JOINT DISSENTING OPINION OF JUDGES SAJÓ, VUČINIĆ AND KŪRIS

1 . We respectfully disagree with the finding of no violation of Article 6 § 1 of the Convention in this case. In the further text, we deal, successively, with the ( i ) facts of the case; (ii) the general principles that had to be applied in this case; (iii) an alternative to the reasoning offered in this case; (iv) the broader ramifications of the judgment; and (v) its contradictory and paradoxical character.

I

2 . The applicant is a former pastor of the Hungarian Calvinist Church. His remuneration was set out in an appointment letter issued by the parish presbyters. He was removed from service, as a disciplinary measure, by the first-instance ecclesiastical court. (The fact that the applicant was removed from service allegedly for, inter alia , telling the media that State subsidies had been paid unlawfully to a Church establishment, could merit separate consideration, but the applicant raised this issue neither before the domestic courts nor before this Court.) The removal was upheld by the ecclesiastical court of second instance , which terminated the applicant ’ s service more than ten months after the disciplinary proceedings had been initiated against him. Even prior to the removal, the applicant ’ s service had been suspended pending a decision on the merits, for a maximum of sixty days, and the applicant had been informed that he was entitled to only a half of his service allowance during the period of his suspension.

3 . The applicant took his case to the labour court, seeking payment of the remainder of his service allowance and other benefits to which, in his view, he should have been entitled during the period of his suspension; he also sought the payment of the whole service allowance from the date on which his sixty days ’ suspension ended until the date of termination of his service. The applicant based his claims on the analogy, if not the equivalence, of ecclesiastical service to employment. In support of his argument, he provided the legal opinion given by the Ministry of Finance and the Tax Authority that the “church salary” was considered as income deriving from employment within the meaning of the Personal Income Tax Act. The labour court, however, was not persuaded by this opinion and held that in the dispute between the (former) pastor and the church, labour law was not applicable. That decision was upheld by the appellate court.

4 . Instead of applying for review of this decision to the Supreme Court, the applicant lodged a civil-law claim for damages against the Calvinist Church. He asserted that his services to the church amounted to an agency contract, as provided for in civil legislation, and that he was entitled to a fee for the corresponding services. His claim, thus, was in essence a request to enforce the contract which had been breached by the church by failing to fulfil its contractual obligations. This time, therefore, the applicant based his case not on labour but civil legislation. Again, the claim was dismissed by the court of first instance on the grounds that, in that court ’ s view, no contractual relationship had been established between the parties under civil law. The appellate court upheld that dismissal, adding that the Calvinist Church had no standing in the proceedings, since the applicant had been appointed by the local parish. The Supreme Court quashed that judgment, however, and discontinued the civil proceedings on the basis that the applicant could not pursue his claims in the State courts, but could do so in the ecclesiastical courts.

5 . Whereas the applicant, by not applying to the Supreme Court for review of the appellate court ’ s decision in his labour case, has not exhausted domestic remedies with respect to the employment proceedings, he also had an arguable civil claim, which was rejected by the highest State court, within whose jurisdiction civil claims fall. The claim was rejected on the fundamental premise that precisely because they had originated in his pastoral service, the applicant ’ s rights relating to his remuneration fell outside the State court ’ s jurisdiction.

6 . The Chamber majority, by finding no violation of Article 6 § 1 in the applicant ’ s case, has unambiguously upheld the position of the Supreme Court and the other domestic courts. The majority reasoning is based on the same fundamental premise: where a State hands over jurisdiction to an ecclesiastic court, as a matter of principle it cannot overstep its margin of appreciation, and the State courts ’ dismissal of a claim on the sole ground that it originates in an ecclesiastic law can be justified not only under the national legislation but also under the Convention.

7 . We find this reasoning very disturbing, to say the least. It appears that, in Hungary, a (former) clergyman can find no judicial avenue for pursuing his pecuniary claims against an ecclesiastic authority – and presumably not only that of the Calvinist Church. The State courts admit that they simply do not have jurisdiction in such cases. They are considered as matters internal to a specific church. Neither labour law nor civil law is applicable in such cases. The interpretation by the Constitutional Court to the effect that “there can ... be ... legal relationships specified by the laws of the State and governed by the laws of the State, including the relevant remedy possibilities”, and that “[r] ights and obligations originating in legal relationships based on State laws may be enforced by means of State coercion” (see paragraph 19 of the judgment) appear to be a dead letter.

