JOINT DISSENTING OPINION OF JUDGES SPIELMANN, SAJÃ’ AND LEMMENS

To our regret, we do not share the view of the majority that there is no need to examine separately the complaints under Article 14 of the Convention, taken together with Article 8, or under Articles 9 and 10 of the Convention, taken separately or together with Article 14.

Such a view might have been justified if the Court had found a violation of Article 8. However, since that is not the case, we are of the opinion that the Court should have pursued its examination of the applicant ’ s complaints. The applicant has the right to obtain an answer to the question whether any of his rights have been violated.

DISSENTING OPINION OF JUDGE SAJÓ

I agree with the dissenting opinion of my colleagues but I find it necessary to emphasise certain additional points which are relevant for a finding of a violation of Article 8 read in conjunction with Articles 10 and 11 of the Convention.

1. The contract of a teacher of religion employed by the State in a State school was not renewed upon the request of the competent Bishop. Such non-renewal is to be understood as a dismissal [1] . Even seen as a mere non-renewal, it was an interference with the applicant ’ s Convention rights. The State, accepting the Bishop ’ s perspective, sanctioned an individual on the grounds of his private and family life (and his right to marriage, as confirmed by the Vatican ’ s dispensation) and for beliefs that he manifested publicly and as part of a movement, notwithstanding that “the protection of Article 10 of the Convention extends ... to the professional sphere of teachers” [2] . The applicant has suffered a disadvantage because of the exercise of core elements of these rights. The rights thus affected, especially the right to live with one ’ s family without the threat of being dismissed for that reason, go to the heart of the right to respect for private life [3] . The State as employer [4] , in collaboration with and on behalf of a particular private entity, namely the Church, interfered in the private and family life of the applicant by imposing certain duties affecting his Article 8, 10 and 11 rights, under the potential threat of loss of employment (compare Schüth v. Germany , no. 1620/03, § 40, ECHR 2010, as regards the positive obligations of the State). Moreover, he ultimately lost his job and this per se affected his private and professional social relations. However, I do not believe that our jurisprudence requires us to construe employment as such as a Convention right within the meaning of private life [5] . Loss of employment as a matter of social private life is not the key issue here and the impact of the loss of employment on the applicant ’ s social private life is secondary [6] .

2. The reasons for the applicant ’ s dismissal remain opaque. The formal explanation was that the Bishop informed the State authority that the applicant ’ s contract should not be renewed. The official Memorandum of the Bishop of Cartagena (11 November 1997) that was submitted to the public authority after the dismissal refers to the fact that the earlier proposal had been based on the Bishop ’ s obligation to disqualify the teacher once his “situation” had become public knowledge in order to avoid causing further “scandal” in view of “his personal and employment situation”. According to the Memorandum, the power of the Bishop originated in the Pope ’ s rescript of 20 August 1997 (dispensation of celibacy). The applicant was notified of the rescript on 15 September 1997. The applicant ’ s “situation” had become “publicly known” through the publication of an article in November 1996. The Murcia court expressly referred to the publication as being the origin of the public knowledge of the “situation”: “his appearance in the press having been the cause of his dismissal” (Murcia Employment Tribunal no. 3, judgment of 28 September 2000). In the press publication the applicant was presented not only as a married priest but also as a supporter of specific ideas.

It is primarily for the fact-finding court to determine the facts, including the grounds of the dismissal, even though on appeal and in the amparo process there was some confusion in this connection. The recapitulation of the grounds for the dismissal as presented by the Murcia court cannot be disregarded. Accordingly, the family status, as publicly displayed, and the “opinions” of the applicant were part of the “situation” as understood by the Bishop and therefore served as grounds for dismissal.

3. A teacher of religion in Spain operates in a State school within a scheme that is intended to enable freedom of religion, and more specifically the collective exercise of religion through a religious organisation, in the present case the Catholic Church. In order to ensure the autonomy of the Church, which stems from the needs and rights of such free exercise, the State chose to cooperate with the Church in the form of an Agreement. This was intended to provide adequate Church control over the teaching of religion, and consequently those who taught religion on behalf of the Church. It is uncontested that the teaching of religion has to be in conformity with principles as understood by the Church (in the context of the Catholic religion), and that the teacher must be credible, as determined by the Church. The religion teacher has specific obligations of loyalty to the Church. The bishop supervises the professional aptitude of such teachers, which goes beyond formal qualification and faithful presentation of the religious position, that is to say, the teachings of the Church. This does not mean that , just because the bishop finds a teacher ’ s lessons appropriate , the public authorities cannot object to the teachings if they contravene public policy (or the national curriculum), or if the public employee ’ s behaviour is contrary to pedagogical or other professional expectations.

