Trades union rights, the Romanian Orthodox Church and Article 11 ECHR: Sindicatul Păstorul cel Bun v Romania

Introduction

On 9 July the Grand Chamber ECtHR handed down judgment in Vinter & Ors v United Kingdom [2013] ECHR 645 and held that the whole-life tariff without review as operated in England and Wales violated Article 3 ECHR (inhuman and degrading treatment). Vinter is way beyond the self-imposed scope of this blog – not to say technical competence – but on the same day the Grand Chamber also ruled on a much lower-profile case very much about law and religion: Sindicatul Păstorul cel Bun v Romania [2013] ECHR 646.

The facts

Sindicatul Păstorul cel Bun (The Union of the Good Shepherd) was formed in 2008 by thirty-two Orthodox priests and three lay employees in the Metropolis of Oltenia, for the purpose of

“… representing and protecting the professional, economic, social and cultural rights and interests of its members, both clergy and laity, in their dealings with the Church hierarchy and the Ministry of Culture and Religious Affairs” [para 10].

There were already two trades unions for clergy and lay staff: Solidaritatea and Sfântul Mare Mucenic Gheorghe.  However, when the members applied to register the union their application was refused; and that refusal was upheld by the Dolj County Court. The case ultimately came before the Third Section, which held by five votes to two that the refusal to register the Union had violated the applicants’ right to freedom of association under Article 11 ECHR – but the Government appealed.

The arguments of the applicants

Before the Grand Chamber the applicant union argued that

  • priests and clerical staff of the Romanian Orthodox Church had similar status to civil servants and that the relationship between the Church  and its staff was similar to that between civil servants and their employing institution, with all the features of a contract of employment;
  • during 2004 the priests of the Archdiocese of Craiova had signed employment contracts of indefinite duration with the Archdiocese;
  • employees of the Church had no protection from potential abuses in such matters as salaries or transfers;
  • the interference with its members’ freedom of association had not been prescribed by domestic law because the Constitution guaranteed the right to form political parties, trades unions and the like – from which it could be inferred that there was no legislative bar on priests forming a trade union – and the refusal of registration had been based solely on Article 123 § 8 of the Church’s Statute;
  • though the measure pursued a legitimate aim – protecting the Church’s interests – it was not necessary in a democratic society in order to preserve the Church’s religious autonomy;
  • it did not wish to alter either Christian dogma or the organisation of religious worship: its sole aim was to protect its members’ statutory rights;
  • some of the aims set out in the union’s constitution might appear to conflict with the duties of priests but they had been “copied wholesale from the Trade Unions Act” and were also intended to protect the interests of the Church’s lay employees – who were not bound by the same obligations as priests;
  • any action it might have taken such as strikes or other similar activities would in any event have been subject to review by the judicial authorities, which could impose sanctions up to and including dissolution, and priests remained subject to the Church’s disciplinary procedure; and
  • two other trades unions had already been set up within the Church which had been recognised by the State without affecting the Church’s internal organisation.

In conclusion, the prohibition had not been proportionate to the aim pursued.

The Government’s response

The Government responded that

  • there was no legal impediment preventing lay staff of the Romanian Orthodox Church from forming a trade union;
  • by virtue of the Statute of the Romanian Orthodox Church and the Religious Freedom Act, the relationship of clergy with the Church was a “freely accepted service and mission relationship” falling outside the sphere of labour law the Labour Code;
  • priests performed their duties in accordance with their ordination vows and a decision by the bishop setting out their rights and obligations;
  • the employment contracts signed in 2004 by the Archdiocese of Craiova were the result of an erroneous interpretation of the law and had never been registered by the Labour Inspectorate, which had confirmed that labour law was not applicable to the relationship between the Orthodox Church and its ecclesiastical staff – a view shared by the High Court of Cassation and Justice and the Constitutional Court, which had both held that, in accordance with the autonomy of religious denominations, the secular courts could not review decisions by the ecclesiastical courts in relation to the provisions of the Labour Code;
  • priests were not state officials;
  • because priests were responsible for administering their parishes and, as such, performed management functions, the provisions of Law no. 54/2003 barred them from trade union activities; and
  • priests belonging to the applicant union had no right to dissent: disaffected clergy could leave the Church but, so long as they chose to remain, they were deemed to have consented freely to abide by its rules and to waive some of their rights.