8 . Even though this Court cannot replace the domestic courts in interpreting and applying national law, the discrepancy between the said doctrinal provision of Hungarian constitutional law (as well as the legal opinion of finance and tax authorities, cited above in paragraph 3) and the State courts ’ practice is quite striking. The practice in question raises doubts as to whether the tenet ubi ius , ibi remedium has been deprived of the remedium element.

II

9 . The general principles applied in the present case are laid out extremely laconically in paragraphs 64–66 of the judgment. In short, these principles are limited to repeating a number of truisms, namely that under Article 6 § 1 : ( i ) everyone who has an arguable claim relating to his or her civil rights and obligations has a right to bring this claim before a court or a tribunal; (ii) t he individual must have a clear, practical opportunity to challenge an act that constitutes interference with his or her rights; (iii) the right of access to a court is not absolute, but may be subject to limitations, ‑ in this field the Contracting States enjoy a certain margin of appreciation; however, such limitations must pursue a legitimate aim and be proportionate to that aim, and in particular they must not restrict or reduce the access to a court in such a way or to such an extent that the very essence of this right is impaired. Full stop.

10 . This is clearly too little – and also one-sided. Nevertheless, even these lean doctrinal provisions beg the question whether the absence of any judicial avenue provided by the State to a (former) clergyman who wishes to pursue a pecuniary claim against an ecclesiastic authority, if that claim originates in pastoral service (that is to say stems from a document issued by an ecclesiastic authority), does not restrict or reduce the access to a court in such a way or to such an extent that the very essence of that person ’ s right to court is impaired. One can legitimately ask whether the said absence of State judicial remedies does not render the Convention right to a court fictitious and illusory. However, in the present case the finding of no violation of Article 6 § 1 is based on the majority ’ s acceptance of such absence of a judicial remedy as a normal state of affairs.

11 . Meanwhile, the Court ’ s case-law on the imperatives of Article 6 § 1 is considerably richer. It could and should have been far more broadly reflected in the “general principles” sub-section of the judgment. Had that been the case, it would have led to the opposite finding of that reached by the majority.

12 . First of all, paragraph 66 of the judgment rightly points out that t he right to a court may be subject to legitimate restrictions. In pursuance of this general tenet, the Court ’ s case-law development has led to two different types of results. If the restriction pursued a legitimate aim and there was a reasonable relationship of proportionality between the means employed and the aim sought to be achieved, no violation of Article 6 will arise (see Z and Others v. the United Kingdom [GC], no. 29392/95, § 93, ECHR 2001 ‑ V). Thus, t he Court has found no violation of Article 6 in cases where the applicants ’ inability to pursue a civil action flowed from the applicable principles governing the substantive right of action in domestic law (see Markovic and Others v. Italy [GC], no. 1398/03, ECHR 2006 ‑ XIV; and Z and Others , cited above). Moreover, as the Court has stated on many occasions, when it is called upon to rule on a conflict between two rights that are equally protected by the Convention, it must weigh up the interests at stake (see Fernández Martínez v. Spain [GC], no. 56030/07, § 123, ECHR 2014 (extracts); and Schüth v. Germany , no. 1620/03, § 53, ECHR 2010).

13 . In the present case, this balancing exercise concerns the applicant ’ s right of access to a court on the one hand, and the right of religious organisations to autonomy on the other. The State is called upon to guarantee both rights. If the protection of one leads to an interference with the other, the State has to choose adequate means to make this interference proportionate to the aim pursued. Although the State has a wide margin of appreciation in these matters, a sufficient degree of protection nevertheless has to be afforded to the applicant (see, mutatis mutandis, Sindicatul “ Păstorul cel Bun” v. Romania [GC], no. 2330/09, § 160, ECHR 2013 (extracts), and Siebenhaar v. Germany , no. 18136/02 , § 40, 3 February 2011) .

14 . As the Court has stated in the context of employment claims lodged by civil servants, “there can in principle be no justification for the exclusion from the guarantees of Article 6 of ordinary labour disputes, such as those relating to salaries, allowances or similar entitlements, on the basis of the special nature of relationship between the particular civil servant and the State in question. There will, in effect, be a presumption that Article 6 applies. It will be for the respondent Government to demonstrate, firstly, that a civil-servant applicant does not have a right of access to a court under national law and, secondly, that the exclusion of the rights under Article 6 for the civil servant is justified” (see Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 62, ECHR 2007 ‑ II).

