PARTLY DISSENTING OPINION OF JUDGE SAIZ ARNAIZ

( Translation )

My disagreement with the majority is confined to the second operative paragraph of the judgment. I believe that certain arguments can be made in support of the view that the non-renewal of the applicant’s contract in October 1997 entailed a violation of Article 8 of the Convention, in accordance with the meaning given to that provision in paragraphs 56 and 57 of the judgment, with which I otherwise agree. My dissent is principally based on two grounds:

1. In paragraph 83 of the judgment it is emphasised that the present case differs from those examined in the Siebenhaar v. Germany (no. 18136/02, 3 February 2011), Schüth v. Germany (no. 1620/03, ECHR 2010) and Obst v. Germany (no. 425/03, 23 September 2010) judgments, in so far as “the impugned measures in those cases had been taken by church authorities against laymen, whereas the applicant in the present case is a secularised priest”. Whilst that difference certainly obtains, I consider that there is an even more important one: in the present case, the non-renewal decision was taken by the public authority responsible for education and not by the church authority. Admittedly, it was adopted on the proposal of the diocese, but not actually by the latter. This point is a new one – and in that respect the present case also differs from Lombardi Vallauri v. Italy (no. 39128/05, 20 October 2009) – and it is a point which, in my view, the Court has not sufficiently taken into account, seeming on the contrary to disregard it when, in paragraph 87 of the judgment, it implicitly alludes to the diocese in the following terms: “an employer whose ethos is based on religion ...”. In fact the diocese was never, at least not in a formal sense, the applicant’s employer.

Turning back to the facts that were found established by the Murcia Employment Tribunal no. 3, it can be seen that, for the six years in which the applicant served as a teacher of Catholic religion and ethics, he did so “on appointment by the provincial director of the Ministry of Education, as a temporary public servant”. The Ministry’s decision of 11 October 1982 concerning teachers of Catholic religion and ethics in secondary schools, as applicable at the material time, provided in Article 5 that such teachers were “appointed by the authority”. The fact that, since its judgment of 19 June 1996, the Supreme Court (see paragraph 43 of the judgment) has found that the employment relationship of such teachers is of a contractual nature and that “the court of competent jurisdiction to entertain disputes concerning [them] is the employment tribunal, not the administrative court” (see paragraph 58) does not change anything: the applicant was appointed, on the proposal of the diocese, by the government authority responsible for education.

Some years ago the Spanish Constitutional Court, in its judgment no. 38/2007 (see paragraph 44), stressed the fact that until 1996 teachers of religion were “temporary public servants”, as it had been established by a Supreme Court judgment of 1996 and a legislative reform of 1998 that such teachers were to be regarded as “contractual staff appointed by the authority on the proposal of the church and for a limited duration”. The Constitutional Court then stipulated that teachers of religion were “employees of the public education authority”. In the same judgment it stated that “Article III of the 1979 Agreement [see paragraph 35] [did] not grant the ecclesiastical authority the right to ‘appoint’ teachers of religion, but merely indicate[d] that those persons [would] be appointed by the education authority ‘from among those proposed by the Ordinary of the diocese’”. It added that this permitted, where the requisite capacity was satisfied and subject to the prior ecclesiastical declaration of suitability, together with the corresponding nomination [of the candidate] by the Church, the “continuation of the full exercise, in the appointment procedure, of the right of citizens to equality of access to public employment on the basis of the criteria of merit and capacity ” (emphasis added).

Here lies the novel feature of the present case to which I previously referred: the role of the State and its public education authority in the appointment of religious education teachers. In all the previous cases mentioned by the Court, the recruitment of staff by religious communities had been carried out directly by the churches or religious organisations themselves, without any intervention by a public authority in the relevant procedure. Moreover, contrary to the present case, it was not even a public authority which paid the salaries of the employees in question. It is precisely on account of this direct participation by a public authority that it is valid, and therefore justified, to assert that the recruitment of a religious education teacher and, if appropriate, the renewal or non-renewal of his or her contract, must be decided “in compliance with fundamental rights and with the system of constitutional values and principles”, as observed by the Spanish Constitutional Court in its judgment no. 38/2007.

In the present case I believe that both the Spanish courts and this Court placed the doctrinal and institutional autonomy of the Church above the applicant’s fundamental rights. In dismissing the amparo appeal (see paragraphs 25 to 29), the Constitutional Court took the view that the proposal not to renew the contract was based on strictly religious grounds. Having made that observation, it appeared not to take into consideration the applicant’s fundamental rights. This was moreover the view taken by two dissenting judges (among the six members of the Chamber) and the public prosecutor, who all found that the alleged violation was effectively constituted. The Strasbourg Court has now adopted the same criterion as the Constitutional Court in finding that “where questions concerning the relationship between State and religions are at stake, ..., the role of the national decision-making body must be given special importance” (see paragraph 80).

