ECLJ comments on the ECHR, 3rd section, ruling of January 31, 2012, in the case Sindicatul Pastorul cel bun v. Romania

By ECLJ1329248164773

Grégor Puppinck, PhD, Director of ECLJ
In collaboration with Mrs Andreea Popescu, lawyer at the ECLJ[1]


Strasbourg, February 9th 2012 - On January 31st 2012, the third section of the European Court of Human Rights issued a judgment in the case of Sindicatul Pastorul cel bun c. Roumanie (no. 2330/09) whereby it determined that the refusal to register a trade union established within the Orthodox Church was contrary to freedom of association guaranteed by Article 11 of the European Convention of Human Rights.

The Romanian Orthodox Church has publicly expressed its wish that the matter is now referred to the Grand Chamber for a new trial. The European Centre for Law Justice intervened in the proceedings as a third party before the Court and submitted written observations in December 2010.

Before examining the detail of the legal problems specific to the case, it must be noted that this judgment illustrates the tendancy of the Court to behave as a fourth instance, in opposition to the principle of subsidiarity, and to lack clarity and coherence in its case-law. In this case, the Court substitutes its own assessment of the facts and interpretation of the domestic law to those of the domestic courts on an important issue. Moreover, this judgment contradicts principles well-established in the case-law, including that of the Grand Chamber. Finally, it lacks clarity. In this regard, the relative confusion of the reasonning, backed up by case-law references very often accompanied by “mutatis mutandis” must be underlined. The reference used to support the cornerstone of the reasoning was deemed “extensive, not to say clearly creative”[2]. All this seems to indicate that the process underpinning this judgment was somehow teleological. If the Section really intended to contradict the previous case-law of the Court on these issues of principle, it should certainly have applied Article 30 of the Convention and relinquished jurisdiction in favour of the Grand Chamber. These problems suggest that the wording of this judgment was not given all the necessary care and that a referral to the Grand Chamber is imperative.

Beyond the facts of the case, the judgment of the third Section is problematic because it changes the doctrine of the Court regarding important aspects of the protection of religious freedom. Among other problem areas, this judgment analyses the facts not in terms of religious freedom (protecting the rights of others), but in terms of public order; so without asking whether the non-recognition of the union could be justified by respect for religious freedom of the Church, the Section was satisfied to certify that the union did not constitute a threat to public order and democracy, and that therefore it should have been legally recognised. In order to do this, the Section linked the respect of the rights of the Church not to religious freedom, but to public order: that is the Court’s fundamental error. The second major problem of the judgment, which follows in part from the first, is the calling into question of the incompetence of the State in religious matters, an incompetence which is the foundation of the legal principle of the institutional autonomy of the Church from the civil authorities.

More generally, the misunderstanding by the Court of what the Church is, as a sacred institution, and of what priesthood is, as a relationship between a priest and his Church, leads to considering the Church as a private employer, and priests as mere employees. Thus, the Court proceeds to a legal secularisation of the Church and the clergy.

The argumentation of the Section in this case suffers from glaring weaknesses, as much in its assessment of the facts, as in its legal analysis. In contradiction with the well-established jurisprudence of the Court on several key points, it calls into question essential aspects of the protection of religious freedom as guaranteed so far by the Convention, without any benefit for union freedom. Indeed, once the union is legally recognised, could the European Court of Human Rights force the Church to co-operate with it? Would these trade unionists have the means of industrial action? No, unless one entirely distorts the Church and priesthood, as the Soviets already did in Romania with the creation of the "Democratic Union of Priests" in 1945.

For these reasons, briefly developed below, the European Centre for Law and Justice, as an organization devoted primarily to the defence of religious freedom, hopes that this judgment will be referred to the Grand Chamber to be retried. In expressing this wish, the purpose of the ECLJ is to contribute to the respect for religious freedom and the quality of the case-law of the Court, which are both affected by this Third Section judgment.


