Priests denied the right to form a trade union

Sindacutul 'Pastorul Cel Bun' v. Romania [2013] ECHR 64, (9 July 2013)

Summary

The European Court of Human Rights has ruled that preventing priests from forming a trade union in order to protect the autonomy of the Romanian Orthodox Church (Church) is consistent with the European Convention on Human Rights. Although the refusal to allow the priests to form a trade union was an interference with their freedom of association, it was considered to be necessary in a democratic society for the preservation of religious autonomy.

Facts

In 2008 a group of 35 priests from the Church tried to form a trade union called Păstoral cel Bun (The Good Shepherd). The priests were initially successful in registering the union on the Register of Trade Unions. The Public Prosecutor’s office supported the application stating that it was not in breach of any provision of the law and as the employees were working under contracts of employment they were entitled, like any other employees, to join together as part of a trade union.

The Archdiocese of Craiova intervened in proceedings, arguing that without the Archbishop’s permission, the establishment of a union and participation in civil proceedings was prohibited by the Statute of the Roman Orthodox Church. This Statute had been approved by Government Ordinance no. 53/2008. The County Court of Romania found in favour of the Archbishop and refused to register the trade union.

In addition, permission would not have been granted. The Archbishop contended that the Constitution of the trade union was such that, should it be registered, the decision making bodies of the Church would be obliged to work with a new body not bound by the traditions of the Church and the rules of canon law governing consultation and decision making.

The priests took the case to the European Court of Human Rights, arguing that refusal to allow the registration of the trade union was a breach of Article 11 of the Convention, which states that:

• Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
• No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society…for the protection of the rights and freedoms of others.

However, Article 11 must also be weighed against the protection of freedom of religion in Article 9, which provides that

• Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society.

The priests argued that they were employed by the Church and that the form of employment was such that it attracted the protection of Article 11. They further argued that there is a difference between a religious community’s religious activities and its civil and commercial activities. Civil and commercial activities, such as employment, were unconnected to the spiritual mission and so should be governed by civil law.

The Government acknowledged that refusal to allow registration of the union was an interference with freedom of association. However the Government denied they were employees and as such were not covered by labour law. As the priests perform their duties under the authority of the Archbishop they therefore fall outside domestic rules on labour law. In the alternative, the Government argued that the failure to register the union was prescribed by law, pursued a legitimate aim by protecting freedom and autonomy of religious communities, and was necessary and proportionate.

In January 2012 the ECHR found in favour of the union. The matter was then referred to the Grand Chamber (Court).

Decision

The Court disagreed with the Government’s view regarding the nature of the employment, finding that the duties performed by the priests “entail many of the characteristic features of an employment relationship”: at [143]. While a clergy’s position contains certain special features, such as the spiritual purpose and heightened duties of loyalty, they are not sufficient to remove the relationship between clergy and the church from the ambit of Article 11. Article 11 is therefore applicable and the refusal to register the trade union was, prima facie, an interference with the exercise of the priests’ freedom of association.

The Court then turned to whether the interference was prescribed by law, pursued one or more legitimate aims and was necessary in a democratic society to achieve those aims. The court dealt quite swiftly with the first two points by:

• declining to examine in detail the validity of the domestic laws allowing for such a prohibition, preferring to rely instead on the findings of the Romanian County Court that the laws were valid; and
• finding that the interference did pursue a legitimate aim, that of the protection of the rights of others, and specifically those of the Church.

As to whether the interference was necessary in a democratic society, the Court held that this was not a matter the Church itself could determine autonomously. That is, a mere allegation by a religious community that there is an actual or potential threat to its autonomy is not sufficient to render interference with the freedom of association compatible with Article 11. Rather, allegations of threats to autonomy and justifications for interference could and should be tested by the courts. The Court went on to outline a three step test that courts could apply to determine whether the interference is necessary:

• the risk alleged must be real and substantial;
• the impugned interference with freedom of association does not go beyond what is necessary to eliminate the risk; and
• the impugned interference does not serve any other purpose unrelated to the exercise of the religious community’s autonomy.

The Court went on to say that the national courts must ensure 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.

In terms of the case at hand, the Court noted that the domestic courts had indeed reviewed the potential impact on church autonomy and extent of the interference as required. The Court found that the domestic court’s conclusion that the interference was necessary was a reasonable conclusion. In addition, the Court noted that there was no absolute ban on priests forming a trade union and that the priests could form an association compatible with the Church’s Statute.

Finally, the Court also held that in this situation the state has a wide margin of appreciation. As such, if the state decided to allow clergy to form a trade union in spite of church opposition, this would also be in line with the Convention.

Commentary

The case was highly anticipated, ruling as it did, on the extent of church autonomy when weighed against other rights. It attracted significant international attention, with a number of organisations joining the proceedings: the Moldovan, Polish, Georgian, Greek and Russian Governments as well as the Orthodox Patriarchate of Moscow and a number of European and American religious NGOs.

Interestingly, the Court’s judgement simultaneously upholds and narrows church autonomy. The overall ruling means that, in certain situations, the autonomy of the church can take precedence over the rights of others. However, by providing a three step test to determine whether interference with another’s rights is justified, the Court has denied the church the ability to be the final arbiter on the extent of its autonomy. Instead domestic courts can and should rule on certain church disputes, blurring the lines between church and state more than had been done before.

In Australia, freedom of religion is recognised to some extent by s 116 of the Constitution. Religious organisations and schools also enjoy the benefit of broad exemptions under most Australian anti-discrimination laws, which apply in many areas of public life including the provisions of goods and services and employment. Many commentators, including the HRLC, have argued in favour of narrowing religious exemptions to better balance the competing rights of freedom of religion and freedom from discrimination, consistent with international human rights law. Judicial consideration of these exemptions has been limited, and focused on the doctrinal basis for religious-based discrimination permitted under these exemptions.

It will be interesting to see whether the recent judgment will influence future discussion and debate over the balancing of religious freedom and autonomy with other rights and interests.

The decision is available at: http://www.bailii.org/eu/cases/ECHR/2013/646.html

Emily Christie is a lawyer seconded from DLA Piper to the Human Rights Law Centre.