DISSENTING OPINION OF JUDGE DEDOV

In the present case the Grand Chamber has divided almost in the middle. Both the majority and the minority of judges (I joined the latter) used the same proportionality test, but they have come to opposite conclusions. This unfortunate and discouraging result forces me to present a principal argument in favo u r of a violation of Article 8 of the Convention.

Does the Church ’ s autonomy constitute a legitimate aim in the present case? Although the proportionality test is always objective and justified, mistakes could be made owing to a subjective understanding of the legitimate aim. The issue was raised by the Grand Chamber as to whether the protection of the autonomy of a religious organi s ation prevail ed over the right to family life . But it is easy to see that , while the autonomy concept has been considered as the legitimate aim , at the same time it has been regarded as one of competing rights in paragraphs 122 and 123 of the judgment. This approach is not acceptable. If the Court ’ s task is to balance the rights and to place them into some hierarchy, it has to find another legitimate aim among the basic values and purposes of the Convention.

The Convention protects freedom of religion so that no one can be persecuted for their religious beliefs. But it does not entitle religious organi sations, even in the name of aut onomy, to persecute their members for exercising their fundamental human rights. If the Convention system is intended to combat totalitari ani sm, then there is no reason to tolerate th e sort of totalitari ani sm that can be seen in the present case .

Indeed, for centuries celibacy has been a well-known and serious problem for thousands of priests who have suffered for their whole l ives while concealing the truth about their family life from the Catholic Church and fearing punishment. The adverse consequences of the outdated rule of celibacy have been portrayed by many writers from Victor Hugo ( The Hunchback of Notre-Dame ) to Colleen McCullough ( The Thorn Birds ) , as well as by numerous media reports , including those on clerical sex - abuse scandals in many countries.

Obviously, complete deprivation of family life violates the Convention, and it cannot be justified by any public interest or religious autonomy. Even the long-standing Catholic Church cannot protect itself behind the autonomy concept , as the celibacy rule contradicts the idea of fundamental human rights and freedoms. This, in my view, should be used as a principal reason for find ing a violation of Article 8 of the Convention.

The right to family life is vital for any individual. For the purposes of the present case it cannot be regarded as just a “form of personal development” or a “right to establish relationship s with other human beings” ( paragraph 126 of the judgment). The right to have a family is one of the fundamental or, to be more precise, natural rights specified in the Convention. F amily life cannot be impaired in favour of an organisation ’ s membership requirements , employment rules , functioning, religious doctrine or autonomy. This natural right cannot be impaired under any such circumstances, even if the applicant voluntar il y agreed to abide by the celibacy rule (as he wanted to be a priest and to devote his life to this kind of service ) , because family life cannot be subjected to a ny transaction either .

Therefore, the State cannot abstain from protecting the fundamental right to family life which prevails over any kind of organisational autonomy. However, the State has failed , not just to abstain from interference concerning the applicant, but also to exercise its positive obligation with respect to at least 6 , 000 priests of the Catholic Church. If the applicant , after many years of fear , gathered all his courage to make his family situation public in order to bring his humiliation to an end and to express his support for other married priests , he deserves to receive an adequate response from the Court in compliance with the aims of the Convention system. I believe that optional celibacy is the best way out of this problem and that it could also – I hope – serve as a preventive measure against the sexual abuse of children by members of the clergy in the future.

[1] . In Lombardi Vallauri v. Italy (no. 39128/05, § 38, 20 October 2009) the repeated renewal resulted in a situation where non-renewal was considered as termination and the Vogt [ v. Germany , 26 September 1995, Series A no. 323] jurisprudence was found to be applicable: “While it is true that the applicant always worked under temporary contracts, the fact that they were renewed for over twenty years and that his academic qualities were recognised by his colleagues attests to the solidity of his professional situation.”

[2] . See Lombardi Vallauri , cited above, § 30.

[3] . “A duty of loyalty towards the Catholic Church [may limit an employee’s] right to respect for his private life [only] to a certain degree”. Imposing a sanction on conduct regarded as adultery under the “ Catholic Church’s Code of Canon Law ” would be tantamount for the European Court to interpreting “the applicant’s signature on the contract ... as a personal unequivocal undertaking to live a life of abstinence in the event of separation or divorce [and] a n interpretation of that kind would affect the very heart of the right to respect for the private life of the person concerned ” (see Schüth v. Germany , no. 1620/03, §§ 71 et seq., ECHR 2010). Likewise, in Özpınar v. Turkey (no. 20999/04, § 48, 19 October 2010) it was not the dismissal that was central to the finding of an interference with private life but the actual investigative process and the fact that the dismissal was based on facts of private life : “ ... the Court is of the opinion that the inspector’s investigation into the applicant’s private and professional life, which included interviews with witnesses on a particular aspect of the applicant’s life, together with the resulting administrative dismissal, mainly on grounds related to her conduct, may be regarded as constituting a direct interference with the applicants’ right to respect for her private life (see mutatis mutandis, Vogt, cited above, § 44, and Smith and Grady v. the United Kingdom , nos. 33985/96 and 33986/96, § 71, ECHR 1999 ‑ VI).”

[4] . In the Spanish legal system, as authoritatively determined by the Spanish Constitutional Court, “ religion teachers are employees of the public education authorities and, as such, they receive the protection of the Constitution and Spanish labour laws, and have the same rights to seek relief from the Spanish courts. ” ( Span ish Constitutional Court judgment no . 38/2007, 15 February 2007, point 7 ) .

[5] . See Vogt , cited above, and Larissis and Others v. Greece, 2 4 February 1998, Reports of Judgments and Decisions 1998 ‑ I, or in the context of termination of employment, most recently Eweida and Others v. the United Kingdom, nos . 48420/10, 59842/10, 51671/10 and 36516/10, ECHR 2013 , and Redfearn v. the United Kingdom, no. 47335/06, 6 November 2012. Even in Obst v. Germany ( no. 425/03, § 40, 23 September 2010 ) , with its wide-ranging concept of the positive obligation to protect private life against private intrusion by a private religious organi s ation, it was traditional private life (marriage and, perhaps living in a community) that was to be protected, not employment as a feature of private social life: “ In the present case the Court first observes that the applicant did not complain about an action on the part of the State, but about a failure thereby to protect his private sphere against interference by his employer . ” Sch ü th follows the same approach in the construction of the applicant ’s Article 8 right, referring to extramarital relations and the right to have a child from those relations.

[6] . It is, however, an element of the bundle of Convention rights interfered with by the dismissal. It is for this reason that I am among the judges expressing a joint dissenting opinion on the Article 8 issues (Opinion of Judges Spielmann , Sajó , Karakaş , Lemmens, Jäderblom , Vehabović , Dedov and Saiz Arnaiz ).

[7] . See Negrepontis-Giannisis v. Greece , no. 56759/08, § 101, 3 May 2011: “ The Court reiterates that it is not in theory required to settle disputes of a purely private nature. That being said, in exercising the European supervision incumbent on it, it cannot remain passive where a national court’s interpretation of a legal act, be it a testamentary disposition, a private contract, a public document, a statutory provision or an administrative practice appears unreasonable, arbitrary or, as in the present case, blatantly inconsistent with the principles underlying the Convention (see Larkos v. Cyprus [GC], no . 29515/95, §§ 30-31, ECHR 1999-I, and Pla and Puncernau v. Andorra , no. 69498/01, § 59, ECHR 2004 - VIII ).”