DISSENTING OPINION OF JUDGE PEJCHAL

When reading the present judgment, which was voted for by the majority of judges in the Grand Chamber, utterly fundamental questions spring importunately to mind. Is it possible and at the same time humanly acceptable within the simplest conception of humanity to adopt such a decision? In other words, is it possible that a citizen of a member State of the Council of Europe can find himself outside the jurisdiction of the member State (and thereby outside the jurisdiction of the Convention) as regards litigation pertaining to the sole income received by him and his family, that situation being due only to the fact that the opposite party in the lawsuit is a church? A church registered by that State, that is, a church which is obliged to abide by the law of that State, failing which its registration would be refused by the State. Is such a judgment bearable and thus acceptable not only for the applicant but also for the church as the other party to the dispute? At the same time, is it bearable and thus acceptable for the community of free citizens who make up the Hungarian state? Does this judgment really have its place in contemporary European civilisation?

Can the answer be: yes, the majority of judges are wrong? Is that not merely a display of my pride and incomprehension, taking into account the incontestable cognisance of the fact that my colleagues approached the case as always in an absolutely conscientious and responsible way? Being aware of one ’ s own responsibility and conscientiousness, there is no other way but to disagree and to take a divergent stand.

There are cases before this Court which cannot be rejected only with reference to the case-law, although such a method seems to be correct in a large majority of cases. That is, with reference to already existing interpretation of the Convention and its Protocols in cases similar to, but never entirely the same as, the instant case. This is one of those exceptional cases which require consideration solely by virtue of the text of the Convention interpreted in the most restrained way.

Why was the Convention adopted? First and foremost because the High Contracting Parties

“ ... reaffirm their profound belief in those fundamental freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the Human Rights upon which they depend.”

And for those reasons:

“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.”

The story of the applicant is quite simple. For many years he lived in a small Hungarian town in which he, as a pastor, performed duties for his church, which provided him with remuneration. The contract which he entered into with the church guaranteed him not only income but also accommodation in a house with a garden where he lived with his family. The church considered the applicant as their employee and he believed the same. After all, he could not have believed otherwise, for the church stated, and still states, on their official website (http://www.reformatus.hu/english), that “[t]he Reformed Church in Hungary has 7,500 employees, of which 1,550 are ministers”.

One day the applicant came into conflict with his church, which took disciplinary action against him. For several months he was not able to perform his pastoral duties in full and, pursuant to church regulations, he was entitled only to one half of his regular income. Humbly accepting the punishment, the applicant and his family were ready to tighten their belts for some time. But he did not receive anything else from his church.

The applicant turned with trust to the State of which he was a citizen seeking help in resolving his problem through a court of law. He expected the court to aspire to a settlement between him and the church or, failing that, to give a ruling on their dispute. His trust was justified. He knew that the Hungarian Constitution read as follows:

“In the Republic of Hungary everyone is equal before the law and has the right to have the accusations brought against him/her, as well as his/her rights and duties in legal proceedings, judged in a just, public trial by an independent and impartial court established by law.”

And he also knew that it provided for the following:

“(1) In the Republic of Hungary everyone has the right to work and to freely choose his job and profession.

(2) Everyone has the right to equal compensation for equal work, without any discrimination whatsoever.

(3) All persons who work have the right to an income that corresponds to the amount and quality of work they carry out.”

He even had knowledge of this provision:

“ (1) In the Republic of Hungary everyone has the right to freedom of thought, freedom of conscience and freedom of religion.

(2) This right shall include the free choice or acceptance of a religion or belief, and the freedom to publicly or privately express or decline to express, exercise and teach such religions and beliefs by way of religious actions, rites or in any other way, either individually or in a group.

(3) The church and the State shall operate in separation in the Republic of Hungary. ”

The applicant duly paid all income taxes to the State in respect of the salary he received from the church.

