In the case of Sindicatul “Păstorul cel Bun” v. Romania,
The European Court of Human Rights, sitting as a Grand Chamber composed
of:
Dean Spielmann,
President,
Guido Raimondi,
Mark Villiger,
Isabelle Berro-Lefèvre,
Boštjan M. Zupančič,
Elisabeth Steiner,
Danutė Jočienė,
Dragoljub Popović,
George Nicolaou,
Luis López Guerra,
Ledi Bianku,
Vincent A. de Gaetano,
Angelika Nußberger,
Linos-Alexandre Sicilianos,
Erik Møse,
Helena Jäderblom,
Krzysztof Wojtyczek, judges,
and Michael O’Boyle, Deputy Registrar,
Having deliberated in private on 7 November 2012 and on 5 June 2013,
Delivers the following judgment, which was adopted on the last-mentioned
date:
PROCEDURE
The case originated in an application (no.
2330/09) against Romania lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a trade union, Păstorul cel Bun (“The Good Shepherd” -
“the applicant union”), on 30 December 2008. The President of the Grand Chamber
acceded to a request by the members of the applicant union not to have their identity
disclosed (Rule 47 § 3 of the Rules of Court).
The applicant union, which had been granted legal
aid, was represented by Mr R. Chiriţă, a lawyer practising in Cluj
Napoca. The Romanian Government (“the Government”) were represented by their
Agent, Ms C. Brumar, of the Ministry of Foreign Affairs.
. The
applicant union alleged that the refusal of its application for registration as
a trade union had infringed its members’ right to form a trade union, as
guaranteed by Article 11 of the Convention.
The application was allocated to the Third
Section of the Court (Rule 52 § 1). On 31 January 2012 a Chamber of that
Section, composed of the following judges: Josep Casadevall, Egbert Myjer, Ján
Šikuta, Ineta Ziemele, Nona Tsotsoria, Mihai Poalelungi and Kristina Pardalos,
and also of Santiago Quesada, Section Registrar, delivered a judgment in which
it unanimously declared the application admissible and held, by five votes to
two, that there had been a violation of Article 11 of the Convention.
On 9 July 2012, following a request submitted by
the Government on 27 April 2012, the panel of the Grand Chamber decided to
refer the case to the Grand Chamber in accordance with Article 43 of the
Convention.
The composition of the Grand Chamber was
determined in accordance with the provisions of Article 27 §§ 2 and 3 of the
Convention and Rule 24. Corneliu Bîrsan, the judge elected in respect of
Romania, withdrew from sitting in the case (Rule 28). The President of the
Grand Chamber accordingly appointed Angelika Nußberger to sit as an ad hoc
judge in his place (Article 26 § 4 of the Convention and Rule 29 § 1).
The applicant union and the Government each filed
further written observations (Rule 59 § 1).
Leave to intervene in the written procedure
(Article 36 § 2 of the Convention and Rule 44 § 2) was granted to the
non-governmental organisation European Centre for Law and Justice and
the Orthodox Archdiocese of Craiova, both of which had already intervened as
third parties in the proceedings before the Chamber, and also to the Moscow
Patriarchate, the non-governmental organisations Becket Fund and
International Center for Law and Religion Studies, and the Governments of the
Republic of Moldova, Poland, Georgia and Greece.
A hearing took place in public in the Human
Rights Building, Strasbourg, on 7 November 2012 (Rule 59 § 3).
There appeared before the Court:
(a) for the Government
Ms C. Brumar, Agent,
Ms I. Cambrea, co-Agent,
Mr D. Dumitrache,
Ms A. Neagu, Advisers;
(b) for the applicant union
Mr R. Chiriţă,
Mr I. Gruia, Counsel,
Ms O. Chiriţă, Adviser.
The Court heard addresses by Mr Chiriţă, Ms Brumar
and Ms Neagu.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
On 4 April 2008 thirty-two Orthodox priests from
parishes of the Metropolis of Oltenia, most of which were within the jurisdiction
of the Archdiocese of Craiova (a region of south-western Romania), and three
lay employees of the same archdiocese held a general meeting at which they
decided to form the Păstorul cel Bun trade union. The relevant parts of
the union’s constitution, as adopted at the meeting, read as follows:
“The aim of the union of clergy and lay persons working in
parishes or other ecclesiastical bodies within the administrative and
territorial jurisdiction of the Metropolis of Oltenia has been freely defined.
It shall consist in representing and protecting the professional, economic,
social and cultural rights and interests of its members, both clergy and laity,
in their dealings with the Church hierarchy and the Ministry of Culture and
Religious Affairs.
In order to achieve the above aim, the union shall:
(a) ensure respect for the fundamental rights of its
members to work, dignity, social protection, safety at work, rest, social
insurance, unemployment benefits, pension entitlements and other entitlements laid
down in the legislation in force;
(b) ensure that each of its members is able to carry
out work corresponding to his professional training and skills;
(c) ensure compliance with the statutory provisions
concerning the duration of leave and days of rest;
(d) promote initiative, competition and freedom of
expression among its members;
(e) ensure the implementation and strict observance
of the statutory provisions concerning protection of employment and the rights
deriving therefrom;
(f) ensure the full application of the provisions of
Law no. 489/2006 on religious freedom and the legal status of religious
denominations, the Statute of the Romanian Orthodox Church and the Holy Canons
of the Romanian Orthodox Church;
(g) negotiate collective agreements and contracts of
employment with the Archdiocese and the Metropolis expressly setting out all
the rights and duties of the clergy and laity;
(h) afford protection to its president and
representatives, both during and after their terms of office;
(i) ensure that it is represented at all levels and
on all decision-making bodies, in accordance with the statutory provisions in
force;
(j) use petitions, demonstrations and strikes as
means of defending its members’ interests and protecting their dignity and
fundamental rights;
(k) take legal action against any individuals or
other entities acting in breach of employment legislation, trade-union law, the
provisions of the collective agreement signed within the Metropolis or
employment contracts, if it has proved impossible to resolve the disputes in
question by means of negotiation;
(l) ensure the observance and implementation of
statutory provisions relating to remuneration and guarantees of decent living
conditions;
(m) strive to secure to the clergy and laity the
benefit of all the rights enjoyed by other sectors of society;
(n) set up mutual-aid funds;
(o) produce and issue publications providing
information to its members and defending their interests;
(p) establish and operate cultural, educational and
research organisations in the trade-union sphere, as well as social and
socio-economic institutions, in accordance with the relevant statutory
provisions and in the interests of its members;
(r) raise funds to support its members;
(s) organise and fund religious activities;
(ş) make proposals for elections to local
Church bodies and put forward a priest from among its members to take part in
the Holy Synod of the Romanian Orthodox Church;
(t) ask the Archdiocese to submit a report on its
revenues and expenditure to the Assembly of Priests; and
(ţ) ask the Archdiocesan Council to notify it,
on a quarterly or annual basis, of any decisions relating to appointments,
transfers and allocation of budgetary resources.”
In accordance with the Trade Unions Act (Law no.
54/2003), the union’s elected president applied to the Craiova Court of First
Instance for the union to be granted legal personality and entered in the
register of trade unions, submitting that the application for registration was
in conformity with the Trade Unions Act (Law no. 54/2003) and that the
formation of a trade union was not prohibited by the Religious Freedom Act (Law
no. 489/2006).
The public prosecutor’s office, representing the
State in the proceedings, supported the application for registration,
submitting that the establishment of a trade union for members of the clergy
and lay staff was not in breach of any provision of the law. It added that
since the union’s members were employees working under contracts of employment,
they were entitled, like any other employees, to join together as part of a
trade union to defend their rights.
The Archdiocese of Craiova, intervening in the
proceedings as a third party, confirmed that the union’s members were employed
by the Archdiocese but argued that the establishment of the union, without the
Archbishop’s consent and blessing (“permission”), was prohibited by the Statute
of the Romanian Orthodox Church, as approved by Government Ordinance no.
53/2008. It added that the Statute barred priests from taking part in
proceedings in the civil courts, even in connection with personal disputes,
without the archbishop’s prior written permission. Pointing out that priests chaired
parish assemblies and governing bodies, the Archdiocese submitted that they
were thus unable to form trade unions since Law no. 54/2003 prohibited
anyone performing management functions from doing so. Lastly, it produced
written statements from eight members of the union indicating that they no
longer wished to be part of it.
Having observed that the application for
registration satisfied the formal requirements of Law no. 54/2003, the court decided
that the application should be examined in the light of sections 2 and 3 of
that Law, Article 39 of the Labour Code, Article 40 of the Constitution,
Article 22 of the International Covenant on Civil and Political Rights and
Article 11 of the European Convention on Human Rights.
In a judgment of 22 May 2008 the court allowed
the union’s application and ordered its entry in the register of trade unions,
thereby granting it legal personality.
The relevant passages of the judgment read as
follows:
“The third party submits that the application to form the trade
union infringes both the special legislation on religious freedom and the legal
status of religious denominations and also, in the absence of any blessing from
the Archbishop or of any prior written permission to take part in court
proceedings (a requirement that applies even to personal disputes), the Statute
of the Romanian Orthodox Church.
Having regard to the provisions of the Church’s Statute and of
the Religious Freedom Act (Law no. 489/2006), the court dismisses the third
party’s arguments as unfounded for the reasons set out below.
The court notes that, pursuant to section 5(4) of Law no.
489/2006, religious communities, associations and groups are required to
observe the Constitution and their activities must not threaten national
security, public order, public health and morals or fundamental rights and
freedoms.
The court further observes that the Statute of the Church, as
approved by Government Ordinance no. 53/2008, does not expressly forbid the
establishment of a trade union for clergy and lay staff in accordance with
labour legislation. The third party, which contends that the right to form a
trade union is subject to receiving the archbishop’s blessing, has not disputed
that the union’s founding members are contractual employees.
The third party’s arguments have been analysed in the light of
both sections 7 to 10 of the Religious Freedom Act, which acknowledges the
important role of the Romanian Orthodox Church and its organisational and
operational autonomy, and section 1(2) of the same Act, which provides that ‘no
one shall be prevented from or coerced into embracing a religious opinion or
faith contrary to his or her beliefs’ and that ‘no one shall suffer
discrimination or persecution or be placed in an inferior position on account
of his or her faith, membership or non-membership of a religious denomination,
group or association, or for exercising freedom of religion in accordance with
the law’.
In so far as members of the clergy and laity are recognised as
employees, they have the statutory right to form a trade union. This right
cannot be subject to any restrictions based on religious affiliation or to
prior consent from the hierarchy.
In the court’s opinion, the principle of hierarchical
subordination and obedience set forth in the Statute cannot be used as a basis
for restricting the right to form a trade union; the only permissible restrictions
in this sphere must be prescribed by law and necessary in a democratic society
in the interests of national security, public safety, the prevention of
disorder or crime, the protection of health or morals, or the protection of the
rights and freedoms of others.
The third party’s argument that the applicants did not obtain
the archbishop’s permission to take part in proceedings in the civil courts must
likewise be dismissed, given that Article 21 of the Constitution provides: ‘Everyone
shall be entitled to apply to the courts for protection of his rights, freedoms
or legitimate interests. The exercise of this right shall not be restricted by
any statute.’
The establishment of a trade union does not necessarily indicate
the existence of a dissident strand within the Romanian Orthodox Church with a
disregard for hierarchy and the rules imposed by the Church; on the contrary,
it is likely to contribute to employer-employee dialogue on such matters as negotiation
of employment contracts, observance of working and non-working hours and the
rules on remuneration, protection of health and safety at work, vocational
training, medical cover and the opportunity to elect representatives and stand
for election to decision-making bodies, with due regard for the special
characteristics of the Church and its religious, spiritual, cultural,
educational, social and charitable purpose.
Having regard to the foregoing, in accordance with section 15
of Law no. 54/2003, the court allows the application, dismisses the objection
by the third party, grants legal personality to the union and orders its entry
in the register of trade unions.”
The Archdiocese challenged that judgment,
arguing that the provisions of domestic and international law on which it was
based were not applicable to the case at hand. Relying on Article 29 of the
Constitution, which guarantees religious freedom and the autonomy of religious
communities, it contended that the principle of religious freedom could not be
overridden by other constitutional principles such as freedom of association,
including the right to organise.
It submitted that the emergence within the
structure of the Church of a trade union-type organisation for members of the
clergy would seriously imperil the freedom of religious denominations to
organise themselves in accordance with their own traditions. The first-instance
court’s judgment had added a new institution to the existing Church
institutions, namely a trade union for priests, thereby jeopardising the
autonomy of religious communities as guaranteed by the Constitution.
The Archdiocese also criticised the applicant
union’s stated aims, contending that they conflicted with the duties that were set
out in the “job description” and accepted by priests by virtue of their “vow of
faith”. It pointed out that upon ordination, all priests had undertaken to
abide by all the provisions of the Church’s Statute, the rules of procedure of
the Church’s disciplinary and judicial bodies and the decisions of the Holy
Synod of the Romanian Orthodox Church, local church assemblies and the parish
council.
In June 2008 the Holy Synod declared that
initiatives by priests from various regions of the country to set up trade
unions were in breach of the law, the canons and the Church’s Statute.
In a final judgment of 11 July 2008 the Dolj
County Court allowed the appeal by the Archdiocese and revoked the registration
of the trade union.