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Analysis:

At the heart of this case is the refusal of the Romanian authorities legally to recognise the creation of a trade union composed of 31 priests and four non-religious individuals employed by a diocese. This union was created during an internal conflict within the Church. Its members claimed that the union aimed at:
• Participating, as a trade union body, at all levels and in all instances of leadership and decisions of the Church, including the Holy Synod;
• Convincing the Archdiocese to present a regular report on decisions relating to appointments, transfers, and budget allocation, as well as its revenues and expenditures;
• Ensuring the promotion of free enterprise, competition and freedom of expression amongst its members;
• Organising meetings, demonstrations and strikes;
• Enabling the clergy and non-religious employees to benefit from all the rights enjoyed by private sector employees such as welfare, unemployment insurance, pension rights, leave and public holidays (Saturdays and Sundays, the first and second day after Easter, Pentecost, Christmas and other holidays);

The Romanian authorities[3] refused to grant legal existence to the union on the following grounds:
- With regard to the Romanian civil law which treats priests as persons exercising managerial functions therefore are not allowed to form unions[4];
- In relation to canon law: the status of the Romanian Orthodox Church, recognised by Romanian law[5], depends on the agreement of the Synod for the establishment of associations or unions by its clergy.
- Concerning religious liberty, as recognised under Romanian, European and International law, which guarantees the institutional autonomy of religious communities with regard to the civil power and the right of religious communities to organise according to their statutes.

The Union took the case to the European Court of Human Rights, alleging a violation of the right to form trade unions, which is a component of freedom of association guaranteed under Article 11 of the Convention.

The third Section, in a ruling dated January 31st 2012, concluded by five votes to two that there was a violation of freedom of association. Two judges issued a dissenting opinion (Judges Ziemele and Tsotsoria), which is indicative not only of the lack of consensus among the judges, but also of the weakness of the judgment in substance. In this case, both judges criticised the decision for not having responded to the "main problem raised by the facts, namely the conflict between the principle of the autonomy of religious communities, protected by Articles 9 and 11, and the right to form a union, protected by Article 11." TheECLJ shares this concern because this judgment is at best questionable[6], as there is no evidence of analytical clarity and rigor which is generally seen in the judgments of the Court. This is why a more in-depth analysis by the Grand Chamber is required.

Without undertaking an extensive review of the judgment, the ECLJ now wishes to draw attention to the most problematic aspects the judgment itself, which are discussed below:
1. Public order presented as the source of religious freedom
2. The Section failed to respond to an argument
3. Is the Section a legitimate interpreter of the Church’s doctrine?
4. Calling into question the status of the Church
5. A departure from the obligation of good faith and loyalty
6. A misunderstanding of priesthood and the Church
7. Calling into question the Institutional Autonomy of Religious Communities


1. Public order presented as a source of religious freedom

The Court focused its analysis on the legitimacy and necessity of non-recognition of the union in the field of public order, which is totally inappropriate. On the one hand, the Government itself had indicated that the legitimate aim pursued by its courts was not the respect of public order, but "the acknowledgement of the freedom and autonomy of religious communities" thus "the protection of the rights and freedoms of others" (§ 45). In this regard, it should be noted that it falls to the State – and not the Court – to indicate the aim pursued by the contested measure. It is therefore improper for the Court to be placed within the field of public order, stating that "the Court can admit that the measure in question tended to defend public order, which includes freedom and autonomy of religious communities" (§ 67).

Furthermore, (and this is where the most fundamental error made in the case can be found), the Section supports the statement that public order covers “the liberty and autonomy of religious communities” (67). This is a new development which introduces significant theoretical implications as well as practical consequences. After verification, and with reference to the case-law cited in its support, we see that the link is “extensive and significantly creative,” as was stated elsewhere.[7] To rebut this claim, one must simply state that the autonomy of religious communities comes hand in hand with religious freedom, a primary and independent right protected by the Convention. Public order cannot in any way be considered a source of religious freedom according to the Convention.

As the Government stated, and as is clear from the domestic decisions, the refusal to recognise the union had at its core the protection of “the rights and liberties of others” (namely the religious rights and freedoms of the Church under Article 9 of the Convention, which include the freedom and autonomy of religious communities)[8] and not the defence of public order.

