term contract. However, there was no reason of principle why the notion of “private life” should be taken to exclude professional activities. In the present case, private life and professional life were particularly intertwined, as factors relating to private life were regarded as qualifying criteria for the professional activity in question. The Court thus found Article 8 applicable, as the non-renewal of the applicant’s contract, on account of events mainly relating to personal choices he had made in the context of his private life, had seriously affected his chances of carrying on his specific professional activity.

The Court noted that the Ministry of Education had acted in accordance with the 1979 Agreement between Spain and the Holy See, supplemented by the Ministerial Order of 11 October 1982, which was an international treaty and incorporated as such into Spanish law in conformity with the Spanish Constitution.  The non-renewal of the applicant’s contract of employment had thus been based on the applicable Spanish law. 

The Court noted that the Bishop had relied in particular on the notion of “scandal” to justify his
decision. Even though the notion of scandal was not expressly provided for in the part of the Code of Canon Law concerning religious education teachers, it could be considered to refer to notions that were themselves in the canons such as “true doctrine”, “witness of Christian life” or “religious or moral considerations”. Those provisions expressed specific requirements with foreseeable effects.

Since Mr Fernández Martínez had been the director of a seminary, he could have foreseen that the public display of his militancy against certain precepts of the Church would be at odds with the applicable provisions of canon law and would not be without consequence. On the basis of the clear
wording of the Agreement between Spain and the Holy See, he could also have reasonably foreseen
that in the absence of a certificate of suitability from the Church his contract would not be renewed. 

The Court found that the non-renewal of his contract was thus in accordance with the law. Like the parties, the Court took the view that the decision not to renew the applicant’s contract pursued the legitimate aim of protecting the rights and freedoms of the Catholic Church, and in particular its autonomy as to the choice of persons qualified to teach religious doctrine.

As regards the autonomy of faith groups, the Court noted that religious communities traditionally and universally existed in the form of organised structures. The right of believers to freedom of religion meant that they should be allowed to associate freely, without arbitrary State intervention 

The autonomous existence of religious communities went to the very heart of the protection which Article 9 of the Convention afforded. It had a direct interest, not only for the actual organisation of
those communities but also for the effective enjoyment by their members of the right to freedom of
religion. Were the organisational life of the community not protected by Article 9 of the Convention, all other aspects of the individual’s freedom of religion would become vulnerable. 

However, Article 9 of the Convention did not enshrine a right of dissent within a religious community. In the event of any disagreement between a religious community and one of its
members, the individual’s freedom of religion was exercised by the option of freely leaving the community. 

Respect for the autonomy of religious communities recognised by the State implied, in particular,
that the State should accept the right of such communities to react, in accordance with their own
rules and interests, to any dissident movements emerging within them that might pose a threat to
their cohesion, image or unity. It was therefore not the task of the national authorities to act as the
arbiter between religious communities and the various dissident factions that existed or might
emerge within them.  

The Court reiterated that, but for very exceptional cases, the right to freedom of religion as guaranteed under the Convention excluded any discretion on the part of the State to determine
whether religious beliefs or the means used to express such beliefs were legitimate. Moreover, the principle of religious autonomy prevented the State from obliging a religious community to admit or exclude an individual or to entrust someone with a particular religious duty.

As a consequence of their autonomy, religious communities were entitled to demand a certain degree of loyalty from those working for them or representing them 

The Court, whilst observing that Mr Fernández Martínez had not received the dispensation from the
obligation of celibacy until after the publication of the newspaper article, took the view that, by
signing his successive employment contracts, he had knowingly and voluntarily accepted a special
duty of loyalty towards the Catholic Church, which limited the scope of his right to respect for his
private and family life to a certain degree. Such contractual limitations were permissible under the
Convention where they were freely accepted. The Court was not convinced that at the time of the
publication of the article in La Verdad, this contractual duty of loyalty had ceased to exist.   In choosing to accept a publication about his family circumstances and his association with a protest oriented meeting, Mr Fernández Martínez had severed the bond of trust that was necessary for the
fulfilment of his professional duties.  

The Court observed that Mr Fernández Martínez had voluntarily been part of the circle of individuals who were bound by a duty of loyalty towards the Catholic Church. The fact of being seen as campaigning in movements opposed to Catholic doctrine clearly ran counter to that duty. In addition, there was little doubt that the applicant, as former priest and director of a seminary, had
been or must have been aware of the substance and significance of that duty.  

Mr Fernández Martínez had been able to complain about the non-renewal of his contract before the
Employment Tribunal and then before the Murcia High Court of Justice, which had examined the
lawfulness of the measure in question under ordinary labour law, taking ecclesiastical law into
account, and had weighed up the competing interests of the applicant and the Catholic Church. At
last instance the applicant had been able to lodge an amparo appeal with the Constitutional Court.

Since the reasoning for the non-renewal decision had been strictly religious, the domestic courts  had considered that they had to confine themselves to verifying respect for the fundamental rights at stake. Thus, the Constitutional Court had taken the view that the State’s duty of neutrality precluded it from ruling on the notion of “scandal” used by the Bishop to refuse to renew the contract, or on the merits of the optional celibacy of priests as advocated by the applicant. It had examined the extent of the interference with the applicant’s rights and had found that it was neither disproportionate nor unconstitutional, but that it could be justified in terms of respect for the lawful exercise by the Catholic Church of its religious freedom in its collective or community dimension.  

The Court was of the view that the domestic courts had taken into account all the relevant factors
and had weighed up the interests at stake in detail and in depth, within the limits imposed on them
by the necessary respect for the autonomy of the Catholic Church. In the light of the review
exercised by the national courts, it did not appear that the autonomy of the Church had been
improperly invoked: the Bishop’s decision could not be said to have contained insufficient reasoning, to have been arbitrary, or to have been taken for a purpose that was unrelated to the exercise of the Catholic Church’s autonomy.  

Having regard to the margin of appreciation afforded to the State, the Court found that the interference with the applicant’s right to respect for his private life had not been disproportionate.
The Court concluded by nine votes to eight that there had been no violation of Article 8.

Having regard to its conclusion under Article 8, the Court found that there was no need to examine
the other complaints separately.

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