4. As the Court stated in Sindicatul “ Păstorul cel Bun” v. Romania ([GC] , no. 2330/09, ECHR 2013), the autonomy of religious organisations is not absolute. This is true even when it comes to clergy members ’ work, which pursues a spiritual purpose and is “carried out within a Church enjoying a certain degree of autonomy” ( ibid., § 144). The Court has thus set certain limits on Church autonomy. It cannot undermine the legal order that safeguards fundamental rights (see also Refah Partisi (the Welfare Party) and Others v. Turkey [GC] , nos. 41340/98, 41342/98, 41343/98 and 41344/98, § 119, ECHR 2003 - II). Unfortunately, that important consideration is omitted from the present judgment.

Church autonomy requires a positive and respectful approach by the State, which stems from the State ’ s obligations to respect freedom of religion, and which is also applicable to the rules and regulations of the religious organisation in question. However, Church autonomy does not mean public recognition of a sovereign religious legal regime. The Court is not ready to accept any absolute immunity when it comes to fundamental human rights even in regard to State “sovereign immunity” (see Cudak v. Lithuania [GC] , no. 15869/02, ECHR 2010, in the “access to court” context).

In Refah Partisi (the Welfare Party) and Others (cited above), it was held that the autonomy of a religious community was a matter to be respected but that it did not entail legal pluralism and did not require domestic courts to become the enforcers of autonomous religious decisions which fell short of their requirements of adequate justification. Without such reasons, legal evaluation becomes arbitrary and there can be no effective rights protection.

Courts do often consider semi-autonomous and “alien” legal regimes; they do so with respect to comity but within the requirements of “ ordre public ”. Such non-State legal regimes remain on the “radar” of the Convention. Even if, to some extent, the present case is about relations between the applicant and the Church, and therefore a matter outside the sphere ordinarily controlled by the State, the Convention guarantees still apply and arbitrariness cannot be tolerated in case it results in the restriction of rights [7] .

The duty of the State to respect autonomy is a matter of degree. It is certainly greater in matters concerning the internal organisation of the life of a religious group and absolute when it comes to defining a religion ’ s doctrines. But not even internal relations and acts within the religious organisation or community are exempt from State obligations to protect Convention rights. Where the State intervenes to punish incitement to imminent violence advocated by an office holder of a religious organisation and stemming from a religious precept, that intervention will not be barred by considerations of Church autonomy. Moreover, the internal affairs of a religious organisation have effects that transgress the borders of autonomy which can be considered without contravening the principle of autonomy. Consider the following hypothetical example of a priest (or pastor, etc.) “ employed ” by a religious organisation such as the Catholic Church. The priest teaches religion to children on the premises of a State school, as permitted by school management or as enabled by law. It is up to the Church to conclude that the teachings of that teacher are not acceptable. As a rule it is not the business of the State to ask for the reasons of the Church behind a decision which results in the discontinuance of the teaching activity, except perhaps in a case where the reason is clearly racist in nature.

However, as soon as the priest loses financial benefits as a consequence of the above decision, the State is entitled to consider the situation. Where the impact of a decision that originates in the autonomous activities and decision-making of a religious organisation concerns relations outside that organisation, the weight of the religious organisation ’ s autonomy diminishes. This is the situation in the present case: the decision of the Bishop, which is protected to a very great extent within the Church, falls under the ordinary balancing scrutiny that the Court applies where two Convention rights collide. The internal reasons for the Bishop ’ s decision are not subject to the review of public authorities or domestic courts, nor of this Court; however, the effects of the decision are . Autonomy of religious organisations cannot entail violation of other Convention rights.

While the Court shies away from considering the implications of limited autonomy, the judgment contains another important reference to its functional limits. In paragraph 132, the Court refers to the duties of the State as determined in Sindicatul “ Păstorul cel Bun” (cited above). In particular, it considers that Church autonomy does not exempt domestic courts from the duty to scrutinise the appropriateness of an autonomy-serving interference with a Convention right. Like domestic courts, the Court accepts that the religious organisation has to show that it is not violating the Convention. This means that while its internal reasons are beyond the reach of the State, the religious organisation must provide a “translation” of those arguments in a form that is understandable to the public. In other words, the explanation has to be accessible for normal comprehension, as determined judicially.

The difficulty in the present case is that, in its Agreement with the Holy See, the State accepted a specific arrangement that could not result in proper “translation” in the domestic courts. The Bishop was not party to the procedure, as the State was the formal employer, and hence it was the State which had to provide reasons on behalf of the Church as its proxy under the Agreement. The State was satisfied that the Bishop ’ s references to “scandal” were sufficient for judicial comprehension and not arbitrary by the judicial standards of public discourse. The State, however, could only second-guess the reasons for the dismissal – a second-guessing which was forced upon all the judicial bodies dealing with the matter. Consequently, the question of which rights were interfered with and the subsequent balancing of those rights became arbitrary.