Their involvement in the area of “public order” has allowed the Section to avoid responding to the “main issue raised by the facts, namely the conflict between the principle of autonomy of religious communities (protected by Articles 9 and 11), and the right to form a union (Article 11).” This point has been highlighted by the dissenting judges. Furthermore, analysing the case with regard to public order has allowed the Section to apply stricter criteria when examining the need for non-recognition of the union than apply in relation to the protection of rights and freedoms of others. In order to justify its position under the scope of public order, Romania would have to prove the union was a threat to the State and democratic society (paragraphs 69 and 76), like extremist movements (the Court applies the case-law of Refah Partisi v. Turkey[9]). Finally, the principle of autonomy, considered as being dependent on public order and not religious freedom, has seen its scope become significantly reduced – which infringes religious freedom in one of its fundamental principles.

The ECLJ is convinced that had this case been analysed on the basis of religious freedom, the Section would not have concluded as readily that a violation had occurred.

 

 

2. The Section failed to respond to an argument

The Section dismissed one of the Government’s main arguments – the fact that the priests had management responsibilities – on the grounds that it “had been a point of controversy between the two parties” (§ 72). In this case, the domestic court found that the clergy should be treated as directors according to Law No. 54/2003. The European Court of Human Rights behaved as a court of fourth instance, ruling on domestic law and invalidating the assessment made by the domestic court without even justifying its position. However, as the Court frequently recalls, “according to the principle of subsidiarity inherent to the system of protection of individual rights established by the Convention, the establishment of the facts and the interpretation of domestic law fall within the competence of domestic jurisdictions and other national authorities; the Court cannot contest them, except in exceptional cases of obvious and flagrant arbitrariness”[10].

The questions raised by the Government remain unanswered, therefore let us ask the Grand Chamber: have the national authorities exceeded their jurisdiction by equating the clergy to persons exercising managerial functions?

 

 

3. Is the Section a legitimate interpreter of the Church’s doctrine?

According to the Court, “recognition of the union would not have violated the legitimacy of religious beliefs nor the means used to express these beliefs.” The Section then stated that “the claims of the applicant union exclusively aimed at defending the economic, social and cultural rights and interests of the salaried employees of the Church (§ 75).” Conversely, reading the status of the union shows that it claims went beyond the mere social domain. In fact, the Section simply estimated “that the status of the applicant union did not contain any passages critical of the faith or the Church”(§ 73) to conclude that the union and the doctrine of the Orthodox Church were compatible. Serious questions must be asked about the competence of the European Court of Human Rights in deciding the compatibility between the Orthodox Church’s doctrine and the existence of the union. Can the Court accurately interpret this doctrine? Is it better placed than the Holy Synod and the Bishop in judging the compatibility of the union with the doctrine of the Orthodox Church? There is reason to doubt this; the example of the cautious US Supreme Court is a good example.[11] In doing this, the Court does not practice what it preaches to the States, i.e. that it has to remain neutral and impartial and “the right to freedom of religion as guaranteed under the Convention excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate”[12].

In ruling on the content of the Orthodox doctrine, one can wonder whether the Court has not only exceeded its competence but also forsaken its obligation of neutrality.

On this aspect, it must be recalled that the Court has always limited its assessment of religious matters to cases where fundamental public order[13] principles were being questioned, not when a right was concerned, since a right can be subject to legal restrictions. It should be remembered that clerks and employees of the Church have not been deprived of a right. Instead, they have freely given up the exercise of such right, for the duration of their function.

Finally, the European Court of Human Rights criticises the district court’s failure carefully to consider the compatibility between the union and the Statute of the Church (§ 78). However, it is clear that the court did not need to engage in such analysis, because even before the goal of the union came to light, its very existence was problematic in that it called into question the institutional organisation of the church, an organisation which part of religion. As the district court was not competent to assess the infringement caused by the union to the Church organisation, it had no other choice than accepting what the Church says, unless it substituted its own view. In fact, even if the union had had a perfectly orthodox goal with no intention to contest the Church’s policies, it could not exist legally without the consent of the Church.

Whereas the Romanian law endeavours to conciliate, while distinguishing the civil and religious areas, the Section claims to be the authentic interpreter of the Church’s doctrine.