The applicant could have been aware of the fact that in Hungary the State and the church are separated under the Constitution, but he could as well logically have held the opinion that he himself was not the church. He, as a church employee, was actually in conflict with the church. Who else other than an independent and impartial court, to which everyone has a right to turn pursuant to the Constitution, could find a solution to a dispute for a Hungarian citizen? But the Hungarian courts refused to deal with the applicant ’ s case, for it allegedly did not fall within their jurisdiction. This is the whole story. From the point of view of the Convention, there is nothing else to be stated.

It remains to be recalled that the general rule of interpretation of international treaties, which is provided for in the Vienna Convention on the Law of Treaties, in Article 31 §1, reads as follows:

“A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”

Is it really possible to find an interpretation of the Convention, within the meaning of the Vienna Convention on the Law of Treaties, which would not enable the applicant to claim a violation of Article 6 § 1 of the Convention?

Is it really possible to find an interpretation of the Convention, within the meaning of the Vienna Convention on the Law of Treaties, which would duly justify an alleged violation of the right to freedom of thought, conscience and religion (Article 9 of the Convention) of an unspecified person, the violation being constituted by the fact that the applicant ’ s dispute with the church concerning an exclusively financial matter would be dealt with by a court within the meaning of Article 6 § 1 of the Convention? How could one even prove the existence of the freedom of thought, conscience and religion of a legal person such as a church?

Is it really possible to find such an interpretation of the Convention, within the meaning of the Vienna Convention on the Law of Treaties, in a case where the European Court of Human Rights as well as the national courts of a member State, which is a democratic State governed by the rule of law, pay no attention to a dispute concerning the basic means of subsistence of the applicant and his family? Is it really possible to interpret the separation of the church and the State in such a way and to leave aside a decent citizen of a democratic State governed by the rule of law?

All these questions have already been answered in detail in the past.

By John Rawls in his Theory of Justice :

“Justice is the first virtue of social institutions, as truth is of systems of thought. A theory however elegant and economical must be rejected or revised if it is untrue; likewise laws and institutions no matter how efficient and well-arranged must be reformed or abolished if they are unjust. Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override. For this reason justice denies that the loss of freedom for some is made right by a greater good shared by others. It does not allow that the sacrifices imposed on a few are outweighed by the larger sum of advantages enjoyed by many. Therefore in a just society the liberties of equal citizenship are taken as settled; the rights secured by justice are not subject to political bargaining or to the calculus of social interests. The only thing that permits us to acquiesce in an erroneous theory is the lack of a better one; analogously, an injustice is tolerable only when it is necessary to avoid an even greater injustice. Being first virtues of human activities, truth and justice are uncompromising.”

By Friedrich August von Hayek in his Law, Legislation and Liberty :

“Such states as ‘ ownership ’ have no significance except through the rules of conduct which refer to them; leave out those rules of just conduct which refer to ownership, and nothing remains of it.”

By Herbert Lionel Adolphus Hart in his The Concept of Law :

“It may be said that the distinction between a good legal system which conforms at certain points to morality and justice, and a legal system which does not, is a fallacious one, because a minimum of justice is necessarily realized whenever human behaviour is controlled by general rules publicly announced and judicially applied. Indeed we have already pointed out, in analysing the idea of justice, that its simplest form (justice in the application of the law) consists in no more than taking seriously the notion that what is to be applied to a multiplicity of different persons in the same general rule, undeflected by prejudice, interest, or caprice.”

In view of the aforementioned, it is hard to agree with the opinion of the majority that in the applicant ’ s case the member State did not breach Article 6 § 1 of the Convention, as the reverse is an absolutely irrefutable fact. This statement is, at the same time, a manifestation of the deepest humbleness vis-à-vis the existing system of international law and the constitutional order of Hungary within the spontaneous order of free citizens.

[1] Paragraph 15 of the j udgment: “III. For the period between 1 May 2005 and 30 April 2006 (12 months) the unpaid teaching fees …”.