As to the legitimate aim pursued by the interference, the Government asserted that its sole aim had been to protect the rights and freedoms of the Church. As to necessity and proportionality, the Government pointed out the ban on forming trades unions without the Archbishop’s consent applied only to clergy and that the Church’s lay staff were free to join together in accordance with the provisions of the Trade Unions Act, while the freedom of association of clergy was fully respected by the Church, within which there were several hundred associations and foundations, among them the Apostolia association in the Archdiocese of Craiova.

The Government further submitted that the requirement of the Archbishop’s permission for any form of clergy association was legitimate and reflected the principle of the Church’s autonomy. The Government was surprised that Sindicatul Păstorul cel Bun had not sought such permission and added that, in appropriate circumstances, the ordinary courts could have ruled that a denial of permission was wrongful.

Finally, across Council of Europe states there was a considerable variety of rules governing the status of priests and their right to freedom of association; and that lack of consensus indicated that individual governments should be left a wide margin of appreciation.

The interveners

Intervening, the Governments of Georgia, Greece, Poland and Moldova, the Archdiocese of Craiova, the Moscow Patriarchate and two NGOs – the Becket Fund and the International Center for Law and Religion Studies – all supported the position of the Romanian Government.

The judgment

The Grand Chamber reversed the Third Section, holding by eleven votes to six that there had been no violation of Article 11 of the Convention.

While acknowledging their special circumstances, the majority of the GC considered that clergy fulfilled their mission in the context of an employment relationship falling within the scope of Article 11. Religious communities “traditionally and universally exist in the form of organised structures” and that, so far as organisation was at issue, Article 9 (freedom of thought, conscience and religion) had to be interpreted in light of Article 11:

“Seen from this perspective, the right of believers to freedom of religion encompasses the expectation that the community will be allowed to function peacefully, free from arbitrary State intervention. The autonomous existence of religious communities is indispensable for pluralism in a democratic society and is an issue at the very heart of the protection which Article 9 affords” [para 136].

The majority agreed with the parties that the refusal to register the applicant union amounted to interference with its Article 11 rights [para 149]: the issue was whether or not that interference was prescribed by law, pursued a legitimate aim and was necessary in a democratic society.

As to whether or not the prohibition was “prescribed by law”, neither the Constitution, the institutional Acts on trades unions and religious freedom nor the Statute of the Church, prohibited members of the clergy or lay staff of the Church from forming trade unions: the domestic courts had inferred the prohibition from the provisions of the Church’s Statute under which the Archbishop’s permission was required to establishment Church associations and foundations  and  clergy to take part in any form of association. In this case the Archbishop had refused permission following intervention by the Holy Synod; and it had not been disputed that the applicant union’s members were aware of the relevant provisions of the Statute or that, absent the Archbishop’s permission, the Church would oppose their request for registration [paras 154–5]. The Court was not prepared to rule on an argument that reliance on the Church’s State was, in effect, unconstitutional [para 156]. The prohibition was therefore “prescribed by law” and pursued the “legitimate aim” of protecting the rights of others, and specifically those of the Romanian Orthodox Church [paras 157 & 158].