 

 

4. Calling into question the status of the Church

This judgment affects the type of legal relationship existing between the Orthodox Church and Romania, a relationship founded on the integration of the Church's canonical status within domestic law. As a result, the Romanian Church is not a “lawless zone”; it has a canonical status which is recognised and incorporated into domestic law.

The decision of the Section, however, hinders the direct application by national authorities of the Church’s status.  In this case, unlike other recent cases before the Court, the Romanian judges were not asked to assess a decision of the ecclesiastical authority, but to apply the canonical status of the Church themselves. What they had to do was not to assess the legality (under civil, canon and conventional law) of the Bishop's refusal to allow the union. The legitimacy of the Bishop’s refusal has not been questioned. National courts were only asked to apply Romanian law, which includes the Church’s status.

However, in artificially opposing the national and canon laws, the European Court of Human Rights treats the canonical status of the Church as a foreign law to the Romanian legal order, something which it is not explicitly, which has a bearing on Romania’s choices regarding relations between the civil and religious orders. In condemning the Romanian judge for not giving legal recognition to the union, the European Court of Human Rights has in fact condemned the canonical status of the Church, in that it submits the recognition to the prior authorisation of the Church hierarchy.

In doing so, the Court contradicts its earlier decisions and destabilises its relationship with the Lisbon Treaty.

According to its well-established case-law, "when issues about the relationship between State and religion are at stake, issues on which differences can reasonably exist in a democratic society, it is necessary to give special emphasis to the role of the national decision."[14] However, in this matter, by only analysing the case from the perspective of freedom of union association, the Section concluded that “States have only a limited margin of appreciation, which is coupled with a rigorous European supervision in both the law and its application” (§ 66).

In cases such as Folgero and others v. Norway[15] and Lautsi and others v. Italy[16] the Grand Chamber referred to the place of religion “in the national history and tradition” of a country in order to allow the State a wide discretion, and not to limit it. This is contrary to what the Section has done in this case[17].

Regarding Community law, it should be noted that the Section is at odds with article 17.1 of the Lisbon Treaty, which is not mentioned in its judgment, even though Romania is part of the European Union (EU). According to this provision: "The Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States". The European Court of Human Rights fully diverges from the EU by showing less respect for the freedom of States in religious matters than the EU.

 

 

5. A departure from the obligation of good faith and loyalty

This obligation aims at taking into account the dual dimension – contractual and spiritual – of the labour relationship within religious communities. Such a relationship must be assessed with regard to the requirements of freedom of religion and conscience because this dual dimension is difficult to apprehend legally as, in practice, the contractual aspect is often submitted to the spiritual dimension.
According to its well-established case-law, the Court recognises the existence and the validity of the obligation of good faith and loyalty, especially in religious matters, both in the civil service[18] and when the employer is an organisation with an ethos based on religion or beliefs[19]. In particular, the Court has recognised the legitimate interest of the Church to establish such a duty of loyalty, provided it has been freely accepted[20]. Its extent may vary according to the nature of the function[21]. The Court has already accepted that such an obligation justifies limits to the freedom of expression[22] or the right to private life[23].

In spite of this case-law, the Section decided that the Church cannot, with respect to its employees, claim a duty of good faith and loyalty, which notably would contain a renunciation to the creation of a union without the consent of the hierarchy.

To reach this conclusion, the Section rashly denies the legal foundations of the obligation of good faith and loyalty. It sets aside the application of Directive 78/2000/EC of November 27th 2000, which specifically provides for the validity of this duty of good faith and loyalty with regard to religious employers in Article 4. This directive provides that the staff of "churches and other public or private organisations, the ethos of which is based on religion or belief" may be subject to an obligation “to act in good faith and with loyalty to the organisation’s ethos"[24]. In several recent cases, the Court systematically took this Directive into account[25]. In the present case, the Section bluntly discards the Directive and – with originality – makes a mere declaration of the preamble prevail over an Article of the Directive. This “Article 4” indeed is the bête noire of secularist activists, together with Article 17 of the Lisbon Treaty.