The relevant passages of the judgment read as
follows:
“The Romanian Orthodox Church is organised and operates in
accordance with its Statute, as approved by Government Ordinance no. 53/2008.
The Statute prohibits priests from setting up associations, foundations or
organisations of any kind, and hence trade unions. This prohibition is designed
to safeguard the rights and freedoms of the Romanian Orthodox Church by
allowing it to preserve the Orthodox tradition and its founding tenets.
By virtue of section 6(2) of Law no. 54/2003, internal
regulations may not contain any provisions that are in breach of the
Constitution or the law.
The establishment of a trade union would result in the consultative
and deliberative bodies provided for by the Statute being replaced by or
obliged to work together with a new body (the trade union) not bound by the
traditions of the Church and the rules of canon law governing consultation and
decision-making.
The freedom to organise religious communities is recognised by the
Constitution and Law no. 489/2006 on religious freedom and the legal status of
religious denominations. Each denomination draws up its own statutes governing
its internal organisation, its members’ rights and obligations, its decision-making
procedures and the operation of its disciplinary bodies.
Pursuant to Article 14 (w) of [the Statute of the Orthodox
Church], the Holy Synod takes decisions concerning the establishment, operation
or dissolution of national ecclesiastical associations and foundations set up
and managed by the Romanian Orthodox Church; [it] grants or denies permission
for the establishment, operation or dissolution of ecclesiastical associations
and foundations which have their own governing bodies and operate within the
territorial subdivisions of the Romanian Orthodox Patriarchate.
It follows from the above-mentioned provisions, which make no
reference to trade unions, that the associations and foundations must be
ecclesiastical and national in nature.
It also follows from Article 50 (e) of the Statute of the
Orthodox Church that priests may not represent their parishes in court
proceedings without the bishop’s prior written consent. Similarly, in view of
the oath of obedience towards the bishop which they took upon ordination,
members of the clergy may not take part in court proceedings concerning
personal matters without the bishop’s prior written permission.
Law no. 54/2003 provides that persons performing management
functions or functions involving the exercise of public authority, the
judiciary, the military, the police and members of the special forces may not
set up trade unions.
In the present case the Statute defines the parish, which is a
subdivision of the Orthodox Church, as a community of Orthodox Christians, both
clergy and laity, established within a specified geographical area, under the
ecclesiastical, legal, administrative and economic authority of the diocese,
and led by a priest.
An examination of the list of priests involved in the present
case reveals that they chair their parish assemblies and councils. Since they
perform management functions and receive stipends on that account in accordance
with the above-mentioned provisions, they may not form trade unions.
Having regard to the foregoing, the court allows the appeal,
quashes the judgment and refuses the application for registration of the trade
union.”
On 29 September 2008 the attempt to set up the applicant
union was discussed within the Synod of the Metropolis of Oltenia. The Synod
decided that if the union’s members were to lodge an application with the
Court, they should be punished and referred to the disciplinary bodies. As a
result, the members concerned were summoned to the Archdiocese headquarters,
where some of them signed declarations to the effect that they no longer wished
to pursue the application.
In a letter of 21 June 2010 the chancery of the Romanian
Orthodox Patriarchate reminded the Archdiocese that priests were forbidden to
apply to domestic and international courts without the consent of their
hierarchy and asked it to obtain written declarations from the priests in
question stating that they no longer wished to pursue the application and, in
the event of their refusal, to refer them to the appropriate disciplinary
bodies. Some of the priests, despite having signed the declarations, informed the
Court that they intended to pursue the application lodged on behalf of the
union.
On 19 April 2010 three priests who had been
members of the applicant union set up an association called Apostolia together
with five other people. The association received the approval of the Archbishop
of Craiova, who made premises available for use as its headquarters. It was registered
with the Craiova Court of First Instance on 8 June 2010.
The association’s aims, as set out in its
articles of association, are: to educate the people in the spirit of Orthodox
morality; to promote a sense of solidarity between the clergy and the faithful;
to raise funds for the publication of documents to defend the faith and traditions;
to organise and support cultural, religious and social activities; to take a
stand against events, initiatives and demonstrations that denigrate Christian
morality, the Orthodox faith, national identity and traditions; and to use all
legal means to publicise its own decisions concerning the protection of
pastoral, social and professional interests.
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND
PRACTICE
A. Domestic law and practice
1. The Constitution
The relevant provisions of the Constitution read
as follows:
Article 29
“Freedom of thought and opinion and freedom of religion shall
not be restricted in any form. No one shall be compelled to embrace an opinion
or religion contrary to his or her own beliefs.
Freedom of conscience is guaranteed; it must be manifested in a
spirit of tolerance and mutual respect.
Religious denominations shall be free and religious communities
shall be organised in accordance with their own regulations, subject to the
conditions laid down by law.
All forms, means, acts and actions of religious enmity shall be
prohibited in relations between religious denominations.
Religious communities shall enjoy autonomy in relation to the
State and shall receive State support, including the provision of facilities
offering religious assistance in the army, hospitals, prisons, asylums and
orphanages.”
Article 40
“Citizens may freely associate to form political parties, trade
unions, employers’ organisations and other forms of association.”
Article 41
“The right to work shall not be restricted. Everyone is free to
choose his or her profession, trade or occupation and workplace.
Employees are entitled to social protection measures. These
concern employees’ health and safety, working conditions for women and young
people, the establishment of a national gross minimum wage, weekly rest, paid
annual leave, work performed in particular or special conditions, vocational
training, and other specific situations as provided for by law.
The normal average working day is a maximum of eight hours.
For equal work, women shall receive equal pay to men.
The right to collective labour bargaining and the binding force
of collective agreements shall be guaranteed.”
2. The Trade Unions Act
The Trade Unions Act (Law no. 54/2003), in force
at the material time, has been replaced by the Social Dialogue Act (Law
no. 62/2011), which has incorporated the previous provisions concerning
trade-union freedom. These provisions read as follows:
Section 2
“Anyone discharging duties on the basis of a contract of
employment, including public officials, shall have the right to form and to join
trade unions.
The establishment of a trade union shall require a minimum of
fifteen members engaged in activities within the same profession or sector of
activity.
No one shall be compelled to join, not to join or to leave a
trade union.”
Section 3
“Persons performing management functions or functions involving
the exercise of public authority, the judiciary, the military, the police and
members of the special forces may not set up trade unions.”
Section 6(2)
“The internal regulations may not contain any provisions that
are in breach of the Constitution or the law.”
Section 14
“In order for the trade union to acquire legal personality, the
representative of its founding members must submit an application for
registration to the court of first instance within whose jurisdiction its
registered office is located.
Two copies of the following documents, certified by the trade
union’s representative, must be appended to the application for registration:
(a) the minutes of the founding meeting of the
trade union, signed by at least fifteen founding members;
(b) the constitution of the trade union;
(c) the list of members of the union’s governing
bodies ...;
(d) the authority form for the representative
...”
Section 15
“The competent court of first instance shall examine the
application for registration within five days, verifying whether:
(a) the documents referred to in section 14 above
have been appended;
(b) the minutes of the trade union’s founding
meeting and its constitution are in conformity with the applicable statutory
provisions.
If the court of first instance finds that the statutory
conditions for registration have not been met, the president shall summon the
trade union’s representative to a private meeting and shall ask the
representative, in writing, to remedy the situation within seven days.
If the court finds that the application for registration
satisfies the requirements of the first subsection of this section, it shall
proceed, within ten days, to examine the application for registration in the
presence of the union’s representative.
The court of first instance shall allow or refuse the
application for registration in a reasoned judgment.
The judgment shall be transmitted to the union’s representative
within five days of its delivery.”
Section 16
“An appeal on points of law shall lie against the judgment of
the court of first instance.”
Section 27
“To achieve their aims, trade unions shall be entitled to use
specific means of action, such as negotiation, mediation, arbitration,
conciliation, petitions, demonstrations and strikes, in accordance with their
constitution and subject to the conditions laid down by law.”
Section 28
“Trade unions shall defend their members’ rights under labour
law ..., collective agreements and contracts of employment before the domestic
courts and in dealings with other public authorities ...
In exercising this prerogative, [they] shall be entitled to
take any form of action provided for by law, including applying to the courts
on behalf of their members, without requiring an express instruction from them.
...”
Section 29
“Trade unions may submit proposals to the competent authorities
concerning regulations in fields relating to the right to organise.”
Section 30
“Employers shall invite delegates from representative trade
unions to attend board meetings when issues of professional, economic, social,
cultural or sporting interest are being discussed.
For the purpose of defending and promoting their members’
professional, economic, social, cultural and sports rights and interests, trade
unions shall receive from the employer the information required for the
negotiation of collective agreements or, where appropriate, the conclusion of
branch agreements, as well as information regarding the establishment and use
of funds for the improvement of working conditions, workplace safety and social
protection.
Decisions by the board and other similar bodies concerning
matters of professional, economic, social, cultural or sporting interest shall
be communicated to the trade unions in writing, within forty-eight hours of
their adoption.”
3. The Religious Freedom Act
The relevant provisions of the Religious Freedom
Act (Law no. 489/2006) read as follows:
Section 1
“The State shall respect and guarantee the right to freedom of
thought, conscience and religion of any person within national territory, in
accordance with the Constitution and international treaties to which Romania is
a party.”
Section 5
“Members of religious communities shall be free to choose the
form of association in which they wish to practise their faith - religious
community, association or group - in accordance with the terms and
conditions of this Act.
Religious communities, associations and groups shall be
required to observe the Constitution and the law and not to threaten public
safety, public order, health, morals and fundamental rights and freedoms.”
Section 8
“Recognised religious communities shall have the status of charitable
corporations. Under the provisions of the Constitution and this Act, they shall
be organised and shall operate independently in accordance with their own
statutes or canons.”
Section 10
“The State shall contribute, on request, to the remuneration of
clergy and lay staff of recognised religious communities, according to each
community’s number of adherents and actual needs.”
Section 17
“On a proposal by the Ministry of Culture and Religious
Affairs, the Government shall issue an ordinance granting the status of a
State-recognised religious community to religious associations which, through
their activities and number of members, are of public interest and of proven
sustainability and stability.
The State shall recognise statutes and canons to the extent
that their content does not threaten public safety, public order, health,
morals or fundamental rights and freedoms.”
Section 23
“Religious communities shall select, appoint, employ and
dismiss staff in accordance with their own statutes, codes of canon law and
regulations.
Religious communities may impose disciplinary sanctions on
their employees, in accordance with their own statutes, codes of canon law and
regulations, for breaches of their doctrine or moral principles.”
Section 24
“Employees of religious communities which are affiliated to the
State insurance scheme shall be subject to the legislation on the State social-security
system.”
Section 26
“Matters of internal discipline shall be exclusively subject to
the provisions of internal regulations and canon law.
The fact that a religious community has its own judicial bodies
shall not preclude the application of criminal legislation in respect of its
members.”
4. Law on the unitary wage scale for workers paid from
public funds
Law no. 330/2009, which has since been replaced
by Law no. 284/2010, contained provisions on the remuneration of the
clergy and lay staff. It provided that the State and local authorities were to
pay all of the wages of members of the clergy employed in public institutions,
and part of the wages of leaders of recognised religious communities and
members of the clergy and laity employed by such communities.
Thus, the State pays clergy employed by
recognised religious communities a monthly stipend equivalent to between 65%
and 80% of the salary of a State school teacher. Clergymen holding senior
positions receive a higher stipend.
A total of 16,602 posts are funded in this way,
divided up among religious communities according to their number of adherents
as established in the most recent population census. In the latest census
(2011), 86% of the Romanian population identified themselves as Orthodox
Christians. The State budget also covers all social-security contributions
payable by employers in respect of members of the clergy employed by them.
Lay staff receive a monthly allowance equivalent
to the national guaranteed minimum wage. This allowance and all social-security
contributions payable by employers in respect of these employees are covered by
local authority budgets. The law provides for 19,291 posts for lay staff,
divided up according to the same population-based criterion as for clerical
staff (see paragraph 32 above).
Priests and lay staff of religious communities
pay social-security contributions calculated on the basis of their wages and
enjoy all the rights deriving from them: medical insurance, unemployment
insurance and pension entitlements. In 2010 their wages were reduced by the
same percentage as those of public-sector employees (a
reduction of 25%, with a view to balancing the State budget).
5. Internal organisation and
regulations of the Romanian Orthodox Church
The Romanian Orthodox Church became independent
in 1885. It has close relations with Orthodox churches in other countries.
Under the communist regime, Law no. 177/1949
guaranteed freedom of religion, and the Romanian Orthodox Church continued to
operate under the supervision of the Ministry of Religious Affairs, which
approved its Statute in 1949. Staff of the Church were paid from the State
budget under the statutory provisions governing public servants.
The current organisation of the Romanian
Orthodox Church is governed by its own Statute, in accordance with the
Religious Freedom Act (Law no. 489/2006). The Church is headed by a Patriarch
and has six metropolises in Romania, which comprise archdioceses, dioceses and approximately
13,500 parishes, served by some 14,500 priests and deacons.
The highest authority is the Holy Synod. It is
made up of the Patriarch and all serving bishops. The central governing bodies
also include the Church National Assembly, which includes three representatives
of each diocese or archdiocese and is the central deliberative body, and the
Church National Council, which is the central executive body.
