At the request of the Government of Romania the Grand Chamber panel of five judges has decided to refer the case of Sindicatul Păstorul Cel Bun v Romania 2330/09  ECHR (31 January 2012) to the Grand Chamber. (The Third Section judgment is available only in French, but the Court has published an information note in English on the judgment and the Strasbourg Consortium has provided an unofficial English translation.)
Sindicatul Păstorul Cel Bun (the Union of the Good Shepherd) was set up by clergy and lay members of the Orthodox Church. Its aim, as set out in its statutes, is to defend the professional, economic, social and cultural interests of its members, both clerical and lay, in their dealings with the Church hierarchy and the Ministry of Cultural and Religious Affairs. The union applied to the district court to be granted legal personality and to be entered in the official register of trade unions but representatives of the Archdiocese objected, arguing that the internal regulations of the Orthodox Church prohibited the creation of any kind of association without the prior consent of the Archbishop. The public prosecutor supported the application but the county court rejected the application.
Before the Third Section hearing Sindicatul Păstorul Cel Bun argued that the domestic authorities’ refusal infringed its trade union rights under Article 11 ECHR (freedom of assembly and association). The reasons given by the domestic court to justify the interference had been of a purely religious nature: it had not examined the repercussions of the employment contract on the employer-employee relationship, the distinction between members of the clergy and lay employees of the Church or the issue as to whether or not the ecclesiastical rules prohibiting union membership were compatible with the domestic and international regulations enshrining the right of employees to belong to a trades union. The domestic court had also based its refusal to register the union on the provisions of the Orthodox Church’s Statute which had entered into force in 2008 – after the members of the union had taken up their duties within the Church. Moreover, the right of employees of the Orthodox Church to join a trades union had already been recognised by the domestic courts on at least two previous occasions. Though that recognition had predated the entry into force of the Statute of the Orthodox Church in 2008, the fact remained that two unions had been set up for Orthodox clergy without having been declared unlawful or incompatible with democracy – in view of which the grounds relied on by the county court appeared insufficient to justify the refusal of the applicant trade union’s request for registration.
In particular, the Third Section held that:
“… the relationship based on an employment contract cannot be “clericalised” to the point of escaping any rule of civil law (see, mutatis mutandis, Schüth v Germany, No. 1620-1603, § 70, ECHR 2010). It concludes that the clergy and, even more so, lay employees of the Church cannot be removed from the scope of Article 11. National authorities may at most impose “lawful restrictions” in accordance with Article 11(2) of the Convention” (para 65).
Accordingly, in the absence of a “pressing social need” or of sufficient reasons the Court held, by five votes to two, that there had indeed been a violation of Article 11. It is that finding that has now been appealed.
Comment: This looks like a classic example of “clashing rights”: the rights of workers to associate under Article 11 and the right of a Church under Article 9 to organise itself according to its canon law. The European Centre for Law & Justice has argued that the judgment
“… 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”.
For my part, however, I am not entirely convinced by this, because when Church employees lose their jobs they may sometimes lose their livelihoods as well. For a cleric, to be inhibited from exercising one’s ministry throughout the denomination in which one has been ordained is a far greater blow than, say, redundancy for an accountant or a solicitor. And what conceivable argument can there be for prohibiting lay employees from joining a union? As the Third Section pointed out in the passage quoted above, “the relationship based on an employment contract cannot be ‘clericalised’ to the point of escaping any rule of civil law”. Quite so – but, of course, the Grand Chamber may take a different view.