To neutralise the obligation of loyalty, the judgment emphasises the absence of a clause explicitly containing this duty in the employment contracts. The Section concludes that employees were not submitted to this duty. Yet, such a clause is not to be explicit for at least two reasons. First, the duty of loyalty is a general rule of labour law, which is not specific to religious occupations. What is specific to religious occupations is that this obligation includes a religious dimension; in the same way political positions may also include a duty of loyalty of the same nature.

Second, concerning priests and the content of their duty of loyalty, affirming the need for an explicit clause inserted in their contract of employment would be to ignore not only the oath they took when entering orders, but also the fact that members of a church, clergy and laity without distinction, agree to abide by the rules of the Church, including its canon law. Moreover, in other professions (e.g. judges), the employment contract contains no provision regarding the obligation of good faith and loyalty; this obligation ensues from the status of the professions and/or any oaths taken, which renders the explicit mention of this clause in the contract of employment useless. By choosing to become a Christian, and even more so by becoming a priest or employee of the Church, every Christian freely commits to respect the faith of the Church, and of course to be loyal to the Church, each having the option to leave Church if he sees fit.

Regarding the implied duty of good faith and loyalty, which induces renouncing to form a union within the Church, the Section even contests its validity on the ground that "it touches the very substance of the freedom guaranteed by Article 11 of the Convention "(§ 81).

However the guaranteed freedom is not negated in its "very substance", only its exercise is limited, in a manner that is partial, temporary and voluntary.

  • By becoming employees of the Church, they renounce the right unconditionally to exercise their freedom of association, that is to say without the agreement of the hierarchy.
  • Furthermore, the right to form a union is one aspect of the "right to freedom of assembly and association" guaranteed by Article 11 of the Convention. However, the Section overlooks the fact that the union was able to form an association in November 2010 under the name "The Apostolia Association". Thus, the interference with the freedom of assembly and association of its members has not been "a drastic measure" (§ 87); the applicants, employees of the Church, have not been "removed from the scope of Article 11" (§ 65), contrary to what the Section suggests.
  • The employees did not renounce the substance of their right, but only its exercise within a union. They may express their demands, criticisms and claims within the framework established by the status of the Church[26].
  • Moreover, as the Court repeatedly admitted, a church is “not obliged to provide religious freedom to all its ministers and members”[27], neither does it have to ensure the right for the clergy to found a family or to maintain family relationships[28]. This also applies to the freedom to form a union.
  • Finally, as the Commission and the Court constantly ruled, “ministers enjoy the right of freedom of religion at the moment they accept or refuse employment as clergyman and by their right to leave the church”[29], Article 9 of the Convention “does not enshrine a right of dissent within a religious community, it being sufficient that dissenters should be free to leave the community”[30]if they disagree either about the creed or the organisation. The Church is thus free, by virtue of its doctrinal autonomy, to determine the rights and freedoms the exercise of which the faithful must renounce, provided they are free to leave the community.

Moreover, if committing to the Church cannot imply renouncing the exercise of some guaranteed rights, then what about all the other commitments to which Christians implicitly consent? Commitments such as poverty, chastity, marital fidelity, respect for natural morality or obedience also affect the very substance of the freedoms guaranteed by the Convention.

In fact, the Christian seeking freedom must undergo renunciation[31] and a certain amount of submission, it is a spiritual journey to which material consequences are subordinate. The assessment by the Court of these material consequences cannot be done without infringing the independence and the autonomy of the spiritual journey.

The choice of a person to not comply with the requirements of the Church is free but not binding on the Church itself, even when that choice is to recover the full exercise of a right guaranteed under civil law.

 

 

6. A misunderstanding of the priesthood and the Church

It should finally be said that there is some misunderstanding by the Section on the nature of the relationship between a priest and his church. The Section states that “the relationship based on an employment contract cannot be "clericalised" to the point of escaping any rule of civil law "(§ 65). This is not accurate: in fact, the relationship is not based on an employment contract but on a shared religious vocation. The employment contract is an accessory, which, indeed, is not immune to civil law. However, that is not to say that civil law can or should ignore the specific nature of this contract: the religious specificities of this contract must be comprehended by the civil law and cannot be ignored since no fundamental principle of public order is involved.

A misunderstanding by the Section of what the Church is as a sacred institution, and what priesthood is, as a relationship between a priest and his Church, has the effect of treating the Church as a private employer, and the priests as mere employees. The Court undertakes a legal secularisation of the Church and clergy.