[2] It is to be noted that the Church has adopted an inconsistent position with regard to the nature of pecuniary claims. It assert s that the pecuniary claims made against the pastor, including back payments for the use of a service apartment, are of a ‘secular nature’. In the case of non-payment, the Church would sue the pastor under civil law in a [State] court under the Civ il Procedure Act (see Annex V, a pplicant’s observations ). In the proceedings for damages for the non-observance of the agency contract, the defendant Church requested that the claim be rejected and claimed that another body of the Church could be sued. Moreover, the Church presented a counterclaim to offset the use of the apartment (this matter is neither specified in the judgment of the court of first instance nor in the plaintiff’s pleadings before the court of first instance).

[3] According to the teaching of some churches , priestly service is sacerdotium ; in other words the priest serves God, and his sacrament - related activities cannot be seen as regulated by contract between humans.

[4] Fernandez Martinez v. Spain, cited above, § 132 :

“ Limits to the autonomy

132. [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’ rights to respect for their private or family life compatible with Article 8 of the Convention. In addition, the religious community in question must also show, in the light of the circumstances of the individual case, that the risk alleged is probable and substantial and that the impugned interference with the right to respect for private life 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. Neither should it affect the substance of the right to private and family life. 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 , Sindicatul “Păstorul cel Bun ”, cited above, § 159).”

Property rights deserve a level of protection comparable to that of private life and the protection cannot be made subject to circular procedural obstacles.

[5] I am referring to the Supreme Court decision of 28 May 2009 (“the decision”). See paragraph 24 of the judgment.

[6] For the purposes of this opinion, immunity from liability or substantive immunity is understood as a limitation on a cause of action due to the inexistence of the claimed right in the domestic legal order.

[7] For the purposes of this opinion, immunity from suit or procedural immunity is understood as an exemption from the jurisdiction of national courts. The effect of this immunity is that the suing person will be denied access to a court because his or her claim against the holder of the immunity is thus barred.

[8] See, among many other authorities, Baka v. Hungary [GC], no. 20261/12, § 100, ECHR 2016 ; Boulois v. Luxembourg [GC], no. 37575/04, § 90, ECHR 2012 ; and Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 42, ECHR 2015.

[9] See, for example, James and Others v. the United Kingdom , no. 8793/79, 21 February 1986, § 81 , Series A no. 98 ; Lithgow v. the United Kingdom , no. 9006/80, 8 July 1986, § 192 , Series A no. 102 ; Holy Monasteries v. Greece , no. 13092/87, 9 December 1994, § 80 , Series A no. 301-A ; Roche v. the United Kingdom [GC], no. 32555/96, § 119, ECHR 2005 X ; and Boulois , cited above, § 91.

[10] See, as a most recent authority, Al-Dulimi and Montana Management Inc. v. Switzerland [GC], no. 5809/08, § 97, ECHR 2016.

[11] Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 41, ECHR 2007-II, and Boulois , cited above, § 9 4 .

[12] Georgiadis v. Greece , 29 May 1997, § 30 , Reports of Judgments and Decisions 1997 ‑ III, ; Micallef v. Malta [GC], no. 17056/06, § 74, ECHR 2009 ; and J.S. and A.S. v. Poland , no. 40732/98, § 46, 24 May 2005.

[13] Ibid . , § 91.

[14] See Boulois , cited above, § 93.

[15] See, among other authorities, Feldbrugge v. the Netherlands , 29 May 1986, Series A no. 99; Deumeland v. Germany , 29 May 1986, Series A no. 100; and Salesi v. Italy , 26 February 1993, Series A no. 257-E. In fact, the absence of a uniform European view was precisely the main point made by the dissenting judges in Feldbrugge and in Deumeland . The majority considered that they were wrong and subsequent case- law confirmed the majority’s view .

[16] See Stichting Mothers of Srebrenica and Others v. the Netherlands (dec.), no. 65542/12, § 120, ECHR 2013 (extracts).