2. The national decision-making body, followed by this Court, accepted that the applicant’s contract had not be renewed “on account of the publicity given to [the applicant’s] marital status and family way of life” (see paragraph 48). The term “publicity” refers here to the article illustrated by a photograph published in a newspaper. In the diocese’s view, this article had caused a scandal. Like the Murcia High Court of Justice and the Constitutional Court, this Court has accepted the argument about the scandal, the justification for which is said to lie in the application of the Code of Canon Law, and which is seen as encapsulating the breach of the undeniable special duty of loyalty of such teachers of religion. By reasoning in this manner, it seems to me that the Court is disregarding, or at least insufficiently focusing on, the context or actual circumstances of the relationship between the applicant and the Church. The Court has ultimately acted in the same way as the domestic courts, placing the emphasis on the religious basis for the non-renewal of the contract, without giving weight, in the present case, to the applicant’s right to respect for his private life.

At the risk of repeating what has already been said by the Court, I would simply observe that when the applicant was recruited by the public education authority in 1991, on the Bishop’s proposal, he had been married for six years, having requested one year before his marriage a dispensation from the obligation of celibacy, and had had a number of children from that marriage. None of these factors, known as they were to the church authority responsible for the proposal, had constituted an obstacle to his appointment or had been regarded as potentially scandalous. The facts as established in the judgment of the Murcia Employment Tribunal no. 3 show that the administration of the two centres where the applicant taught, along with the other teachers, the pupils and their parents, all knew that he was a married priest “without any complaints having been made” about the matter. At no point was it suggested that the applicant was proselytising or had in his classes criticised the tenets of his Church, including the celibacy of priests. It was in that context that his contract had been renewed from year to year on the proposal of the Catholic Church. He thus taught in two medium-sized towns (Caravaca de la Cruz then had a population of 21,000 and Mula 13,000), in each of which there were only two secondary education institutes, and one can easily surmise that his situation as married priest must have been well known locally.

The publication in the newspaper La Verdad of an article about married priests and the “Movement for Optional Celibacy”, the content of which is described at paragraph 84 of the judgment, led the diocese not to propose the renewal of the applicant’s contract of employment, alleging a possible scandal. The article mentioned a gathering attended by “about ten secularised priests” and their families, quoting five of them, including the applicant. The news report was illustrated by a photograph of the gathering, showing the applicant and his family, although their names were not in fact given in the caption. The media coverage, whilst evident, remains relative: nowhere in the article are any critical remarks about the Church’s doctrine attributed to the applicant personally (contrast Rommelfanger v. Germany , no. 12242/86, Commission decision of 6 September 1989). In addition, it was clear from the article that the applicant was not one of the Movement’s leaders (coordinators).

Therefore, a situation that the diocese had originally regarded as compatible with the teaching of religion ceased to be so when it became public knowledge, or more precisely when it was reported in a newspaper. It was already known to the applicant’s professional circle before the publication of the article. It is in this context that, in my opinion, one cannot invoke the notion of “scandal”, based on the application of canon law and justifying the non-renewal of the contract solely by the official document granting the applicant dispensation from celibacy. Such a justification would have been possible if the Church or the applicant’s professional circle had been unaware of his personal and family situation before the publication of the article. However, it is established that this information was already known to the diocese, the other teachers, the parents and the pupils. It is also appropriate to consider why the scandal did not emerge between 11 November 1996, when the article was published, and 29 September 1997, when the diocese proposed the non-renewal, almost eleven months later.

The Court “takes the view that the circumstances used to justify the non-renewal of the applicant’s contract were of a strictly religious nature”, adding that “the requirements of the principles of religious freedom [that of the Catholic Church] and of neutrality [that of the State] preclude it from carrying out any further examination of the necessity and proportionality of the non-renewal decision, its role being confined to verifying that neither the fundamental principles of the domestic legal order nor the applicant’s dignity have been compromised” (see paragraph 84). In reality, the Court has not weighed those principles against the applicant’s rights, because that would have obliged it to explain why his public situation as married priest and father, being known to the diocese, suddenly became a ground for finding that he was unfit to teach. The failure to carry out this balancing exercise implies that the Court accepts, like the diocese, that the publicising of the applicant’s personal situation was a sufficient reason for turning a teacher who was once fit to teach into someone who was no longer capable of doing so, without there being any need to justify the scandal argument to the education authority, which had sole competence to appoint the teacher and pay him a salary. Such a position was in fact at odds with the note previously sent to the Bishop of Murcia by the director of the secondary education institute where the applicant was teaching, stating as follows: “The council of teachers ... wishes to declare ... that the above-mentioned teacher gave his classes during the school year 1996/1997 to the complete satisfaction of the teachers, the pupils and their parents, and the administration of this institution ...” (facts found established in the judgment of the Murcia Employment Tribunal no. 3).

Ultimately, the decision not to renew the contract, adopted by the public education authority on the diocese’s proposal, deprived the applicant of his employment and gave to the Catholic Church’s rights under Articles 9 and 11 of the Convention absolute priority over the applicant’s right to respect for his private life, which was quite simply disregarded in this clearly disproportionate decision. The consequences for the applicant’s professional life have been evident: for the six years that remained until his retirement at the time he lost his teaching job, he has either been unemployed or has been working in a museum – situations that are very different from the professional activity that he had exercised throughout his life, always within the Catholic Church, as priest in Latin America, Rector of the Seminary of Murcia, Episcopal Vicar and, finally, teacher of religious education.