This misunderstanding, is even more evident in that it led to the principle of institutional autonomy of religious communities being ignored.

 

 

7. Calling into question the Institutional Autonomy of Religious Communities

The Section completely neglected the study of the most critical point of the case, namely an analysis of the consequences of the union’s existence on the Church as an institution, in other words on the institutional dimension of religious freedom, which is called the principle of institutional autonomy. This principle is a guarantor of autonomy, in other words of the distinction between the State and the Churches. According to this principle, the State is not competent to manage the internal matters of the Church and, in particular, anything that relates directly to the doctrine and to the running of religious communities. Given that the principle protects the freedom of religious communities with regard to the State, it is a direct result of the right to religious freedom and the distinction between State and Church. In sharp contrast to what the Section claimed, it does not come from public policy.

The Court, as well as institutions such as the OSCE and the Venice Commission, has affirmed this principle on many occasions: “When dealing with the legal status of religious communities, it is of utmost importance that the State takes particular care to respect their autonomous existence. Indeed, the autonomous existence of religious communities is indispensable for pluralism in a democratic society and is thus an issue at the very heart of the protection which Article 9 affords”[32].

According to the well-established case-law of the Court: “The religious communities exist traditionally and universally in the form of organised structures and when the running of such a community is in question Article 9 of the Convention must be interpreted in the light of Article 11 of the Convention which protects the freedom of association from any unjustified interference from the State. Indeed, indispensable to the pluralism of a democratic society, their autonomy is found at the very heart of the protection afforded by Article 9”.[33]

The Court bases the protection of the Church’s autonomy on the fact that religious institutions as such have a religious function and signification which may be part of their creed.

In their activities, religious communities “abide by rules which are often seen by followers as being of a divine origin” [34]; the State has no competence to rule on these institutional religious standards, the life of the community being a specific manifestation of religion which, as such, enjoys the protection of Article 9 of the Convention[35].

The principle of autonomy may have various applications. Among other examples, the Court has ruled that “the State cannot oblige a religious community to admit members or exclude existing members”[36].

There is no doubt that trade unionism is foreign and even contrary to ecclesiology. Indeed, the Church founded by Christ and organised by the Apostles, is the "mystical body of Christ" whose head is Christ and members are Christians. According to Christian tradition, the leadership of the Church stems from its head and not its members, and the power within the Church proceeds from Christ, not the staff’s representative bodies ... From this Orthodox conception of the Church follows a type of hierarchical organisation that excludes any form of industrial action, usual for trade unions. It also results in a corporal conception of the institution in respect of which the union may only be a foreign body.

Moreover, when, as here, there is an internal conflict within the Church, the State must remain "neutral and impartial", "except in very exceptional cases"[37], it must refrain from any intervention in an internal conflict within the Church. This again is an application of the principle of autonomy which constitutes one of the cornerstones of religious freedom within its collective dimension.

This principle has constantly been recognised so far by the European Court of Human Rights, as well as by other international courts and institutions which protect human rights. Very recently, the U.S. Supreme Court reaffirmed this principle in a decision passed unanimously (Case Hosanna-Tabor). This judgment is completely the opposite.

 

Conclusion

The argument of the Section in this case suffers from glaring weaknesses, both in assessing the facts, and in its legal analysis. At odds on several key points with the well-established case-law of the Court, it calls into question key aspects of the protection of religious freedom as guaranteed by the Convention so far, without any benefit for the freedom of union association. Indeed, once the union is legally recognised, could the European Court of Human Rights force the Church to collaborate with it? Will these trade unionists have the means to carry out industrial action? No, unless one entirely distorts the Church and priesthood, as the Soviets did in Romania with the creation of the "Democratic Union of Priests" in 1945.

 

RELATED DOCUMENTS;

 

[1] The authors thank Mrs Claire de la Hougue, lawyer in Strasbourg, for her contribution and revision of the text, as well as Niall Jeremiah Colbert, Eoin Lavelle, Steven Barry  and Aedin Conboy, law clerks, for translating the document from French into English.