[17] See Z. and Others v. the United Kingdom [GC], no. 29392/95, § 89, ECHR 2001 V.

[18] See Běleš and Others v. the Czech Republic , no. 47273/99, § 49, ECHR 2002-IX.

[19] See Cudak v. Lithuania [GC], no. 15869/02, § 54, ECHR 2010; Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 43, ECHR 2001-VIII; and Golder v. the United Kingdom , 21 February 1975, § 36, Series A no. 18. It is telling that the United Kingdom and the three dissenters in the Golder case argued that an extensive interpretation of Article 6 of the Convention, in the sense that it also included the right of access to a court, would impose new and therefore illegitimate obligations on the Contracting Parties.

[20] See Roche , cited above, §§ 116-17.

[21] See Markovic and Others v. Italy [GC], no. 1398/03, § 98, ECHR 2006 XIV with further references.

[22] König v. Germany , no. 6223/73, 28 June 1978, §§ 89-90 , Series A 27 .

[23] See the above-mentioned Golder judgment, § 38, quoting the “ Belgian Linguistic ” judgment of 23 July 1968, § 5 , Series A no. 6 .

[24] Normally, the Court finds that immunities serve legitimate aims (see on immunity of international organisations, Waite and Kennedy v. Germany [GC], no. 26083/94, § 61, ECHR 1999-I, and on parliamentary immunity, A. v. the United Kingdom , no. 35373, § 77, ECHR 2002-X). T he Court’s assessment may be determined by the “unique circumstances” of the case, as in Prince Hans-Adam II von Liechtenstein , cited above, § 59. Sometimes the Court does not respond specifically to the submission that the immunity’s aim is illegitimate, such as in Al ‑ Adsani v. the United Kingdom [GC], no. 35763/97, § 47, ECHR 2001 ‑ XI, and McElhinney v. Ireland , no. 31253/96, 21 November 2001.

[25] Established in the leading case Ashingdane v. the United Kingdom , no. 8225/78, 28 May 1985, § 57 , Series A no. 93, and since then followed in many others, such as Levages Prestations Services v. France , 23 October 1996, § 40 , Reports 1996-V ; , Waite and Kennedy, cited above, § 59 ; Cudak , cited above, § 55 ; and Stichting Mothers of Srebrenica and Others v. the Netherlands (dec.), no. 65542/12, § 139, ECHR 2013 (extracts).

[26] See, among other authorities , Waite and Kennedy , cited above, §§ 68 and 73, and Beer and Regan v. Germany , no. 28934/95, §§ 58 and 63, 18 February 1999. Sometimes the Court’s circumvents the question of the protection of the right’s essence (see for example the approach of the Prince Hans Adam II von Liechtenstein judgment, which was critici s ed by Judge Costa, in his separate opinion, a s “unorthodox and illogical”).

[27] See Roche , cited above, § 124 , and Z. and Others , cited above, § 100.

[28] See Markovic and Others , cited above, § 114 , and Müller v. Germany (dec.), no. 12986/04, 6 December 2011.

[29] This was the Commission’s position from Agee v. the United Kingdom , no. 7729/76, Commission decision of 17 December 1976, DR 7 , p. 175, followed in Dyer v. the United Kingdom , no. 10475/83, Commission decision of 9 October 1984, DR 39, p. 251. According to the Commission, the immunity led to the extinction of the cause of action, even though the right claimed by the plaintiff might generally exist under domestic law.

[30] See Roche , cited above, §§ 116-17.

[31] See Osman v. the United Kingdom [GC], no.23452/94, 28 October 1998, §§ 151-152 , ECHR 1998-VIII.