15 . As regards the autonomy of faith groups, religious communities traditionally exist in the form of organised structures. Respect for the autonomy of religious communities precludes any discretionary power on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate (see Hasan and Chaush v. Bulgaria [GC], no. 30985/96, §§ 62 and 78, ECHR 2000 ‑ XI), to oblige a religious community to admit or exclude an individual or to entrust someone with a particular religious duty (see Svyato-Mykhaylivska Parafiya v. Ukraine , no. 77703/01, § 146, 14 June 2007), or to act as an arbiter between religious communities (see Sindicatul “ Păstorul cel Bun”, cited above, § 165). On the other hand, a mere allegation by a religious community that there is an actual or potential threat to its autonomy is not sufficient to render an interference with its members ’ rights compatible with the requirements of the Convention. The religious community must also show, in the light of the circumstances of the individual case, that the alleged risk is “real” and “substantial” and that the impugned interference 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 , Sindicatul “ Păstorul cel Bun”, cited above, § 159). Consequently, if a religious community or organisation fails to convincingly demonstrate that the State ’ s interference poses a real threat to its autonomy, it cannot demand that the State refrain from regulating, by means of that State ’ s law, the relevant activities of that community. In this regard, religious communities cannot be immune from the State ’ s jurisdiction.

III

16 . The applicant contends that the decision of the Supreme Court prevented his claims from being decided on the merits because of what is considered by the respondent Government to be non-interference with the internal affairs of the Calvinist Church.

17 . The present application should be distinguished from the cases of Z and Others , Markovic and Others (both cited above) and Müller v. Germany (( dec. ) no. 12986/04, 6 December 2011), in which the applicants were afforded access to a court but that access was limited in scope, as it did not lead to decisions on the merits. In the first two of these cases, the applicants ’ claims were examined fairly in the light of the domestic legal principles applicable to the substantive law (see Z and Others, cited above, §§ 100-101; and Markovic and Others , cited above, §§ 114-116 ) . In the third case, the C ourt held that it could take cognisance of the applicant ’ s claim to the extent that it concerned the validity of the impugned measure, but not of its lawfulness (see Müller, cited above). Thus the domestic courts ’ decisions in these cases were merely indicative of the extent of the courts ’ power of review .

18 . In the present case, however, the domestic court ’ s decisions to block the applicant ’ s ability to pursue a claim against the Calvinist Church were not based on any interpretation of the law of contractual liability but solely on the consideration that broadly speaking, disputes arising from the applicant ’ s service fell exclusively under ecclesiastical jurisdiction. No substantive review of those claims took place.

19 . It was therefore necessary to ascertain whether or not these proceedings could be taken as embracing the requisite exercise of balancing the competing interests of the applicant under Article 6 with those of the Calvinist Church under Article 9 of the Convention.

20 . T he Government argued that by entering into ecclesiastical service the applicant “waived” his right to a court in respect of disputes arising from that relationship. There can be no doubt that by taking up that service the applicant agreed to be loyal to the Calvinist Church. However, one cannot interpret his signature on his service letter as a personal and unequivocal undertaking not to institute, under any conditions, civil actions against the church.

21 . One should not overlook the summary character of the domestic courts ’ reasoning to decline jurisdiction in the applicant ’ s case. The Supreme Court ’ s assessment of the applicant ’ s arguments was confined in essence to stating that he should seek justice before the ecclesiastical courts. Therefore, it cannot be said that the applicant ’ s right of access to a court was balanced against the interests of the church in any substantial manner. Moreover, and in particular, no consideration was given to whether – and to what extent – the applicant ’ s claim was liable to threaten the church ’ s autonomy, if at all, and whether the interference with the applicant ’ s rights under Article 6 was necessary to eliminate such a risk.

22 . The subject matter of the applicant ’ s civil claim was neither the appointment to nor the termination of his service. It was a claim of a purely pecuniary nature relating to the non-payment of remuneration for the period of suspension and after the term of suspension expired. The applicant ’ s action before the civil courts was in essence based on his argument that his church service was akin to a contract under the Civil Code and that therefore the legal consequences of a breach of contract ought to apply in an analogous manner. The domestic courts discontinued the proceedings on the ground that the right on which he relied arose not from a legal relationship regulated by the Civil Code but from an appointment to the pastoral service by the relevant church authorities under ecclesiastical law. This line of reasoning was not germane to the applicant ’ s argument in that it in no way answered (other than pointing to the ecclesiastical appointment underlying the matter) his contention that there was an analogy between a civil-law contract and his church service.