At local level, the parishes, comprising
Orthodox clergy and congregations, are legal entities registered with the
administrative and tax authorities for the purpose of their non-profit-making
and commercial activities. The priest is responsible for the administration of
the parish. He chairs the parish assembly (the deliberative body comprising all
parishioners) and the parish council (the executive body).
The current Statute of the Romanian Orthodox
Church was adopted by the Holy Synod on 28 November 2007 and approved by a
Government ordinance on 16 January 2008.
The relevant provisions of the Statute read as
follows:
Article 14 w
“The Holy Synod shall take decisions on the establishment,
organisation and dissolution of national ecclesiastical associations and
foundations. It shall grant or refuse permission (approval) for the
establishment, organisation and dissolution of Orthodox associations and
foundations that operate in dioceses and have their own governing bodies.”
Article 43
“The parish is the community of believers, clergy and laity,
within a specified geographical territory and subject to the canonical, legal,
administrative and economic authority of the diocese or archdiocese. It is led
by a priest appointed by the bishop.”
Article 50
“In fulfilling their mission ..., priests shall perform the
following duties:
(a) celebrating Mass on Sundays, feast days and
other days of the week ...; teaching religion in accordance with diocesan
guidelines; and ensuring daily access to the church ...;
(b) applying all the provisions of the Statute
and of regulations issued by the Church and the central bodies at parish level;
(c) implementing decisions by the hierarchy and
the diocesan bodies concerning parish activities;
(d) drawing up and implementing the annual
programme of religious, social, charitable and administrative activities at
parish level and informing the diocese and parishioners of these activities;
(e) representing the parish in court proceedings
and in dealings with the authorities or third parties, subject to prior written
consent from the bishop; by virtue of the oath of obedience taken at the time
of their ordination, members of the clergy and monks may not take part in court
proceedings concerning personal matters without the bishop’s prior written
permission;
(f) convening and chairing the parish assembly, parish
council and parish committee;
(g) implementing decisions of the parish assembly
and council;
(h) keeping a register of parishioners;
(i) keeping a register of baptisms, marriages and
deaths ...;
(j) managing the parish assets in accordance with
the decisions of the parish assembly and council and overseeing the management
of the assets of cultural and social institutions and church foundations set up
within the parish;
(k) drawing up and keeping an inventory of all parish
property ...”
Article 52
“Priests and other church staff have the rights and are bound
by the obligations set forth in the Holy Canons, this Statute, church
regulations and the decisions of the archdiocese.”
Article 88
“The bishop ... shall order the appointment, transfer or
dismissal of clergy and lay staff in the different parishes ... He shall ensure
the observance of discipline by members of the clergy and lay staff in his
diocese, either directly or through ecclesiastical bodies.”
Article 123 §§ 7, 8 and 9
“Members of the clergy shall serve the diocese by virtue of the
mission they have freely assumed and the vows and solemn public undertaking
they read out and signed prior to their ordination. Before assuming their
pastoral mission, they shall receive a decision from the bishop setting out
their rights and duties.
Without the bishop’s permission, no priests, deacons or monks
may form, be members of or take part in associations, foundations or other
organisations of any kind.
The status of priest, deacon or monk is incompatible with the
pursuit of any other personal activities of an economic, financial or
commercial nature that are contrary to Orthodox Christian morals or the
interests of the Church.”
Article 148
“The following ecclesiastical bodies shall have jurisdiction in
matters of doctrine, morals, canon law and discipline in respect of serving or
retired clergymen, priests and deacons:
(A) [General matters]:
(a) the parish disciplinary consistory;
(b) the diocesan or archdiocesan consistory;
(B) On appeal [by a staff member in the event of
dismissal]: the Metropolitan Consistory, provided that the appeal has been
declared admissible by the Metropolitan Synod or the Holy Synod.”
Article 150
“The parish disciplinary consistory shall act as a disciplinary
tribunal ... and as a mediation body for disputes among church staff, or
between the priest and the congregation.
If the parties are dissatisfied with its decision, the case
shall be referred to the diocesan consistory, whose decision shall be final.”
Article 156
“By virtue of the autonomy of religious communities under the
law, internal disciplinary matters shall be settled by the Church’s judicial
bodies. Their decisions shall not be subject to appeal in the civil courts.”
During 2004 the priests of the Archdiocese of Craiova
signed employment contracts of indefinite duration with the Archdiocese. The
contracts set out the parties’ general rights and duties and specified the priests’
place of work, position, working hours, annual leave entitlement and monthly
salary. The job description appended to the contract listed the priests’ duties
as follows:
“Offering spiritual guidance to parishioners in accordance with
church regulations;
Celebrating Mass every Sunday and feast day; attending to
parishioners and setting up home in the parish;
Managing the assets of the parish and of Church cultural
institutions and foundations;
Drawing up and maintaining an inventory of the parish assets;
managing the parish’s finances and accounts; keeping records of parish revenue
and expenditure and making them available to the archdiocesan inspectorate in
the course of financial reviews and audits;
Obtaining supplies of liturgical items from the archdiocese to
be put on sale;
Ensuring prompt payment of all financial contributions owed to
the archdiocese;
Refraining from taking part in court proceedings without the
consent of the archdiocese, whether relating to disputes concerning the parish
or to personal matters;
Representing the parish in dealings with third parties in the
event of a dispute;
Refraining from any act that would be incompatible with the
status of priest;
Observing all the provisions of the Statute of the Church,
other ecclesiastical instruments and the oath taken at the time of ordination.
Any breach of the above-mentioned duties shall give rise to
proceedings before the Church disciplinary bodies, which may impose a range of
penalties up to and including dismissal.”
On 17 May 2011, in response to an enquiry from
the Church, the Ministry of Labour informed the Patriarch that, following an
examination of the relevant legislation, experts from the Ministry had reached
the conclusion that the Labour Code was not applicable to the employment
relationship between the Romanian Orthodox Church and members of the clergy and
that, as a result, the Church was not obliged to sign individual employment contracts
with them.
Accordingly, from November 2011 the employment
contracts in question were replaced, at the bishop’s instigation, with appointment
decisions issued by him. The decisions specified the place of work and the post
occupied. They also stated the following:
“In discharging his duties, the priest shall be directly
subordinate to the bishop. He must work together with the other priests of the
parish and the diocesan representatives.
The priest shall perform his tasks ... in accordance with the
requirements of Article 50 (a)-(k) of the Statute of the Church.
In fulfilling his mission, he must be familiar with and, in
accordance with the oath taken at the time of his ordination, scrupulously
abide by the Holy Canons, the Statute of the Church, ecclesiastical regulations
and the decisions of the Holy Synod and the diocese. He must submit to
hierarchical authority and defend the legitimate interests of the Romanian Orthodox
Church and his congregation.
From the date of his appointment, the priest shall be entered
in the register of positions and salaries. His salary shall be determined in
accordance with the statutory provisions governing remuneration of members of
the clergy. He shall be entitled to annual leave calculated on the basis of
seniority.
The priest shall be required to obtain supplies of items for
sale (candles, calendars, liturgical items, books, and so on) from the diocese
alone. He shall permanently supervise the activities of the kiosk (pangarul)
where these items are on sale.
In the event of misconduct or breaches of discipline or of the
duties set out in this decision, the priest shall be dismissed by the bishop ...
He shall be punished in accordance with the rules of the Church’s disciplinary
bodies.”
6. Domestic practice concerning the establishment of
trade unions within the clergy and the existence of other forms of association within
the Romanian Orthodox Church
The law and the 1949 Statute did not provide for
any restrictions on freedom of association for Orthodox believers and Church
personnel. Under the communist regime, trade unions were set up by Church
employees.
In a final judgment of 4 October 1990 the Medgidia
Court of First Instance, under the Political Parties and Other Forms of
Association Act (Law no. 8 of 31 December 1989), authorised the operation of Solidaritatea,
a trade union of Orthodox clergy and lay staff of the Archdiocese of Tomis
(Constanţa), and granted it legal personality.
In its constitution the Solidaritatea trade
union stated that its aims were to strive for “a renewal of spiritual life and
a restructuring of administrative activities ... in line with the new
requirements of democratic life and full freedom of thought and action, and in
accordance with the principles set out in the doctrines and regulations of the
Romanian Orthodox Church”. It was envisaged that the union would be able to
apply to the courts to defend its members’ interests, that it would assist in
drawing up civil and ecclesiastical regulations with a view to protecting its
members’ rights and interests, and that its members would be represented by its
president on all the Church’s decision-making bodies.
In May 2012 the Archdiocese of Tomis sought a
court order for the dissolution of the Solidaritatea trade union on the grounds
that it had failed to observe its own constitution by not holding any general
meetings, not appointing any executive bodies and not carrying out its intended
activities. The proceedings are still pending.
In a final judgment of 5 June 2007 the Hârlău
Court of First Instance, under the Trade Unions Act (Law no. 54/2003), granted
legal personality to the Sfântul Mare Mucenic Gheorghe trade union of clergy,
monks and lay staff of the Romanian Orthodox Church.
In its constitution the Sfântul Mare Mucenic
Gheorghe union set out the following aims:
- to ensure respect for the fundamental
rights of its members to work, dignity, social protection, safety at work,
rest, social insurance, unemployment benefits, pension entitlements and other entitlements
laid down in the legislation in force;
- to provide each of its members with work
corresponding to his professional training and skills;
- to ensure compliance with the statutory
provisions concerning the duration of leave and days of rest;
- to promote initiative, competition and
freedom of expression among its members;
- to ensure the implementation and strict
observance of the statutory provisions concerning protection of employment and
the rights deriving therefrom;
- to protect its president and representatives,
both during and after their terms of office;
- to be present and represented on
disciplinary bodies;
- to set up joint ecclesiastical
committees;
- to be involved in the drafting or
amendment of any Church internal regulations, in particular the new Statute;
- to be consulted on a mandatory basis in
connection with decisions affecting its members;
- to negotiate employment contracts;
- to hold democratic elections for the
nomination of Church representatives;
- to take legal action against any
individuals or other entities, including the church authorities, responsible
for administrative or regulatory measures adversely affecting its members’
rights and interests; and
- to use petitions, demonstrations and
strikes as means of defending its members’ interests and protecting their
dignity and fundamental rights.
In January 2011 the president of the union
requested its dissolution, noting that there had been a considerable
improvement in relations between its members and the church authorities. The
proceedings are still pending.
To date, some 200 church associations and foundations
recognised by the national courts are in existence, having received permission from
bishops in accordance with the Church’s Statute.
7. Case-law of the domestic courts
In a judgment of 19 September 2005 the High
Court of Cassation and Justice held that the civil courts had jurisdiction to invalidate
a priest’s dismissal and to supervise the execution of the court decision
ordering his reinstatement and the payment of his salary.
In a judgment of 4 February 2010 in a different
case, the High Court upheld a judgment in which the Bucharest Court of Appeal
had dismissed an action by an Orthodox priest against the refusal of the Labour
Inspectorate to review the application of labour law by his employer (the
diocese). It held that only the provisions of the relevant internal regulations
were applicable in the case, that they prevailed over the general rules of the
Labour Code in this context, and that the Labour Inspectorate did not have
jurisdiction to review whether the diocese had complied with these rules.
In three decisions delivered on 10 June 2008, 3 July
2008 and 7 April 2011 the Constitutional Court acknowledged that the existence
of internal disciplinary bodies within religious communities and the fact that
their decisions could not be challenged in the civil courts amounted to a
restriction of the right of access to a court, but held that the restriction
was justified by the autonomous nature of religious communities. It noted in
this connection that pursuant to Law no. 489/2006, the only cases which the
ordinary courts had jurisdiction to hear in respect of members of the clergy
were those concerning criminal offences.
B. International law
1. Universal standards
The relevant provisions of Convention no. 87 of
the International Labour Organisation (ILO) on Freedom of Association and
Protection of the Right to Organise (adopted in 1948 and ratified by Romania on
28 May 1957) read as follows:
Article 2
“Workers and employers, without distinction whatsoever, shall
have the right to establish and, subject only to the rules of the organisation
concerned, to join organisations of their own choosing without previous
authorisation.”
Article 3
“1. Workers’ and employers’ organisations shall have
the right to draw up their constitutions and rules, to elect their
representatives in full freedom, to organise their administration and
activities and to formulate their programmes.
2. The public authorities shall refrain from any
interference which would restrict this right or impede the lawful exercise
thereof.”
Article 4
“Workers’ and employers’ organisations shall not be liable to
be dissolved or suspended by administrative authority.”
Article 7
“The acquisition of legal personality by workers’ and employers’
organisations, federations and confederations shall not be made subject to
conditions of such a character as to restrict the application of the provisions
of Articles 2, 3 and 4 hereof.”
The relevant provisions of Recommendation no.
198 concerning the employment relationship, adopted by the ILO in 2006, read as
follows:
“9. For the purposes of the national policy of
protection for workers in an employment relationship, the determination of the
existence of such a relationship should be guided primarily by the facts
relating to the performance of work and the remuneration of the worker,
notwithstanding how the relationship is characterized in any contrary
arrangement, contractual or otherwise, that may have been agreed between the
parties.
...
11. For the purpose of facilitating the
determination of the existence of an employment relationship, Members should,
within the framework of the national policy referred to in this Recommendation,
consider the possibility of the following:
(a) allowing a broad range of means for
determining the existence of an employment relationship;
(b) providing for a legal presumption that an
employment relationship exists where one or more relevant indicators is
present; and
(c) determining, following prior consultations
with the most representative organizations of employers and workers, that
workers with certain characteristics, in general or in a particular sector,
must be deemed to be either employed or self-employed.