The State also failed to provide grounds which would have made the dismissal understandable as non-arbitrary. Speculation about a “scandal” cannot provide sufficient reasons for interference with the rights of the applicant. In this context the undeniable duties of loyalty of the (former) priest cannot be properly evaluated. It is hard to accept a dismissal that is applied as a result of the exercise of Convention-protected rights where it has not been proved that the decision was not arbitrary, given that for a long time the same issue had not been a problem and was tolerated even after a report in the press. The undeniable right of the Church to determine who qualifies to teach religion under various religion-based criteria is duly taken into consideration by the Court; however, here the domestic judicial process was deprived of proper consideration of the genuine grounds for the dismissal and their weight in terms of the impact on the applicant ’ s rights.

It was well known in the local community that the applicant was married and had children. The same facts were also well known to the religious authorities. The priest ’ s views and involvement in a movement that challenged certain teachings of the Catholic Church (but was not prohibited by the Church authorities) were also known. For eleven years none of this constituted a scandal. According to domestic speculation, the situation only became a “scandal” once it was reported in a newspaper article. Once again, it is not for a State court to enquire what amounts to a “scandal” for the Church. But when the issue has consequences for public employment, it is necessary to make this comprehensible in order to be able to determine whether the resulting disadvantage is an ex-post interference with Convention rights. In the interpretation provided by the State and accepted both by the domestic courts and in the understanding of the Court, the publication of an article in which the known facts were displayed constituted the scandal. According to the Court, while this “going public” was not the applicant ’ s initiative, he should have objected to it. Was he thus expected not to walk in public with his family? Was he expected to make a statement saying that he did not share the views of the movement, when he was known to share those views? One cannot enjoy one ’ s family and private life if one has to hide it, or live in the knowledge that unemployment might be the consequence of one ’ s family relationships. Is a teacher of religion expected to be able to hold and express certain views and at the same time be particularly careful in preventing those views from becoming known? These expectations, contradictory as they may be, are the uncontested meaning and effect of the non-renewal.

The sequence of events contributes to the lack of a demonstration that the grounds for the interference were proportionate and not arbitrary. The applicant was employed as a priest after having been married and having five children. The Bishop found that the applicant had caused a scandal, and was therefore disqualified, ten months after the article in question. He relied on the “scandal” clause of the papal rescript that was communicated nine months after the events and which referred to the marriage that had taken place many years earlier.

In the absence of proper reasons (which the State authority, as a proxy of the Church, failed to give), the legal process intended to provide adequate protection of fundamental rights cannot be considered appropriate in the sense of providing relevant and sufficient reasons. In the absence of proper information it cannot be determined – as required by the rule of law – why the applicant ’ s exercise of his right to free expression, which was critical but clearly permitted within the Church, constituted a scandal. Nor is it clear why the fact of having a family became a scandal after more than a decade of the situation being known.

5 . The standards of judicial scrutiny applicable to a review of public acts which originate in a decision falling within the ambit of Church autonomy, where those acts affect Convention rights, have been set out in an exemplary manner by the Spanish Constitutional Court (see judgment no. 38/2007), which has reiterated that “[t]he civil effects of ecclesiastical decisions, regulated by civil law, are the exclusive jurisdiction of the civil judges and courts, as a consequence of the principles of a non-denominational State with no official religion (Article 16.3 of the Spanish Constitution)”.

A dequate judicial supervision cannot be provided unless religious considerations which affect civil or public law can be made legally cognisable for the benefit of the judicial authority. This is often referred to as the requirement of “translation”. This principle does not call into question the veracity of a Church ’ s positions, but rather concerns their applicability in civil and public relations. The position of a Church regarding the teaching of religion is translated into the language of the Convention through reference to Article 9 and Article 2 of Protocol No. 1. Further, as stated by the Spanish Constitution al Court (judgment no. 38/2007):

“ [O] nce the strictly ‘ religious ’ grounds for the decision have been determined, the court will have to weigh up any competing fundamental rights in order to determine to what extent the right to freedom of religion, exercised through the teaching of religion in schools, may affect the employees ’ fundamental rights in their employment relationships.”

It is a pity that in this specific case the highest Spanish court and this Court have failed to apply these sound principles consistently. The “scandal” was not convincingly translated to meet the requisite judicial standards. Or better put, it was accepted that it was above and beyond the need for such translation. For this reason I could not agree with the majority.