As to whether the interference was “necessary in a democratic society”, the majority took a non-interventionist stance. The principle of the autonomy of religious communities, said the majority, was “the cornerstone of relations between the Romanian State and the religious communities recognised within its territory” [para 163]. Moreover:

“… the Court observes that it has frequently emphasised the State’s role as the neutral and impartial organiser of the practice of religions, faiths and beliefs, and has stated that this role is conducive to public order, religious harmony and tolerance in a democratic society, particularly between opposing groups …  It can only confirm this position in the present case. Respect for the autonomy of religious communities recognised by the State implies, in particular, that the State should accept the right of such communities to react, in accordance with their own rules and interests, to any dissident movements emerging within them that might pose a threat to their cohesion, image or unity. It is therefore not the task of the national authorities to act as the arbiter between religious communities and the various dissident factions that exist or may emerge within them” [para 165].

Further:

“… in refusing to register the applicant union, the State was simply declining to become involved in the organisation and operation of the Romanian Orthodox Church, thereby observing its duty of neutrality under Article 9 of the Convention [para 166].

Finally:

“… the Court takes note of the wide variety of constitutional models governing relations between States and religious denominations in Europe. Having regard to the lack of a European consensus on this matter … it considers that the State enjoys a wider margin of appreciation in this sphere, encompassing the right to decide whether or not to recognise trade unions that operate within religious communities and pursue aims that might hinder the exercise of such communities’ autonomy [para 171].

Comment

Reading the judgment I was struck by faint echoes of the recent finding of the Supreme Court in President of the Methodist Conference v Preston [2013] UKSC 29. In that case, the majority conducted a careful examination of the Church’s Constitution and Standing Orders, concluded that it was clear that ministers were in a covenant rather than an employment relationship with the Church and refused to substitute its own judgment of the situation for that of the Methodist Church itself.

In some respects, the majority judgment in Sindicatul Păstorul cel Bun is not dissimilar. The majority’s emphasis on the state’s duty of neutrality between religious communities and “the right of such communities to react, in accordance with their own rules and interests, to any dissident movements emerging within them” meant, in effect, that the case was going to be analysed on the basis of the Church’s Statute rather than in terms of secular labour law. Moreover, the majority emphasised that such cases were fact-specific and that the national courts had to conduct “an in-depth examination of the circumstances of the case and a thorough balancing exercise between the competing interests at stake” [para 159].

The minority disagreed, arguing that the County Court had merely adopted the Archdiocese’s position unreservedly and pointing to the fact that the two trades unions already in existence had not undermined the autonomous operations of the Church.

It is suggested that the minority’s analysis is to be preferred. The majority conceded [at para 159] that while Article 9 entitled religious communities to respect for their opinions on any collective activities of their members that might undermine their autonomy, “a mere allegation by a religious community that there is an actual or potential threat to its autonomy is not sufficient to render any interference with its members’ trade-union rights compatible with the requirements of Article 11”. The minority concluded that the necessary balancing exercise implicit in that statement had not been carried out. If the state’s duty of neutrality between religious communities is to be interpreted as, in effect, a total withdrawal from any supervisory jurisdiction in matters of discipline or employment rights, the result will be to leave both clergy and lay employees largely unprotected in cases where the religious community acts capriciously or overbearingly. In short, the majority may have been too ready in this case to concede a margin of appreciation to the national authorities.

To conclude: in a case involving employment or trade union rights within a Church, to what extend should a court regard itself as bound by the ecclesiology and self-understanding of the Church in question? Only, I would suggest, when the situation is crystal clear from the facts and the documentation in question. In Preston it was evident that in its constitutional documents the Methodist Church had set out its relationship with its presbyters in precise detail – and the SC accepted that as conclusive. In Sindicatul Păstorul cel Bun the fact that there were already two clerical and lay trades unions within the Church suggests that there was by no means that same degree of clarity.

Which must leave the applicants wondering, “if them, why not us?”.

Cite this article as: Frank Cranmer, "Trades union rights, the Romanian Orthodox Church and Article 11 ECHR: Sindicatul Păstorul cel Bun v Romania" in Law & Religion UK, 10 July 2013, https://lawandreligionuk.com/2013/07/10/trades-unions-rights-the-romanian-orthodox-church-and-article-11-echr/

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