...
13. Members should consider the possibility of
defining in their laws and regulations, or by other means, specific indicators
of the existence of an employment relationship. Those indicators might include:
(a) the fact that the work: is carried out
according to the instructions and under the control of another party; involves
the integration of the worker in the organization of the enterprise; is
performed solely or mainly for the benefit of another person; must be carried
out personally by the worker; is carried out within specific working hours or
at a workplace specified or agreed by the party requesting the work; is of a
particular duration and has a certain continuity; requires the worker’s
availability; or involves the provision of tools, materials and machinery by
the party requesting the work;
(b) periodic payment of remuneration to the
worker; the fact that such remuneration constitutes the worker’s sole or
principal source of income; provision of payment in kind, such as food, lodging
or transport; recognition of entitlements such as weekly rest and annual
holidays; payment by the party requesting the work for travel undertaken by the
worker in order to carry out the work; or absence of financial risk for the
worker.”
2. European standards
Romania ratified the revised European Social
Charter on 7 May 1999. Article 5 of the Charter, concerning the right to
organise, is worded as follows:
“With a view to ensuring or promoting the freedom of workers
and employers to form local, national or international organisations for the
protection of their economic and social interests and to join those
organisations, the Contracting Parties undertake that national law shall not be
such as to impair, nor shall it be so applied as to impair, this freedom. The
extent to which the guarantees provided for in this Article shall apply to the
police shall be determined by national laws or regulations. The principle governing
the application to the members of the armed forces of these guarantees and the
extent to which they shall apply to persons in this category shall equally be
determined by national laws or regulations.”
Article 12 § 1 of the Charter of Fundamental
Rights of the European Union reads as follows:
“Everyone has the right to freedom of peaceful assembly and to
freedom of association at all levels, in particular in political, trade union
and civic matters, which implies the right of everyone to form and to join
trade unions for the protection of his or her interests.”
The relevant parts of Council Directive
2000/78/EC of 27 November 2000 establishing a general framework for equal
treatment in employment and occupation read as follows:
“The Council of the European Union,
...
Whereas: ...
(4) The right of all persons to equality before the
law and protection against discrimination constitutes a universal right
recognised by the Universal Declaration of Human Rights, the United Nations
Convention on the Elimination of All Forms of Discrimination against Women,
United Nations Covenants on Civil and Political Rights and on Economic, Social
and Cultural Rights and by the European Convention for the Protection of Human
Rights and Fundamental Freedoms, to which all Member States are signatories.
Convention No. 111 of the International Labour Organisation (ILO) prohibits
discrimination in the field of employment and occupation.
(5) It is important to respect such fundamental
rights and freedoms. This Directive does not prejudice freedom of association,
including the right to establish unions with others and to join unions to
defend one’s interests.
...
(24) The European Union in its Declaration No. 11 on
the status of churches and non-confessional organisations, annexed to the Final
Act of the Amsterdam Treaty, has explicitly recognised that it respects and
does not prejudice the status under national law of churches and religious
associations or communities in the Member States and that it equally respects
the status of philosophical and non-confessional organisations. With this in
view, Member States may maintain or lay down specific provisions on genuine,
legitimate and justified occupational requirements which might be required for
carrying out an occupational activity.
...
Has adopted this Directive:
...
Article 4
Occupational requirements
1. ... Member States may provide that a difference
of treatment which is based on [religion or belief] shall not constitute
discrimination where, by reason of the nature of the particular occupational
activities concerned or of the context in which they are carried out, such a
characteristic constitutes a genuine and determining occupational requirement,
provided that the objective is legitimate and the requirement is proportionate.
2. Member States may maintain national legislation
in force ... or provide for future legislation incorporating national practices
existing at the date of adoption of this Directive pursuant to which, in the
case of occupational activities within churches and other public or private
organisations the ethos of which is based on religion or belief, a difference
of treatment based on a person’s religion or belief shall not constitute
discrimination where, by reason of the nature of these activities or of the
context in which they are carried out, a person’s religion or belief constitute
a genuine, legitimate and justified occupational requirement, having regard to
the organisation’s ethos. ...
Provided that its provisions are otherwise complied with, this
Directive shall thus not prejudice the right of churches and other public or
private organisations, the ethos of which is based on religion or belief,
acting in conformity with national constitutions and laws, to require
individuals working for them to act in good faith and with loyalty to the
organisation’s ethos.”
In the practice of European States, relations
between churches and the State are governed by a variety of constitutional
models. In the majority of the Council of Europe’s member States,
the law itself does not define the nature of the legal relationship between a
religious community and its clergy. The religious community may conclude an
employment contract with its ministers, but is not under any obligation to do
so, and in most cases does not. However, even where there is no employment
contract, members of the clergy are often entitled to welfare benefits under
the same conditions as other beneficiaries of the social-security system. In a
minority of States,
the relationship is governed by the applicable labour law, although members of
the clergy are required to observe a heightened duty of loyalty towards the
religious community that employs them. Lastly, in other States
the domestic courts determine on the basis of the individual circumstances
whether or not the employment relationship can be classified as contractual.
With regard to the trade-union rights of members of the clergy,
no States formally ban them from setting up trade unions, and in some States
they are even expressly afforded this right. It should also be noted that, for
instance, in Austria, Bulgaria, Finland, Turkey, France, the United Kingdom, Ireland
and the Netherlands there are trade unions for ministers of religion, or
associations that defend interests closely resembling those defended by workers’
trade unions.
THE LAW
I. ANONYMOUS NATURE OF THE APPLICATION AND
ALLEGED HINDRANCE OF THE RIGHT OF INDIVIDUAL PETITION
A. The parties’ submissions
The applicant union submitted that as soon as
steps had been taken to form a trade union, its members had come under intense
pressure from the Church. This had continued after the application had been
lodged with the Court and, as a result, several members had been forced to
withdraw from the proceedings, while others had requested anonymity in order to
be able to pursue the application.
It stated that the pressure had intensified
after the delivery of the Chamber judgment, and in support of that assertion
submitted a number of statements by Church leaders as reported in the press, together
with a press release of February 2012 in which the Romanian Orthodox Patriarchate
had criticised the judgment.
In view of the above considerations, it
submitted that the State had failed to comply with its positive obligation to
protect applicants to the Court from pressure, both from the State authorities
and from others.
Accordingly, it asked the Grand Chamber to find a
violation of Article 34 of the Convention.
The Government expressed doubts as to whether
the application reflected a genuine intention on the part of the applicant
union’s members to apply to the Court. They argued that the identities and
names of the individuals who had applied to the Court on the union’s behalf had
changed during the course of the proceedings before the Chamber and asked the
Grand Chamber to establish the precise identity of those who had brought and pursued
the application. Without raising a preliminary objection, they submitted that
this question was important both for the merits of the case and for the issue
of just satisfaction.
They maintained that only deliberate measures by
the State could be held to constitute a hindrance of the right of individual
application. Since, in their submission, the authorities could not be accused
of any action or inaction that had intentionally endorsed or tolerated the Church’s
allegedly improper conduct in the present case, the State could not be said to
have infringed the right of individual petition.
B. The Grand Chamber’s assessment
The Grand Chamber observes that although the
respective positions of the Government and the applicant union differ, they
both relate to the application of Article 34 of the Convention, taken alone or
in conjunction with Article 35 § 2 (a). These provisions are worded as follows:
Article 34
“The Court may receive applications from any person,
non-governmental organisation or group of individuals claiming to be the victim
of a violation by one of the High Contracting Parties of the rights set forth
in the Convention or the Protocols thereto. The High Contracting Parties
undertake not to hinder in any way the effective exercise of this right.”
Article 35 § 2
“The Court shall not deal with any application submitted under
Article 34 that
(a) is anonymous ...”
1. Alleged anonymity of the application
The Grand Chamber observes at the outset that the
Government are estopped from raising this issue, given that they omitted to do
so before the Chamber. In so far as they challenged the admissibility of the
application on the grounds that certain members of the applicant union had
wished to remain anonymous, it reiterates that a Government with doubts as to
the authenticity of an application must inform the Court in good time, and that
the Court alone is competent to determine whether an application satisfies the
requirements of Articles 34 and 35 of the Convention (see Shamayev and
Others v. Georgia and Russia, no. 36378/02, § 293, ECHR 2005-III).
It would also point out that the purpose of
granting anonymity under Rule 47 § 3 to persons bringing a case before the
Court is to protect applicants who consider that the disclosure of their
identity might be harmful to them. In the absence of this protection, such applicants might be deterred from
communicating freely with the Court. Furthermore, an association that
has been dissolved or refused registration is entitled to lodge an application,
through its representatives, complaining about the dissolution or refusal (see Stankov
and the United Macedonian Organisation Ilinden v. Bulgaria, nos. 29221/95
and 29225/95, § 57, ECHR 2001-IX).
In the present case, the Court notes that the
applicant union applied to it through its representatives, who instructed Mr I.
Gruia to act on their behalf. They later retracted the statements sent to the
Court by the Archdiocese of Craiova, in which they had indicated their
intention to withdraw their application. They explained that the Archdiocese
had compelled them to sign the statements. Since they had submitted factual and
legal information enabling the Court to identify them and establish their links
with the facts in issue and the complaint raised, both the President of the Chamber
and, subsequently, the President of the Grand Chamber granted their request not
to have their identity disclosed.
That being so, the Court considers that the application is not anonymous
within the meaning of Article 35 § 2 of the Convention and that the intention
of the applicant union’s members to act on the union’s behalf in the proceedings
before it is not in doubt. Accordingly, even assuming that the Government are
not estopped from raising the objection that the application is anonymous, the
Court dismisses the objection.
2. Alleged hindrance of the right of individual
petition
The Court reiterates that the undertaking not to
hinder the effective exercise of the right of individual application precludes
any interference with the individual’s right to present and pursue a complaint
before the Court effectively. It is of the utmost importance for the effective
operation of the system of individual application instituted under Article 34
that applicants or potential applicants should be able to communicate freely
with the Court without being subjected to any form of pressure from the
authorities to withdraw or modify their complaints. As the Court has noted in
previous decisions, “pressure” includes not only direct coercion and flagrant
acts of intimidation against actual or potential applicants, members of their
families or their legal representatives, but also other improper indirect acts
or contact designed to dissuade or discourage applicants from pursuing a
Convention remedy (see, among other authorities, Mamatkulov and Askarov v.
Turkey [GC], nos. 46827/99 and 46951/99, § 102, ECHR 2005-I).
In the instant case, the Court observes
that the applicant union alleged a violation of Article 34 of the Convention for
the first time before the Grand Chamber. It further notes that the events
complained of, including the request to withdraw the application lodged with
the Court, took place before the delivery of the Chamber judgment (see
paragraphs 23 and 24 above).
Having regard to the fact that the applicant
union has been represented by a lawyer since the application was lodged and has
not put forward any particular reasons that might have dispensed it from complaining
to the Chamber of a violation of Article 34 of the Convention, the Grand
Chamber considers that the union is estopped from raising this complaint before
it.
In so far as the applicant union complained of
events occurring after the case was referred to the Grand Chamber, in respect
of which it would consequently not be estopped from alleging a violation of Article
34, the Court reiterates that the acquiescence or connivance of the authorities
of a Contracting State in the acts of private individuals which violate the
Convention rights of other individuals within its jurisdiction may engage that
State’s responsibility under the Convention (see, mutatis
mutandis, Cyprus v. Turkey [GC], no. 25781/94, § 81, ECHR 2001-IV).
However, in the instant case it observes that
the applicant union has not substantiated its allegation that the pressure
exerted on its members intensified after the delivery of the Chamber judgment
to such an degree that the State should be held responsible for not taking
action to stop such pressure.
In this connection, it notes that in support of
its allegations the union referred solely to statements by the Orthodox Patriarchate
and several members of the Church hierarchy, as reported in the press,
criticising the Chamber judgment. However, these opinions do not appear to have
been followed by any measures aimed at inducing members of the union to
withdraw or amend the application before the Grand Chamber or to hinder in any
other way the exercise of their right of individual petition.
. In
the Court’s opinion, the facts of the case do not support the conclusion that
the national authorities exerted pressure, or allowed pressure to be exerted,
on the applicant union’s members, or that they failed in any other way to
comply with their obligation to secure the effective exercise of the right of
individual application. They cannot be held responsible for the actions of the
press or for statements made by individuals exercising their freedom of
expression and not holding a position of public authority.
. In
these circumstances, the Court considers, firstly, that the applicant union is
estopped from alleging a violation of Article 34 of the Convention in respect
of events that took place before the delivery of the Chamber judgment
and, secondly, that as regards the events occurring after that date, the
respondent State has not breached its obligations under Article
34 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 11 OF THE
CONVENTION
The applicant union submitted that in refusing
its application for registration, the Dolj County Court had infringed its right
to organise as guaranteed by Article 11 of the Convention, which provides:
“1. Everyone has the right to freedom of peaceful
assembly and to freedom of association with others, including the right to form
and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise
of these rights other than such as are prescribed by law and are necessary in a
democratic society in the interests of national security or public safety, for
the prevention of disorder or crime, for the protection of health or morals or
for the protection of the rights and freedoms of others. This Article shall not
prevent the imposition of lawful restrictions on the exercise of these rights
by members of the armed forces, of the police or of the administration of the
state.”