23 . In such a situation as the applicant ’ s, where the claim covers nothing more than the value of work performed or service provided, mere reliance by the national courts on the fact that the legal relation between the parties originated in ecclesiastic law is insufficient to meet the requirements of Article 6. A claim for due payment during one ’ s period of suspension has very little, if anything, to do with the church ’ s independence, in particular since it did not, in the light of the circumstances of the present case, impose any probable or substantial risk on the religious community ’ s autonomy (see Fernández Martinez [GC], no. 56030/07, § 132, ECHR 2014). A distinction must therefore be drawn between the applicant ’ s case and cases involving decisions where the general principle of exclusion is based on the Court ’ s agreement with the domestic courts ’ finding that the judicial determination of issues such as the continuation of a priest ’ s or pastor ’ s service within the church would be contrary to the principles of autonomy and independence of churches (see, for example, Dudová and Duda v. the Czech Republic (( dec. ), no. 40224/98, 30 January 2001), and Ahtinen v. Finland , (no. 48907/99, §§ 42-43, 23 September 2008).

24 . Any finding to the contrary would result in a situation where the mere fact that a (former) clergyman ’ s service originates in ecclesiastic law would leave that person stranded in a legal no-man ’ s land between State law and church law – even if the claim in question is of an exclusively pecuniary character and falls within the scope of the civil-law guarantees which are due to every citizen, as enshrined by Article 6.

25 . To sum up, it is more than doubtful that it would be possible at all to show that (and how) the settlement, by a State court, of the pecuniary dispute between the applicant and the Calvinist Church could pose a “real” and “substantial” risk to that church ’ s autonomy (see paragraph 11 above). The very fact that the domestic courts did not sufficiently explain the reasons why the interests of the church outweighed those of the applicant reveals that the courts failed to weigh the rights of the applicant against those of the employing church in a manner compatible with the Convention.

This alone merits the finding of a violation of Article 6 § 1.

IV

26 . The present judgment is not limited to the applicant ’ s situation, but has broader ramifications, at least in theory. It follows from the judgment that the Convention approves of a situation whereby a category of persons, namely (former) clergymen, can be deprived of the right to a court even when their claims against the church are of a purely pecuniary nature. At the easy hand of this Court, the maxim “Render unto Caesar the things that are Caesar ’ s, and unto God the things that are God ’ s” (Mt 22:21) has become obsolete, as now even pecuniary disputes no longer relate to things that are “Caesar ’ s”.

27 . Hitherto the Court was unwilling to leave black holes of any sort in the Convention right to a court (see, mutatis mutandis , Cudak v. Lithuania [GC], no. 15869/02, §§ 54-75, ECHR 2010). Now, by this judgment, the Court has itself created a black hole – a gap in the system of the protection of individuals under the Convention. This is most disappointing.

28 . Of importance is also the “geographical” dimension of these ramifications, as the said potential deprivation pertains not only to Hungary but to any member State which resorts to disowning its jurisdiction in favour of an ecclesiastic one, thus discriminating against some members of its society.

29 . Two of us, i.e. Judges Saj ó and Vučinić , considered that since the majority found no violation of Article 6 § 1 it was unnecessary to consider the case under Article 14 of the Convention (which prohibits “discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”). At the same time, one of us, Judge KÅ«ris , voted against point 3 of the operative part of the judgment, because he found this aspect to be a fundamental element of inequality of treatment (see, mutatis mutandis , Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 89, ECHR 1999 ‑ III, and Dudgeon v. the United Kingdom , 22 October 1981, § 67, Series A no. 45).

30 . Irrespective of this difference in opinion as to whether the violation of Article 14 had to be explicitly considered in this case, we are concerned about the potential of discrimination against (former) clergymen under the veil of church autonomy. The finding in this case naturally and legitimately prompts questions as to what other rights of (former) clergymen set out in ecclesiastic documents could be sacrificed to absolutist church autonomy, as perceived by the majority. Would such rights include pension rights? Other social security rights? Health insurance rights? The right to privacy under Article 8 of the Convention? What about property rights under Article 1 of Protocol No. 1 to the Convention: could such claims be excluded from the national courts ’ civil jurisdiction? What would happen to the prohibition under Article 4 of the Convention: would a (former) clergyman ’ s claim, hopefully only hypothetical, relating to the alleged breach of the said prohibition, fall outside the jurisdiction of the Hungarian labour courts?

These questions sound provocative, but they were themselves provoked by the doctrinal position underlying the finding in this case. As already mentioned, this doctrinal position qualifies a purely pecuniary dispute as ecclesiastical and grants unilateral power to ecclesiastical authorities in jurisdictional matters. Thus, it allows for the creation of a dual legal system wherein elementary State sovereignty is denied with regard to some legal disputes and, consequently, for deprivation of people of protection of their rights by the State. Moreover, some churches (unlike the Hungarian Calvinist Church) may even not have a system of ecclesiastical courts or tribunals. What would then be left of the State ’ s obligation under Article 6, whose notion of “tribunal” now seems to encompass all variety of ecclesiastical dispute resolution bodies?