[32] See Lord Hoffman, “ Human Rights and the House of Lords ” , MLR 1999, p. 162 ; Barrett, “ Negligence and Discretionary Powers ” , Public L aw 1999, p. 630, Weir, “ Down the hill – all the way? ” , CLJ 1999, p. 4 ; Lunney, “ A Tort Lawyer’s View of Osman v. the United Kingdom ” , KCLJ 1999, p. 238 ; Gearty, “ Unravelling Osman ” , MLR 2001, p. 159 ; Lidbetter/George, “ Negligent Public Authorities and convention rights – The Legacy of Osman ” , EHRLR 2001, p. 599 ; and Kickman, “ The “uncertain shadow”: Throwing Light on the Right to a Court under Article 6 (1) ECHR ” , Public Law 2004, p. 122.

[33] Lord Hoffmann, cited above, p. 164.

[34] Z. and Others , cited above, § 100 (“the Court is led to the conclusion that the inability of the applicants to sue the local authority flowed not from an immunity but from the applicable principles governing the substantive right of action in domestic law. There was no restriction on access to a court of the kind contemplated in Ashingdane ”). See, for a counter-critique of this reversal, the partly dissenting opinion of J udges Rozakis and Palm (“Under these circumstances how can we distinguish between Osman and the present case?”) and the partly dissenting opinion of Judge Thomassen, joined by Judges Casadevall and Kovler (“The majority ’ s reasons for not following the decisions in Osman (see paragraph 100 of the judgment) are not, to my mind, convincing. There seem to have been no striking or significant changes in the law of negligence since that case and all relevant matters concerning the content of domestic law had been brought to the attention of the Court by the parties in Osman . I am of the opinion that the conclusion under Article 6 in this case must be the same.”).

[35] Barret v. Enfield London BC (1999) 3 WLR, p. 85.

[36] See paragraph 61 of the judgment which also cites Lupeni Greek Catholic Parish and Others , cited above, § 100. In fact, the majority even considered this distinction to be “determinative” of the applicability of Article 6.

[37] See Fayed v. the United Kingdom , 21 September 1994, § 67, Series A no. 294-B; and A , cited above, § 65. In the latter case, the Government argued that the substantive content of the civil right to reputation in domestic law was delimited by the rules of absolute parliamentary privilege, and that a person whose reputation was damaged by a parliamentary speech therefore had no actionable claim s uch as to engage the procedural safeguards of Article 6 § 1 of the Convention. In the former case, since the Inspectors’ report was subject to a qualified rather than an absolute privilege, neither the Inspectors nor the Secretary of State could be successfully sued for defamation in publishing the report, except upon proof of express malice. This means that the Court equated a case of absolute privilege and a case with qualified privilege, submitting both to the legitimate aim and proportionality tests. In fact, the Court had proceeded in the same way in the leading case of Ashingdane , cited above, § 54.

[38] Ibid . , § 67.

[39] See , for another example , the opinion of Judge Pettiti appended to the Ashingdane judgment: “To take an extreme example, the driver of a coach transporting nursing assistants or patients who is responsible for a traffic accident without manifest negligence on his part would benefit from the immunity granted and the victims would not be able to bring effective proceedings in tort against the State.”

[40] See Fayed , cited above, § 65 ; Al ‑ Adsani , cited above, § 47 ; Fogarty v. the United Kingdom , no. 37112/97, § 25, 21 November 2001 ; and McElhinney , cited above, § 24. In the latter case, the Court did not accept the Government’s plea that because of the operation of State immunity the applicant did not have a substantive right under domestic law. It noted that an action against a State is not barred in limine : if the respondent State chooses to waive immunity, the action will proceed to a hearing and judgment. The grant of immunity is to be seen not as qualifying a substantive right but as a procedural bar on the national courts’ power to determine the right.

[41] It is telling that Roche , the leading authority of the Court’s case law in this respect, was a case decided by the smallest of majorit ies .