A. The Chamber judgment
In its judgment of 31 January
2012 the Chamber found a violation of Article 11 of the Convention. Observing
that priests and lay staff carried out their duties within the Romanian
Orthodox Church under employment contracts, that they received salaries funded mainly
from the State budget and that they were covered by the general
social-insurance scheme, it considered that a contractual employment
relationship could not be exempted from all rules of civil law. It concluded
that members of the clergy, and a fortiori lay employees of the Church,
could not be excluded from the scope of Article 11.
Next, examining the refusal to register the
applicant union in relation to the general principles of trade-union law, it
accepted that the measure had been prescribed by domestic law (namely the Trade
Unions Act (Law no. 54/2003) and the Religious Freedom Act (Law no.
489/2006), as interpreted by the County Court in the light of the Statute of
the Orthodox Church) and had pursued a legitimate aim (namely preservation of
public order, encompassing the freedom and autonomy of religious communities)
in that it had sought to prevent a disparity between the law and practice
concerning the establishment of trade unions for Church employees.
It then observed that the County
Court’s decision to refuse the applicant union’s registration had been mainly
based on the need to protect the Orthodox Christian tradition, its founding
tenets and the rules of canon law concerning decision-making. In that
connection it held that the criteria defining a “pressing social need” had not
been met in the instant case, since the County Court had not established that
the applicant union’s programme, as set out in its constitution, or the
positions adopted by its members were incompatible with a “democratic society”,
let alone that they represented a threat to democracy.
Observing that the reasons given by the County
Court to justify the refusal to register the applicant union had been of a
purely religious nature, the Chamber further considered that that court had not
had sufficient regard either to the interests of employees of the Romanian
Orthodox Church - in particular, the existence of an employment contract
between them and the Church - or to the distinction between members of the
clergy and lay employees of the Church, or to the question whether the
ecclesiastical rules prohibiting union membership were compatible with the
domestic and international regulations enshrining workers’ trade-union rights.
Lastly, noting that the right of Orthodox Church
employees to join a trade union had already been recognised by the domestic
courts in the case of other trade unions, the Chamber concluded that a measure
as drastic as the refusal to register the applicant union had been
disproportionate to the aim pursued and consequently unnecessary in a
democratic society.
B. The parties’ submissions
1. The applicant union
The applicant union submitted that priests and
clerical staff of the Romanian Orthodox Church had a similar status to civil
servants. Like civil servants, they were recruited by competitive examination.
They were then appointed by the bishop by means of a decision setting out their
rights and obligations. They took an oath upon their ordination and their
salaries were set in the law governing the remuneration of all public servants
and reduced by the same proportion in the event of an economic crisis. They
paid contributions to the general social-security scheme and were entitled to
the full range of welfare benefits. Furthermore, similarly to universities, the
Romanian Orthodox Church was allocated funds from the State budget to pay its
employees’ wages. Accordingly, the applicant union submitted that neither the
Romanian Orthodox Church’s practice of not signing employment contracts with
its staff nor the fact that it paid part of their wages from its own funds
could affect the actual nature of the relationship between the Church and its employees,
since the relationship entailed all the aspects of an employment contract and
was similar to that between civil servants and the institution employing them.
The applicant union alleged that, unlike other
occupational groups which were likewise bound by specific duties of loyalty but
had trade unions to defend their interests, employees of the Romanian Orthodox
Church, numbering some 15,000, were deprived of any form of protection from potential
abuses in relation to such matters as salaries or transfers.
It added that the interference with its members’
freedom of association had not been prescribed by domestic law. In that
connection it cited Articles 40, 53 and 73 of the Constitution, by which citizens
were guaranteed the right to join together freely in forming political parties,
trade unions, employers’ associations or other kinds of association, a right
that could be restricted only by an institutional Act. It submitted that it
could be inferred from these provisions that there was no legislative
instrument barring priests from forming a trade union, the refusal of its registration
having been based solely on Article 123 § 8 of the Church’s Statute; the mere
fact that the Statute had been approved by the Government did not give it the
status of a domestic legislative instrument, let alone that of an institutional
Act capable of restricting a constitutional freedom. Submitting that Article
123 § 8 of the Statute was at variance with the Constitution, the applicant
union concluded that the decision to prohibit it was in breach of domestic law.
The decision therefore had no legal basis and infringed Article 11 of the
Convention.
The applicant union accepted that the measure in
issue had pursued a legitimate aim, namely protection of the Church’s
interests, but contended that the measure had not been necessary in a
democratic society to preserve the Church’s religious autonomy.
In its submission, where relations between the
State and religious communities were concerned, a distinction needed to be made
between a community’s religious activities and its civil and commercial
activities. Thus, while any State interference with religious activities should
be strictly forbidden, the Church’s civil and commercial activities were unconnected
to religion or to the Church’s spiritual mission and should therefore be
governed by civil law. In that connection, the applicant union pointed out that
it did not wish to alter either Christian dogma or the organisation of
religious worship but that its sole aim was to fight for the protection of its
members’ statutory rights, including the right to receive the guaranteed legal
wage and the right not to be wrongfully dismissed. It also asserted that its
members had sought - and obtained - oral permission to form a trade union but
that the archbishop had subsequently withdrawn his initial consent following
opposition from the Holy Synod.
The applicant union accepted that some of the
aims set out in its constitution might appear to conflict with the duties of
priests, but contended that they had been “copied wholesale from the Trade
Unions Act” and that they were also intended to protect the interests of the
Church’s lay employees, who were not bound by the same obligations as priests.
It further submitted that in any event, any action it might have taken such as
strikes or other similar activities would have been subject to review by the
judicial authorities, which could impose sanctions up to and including dissolution.
It added that even if priests did decide to go on strike or to organise other
activities outside the remit of their ministry, they would remain subject to
the Church’s disciplinary procedure and its Statute, which likewise provided
for sanctions.
Lastly, the applicant union noted that two other
trade unions had already been set up within the Church and that their
recognition by the State had not affected its internal organisation or given
rise to parallel rules of governance. It also submitted that trade unions for
Church personnel operated freely in several other Council of Europe member
States.
In conclusion, the applicant union contended
that its prohibition, as a preventive measure based purely on assumptions made in
the light of its constitution, had not been proportionate to the aim pursued
and had amounted to a violation of Article 11 of the Convention.
2. The Government
The Government did not raise any pleas of
inadmissibility and accepted that the refusal to register the applicant union
had constituted interference with its right to freedom of association. They
further pointed out that there was no legal impediment preventing lay staff of
the Romanian Orthodox Church from forming a trade union.
As regards members of the clergy, the Government
argued that by virtue of the Statute of the Romanian Orthodox Church and the
Religious Freedom Act, their relationship with the Church was a “freely
accepted service and mission relationship” falling outside the sphere of labour
law, and hence outside the scope of the Labour Code. They observed that priests
performed their duties in accordance with a decision by the bishop setting out
their rights and obligations, and a vow of faith and obedience which they took
upon their ordination. They added that the employment contracts signed in 2004 by
the Archdiocese of Craiova were the result of an erroneous interpretation of
the law and had never been registered by the Labour Inspectorate, which had in
fact confirmed that labour law was not applicable to the relationship between the
Orthodox Church and its ecclesiastical staff. That position was shared by the
High Court of Cassation and Justice and the Constitutional Court, which had
both held that in accordance with the autonomy of religious denominations, the
ordinary domestic courts did not have jurisdiction to review decisions by the
ecclesiastical courts in relation to the provisions of the Labour Code.
The Government further asserted that the State
did not provide remuneration for priests, its role in this respect being
limited to granting financial assistance calculated on the basis of the Church’s
number of adherents and actual needs. It was entirely the Church’s
responsibility to redistribute the funds received from the State among its
staff. Thus, the State made a total of 12,765 assistance payments to the
Orthodox Church, the amounts of which varied between EUR 163 and EUR 364, while
the Church paid 1,005 priests and 1,408 lay employees entirely from its own
funds. As regards the affiliation of priests and other Church employees to the
State social-insurance scheme, the Government submitted that this was the
choice of the national Parliament, which enjoyed a wide margin of appreciation
in such matters; however, their affiliation did not affect their status and did
not make them State officials.
In the alternative, the Government pointed out
that priests were responsible for the administration of their parishes and, as
such, performed management functions; pursuant to Law no. 54/2003, this barred
them from trade-union activities.
Having regard to the above considerations, the
Government expressed concern at the idea that Article 11 could be deemed applicable
to the present case, seeing that the provisions of labour law did not apply to
the applicant union’s members.
In any event, they submitted that the interference
had been prescribed by law, had pursued a legitimate aim and was necessary in a
democratic society.
In their submission, the legal basis for the
measure in issue was Article 123 § 8 of the Church’s Statute, by
which the participation of members of the clergy in any form of association was
subject to the archbishop’s prior consent. That provision formed part of
domestic law following the approval of the Statute by a Government ordinance,
and did not conflict with the Constitution, which, while guaranteeing freedom
of association, including trade-union freedom, made it subject to the
conditions provided for by law - the applicable law in the present case being the
Statute of the Church. Furthermore, the fact that the Trade Unions Act did not
explicitly ban priests from forming a trade union did not amount to tacit
recognition of that right; instead, exercising its autonomy, the Church had
decided that the activities of its staff should be governed by rules other than
those of labour law.
As to the legitimate aim pursued by the
interference, the Government called on the Grand Chamber to depart from the
analysis made by the Chamber, which had found that the measure in question was
aimed at preserving public order by protecting the freedom and autonomy of
religious communities. They asserted that the sole aim of the interference had
been to protect the rights and freedoms of others, namely those of the Romanian
Orthodox Church. That being so, the specific reference to public order was immaterial
to the present case.
As to whether the measure had been necessary
and proportionate, the Government pointed out, firstly, that the ban on forming
trade unions without the archbishop’s consent concerned only members of the
clergy and that the Church’s lay staff remained free to join together in
accordance with the conditions and criteria set forth in the Trade Unions Act.
The freedom of association of members of the
clergy, meanwhile, was fully respected by the Romanian Orthodox Church, within which
there were several hundred associations and foundations, among them the
Apostolia association in the Archdiocese of Craiova.
In the Government’s submission, the requirement
for the archbishop’s permission to be obtained for any form of association involving
members of the clergy was legitimate and reflected the principle of the Church’s
autonomy. The Government were surprised that in the present case the applicant
union had not sought such permission and added that the ordinary courts could, in
appropriate circumstances, have ruled that a denial of permission was wrongful.
The Government noted that on account of their
status, priests belonging to the applicant union were bound by a heightened
degree of loyalty towards the Orthodox Church. No right to dissent existed: disaffected
priests could leave the Church at any time, but as long as they chose to
remain, they were deemed to have freely consented to abide by its rules and to waive
some of their rights.
As regards the possible effects of the
establishment of a trade union on the Church’s operational methods, the
Government argued that the applicant union’s constitution suggested that,
should it actually be established, it would attempt to introduce a parallel set
of rules to those of the Church. This was clearly apparent from a reading of
the passages concerning the recruitment of staff, the promotion of initiative, competition
and freedom of expression, the signing of collective agreements and employment
contracts, observance of civil-law rules on working hours, representation on
decision-making bodies or the right to strike. The Government therefore
submitted that recognition of the applicant union would necessarily have led to
the emergence of a system of joint management within the Romanian Orthodox
Church; this would have been a source of conflict between the union and the
Church hierarchy, requiring adjudication by the domestic authorities, in breach
of the State’s duty of neutrality and impartiality and the autonomy of
religious denominations.
They explained that in the present case the
State had been anxious to forestall any attempt at unionisation before the
applicant union began to operate and that this approach had been justified by
the fact that the union would have been able to make use of its rights under
the Trade Unions Act as soon as it was registered, without any form of prior
judicial supervision.
Lastly, the
Government drew attention to the wide variety of rules governing the status of
priests and their right to freedom of association in the Council of Europe’s
member States, and submitted that the lack of a European consensus in this area
indicated that the national authorities should be left a wide margin of
appreciation.
C. The third parties
The third-party governments and non-governmental
organisations intervening in the proceedings all shared the respondent
Government’s position.
1. The Greek Government
The Greek Government submitted that in the
event of a conflict between the rights protected by Articles 9 and 11 of the
Convention, the Court should start by determining whether recognition of a
right to freedom of association within a religious community infringed the
right to autonomy of the community in question. In their view, the autonomy of
religious communities should prevail and such communities should enjoy the
right to determine their relations with their staff on the basis of their own
internal regulations, even if these restricted or limited the exercise of
certain rights.
The Greek Government contended that since
priests performed an essentially religious function, the distinction between religious
and non-religious activities was immaterial. Furthermore, the domestic courts
were better placed than an international court to settle any disputes arising
in this sphere.
2. The Government of the Republic of Moldova
The Government of the Republic of Moldova
submitted that the Chamber had not struck a sufficient balance between the
freedom of association claimed by the applicant union and the freedom of
religion and right to autonomy of the Orthodox Church. They contended that Article
11 of the Convention could not be construed as imposing a positive obligation
on the State to recognise a secular association within a religious community
where such recognition would be at variance with the State’s duty of
denominational neutrality.