V

31 . One of the salient contradictions of the present judgment is as follows. According to the judgment the Supreme Court was not mistaken in deciding that the State courts had no jurisdiction to examine the applicant ’ s civil claim. At the same time, the judgment pays tribute to the fact that the Supreme Court “in fact” examined this claim (see paragraph 74), even though the Supreme Court expressly “discontinued” the examination of the case on the ground of the ecclesiastical origin of the legal relationship. However, the result of that “examination” is that de facto the Supreme Court has no jurisdiction to examine the claim. What kind of “examination” is it which ends with a realisation that examination is legally impossible?! The majority failed to distinguish between an examination of the possibility of examining the applicant ’ s claim (i.e. examination of the limits of the Supreme Court ’ s own jurisdiction) and the examination by the Supreme Court of the claim itself.

32 . Another contradiction in this judgment should also be pointed out. The Court has found – unanimously ! – that the applicant, by not applying to the Supreme Court for review of the appellate court ’ s decision, failed to exhaust the last available State remedy in his labour dispute with the church (see paragraph 32 of the judgment). At the same time it is obvious that it would be pointless for the applicant to apply to the Supreme Court, because in the applicant ’ s civil case it (rightly, according to the logic of the majority) held that claims originating in the “pastoral service relationship, regulated by ecclesiastical law”, have to be decided by ecclesiastical courts. Moreover, the Supreme Court even explicitly relied on the same “conclusion” reached by the labour court in the applicant ’ s labour case (see paragraph 15 of the judgment).

33 . Even assuming (as we have reluctantly done) that the applicant has failed to exhaust the last available (at least in theory) avenue in pursuing his labour-law claim, which is a prerequisite for bringing this particular claim before this Court, we find it difficult to comprehend a position which, on the one hand, approves of the Supreme Court ’ s self-exclusion from cases originating in pastoral service and, on the other hand, tells the applicant that that avenue is still available. We fail to see how this suggestion can be consistent with the requirements, as reiterated through the years in thousands of judgments and decisions of this Court, that the existence of the domestic remedies that have to be exhausted under Article 35 § 1 of the Convention must be “sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness ” (see, among many other authorities, Vernillo v. France , 20 February 1991, § 27, Series A no. 198; Aksoy v. Turkey , 18 December 1996, §§ 51-52, Reports of Judgments and Decisions 1996-VI; and Akdivar and Others v. Turkey (Article 50), 1 April 1998, § 66, Reports 1998 ‑ II ), and that a remedy which has to be exhausted must be “an effective one available in theory and in practice at the relevant time, that is ... accessible, ... capable of providing redress in respect of the applicant ’ s complaints and [offer] reasonable prospects of success” (see, among many other authorities, Akdivar and Others , cited above, § 68; Sejdovic v. Italy [GC], no. 56581/00 , § 46, ECHR 2006-II; and Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 71, 17 September 2009).

34 . Paradoxically enough, in the present case the four-to-three majority which has found no violation of Article 6 § 1 is completely different from the four-to-three majority which found that the “civil” complaint is partly admissible (see also the other joint separate opinion of the three judges). Such a non-pluralist judgment (where the finding of no violation of the Convention is in fact a one-to-six finding with the “one” constituting the decisive “majority”) cannot have the necessary authority.

35 . Given the distribution of votes and especially the individual judicial opinions behind them, it would be desirable to refer the case to the Grand Chamber.

36 . Under Article 30 of the Convention, in order to be examined by the Grand Chamber, the case has to meet one of the following two criteria: ( i ) a case pending before a Chamber raises a serious question affecting the interpretation of the Convention or the Protocols thereto”; or (ii) “the resolution of a question before the Chamber might have a result inconsistent with a judgment previously delivered by the Court” (Article 30 of the Convention). This case meets both criteria. As to the first criterion, the serious problem underlying the dispute at hand is the relationship between State law and ecclesiastical law, the disowning of the State ’ s jurisdiction in favour of the ecclesiastical one, and the exclusion of a category of individuals from the protection of Article 6. As to the second criterion, the discordance of this judgment not only with “a” judgment of the Court but with its overall reasoning and with both the letter and the spirit of the Convention has already been extensively commented on in this opinion.

37 . We still have some hope that the situation will be rectified.