[42] It is impossible within the limits of this opinion to enter into the immense scholarly discussion on the relationship between the individual subjective right and the right of access to a court. As an introduction to this discussion, see Windscheid, Der Actio des Römischen Civilrechts von Standpunkt des heutigen Rechts , 1856 ; Vass, Le Droit d’Agir en Justice , 1914 ; Betti, “ Ragione e Azione ” , in Rivista di Diritto Processuale Civile , 1932, I ; Pekelis, “ Azione ” , in Nuovo Digesto Italiano , II, 1937 (referring to 38 different concepts and attributes of actio ) ; Calamandrei, “ La Relatavità del Concetto d’Azione ” , in RDPC, 1939, I ; Pugliese, Actio e Diritto Subiettivo , 1939  (referring to 14 different meanings of the word actio ) ; Carnelutti, “ Saggio di una Teoria Integrale dell’Azione ” , in Rivista di Diritto Processuale , 1946 ; and Liebman, “ L’azione nella Teoria del Processo Civile ” , in Scritti Giuridici in Onore di Francesco Carnelutti , II, 1950.

[43] D ig . 44.7.51.

[44] See Judge Zupančič ’s opinion appended to Roche , cited above.

[45] See Artico v. Italy , 13 May 1980, § 33, Series A no. 37.

[46] See Aït-Mouhoub v. France , 28 October 1998, § 52, Reports 1998-VIII.

[47] Dudová and Duda v. the Czech Republic (dec.), no. 40224/98, 30 January 2001.

[48] Ahtinen v. Finland , no. 48907/99, 23 September 2008.

[49] Baudler v. Germany (dec.), no. 38254/04, 6 December 2011.

[50] Reuter v. Germany (dec.), no. 39775/04, 6 December 2011.

[51] Müller , cited above.

[52] See Fernández Martínez v. Spain [GC], no. 56030/07, § 147, ECHR 2014 (extracts).

[53] Ibid . , § 148.

[54] See Obst v. Germany , no. 425/03, § 45, 23 September 2010; Schüth v. Germany , no. 1620/03, § 59, ECHR 2010; and Siebenhaar v. Germany , no. 18136/02, § 42, 3 February 2011.

[55] See paragraph 59 of the Chamber’s judgment and paragraph 38 of the Government’s observations before the Grand Chamber, 20 June 2016, page 22.

[56] These are the thirty-nine States considered in the examination : Albania, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, “the former Yugoslav Republic of Macedonia”, Moldova, Montenegro, the Netherlands, Norway, Poland, Portugal, Romania, Russia, San Marino, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom. Given the particular legal situation in Switzerland, where the relations between State and Church fall within the competence of individual cantons, the research specifically studies three mostly French-speaking cantons – Fribourg, Geneva and Valais – which represent three different models. This research did not directly cover lay staff employed by religious organisations; non-pecuniary matters such as nomination/hiring and dismissal/firing of the members of clergy, as well as their transfer or disciplinary measures against them, such matters usually being covered by Church autonomy; and pecuniary claims raised by members of clergy who are employed by State or local government authorities and bodies , such as teachers of religion, army chaplains, prison and hospital chaplains, etc., in which case the respondent is the relevant authority or body and not the religious organisation.

[57] Seven States or jurisdictions (Bosnia and Herzegovina, Lithuania, Poland, Romania, San Marino, Spain and the Swiss canton of Fribourg) recognise full autonomy of religious organisations and a completely sui generis nature of the relationship between the Church and its clergy. Therefore even purely pecuniary claims raised by members of clergy against their Church are outside the jurisdiction of the State courts (with the exception in the Spanish legal order of the Catholic clergy and ministers of other recognised religions who are assimilated to employees only for the purposes of social security, i.e., in terms of their integration into the general social security regime; to this extent State courts are competent).