They further submitted that under Article 9 of
the Convention, the members of a religious community should be regarded as
having freely chosen, on joining the community, to give up some of the civil
rights to which they might have laid claim under Article 11.
3. The Polish Government
The Polish Government submitted that the Chamber
should have focused more on the special nature of the relationship between the Church
and its clergy. The fact that the rights claimed by a group of clergymen were
of an economic, social or cultural nature did not support the conclusion that recognition
of their trade union would be unlikely to undermine the autonomous operation of
the religious community in question.
They argued that it was in the first place for
religious communities themselves to decide which activities were to be treated
as part of religious practice or as having an impact on their internal
organisation or mission, and that to entrust this role to the domestic courts
would be a source of conflict and would require the courts to settle religious
matters, in breach of the autonomy of religious denominations and the State’s
duty of neutrality.
Lastly, they submitted that, on account of
their training and their decision to join the clergy, priests had a heightened
duty of loyalty towards the Church and should be aware of the requirements of
their mission, which limited the exercise of certain rights.
4. The Georgian Government
The Georgian Government pointed out that Church-State
relations were dealt with differently from one country to another and that
there was no European consensus in this area.
Accordingly, they submitted that the
Contracting States and their courts should enjoy a wide margin of appreciation in
safeguarding the autonomy of religious communities from any threats. The State should
refrain from encouraging any form of dissent within such communities.
5. The Archdiocese of Craiova
The Archdiocese of Craiova submitted that in
the Romanian Orthodox Church, the canonical figure of the priest was directly
linked to that of the bishop. The relationship between the bishop and his
clergy was founded on mutual trust and the unity of the Church’s mission, and it
would be inconceivable in canon law for there to be any antagonism between the Church
authorities, as represented by the Holy Synod, and bishops and members of the
clergy. The latter played a part in the democratic exercise of ecclesiastical
authority and were able to rely on the Church’s internal rules to defend
themselves against any abuse of authority. In addition, any refusal by the
archbishop to grant permission to form an association could be referred to the
Holy Synod.
In conclusion, the Archdiocese submitted that
the formation of a trade union of priests and lay staff would upset the
existing relationship between the Church and the clergy and would pose a threat
to public order and social harmony.
6. The Moscow Patriarchate
The Moscow Patriarchate emphasised the special
nature of the hierarchical service relationships within religious communities
and the heightened degree of loyalty entailed by such relationships. The State should
guarantee religious communities, by virtue of their autonomy, the exclusive
competence to determine their own structure and internal operating rules.
The fundamental element of the service
relationship for priests was the performance of religious services, and this
relationship could not be reduced in an abstract, artificial manner to an
employment relationship subject to the rules of civil law. The Moscow Patriarchate
argued that it was impossible in practice to extend the scope of the ordinary
legislation to religious communities, and such an approach would cause intractable
problems for such communities, including the Russian Orthodox Church.
7. The non-governmental organisation European Centre
for Law and Justice (ECLJ)
The ECLJ submitted that priests were bound by a
heightened duty of loyalty towards the Church. This duty had been acknowledged
both in Council Directive 2000/78/EC of 27 November 2000 and in the Court’s
case-law.
The ECLJ added that priests fell outside the
scope of the right to organise as they were not “employees” but had an
exclusively religious vocation and their relationship with the Church was not
based on an employment contract.
Lastly, it submitted that where, as in the
present case, the facts in dispute were of a religious nature, the interference
in issue could not be reviewed by means of a proportionality test weighing up
the interests of religious communities against the interests which individuals
could claim under Articles 8 to 12 of the Convention, since these Articles
protected rights which the individuals concerned had freely chosen not to
exercise.
8. The non-governmental organisations Becket Fund and
International Center for Law and Religion Studies
These organisations referred to the case-law of
the United States Supreme Court concerning the autonomy of religious
institutions. In the case of National Labor Relations Board v. Catholic
Bishop of Chicago (440 U.S. 490 (1979)) the Supreme Court had held that the
domestic authorities could not disregard the bishop’s will by recognising a
trade union for teachers from Catholic schools, observing that such recognition
would interfere with the autonomous operation of religious institutions. In Hosanna-Tabor
Evangelical Lutheran Church and School v. Equal Employment Opportunity
Commission (no. 10-553 (2012)) the Supreme Court had applied the “ministerial
exception” doctrine, holding that the provisions of labour law were not applicable
to employees of religious institutions, whether members of the clergy or the
laity.
The two organisations contended that the position
of the United States Supreme Court was consistent with that of the European Court
as regards protection of the autonomy of religious communities in their
relations with the clergy. The Chamber had thus erred in departing from that position,
and this error would have a negative impact on religious autonomy in that the State
might be required, should the Chamber judgment be upheld, to adjudicate in disputes
between religious communities and their members.
D. The Grand Chamber’s assessment
The Government questioned whether Article 11 of
the Convention was applicable to members of the clergy. The Grand Chamber
considers that this question forms part of the examination of the merits of the
case and will therefore examine it below.
1. General principles
(a) The right to form trade
unions
The Court observes at the outset, having regard
to developments in international labour law, that trade-union freedom is an
essential element of social dialogue between workers and employers, and hence
an important tool in achieving social justice and harmony.
It further reiterates that Article 11 of the
Convention presents trade-union freedom as a special aspect of freedom of
association and that, although the essential object of that Article is to
protect the individual against arbitrary interference by public authorities with
the exercise of the rights it protects, there may in addition be positive
obligations on the State to secure the effective enjoyment of such rights (see Demir
and Baykara v. Turkey [GC], no. 34503/97, §§ 109 and 110, ECHR
2008).
The boundaries between the State’s positive and
negative obligations under Article 11 of the Convention do not lend themselves
to precise definition. The applicable principles are nonetheless similar.
Whether the case is analysed in terms of a positive duty on the State or in
terms of interference by the public authorities which needs to be justified,
the criteria to be applied do not differ in substance. In both contexts regard
must be had to the fair balance to be struck between the competing interests of
the individual and of the community as a whole.
In view of the sensitive character of the
social and political issues involved in achieving a proper balance between the
respective interests of labour and management, and given the high degree of
divergence between the domestic systems in this field, the Contracting States
enjoy a wide margin of appreciation as to how trade-union freedom and
protection of the occupational interests of union members may be secured (see Sørensen
and Rasmussen v. Denmark [GC], nos. 52562/99 and 52620/99, § 58, ECHR 2006-I).
Article 11 of the Convention affords members of
a trade union the right for their union to be heard with a view to protecting
their interests, but does not guarantee them any particular treatment by the
State. What the Convention requires is that under national law trade unions
should be enabled, in conditions not at variance with Article 11, to strive for
the protection of their members’ interests (see National Union of Belgian
Police v. Belgium, 27 October 1975, §§ 38 and 39, Series A no. 19, and Swedish
Engine Drivers’ Union v. Sweden, 6 February 1976, §§ 39-40, Series A
no. 20).
Through its case-law, the Court has built up a
non-exhaustive list of the constituent elements of the right to organise,
including the right to form or join a trade union, the prohibition of
closed-shop agreements, and the right for a trade union to seek to persuade the
employer to hear what it has to say on behalf of its members. It recently held,
having regard to developments in labour relations, that the right to bargain
collectively with the employer had in principle, except in very specific cases,
become one of the essential elements of the right to form and join trade unions
for the protection of one’s interests (see Demir and Baykara, cited
above, §§ 145 and 154).
(b) Autonomy of religious organisations
The Court reiterates that religious communities
traditionally and universally exist in the form of organised structures. Where
the organisation of the religious community is at issue, Article 9 of the
Convention must be interpreted in the light of Article 11, which safeguards
associations against unjustified State interference. Seen from this
perspective, the right of believers to freedom of religion encompasses the
expectation that the community will be allowed to function peacefully, free
from arbitrary State intervention. The autonomous existence of religious
communities is indispensable for pluralism in a democratic society and is an
issue at the very heart of the protection which Article 9 affords. It directly
concerns not only the organisation of these communities as such but also the
effective enjoyment of the right to freedom of religion by all their active
members. Were the organisational life of the community not protected by Article
9, all other aspects of the individual’s freedom of religion would become
vulnerable (see Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 62,
ECHR 2000-XI; Metropolitan Church of Bessarabia and Others v. Moldova,
no. 45701/99, § 118, ECHR 2001-XII; and Holy Synod of the Bulgarian Orthodox
Church (Metropolitan Inokentiy) and Others v. Bulgaria, nos. 412/03
and 35677/04, § 103, 22 January 2009).
In accordance with the principle of autonomy,
the State is prohibited from obliging a religious community to admit new
members or to exclude existing ones. Similarly, Article 9 of the Convention
does not guarantee any right to dissent within a religious body; in the event
of a disagreement over matters of doctrine or organisation between a religious
community and one of its members, the individual’s freedom of religion is
exercised through his freedom to leave the community (see Miroļubovs
and Others v. Latvia, no. 798/05, § 80, 15 September 2009).
Lastly, where questions concerning the
relationship between the State and religions are at stake, on which opinion in
a democratic society may reasonably differ widely, the role of the national
decision-making body must be given special importance (see Leyla Şahin
v. Turkey [GC], no. 44774/98, § 109, ECHR 2005-XI). This will be the
case in particular where practice in European States is characterised by a wide
variety of constitutional models governing relations between the State and
religious denominations.
2. Application of the above principles in the present
case
The Court will ascertain whether, in view of their
status as members of the clergy, the applicant union’s members are entitled to
rely on Article 11 of the Convention and, if so, whether the refusal to
register the union impaired the very essence of their freedom of association.
(a) Applicability of Article 11 to the facts of the
case
The question whether the applicant union’s members
were entitled to form the union raises the issue of whether Article 11 was applicable
to them. On this point, the Grand Chamber does not share the Government’s view
that members of the clergy must be excluded from the protection afforded by Article
11 of the Convention on the ground that they perform their duties under the
authority of the bishop, and hence outside the scope of the domestic rules of
labour law.
It is not the Court’s task to settle the
dispute between the union’s members and the Church hierarchy regarding the
precise nature of the duties they perform. The only question arising here is
whether such duties, notwithstanding any special features they may entail,
amount to an employment relationship rendering applicable the right to form a
trade union within the meaning of Article 11.
In addressing this question, the Grand Chamber will
apply the criteria laid down in the relevant international instruments (see, mutatis
mutandis, Demir and Baykara, cited above, § 85). In this connection,
it notes that in Recommendation no. 198 concerning the employment relationship
(see paragraph 57 above), the International Labour Organisation considers that
the determination of the existence of such a relationship should be guided
primarily by the facts relating to the performance of work and the remuneration
of the worker, notwithstanding how the relationship is characterised in any
contrary arrangement, contractual or otherwise, that may have been agreed
between the parties. In addition, the ILO’s Convention no. 87 (see paragraph 56
above), which is the principal international legal instrument guaranteeing the
right to organise, provides in Article 2 that “workers and employers, without
distinction whatsoever” have the right to establish organisations of their own
choosing. Lastly, although Council Directive 78/2000/EC (see paragraph 60 above)
accepts the existence of a heightened degree of loyalty on account of the
employer’s ethos, it specifies that this cannot prejudice freedom of
association, in particular the right to establish unions.
Having regard to the above considerations, the
Court observes that the duties performed by the members of the trade union in
question entail many of the characteristic features of an employment
relationship. For example, they discharge their activities on the basis of a
decision by the bishop appointing them and setting out their rights and
obligations. Under the bishop’s leadership and supervision, they carry out the
tasks assigned to them; besides performing liturgical rites and maintaining
contact with parishioners, these include teaching and management of parish
assets; members of the clergy are also responsible for the sale of liturgical
items (see paragraph 44 above). In addition, domestic law provides for a
specific number of posts for members of the clergy and laity which are largely
funded from the State and local authority budgets, the post-holders’ wages
being set with reference to the salaries of Ministry of Education employees (see
paragraphs 30 et seq. above). The Romanian Orthodox Church pays employer’s
contributions on the wages paid to its clergy, and priests pay income tax,
contribute to the national social-security scheme and are entitled to all the
welfare benefits available to ordinary employees, such as health insurance, a
pension on reaching the statutory retirement age, or unemployment insurance.
Admittedly, as the Government pointed out, a
particular feature of the work of members of the clergy is that it also pursues
a spiritual purpose and is carried out within a church enjoying a certain
degree of autonomy. Accordingly, members of the clergy assume obligations of a
special nature in that they are bound by a heightened duty of loyalty, itself
based on a personal, and in principle irrevocable, undertaking by each clergyman.
It may therefore be a delicate task to make a precise distinction between the
strictly religious activities of members of the clergy and their activities of
a more financial nature.
However, the question to be determined is
rather whether such special features are sufficient to remove the relationship
between members of the clergy and their church from the ambit of Article 11. In
this connection, the Court reiterates that paragraph 1 of Article 11 presents
trade-union freedom as one form or a special aspect of freedom of association and
that paragraph 2 does not exclude any occupational group from the scope of that
Article. At most the national authorities are entitled to impose “lawful
restrictions” on certain of their employees in accordance with Article 11 § 2 (see
Tüm Haber Sen and Çınar v. Turkey, no. 28602/95, §§ 28 and 29, ECHR
2006-II). Moreover, other occupational groups, such as the police or the
civil service, are likewise subject to particular constraints and special
duties of loyalty without their members’ right to organise being called into
question (see, for example, National Union of Belgian Police, cited
above, § 40, and Demir and Baykara, cited above, § 107).