[2] See Nicolas Hervieu, La liberté syndicale franchit les portes de l’Eglise (ECHR, 3rd Sect. January 31st 2012, Sindicatul 'Pastorul Cel Bun' v. Romania), http://combatsdroitshomme.blog.lemonde.fr

[3] Dolj County Court, Judgment of July 11th 2008.

[4] Under Law No. 54/2003

[5] Recognised by the Government Ordinance No. 53/2008

[6] See Nicolas Hervieu, La liberté syndicale franchit les portes de l’Eglise (ECHR, 3rd Sect. January 31st 2012, Sindicatul 'Pastorul Cel Bun' v. Romania), http://combatsdroitshomme.blog.lemonde.fr

[7] Nicolas Hervieu, cited above.

[8] Hassan and Tchaouch v. Bulgaria [GC], no. 30985/96, § 62, ECHR 2000 XI; Kokkinakis v. Greece, no. 14307/88, 25/05/1993, § 44; Leyla Sahin v. Turkey, [GC] 10/11/2005, no 44774/98, § 99; Gorzelik and others v. Poland [GC], no. 44158/98, 17/02/2004, § 72.

[9] Refah Partisi (The Welfare Party) and others v. Turkey, [GC], no 41340/98, 41342/98, 41343/98 et 41344/98) § 104, ECHR 2003-II

[10] García Ruiz v. Spain [GC], no 30544/96, §§ 28-29, ECHR 1999-I, et a/s Diena et Ozolinš v. Latvia, no 16657/03, § 66, 12 July 2007 ; Mirolubovs and others v. Latvia, no 798/05, 15 September 2009, § 91 ;

[11] See the recent Supreme Court case Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission et al, no. 10-553, October 5th 2011.

[12] Hassan and Tchaouch v. Bulgaria [GC], no. 30985/96, § 78, CEDH 2000 XI; Mirolubovs and others v. Latvia, no 798/05, 15 September 2009, § 89

[13] Obst. v. Germany, no. 425/03, September 23rd 2010, § 46; Schüth v. Germany, no. 1620/03, September 23rd 2010, § 62.

[14] Obst v. Germany, n° 425/03, judgment of the September 23rd 2010, § 44 ; Schuth v. Germany, n° 1620/03, judgment of the September 23rd 2010, § 58 ; Leyla Sahin v. Turkey [GC], no 44774/98, § 108, CEDH 2005-XI 

[15] Folgero and others v. Norway, [GC], no. 15472/02, 29 juin 2007, § 89: In view of the place occupied by Christianity in the national history and tradition of the respondent State, this must be regarded as falling within the respondent State's margin of appreciation in planning and setting the curriculum”.

[16] Lautsi and others v. Italy, [GC], no. 30814/06, March 18th 2011, § 71: “In the Folgerø case, in which it was called upon to examine the content of “Christianity, religion and philosophy” (KRL) lessons, it found that the fact that the syllabus gave a larger share to knowledge of the Christian religion than to that of other religions and philosophies could not in itself be viewed as a departure from the principles of pluralism and objectivity amounting to indoctrination. It explained that in view of the place occupied by Christianity in the history and tradition of the respondent State – Norway – this question had to be regarded as falling within the margin of appreciation left to it in planning and setting the curriculum (see Folgerø, cited above, § 89). It reached a similar conclusion in the context of “religious culture and ethics” classes in Turkish schools, where the syllabus gave greater prominence to knowledge of Islam on the ground that, notwithstanding the State's secular nature, Islam was the majority religion practised in Turkey (see Zengin, cited above, § 63).”

[17] “The Court is conscious of context in this case, particularly the place of orthodox religion in the history of the defending State. Nevertheless, the context alone is not sufficient to justify the necessity of the interference, especially as the applicant union in no way intended to challenge the place and the right of employees within the Orthodox Church which has already been recognized, at least twice by the domestic courts” (§ 84).

[18] Since Glasenapp c. Germany 28 August 1986; Kosiek c. Germany, 28 August 1986 ; Vogt c. Germany, no 17851/91 26 September 1995.