[58] Some States can be simultaneously placed in more than one category. Besides Switzerland , where the legal regime is very different from one canton to another, four other States are in such a dual or “overlapping” position, that is:  Belgium, where the ministers of the “recognised” denominations are paid by the State and are in principle governed by public law, whereas all the other denominations are governed by private law and conclude employment contracts with their clergy or ministers; France, where there is a regime of strict separation of Church and State, except in two territorial jurisdictions where the matter is governed by public law; Greece, where the clergy of the Greek Orthodox Church and the Muslim muftis in Western Thrace are considered as civil servants, while all the other religious ministers fall within the ambit of private law; and Turkey, where Sunni imams and muftis working for the Directorate of Religious Affairs are likewise civil servants, while all the other religious organisations operate in the legal form of foundations and are covered by private law. For the purposes of counting the States or jurisdictions belonging to one category or another, each of these four countries is formally counted only once; it is p laced in the category corresponding to the legal regime applying to the dominant religion or the lex generalis (“recognised” or “official” denominations in Belgium, Greece and Turkey; most of the French metropolitan territory).

[59] In fifteen States (Austria, Croatia, the Czech Republic, Estonia, France, Italy, Latvia, Moldova, the Netherlands, Portugal, Serbia, Slovakia, Slovenia, Ukraine and the United Kingdom) the relationship between a Church and its minister is, as a rule, not considered as employment but as a sui generis regime. It means that State courts are not competent to examine such issues as appointment /hiring, dismissal/firing, or internal discipline of the clergy. On the other hand, State courts are normally competent to hear purely pecuniary claims such as salary arrears. In some cases State law permits, but does not require, an employment contract between the Church and its clergy; the matter falls within the jurisdiction of State courts only if such a contract has been concluded.

[60] In seven States or jurisdictions (Armenia, Azerbaijan, Bulgaria, the “former Yugoslav Republic of Macedonia”, Russia, Sweden, as well as the Swiss canton of Geneva), the clergy is employed on the basis of regular employment contracts, mostly because the law requires such contracts. The case of Bulgaria is somewhat particular since the Supreme Court of Cassation has declared, in general terms , that there was an employment relationship with the members of clergy even in the absence of a formal employment contract; this was done against the wishes of the Bulgarian Orthodox Church , which continues to consider its relations with its clergy as a sui generis link. Finally, Belgium and Turkey can also be added to this category in so far as minority religious communities (“non-recognised” denominations in Belgium, non-Muslims and non-Sunni Muslims in Turkey) are concerned.

[61] In nine States or jurisdictions (Belgium, Denmark, Finland, Germany, Greece, Luxembourg, Norway, Turkey and the Swiss canton of Valais) the pecuniary and similar relations between the dominant religious organisations and their clergy are, from the point of view of the State, governed by public law. In most cases the re levant litigation can be brought before the administrative courts; in some States, however, the courts of general jurisdiction are competent. France also belongs to this category in respect of two particular territorial jurisdictions: Haut-Rhin/Bas-Rhin/Moselle and French Guiana.

[62] See paragraph 17 of the Chamber’s judgment.

[63] See paragraph 29 of the judgment.

[64] Had the Supreme Court determined the matters in dispute, on both the questions of fact and the questions of law put forward by the parties, and had it concurred with the lower courts, it would have upheld their judgments in a form of judgment. Instead the Supreme Court quashed the judgment appealed against and discontinued the proceedings.

[65] In the words of the Constitutional Court: “The State organs must determine under the Constitution and the laws specified in the Act on Church Legislation whether an issue having arisen from a given relationship falls within the competence of a State authority or court. Hence, they must determine under State laws whether in a given case a legal relationship by State law exists between the parties”.

[66] See Z. and Others , cited above, § 89.

[67] See paragraphs 70 and 73 of the judgment.

[68] See Georgiadis , cited above, § 34 ; Micallef , cited above, § 74 ; and J.S. and A.S. , cited above, § 46.

[69] See paragraph 68 of the judgment.

[70] See paragraph 68 of the judgment.

[71] See Judge Martens’ opinion appended to Fayed , cited above.

[72] This is accepted by the Government themselves in their observations before the Grand Chamber, cited above, page 29 (reply to question 2): “In theory, Churches and their priests are not prevented by Hungarian law from concluding employment or civil law contracts for performing pastoral duties, however the validity of that contract would be dependent upon the mutual consent of the parties and the nature of the pastor’s obligations, especially their conformity with State law. Then all aspects of their service relationship would be governed by State law (labour law or civil law, depending on the contract concluded by the parties with mutual consent) and State courts would have jurisdiction to determine any ensuing legal dispute between the parties.”