Furthermore, even assuming that members of the
Romanian Orthodox clergy may waive their rights under Article 11 of the
Convention, the Court observes that there is no indication in the present case that
the members of the applicant union agreed to do so on taking up their duties.
The Court further notes that the domestic
courts have already explicitly recognised the right of members of the clergy
and lay employees of the Romanian Orthodox Church to form a trade union (see
paragraphs 46 and 49 above).
Having regard to all the above factors, the Court
considers that, notwithstanding their special circumstances, members of the
clergy fulfil their mission in the context of an employment relationship
falling within the scope of Article 11 of the Convention. Article 11 is
therefore applicable to the facts of the case.
The Grand Chamber agrees with the parties that
the refusal to register the applicant union amounted to interference by the
respondent State with the exercise of the rights enshrined in Article 11 of the
Convention.
Such interference will not be compatible with
paragraph 2 of Article 11 unless it was “prescribed by law”, pursued one or
more legitimate aims and was “necessary in a democratic society” to achieve
those aims.
(b) Whether the interference was “prescribed by law”
and pursued one or more legitimate aims
The parties agreed that the interference in
issue had been based on the provisions of the Statute of the Romanian Orthodox
Church. However, they differed as to whether it had been “prescribed by law”.
The applicant union submitted that the
interference had had no legal basis in domestic law since the provisions of the
Church’s Statute, not ranking as an institutional Act, could not override the provisions
of the Constitution guaranteeing trade-union freedom. The Government disputed
that argument, submitting that as the Statute had been approved by a Government
ordinance, it formed part of domestic law.
The Court reiterates its settled case-law to
the effect that the expression “prescribed by law” not only requires that the
impugned measures should have some basis in domestic law, but also refers to
the quality of the law in question, which must be sufficiently accessible to
the person concerned and foreseeable as to its effects (see Rotaru v. Romania
[GC], no. 28341/95, § 52, ECHR 2000-V). It further reiterates that
the phrase “prescribed by law” refers in the first place to national law and
that it is not, in principle, for the Court to examine the validity of “secondary
legislation”, that being primarily a matter for the national courts (see Campbell v. the United Kingdom, 25 March
1992, § 37, Series A no. 233).
In the present case, it observes that neither
the Constitution nor the institutional Acts on trade unions and religious
freedom, nor indeed the Statute of the Church, expressly prohibit members of
the clergy or lay staff of the Church from forming trade unions. The domestic
courts have inferred such a prohibition from the provisions of the Church’s
Statute by which the establishment of Church associations and foundations is
the prerogative of the Holy Synod and the archbishop’s permission is required
for members of the clergy to take part in any form of association whatsoever.
The Court notes that the foreseeability and
accessibility of the above-mentioned provisions are not in issue here. It has
not been disputed that the applicant union’s members were aware of the relevant
provisions of the Statute, or that in the absence of permission from the
archbishop it was only to be expected that the Church would oppose their
request for registration of the union. Indeed, they maintained that they had
sought the archbishop’s permission, which had been refused following
intervention by the Holy Synod.
As to the applicant union’s main argument, namely
that although the Church’s Statute had been approved by the Government, its
provisions could not override those of the Constitution, the Grand Chamber considers
that this amounts to challenging the validity of domestic legislation on the
grounds that the provisions in issue are unconstitutional and disregard the
hierarchy of norms. However, it is not for the Court to examine this argument, which
concerns the validity of a form of “secondary legislation”. The interpretation
of the Contracting Parties’ domestic law is primarily a matter for the national
courts (see, among other authorities, Rekvényi v. Hungary [GC], no.
25390/94, § 35, ECHR 1999-III). In this connection, it must be pointed
out that the County Court, sitting as the court of final instance, confined
itself to a general observation that under Law no. 54/2003, internal
regulations could not contain any provisions that were in breach of the
Constitution or other laws. Unlike the Court of First Instance, it did not
examine the specific issue of whether the prohibition on forming a trade union
without the archbishop’s permission was compatible with the provisions of the
Constitution. However, the Court considers that since the County Court relied
on the Church’s Statute in its judgment, it implicitly took the view that the
provisions of the Statute were not unconstitutional.
Accordingly, the Court is prepared to accept,
as the national courts did, that the interference complained of had a legal
basis in the relevant provisions of the Statute of the Romanian Orthodox Church
and that these provisions satisfied the “lawfulness” requirements established
in its case-law (see, mutatis mutandis, Miroļubovs and Others,
cited above, § 78).
Lastly, the Grand Chamber agrees with the
parties that the interference pursued a legitimate aim under paragraph 2 of Article
11, namely the protection of the rights of others, and specifically those of the
Romanian Orthodox Church. Unlike the Chamber, it can see no reason to take into
account the additional aim of preventing disorder.
(c) As to whether the interference was “necessary in
a democratic society”
In the Court’s opinion, it is the domestic
courts’ task to ensure that both freedom of association and the autonomy of
religious communities can be observed within such communities in accordance
with the applicable law, including the Convention. Where interferences with the
right to freedom of association are concerned, it follows from Article 9 of the
Convention that religious communities are entitled to their own opinion on any collective
activities of their members that might undermine their autonomy and that this opinion
must in principle be respected by the national authorities. However, a mere
allegation by a religious community that there is an actual or potential threat
to its autonomy is not sufficient to render any interference with its members’
trade-union rights compatible with the requirements of Article 11 of the
Convention. It must also show, in the light of the circumstances of the individual
case, that the risk alleged is real and substantial and that the impugned
interference with freedom of association does not go beyond what is necessary
to eliminate that risk and does not serve any other purpose unrelated to the
exercise of the religious community’s autonomy. The national courts must ensure
that these conditions are satisfied, by conducting an in-depth examination of
the circumstances of the case and a thorough balancing exercise between the
competing interests at stake (see, mutatis mutandis, Schüth v.
Germany, no. 1620/03, § 67, ECHR 2010, and Siebenhaar v. Germany,
no. 18136/02, § 45, 3 February 2011).
While the State generally enjoys a wide margin
of appreciation in cases such as the present one, where a balance has to be
struck between competing private interests or different Convention rights (see,
mutatis mutandis, Evans v. the United Kingdom [GC], no.
6339/05, § 77, ECHR 2007-I), the outcome of the application should not,
in principle, vary according to whether it was lodged with the Court under Article
11 of the Convention, by the person whose freedom of association was restricted,
or under Articles 9 and 11, by the religious community claiming that its right
to autonomy was infringed.
The central issue in the present case is the
non-recognition of the applicant union. In the proceedings before the courts
with jurisdiction to examine the union’s application for registration, the
Archdiocese, which was opposed to its recognition, maintained that the aims set
out in the union’s constitution were incompatible with the duties accepted by
priests by virtue of their ministry and their undertaking towards the
archbishop. It asserted that the emergence within the structure of the Church
of a new body of this kind would seriously imperil the freedom of religious
denominations to organise themselves in accordance with their own traditions,
and that the establishment of the trade union would therefore be likely to undermine
the Church’s traditional hierarchical structure; for these reasons, it argued
that it was necessary to limit the trade-union freedom claimed by the applicant
union.
. Having
regard to the various arguments put forward before the domestic courts by the
representatives of the Archdiocese of Craiova, the Court considers that it was
reasonable for the County Court to take the view that a decision to allow the
registration of the applicant union would create a real risk to the autonomy of
the religious community in question.
. In
this connection, the Court observes that in Romania, all religious
denominations are entitled to adopt their own internal regulations and are thus
free to make their own decisions concerning their operations, recruitment of
staff and relations with their clergy (see paragraph 29 above). The principle of
the autonomy of religious communities is the cornerstone of relations between
the Romanian State and the religious communities recognised within its
territory, including the Romanian Orthodox Church. As the Government indicated,
members of the Romanian Orthodox clergy, and hence the priests belonging to the
applicant union, perform their duties by virtue of their ministry, their
undertaking towards the bishop and the decision issued by the latter; the Romanian
Orthodox Church has chosen not to incorporate into its Statute the labour law
provisions which are relevant in this regard, a choice that has been approved
by a Government ordinance in accordance with the principle of the autonomy of
religious communities.
Having regard to the aims
set forth by the applicant union in its constitution, in particular
those of promoting initiative, competition and freedom of expression among its
members, ensuring that one of its members took part in the Holy Synod, requesting
an annual financial report from the archbishop and using strikes as a means of
defending its members’ interests, the Court does not consider that the judicial
decision refusing to register the union with a view to respecting the autonomy
of religious denominations was unreasonable, particularly in view of the State’s
role in preserving such autonomy.
In this connection, the Court observes that it
has frequently emphasised the State’s role as the neutral and impartial
organiser of the practice of religions, faiths and beliefs, and has stated that
this role is conducive to public order, religious harmony and tolerance in a
democratic society, particularly between opposing groups (see, among other
authorities, Hasan and Chaush, cited above, § 78, and Leyla
Şahin, cited above, § 107). It can only confirm this position in the
present case. Respect for the autonomy of religious communities recognised by
the State implies, 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 is therefore not the task of the national authorities to act
as the arbiter between religious communities and the various dissident factions
that exist or may emerge within them.
Having regard to all the information in its
possession, the Court shares the respondent Government’s view that in refusing
to register the applicant union, the State was simply declining to become involved
in the organisation and operation of the Romanian Orthodox Church, thereby observing
its duty of neutrality under Article 9 of the Convention. It remains to be
determined whether the examination carried out by the County Court in refusing
the union’s application satisfied the conditions for ensuring that the refusal
of its registration was necessary in a democratic society (see paragraph 159
above).
The majority of the Chamber answered this question
in the negative. They held that the County Court had not taken sufficient
account of all the relevant arguments, having justified its refusal to register
the trade union on purely religious grounds based on the provisions of the
Church’s Statute (see paragraphs 77 et seq. of the Chamber judgment).
The Grand Chamber does not agree with that
conclusion. It observes that the County Court refused to register the applicant
union after noting that its application did not satisfy the requirements of the
Church’s Statute because its members had not complied with the special
procedure in place for setting up an association. It considers that by taking
this approach, the County Court was simply applying the principle of the autonomy
of religious communities; its refusal of the applicant union’s registration for
failure to comply with the requirement of obtaining the archbishop’s permission
was a direct consequence of the right of the religious community concerned to make
its own organisational arrangements and to operate in accordance with the
provisions of its Statute.
Furthermore, the applicant union did not put
forward any reasons to justify its failure to request permission formally from
the archbishop. Nevertheless, the national courts compensated for this omission
by obtaining the opinion of the Archdiocese of Craiova and examining the
reasons it gave. The County Court concluded, endorsing the reasons put forward
by the Archdiocese of Craiova, that if it were to authorise the establishment
of the trade union, the consultative and deliberative bodies provided for by
the Church’s Statute would be replaced by or obliged to work together with a
new body - the trade union - not bound by the traditions of the Church and the
rules of canon law governing consultation and decision-making. The review
undertaken by the court thus confirmed that the risk alleged by the Church
authorities was plausible and substantial, that the reasons they put forward
did not serve any other purpose unrelated to the exercise of the autonomy of
the religious community in question, and that the refusal to register the
applicant union did not go beyond what was necessary to eliminate that risk.
More generally, the Court observes that the
Statute of the Romanian Orthodox Church does not provide for an absolute ban on
members of its clergy forming trade unions to protect their legitimate rights
and interests. Accordingly, there is nothing to stop the applicant union’s
members from availing themselves of their right under Article 11 of the
Convention by forming an association of this kind that pursues aims compatible with
the Church’s Statute and does not call into question the Church’s traditional
hierarchical structure and decision-making procedures. The Court notes that the
applicant union’s members are also free to join any of the associations currently
existing within the Romanian Orthodox Church which have been authorised by the
national courts and operate in accordance with the requirements of the Church’s
Statute (see paragraph 52 above).
Lastly, the Court takes note of the wide
variety of constitutional models governing relations between States and
religious denominations in Europe. Having regard to the lack of a European
consensus on this matter (see paragraph 61 above), it considers that the State
enjoys a wider margin of appreciation in this sphere, encompassing the right to
decide whether or not to recognise trade unions that operate within religious
communities and pursue aims that might hinder the exercise of such communities’
autonomy.
In conclusion, regard being had to the reasons
set out in its judgment, the County Court’s refusal to register the applicant
union did not overstep the margin of appreciation afforded to the national
authorities in this sphere, and accordingly was not disproportionate.
There has therefore been no violation of Article
11 of the Convention.
FOR THESE REASONS, THE COURT
1. Holds, unanimously, that the Government
are estopped from raising the issue of the anonymity of the application;
2. Holds, unanimously, that the applicant
union is estopped from alleging a violation of Article 34 of the Convention on
account of events that took place before the delivery of the Chamber judgment
and that, as regards events occurring after that date, the respondent State has
not breached its obligations under Article 34 of the Convention;
3. Holds, by eleven votes to six, that there
has been no violation of Article 11 of the Convention.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 9 July 2013.
Michael O’Boyle Dean
Spielmann
Deputy Registrar President
In accordance with Article 45 § 2
of the Convention and Rule 74 § 2 of the Rules of Court, the following separate
opinions are annexed to this judgment:
(a) concurring opinion of Judge Wojtyczek;
(b) joint partly dissenting opinion of Judges
Spielmann, Villiger, López Guerra, Bianku, Møse and Jäderblom.
