Sacking of remarried teacher not a violation of Art 8 ECHR: Travaš v Croatia

The applicant was dismissed from two Roman Catholic teaching posts in state schools because he had divorced and remarried.

The background

Mr Travaš was issued with a canonical mandate to teach Roman Catholic religious education by the Rijeka Archdiocese and in September 2003 was offered an indefinite contract to teach the subject in two State high schools – where his salary was paid by the State. He had been married in a religious ceremony in December 2002; but he and his wife divorced and he remarried in a civil ceremony in March 2006. He was then told by the Rijeka Archdiocese that he was now disqualified from teaching religious education because his new civil marriage – entered into while he was still married to his first wife in the eyes of the Church – had been contrary to Christian doctrine. The Archdiocese withdrew his canonical mandate in August 2006 and, as a result, the two schools sacked him. His first marriage was annulled – on his former wife’s petition – in 2010.

His civil claim before the Opatija Municipal Court failed and the case ended up in the Constitutional Court. In its judgment of 27 May 2013, the Constitutional Court held:

  • that the Agreement on education and cultural affairs between the Republic of Croatia and the Holy See was an international treaty;
  • that an act ratifying the Agreement had made it part of the internal legal order of Croatia;
  • that it took precedence over domestic statutes; and
  • that it required Roman Catholic religious education to be taught only by teachers with a canonical mandate.

The termination of Mr Travaš’ employment contract had therefore been entirely lawful.

The arguments

Before the Second Section ECtHR, Mr Travaš complained that he had been dismissed from his teaching posts solely on the grounds of an intimately personal event: his second marriage. Relying on the Court’s findings in Fernández Martínez, he argued that it had been an extreme and disproportionate measure affecting his right to a private and family life, contrary to Article 8 ECHR (respect for private and family life) [50].

The Government contended that Article 8 was not engaged, arguing that the reasons for the applicant’s dismissal were not pertinent to his private or family life. The schools had not examined any circumstances of his private and family life but had based their dismissal decision on purely formal grounds:  the withdrawal of his canonical mandate. The schools did not know why it had been withdrawn and it had not been for the schools to examine the reasons for the Church’s decision [48]. The requirement was clearly established under the Agreement of 18 December 1996 between Croatia and the Holy See on education and cultural affairs, which had been duly published in the Official Gazette and thus been accessible to the applicant. Moreover, during the proceedings before the Constitutional Court he had stated that he had been aware of the consequences of withdrawal of the canonical mandate. So he was wrong to argue that he had lost his teaching position for reasons pertaining to the circumstances of his private or family life: the sole reason for his dismissal had been the withdrawal of his canonical mandate [49]. Nor had he attempted to have his religious marriage annulled before entering into a new civil marriage: had he done so, he could have avoided any adverse effects of his new marriage on his employment as a teacher of Catholic religious education [66].

The judgment

In Travaš v Croatia [2016] ECHR 813 the Second Section held that the facts engaged  Article 8 but that there had been no violation. The Court took particular note of the fact that

.. the applicant was not dismissed directly following the withdrawal of his canonical mandate by the Church. Although the Ministry’s instruction suggested to the contrary, the schools terminated his contract of employment only after examining the possibility of finding him another suitable post. Such a conduct by the schools was found to be correct by the Constitutional Court . Moreover, the applicant was given the right to an indemnity, which, according to the Government’s uncontested assertion, has been duly paid to him and it was open to him to claim unemployment benefit. The applicant has not argued, and there is no reason for the Court to doubt, that the efforts made by the schools were not genuine. In the Court’s view, they represented a particularly important effort by the State to find a balance in the protection of the applicant’s private and professional positions and the exercise of the Church’s autonomy [103].

Having regard to the state’s margin of appreciation, the Court concluded that the interference with the applicant’s right to respect for his private and family life was not disproportionate [114].

Cite this article as: Frank Cranmer, "Sacking of remarried teacher not a violation of Art 8 ECHR: Travaš v Croatia" in Law & Religion UK, 5 October 2016, https://lawandreligionuk.com/2016/10/05/sacking-of-remarried-teacher-not-a-violation-of-art-8-echr-travas-v-croatia/

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