[73] Thus, the majority’s argument based on the “autonomy of tax law” (see paragraph 73 of the judgment) simply misses the point. 

[74] See Ferrazzini v. Italy [GC], no. 44759/98, § 25, ECHR 2001 VII.

[75] This has been the Court’s case-law since Nicodemo v. Italy , no. 25839794, § 18, 2 September 1997.

[76] Kart v. Turkey [GC], no. 8917/05, § 83, ECHR 2009, and A. , cited above, § 78.

[77] If the majority of the Grand Chamber wanted to maintain the logically flawed distinction between substantive and procedural immunities, as is clear from paragraph 61 of the judgment, the present case would have in any event to be examined on the assumption that there has been a procedural restriction of the applicant’s right of access to a court and therefore that it should be scrutinised, firstly, whether the limitation pursued a legitimate aim and, secondly, whether it was proportionate to that aim. Before embarking on the proportionality analysis, it is important to establish the breadth of the margin of appreciation of the State in the present case. Here again the majority have nothing to offer but a deafening silence.

[78] See Sindicatul “Păstorul cel Bun” v. Romania [GC], no. 2330/09, § 171, ECHR 2013 (extracts).

[79] See paragraph 45 of the Government’s observations, cited above, page 26.

[80] See Fernández Martínez , cited above, § 127.

[81] See Müller , cited above.

[82] See Hasan and Chaush v. Bulgaria [GC] , no. 30985/96, §§ 62 and 78, ECHR 2000 XI.

[83] See Svyato-Mykhaylivska Parafiya v. Ukraine , no. 77703/01, § 146, 14 June 2007.

[84] See Sindicatul “Păstorul cel Bun” , cited above, § 165.

[85] See the Constitutional Court judgment no. 32/2003: “The fundamental right of access to court … does not carry with it an unrestricted right to file a court action. …. any limitations must be indispensable and proportionate to the aims pursued … The State organs … must determine under the State laws whether in a particular case a legal relationship governed by State law exists between the parties and if the answer is in the affirmative, they must determine the appropriate procedure to follow.”

[86] See, mutatis mutandis , Z. and Others , cited above, § 99.

[87] See Fernández Martínez , cited above, § 132 and Sindicatul “Păstorul cel Bun” , cited above, § 159.

[88] See, mutatis mutandis, Sindicatul “Păstorul cel Bun” , cited above, § 159.

[89] See Schüth v. Germany , no. 1620/03, § 59, ECHR 2010.

[90] As concluded by domestic courts and accepted by the Court for instance in Reuter v. Germany and Baudler v. Germany , both cited above.

[91] See my opinion in Krupko and Others v. Russia , no. 26587/07, 26 June 2014.

[92] See paragraph 36 of the Government’s observations, cited above, page 21.

[93] See, in particular, Waite and Kennedy , cited above, § 63.

[94] See Stichting Mothers of Srebrenica and Others v. the Netherlands , cited above, § 139.

[95] See, mutatis mutandis , Waite and Kennedy , cited above, § 68. In this respect, I note that the Supreme Court itself expressly referred to the possibility of the applicant raising his claim before the ecclesiastical court.

[96] See, for instance, Albert and Le Compte v. Belgium , 10 February 1983, § 29, Series A no. 58 , and Gautrin and Others v. France , 20 May 1998, § 57, Reports 1998 III.

[97] The analogy with arbitration cases was raised in paragraphs 32 and 33 of the Government’s observations, cited above, pages 19 and 20. See, for a comprehensive statement of principles, Suda v. the Czech Republic , no. 1643/06, § 49, 28 October 2010.

[98] See page 29 of the Government’s observations, cited above.