D.S.
M.O’B.
CONCURRING OPINION OF JUDGE WOJTYCZEK
(Translation)
1. I fully agree with the majority’s conclusion
that there has been no violation of the Convention in the present case. However,
I do not share all the opinions expressed in the reasoning of the judgment. My
doubts concern in particular the applicability to members of the clergy of
trade-union freedom as defined in Article 11 of the Convention.
2. In the present case, three important principles
relating to the interpretation of the Convention need to be emphasised.
Firstly, the interpretation of a provision of this international
treaty is based on the principle of its unity. Accordingly, any Article of the
Convention must be interpreted in the light of all the provisions of the
Convention and the Protocols thereto that have been ratified by all member
States of the Council of Europe. While such an approach will not eliminate all
conflicts between rights in concrete situations, it will nevertheless reduce
their number.
Secondly, as the majority rightly note, the models governing religious
denominations vary greatly within the High Contracting Parties. Such diversity
is an important argument in favour of allowing States a wide margin of
appreciation in this sphere. Furthermore, in defining the extent of this
margin, regard should be had to religious diversity in Europe. Religious
pluralism is reflected in particular through the varying definitions of the
duties of a minister of religion in different faiths.
Thirdly, according to the Preamble to the Convention,
fundamental freedoms are best maintained by an “effective political democracy”.
In addition, any restrictions on the various freedoms safeguarded by the Convention
must be “necessary in a democratic society”. The interpretation of the
Convention must therefore have due regard for the democratic ideal. Among the
different characteristics of a democratic State, the principle of State
subsidiarity should not be overlooked. A democratic society will flourish in a
subsidiary State which observes the autonomy of the various communities of
which it is made up. Such legitimate autonomy may be reflected, for example, in
self-regulation by means of extra-legal rules of conduct produced or accepted
by different social groups.
3. Under Article 11 §
1 of the Convention, everyone has the right to freedom of peaceful assembly and
to freedom of association with others, including the right to form and to join
trade unions for the protection of his interests. It is not in doubt that
members of the clergy are entitled to freedom of peaceful assembly and freedom
of association in general. The question arising is that of the personal scope
of the right to form or join trade unions.
Trade-union freedom is a fundamental freedom safeguarded by
the Convention. Trade unions are associations formed with a view to protecting
the rights and interests of workers and employees in their dealings first and
foremost with their employers and also with the public authorities. While
Article 11 of the Convention does not explicitly exclude any particular
occupational group, it is clear that trade-union freedom, as enshrined in that
Article, applies to all those who carry on a gainful occupation involving a
relationship of subordination vis-à-vis the person they are working for.
4. Article 9 § 1 of the Convention
provides that everyone has the right to freedom of thought, conscience and
religion. Freedom of religion has a collective dimension and, among other
things, presupposes the autonomy of religious denominations. This autonomy
includes in particular the freedom of each religious community to define its
internal structure, the duties of members of the clergy and their status within
the community. Any restriction of the autonomy of religious communities must be
justified by the need to implement the values safeguarded by the Convention. The
Romanian Orthodox Church, like other denominations, enjoys a substantial degree
of autonomy, which is protected by the Convention.
5. Trade-union freedom, as safeguarded by Article 11
of the Convention, must be interpreted in the light of Article 9 in particular.
The mission pursued by members of the clergy has a spiritual dimension, which
is defined by the doctrine of each different religion. While this definition
varies considerably from one religion to another, it is nevertheless necessary
to take it into account in analysing the legal bond between members of the
clergy and their religious community. As the majority note, this bond results
from a personal undertaking by members of the clergy. It should be added that
the undertaking in question is given freely and, by its nature and depth, goes
beyond any professional undertaking arising from a relationship governed by
labour law. Furthermore, when asking the religious community to entrust him
with the mission of a member of the clergy, the person concerned freely
undertakes to abide by the internal regulations issued by the community. Thus,
the ecclesiastical members of the applicant union freely undertook, among other
things, not to form a trade union without the blessing of their bishop.
Admittedly, as the majority note, the undertaking given by a member of the
clergy is in principle supposed to be irrevocable, but everyone nevertheless
retains freedom of choice and, in practice, may decide unilaterally to
relinquish his duties, even if this means breaching the rules of religious law.
6. The majority have examined the special nature of
the legal bond between members of the clergy and their church in the light of
the various criteria for establishing the existence of an employment
relationship. In so doing, they have rightly noted that the work done by
members of the clergy has a number of special features.
It should be noted that an employment relationship is both
reciprocal and economic in nature: the remuneration paid by the employer serves
as consideration for the economic resources generated by the employee.
An analysis of the work done by members of the clergy must
take into account the spiritual dimension of their mission. The value of their
work does not lend itself to economic assessment. Moreover, whereas the main
purpose of engaging in gainful employment is to secure income, the mission of a
member of the clergy is of a different nature. It should be noted in this
connection that while the State funds the salaries of members of the clergy in
Romania and a number of other countries, the same duties are carried out in
other European countries without any remuneration, whether from the State or
the religious community. In many monastic communities, members take a vow of
poverty. The legal relationship between a member of the clergy and the
religious community is not of a reciprocal nature.
In this context it is difficult to treat the very specific
mission of a member of the clergy as an occupation carried on for the benefit
and on behalf of another individual or entity. The fact that religious
communities in some States, for various reasons, apply certain provisions of
labour law to their relations with members of the clergy does not erase this
fundamental distinction.
It should also be noted that social-security systems may extend
to different groups of people who are not engaged in gainful employment. The
fact that a person is covered by a social-security system does not form a basis
for concluding that the person has entered into a legal relationship governed
by labour law.
7. In view of the specific nature of the mission
undertaken by members of the clergy, it is difficult to conclude that the part
of Article 11 of the Convention relating to trade-union freedom is applicable
in the present case. The application of the provisions of labour law to the
relationship between a religious community and its clergy in certain States
does not result from an obligation under the Convention.
JOINT PARTLY DISSENTING OPINION OF JUDGES SPIELMANN,
VILLIGER, LÓPEZ GUERRA, BIANKU, MøSE
AND JÄDERBLOM
1. We are not in disagreement
with the Grand Chamber’s findings acknowledging that members of the Romanian
Orthodox clergy fulfil their mission in the context of an employment
relationship within the Church and that, as a consequence, (1) the Article 11
guarantees concerning the right to form and to join trade unions for the defence
of employees’ interests are applicable to this case, and (2) the Romanian
courts’ refusal to register the applicant union therefore constitutes an
interference in the exercise of that right (see paragraphs 149 and 150 of the
judgment).
2. However, in its judgment the Grand Chamber did
not arrive at the conclusion that should have been drawn in the circumstances
of the present case from the above-mentioned premises: that the Romanian
courts’ refusal to register the applicant union constituted a violation of its
right to freedom of association under Article 11 of the Convention.
3. As an essential element of social dialogue
between workers and employers, freedom to join trade unions is recognised in
the Convention as a special aspect of freedom of association that must be
protected against arbitrary interference from public authorities. According to
the Court’s case-law, the exceptions provided for in Article 11 § 2 must be
strictly construed. Only convincing and compelling reasons can justify
restricting freedom of association (see Demir and Baykara v. Turkey, no.
34503/97, §§ 96 et seq., ECHR 2008). This right certainly includes the right to
form trade unions. In this connection it should be noted that Article 7 of ILO
Convention No. 87 on Freedom of Association and Protection of the Right to
Organise provides that the acquisition of legal personality by workers’ organisations
cannot be subject to conditions that would undermine that right.
4. In this case, the Dolj County Court refused the
applicant union’s application for registration in very general and succinct
terms. In doing so it overturned a prior judgment of the Craiova Court of First
Instance granting the union’s application for registration in the register of trade
unions, which had been supported by the public prosecutor (see paragraphs 12
and 15 of the judgment). The County Court thus endorsed the position of the
appellant, the Archdiocese of Craiova, based on the absence of permission from
the bishop to form the trade union and the freedom of religious denominations
to organise themselves (see paragraph 18).
5. In their observations before the Grand Chamber,
the Government alleged that the County Court’s decision was based on existing
law, pursued a legitimate aim (preserving the autonomy of religious
communities) and was proportionate and necessary in a democratic society. We
can accept, as the majority of the Grand Chamber did, that the County Court’s
decision was based on existing law and pursued a legitimate aim. We do not
agree, however, with the assertion that its decision was a proportionate or
necessary measure for preserving the autonomy of the Romanian Orthodox Church.
In the circumstances of the case, the County Court, by unreservedly adopting
the Archdiocese’s position, did not take into account the competing interests
and did not perform a balancing exercise to assess the proportionality of the
adopted measure in relation to the applicant union’s rights. We consider that such
an exercise would have concluded that the autonomy of the Romanian Orthodox
Church and its freedom from any external or internal interference would not
have been jeopardised by the recognition of the applicant union, with respect
to either its doctrine (principles and beliefs) or its organisational
operations.
6. Concerning the Church’s autonomy in establishing
its own doctrine, the applicant union’s constitution explicitly specified that
it intended to fully observe and apply ecclesiastical rules, including Church
statutes and canons. Moreover, neither the applicant union’s constitution nor
its members’ statements contain any criticism of the Church or of the Orthodox
faith. The applicant union’s demands were exclusively limited to protecting its
members’ professional, economic, social and cultural rights and interests.
7. Concerning the Church’s autonomy with respect to
its internal operations, the Government and the intervening third parties
maintained that the union’s activities would negatively affect the
institutional autonomy of the Church by creating a parallel authority within
the Romanian Orthodox organisation. However, the union’s programme clearly
indicates that its sole purpose would have been to defend the interests of its
members, proposing a series of measures in that regard and not claiming any
decision-making powers within the Church. The programme sought to represent the
union within certain Church bodies. And the union’s proclaimed objectives were
not to replace Church authorities with union ones, but rather to present and
defend proposals before those authorities on behalf of union members, on no account
assuming Church functions.
8. The Government also claimed that the union’s
activities might disrupt Church operations, citing possible strikes as an
example. But this is a different question from the Romanian authorities’
registration of the union, since it addresses the union’s possible future
conduct. Indeed, this argument, which did not form part of the national courts’
assessment of the applicant union’s application for registration, is highly
speculative. The drastic measure of refusing to register a trade union solely
on the basis of part of its programme can only be justified in cases of serious
threats or if the programme’s goals are incompatible with democratic principles
or are manifestly unlawful (see, mutatis mutandis, United Communist
Party of Turkey and Others v. Turkey, 30 January 1998, § 58, Reports of
Judgments and Decisions 1998-I; Refah Partisi (The Welfare Party) and
Others v. Turkey [GC], nos. 41340/98, 41342/98, 91343/98 §§ 107 et
seq., and Gorzelik and Others v. Poland [GC], no. 44158/98, § 103, ECHR
2004-I). Furthermore, even after registration, the union’s members would still
have remained within the administrative structure of the Church and subject to
its internal regulations, which imposed special duties on them as members of
the clergy. Nor would the Church or national authorities have been powerless to
deal with any activities of the union contravening those special duties.
Measures compatible with Article 11 § 2 of the Convention could certainly have
been applied. Specifically, to address the perceived dangers alluded to by the Romanian
Government regarding the applicant union’s potential right to strike - although
this is certainly one of the most important union rights - the Grand Chamber
judgment should have taken into account two aspects of the Court’s case-law: (1)
the right to strike is not an absolute right (see Schmidt and Dahlström v.
Sweden, 6 February 1976, § 36, Series A no. 21, and Dilek and Others v.
Turkey, nos. 74611/01, 26876/02 and 27628/02, § 68, 17 July 2007), and
(2) limitations on the right to strike may under certain circumstances be permissible
in a democratic society (see UNISON v. the United Kingdom (dec.) no.
53574/99, ECHR 2002-I; Federation of Offshore Workers’ Trade Unions and
Others v. Norway (dec.), no. 38190/97, ECHR 2002-VI; and Enerji Yapı-Yol
Sen v. Turkey, no. 68959/01, § 32, 21 April 2009).
9. There are additional reasons for discarding the
argument that registering the applicant union would in any way have compromised
the Church’s activities or threatened its autonomy. First and foremost is the
fact that the Romanian courts had already recognised the right of Church
employees, both lay and clergy, to form trade unions, having granted legal personality
to two unions for members of the Orthodox clergy, Solidaritatea and Sfântul
Mare Mucenic Gheorghe (see paragraphs 46 and 49 of the judgment). And there is
no indication, either in the Government’s observations or in the information
available to the Court, that the existence of these two unions has in any way
undermined the autonomous operations of the Romanian Orthodox Church.
10. Furthermore, and from a more general point of
view, the unnecessary and disproportionate nature of the refusal to register
the applicant union is reinforced by the fact that although constitutional
models governing relations between the different European States and religious
denominations vary greatly, none of them excludes members of the clergy from
the right to form trade unions. In some countries, they are even expressly
afforded that right (see paragraph 61 of the judgment).
11. In view of the foregoing, the Grand Chamber
should have found that the Dolj County Court’s decision denying the applicant
union registration on account of the lack of permission from the bishop did
violate its right to freedom of association under Article 11 of the Convention.