[19] ECHR, 5th Sect. 23 September 2010, Obst v. Germany and Schüth v. Germany, Ap. no 425/03 and1620/03; ECHR, 2nd Sect. 20 October 2009, Lombardi Vallauri v. Italy, Ap. no 39128/05.

[20] Rommelfänger v. Germany, no 12242/86, decision of the Commission, 6 September 1989.

[21] Obst v. Germany, no 425/03, 23 septembre 2010, § 50.

[22] 2nd Sect. 20 October 2009, Lombardi Vallauri v. Italy, no 39128/05.

[23] Obst v. Germany, no 425/03, 23 septembre 2010, § 50.

[24] Directive 78/2000/CE of the Council of November  27t h 2000 establishing a general framework for
equal treatment in employment and occupation recognises the "occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief, a difference of treatment based on a person's religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person's religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos. This difference of treatment shall be implemented taking account of Member States' constitutional provisions and principles, as well as the general principles of Community law, and should not justify discrimination on another ground." (Article 4).

[25] Obst v. Germany, no 425/03, 23 septembre 2010, § 51 ; Schüth v. Germany, no. 1620/03, September 23rd 2010,  § 70 ; Lombardi Vallauri v. Italy, Ap. no 39128/05, 20 October 2009, § 41; Siebenhaar v. Germany, no 18136/02, 3 February 2011, § 44.

[26] Which are consulted by the clergy in diocesan assemblies, monthly administrative priests’ conferences, pastoral circles, pastoral or semi-missionaries conferences or in the Permanence of episcopal councils, including the National Church Council and the National Church Assembly of the Romanian Orthodox Church – press release of the Patriarchate of Romania published on the official website of the Romanian Orthodox Church February 1st 2012;

[27] At least since X. c/ Danemark, n° 7374/76, Commission decision, 8 March 1976, DR 5, p. 157; Finska Församlingen I Stockholm and Hautaniemi v. Sweden, Commission decision, 11April 1996, DR 85-B, p. 94.

[28] SIJAKOVA and Others v. Former Yugoslav Republic of Macedonia, decision of 6 March 2003, no 67914/01.

[29] X. c/ Danemark, n° 7374/76, Commission decision, 8 March 1976, DR 5, p. 157.

[30] Holy Synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy) and Others v. Bulgaria, no 412/03 and 35677/04, 22 January 2009, § 141 ; Mirolubovs and others v. Latvia, no 798/05, 15 September 2009, § 80; Karlsson v. Sweden, no 12356/86, Commission decision, 8 September 1988, DR 57, p. 172 ; Spetz and others v. Sweden, no 20402/92, Commission decision 12 October 1994; Williamson v. Royaume-Uni, no 27008/95, Commission decision 17 May 1995.

[31] The rite of baptism, through which somebody becomes part of the Church, includes a series of solemn renunciations : Abrenúntias sátanæ ? Et ómnibus opéribus ejus ? Et ómnibus pompis ejus ? Abrenúntio! (Catholic ritual).

[32] Venice Commission,Opinion on the Draft Law regarding the Religious freedom and the General Regime of religions in Romania, 64th plenary session (Venice, 21-22 October 2005), § 20; Hassan and Chaush v. Bulgaria, no. 30985/96, § 62; Metropolitan Church of Bessarabia and Others v. Moldova, no. 45701/99, § 118.

[33] Obst v. Germany, no. 425/03 (Sect. 5) (fr) – (23.9.10); Schüth v. Germany, no. 1620/03 (Sect. 5), ECtHR 2010 – (23.9.10), § 58; Leyla Sahin v. Turkey, no. 44774/98, ECtHR 2005-XI, § 108.

[34] Hassan and Chaush v. Bulgaria, no. 30985/96, § 62, ECtHR 2000-XI.

[35] Hassan and Chaush v. Bulgaria, no. 30985/96, ECtHR 2000-XI § 78:“It recalls that, but for very exceptional cases, the right to freedom of religion as guaranteed under the Convention excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate”.

[36] Mirolubovs and others v. Latvia, no 798/05, 15 September 2009, § 80 ; Sviato-Mykhaïlivska Parafiya v. Ukraine, no 77703/01, § 146, 14 June 2007.

[37] Precit.