In Ţîmpău v Romania [2023] ECHR 982, the applicant, Doina Ţîmpău, challenged her dismissal as a lay teacher of Orthodox religion in a public school.

Background

Ms Ţîmpău had taught Orthodox religion in a state school for 20 years until the Archbishop of Suceava withdrew her endorsement (binecuvântarea) to teach it. He alleged that “during her twenty years of activity the applicant had failed to conduct her classes professionally, to integrate herself and to confirm that she was a true preacher of the word of God. In addition, her conduct towards and her interactions with parents, students and other teachers had generated only discontent” [19]. She sought an interdict in the secular courts.

In the first round of domestic proceedings, the County Court acknowledged that it had jurisdiction but dismissed her challenge, holding, inter alia, that she had not asked it to examine whether the Archbishop’s withdrawal of his endorsement had been lawful. The Suceava Court of Appeal quashed that decision and referred the case back to the County Court for re-examination [41-44]. In the second round, the County Court again dismissed her claim and she was equally unsuccessful before the Court of Appeal, which held that Article 26 of Law no. 489/2006 recognised, in effect, that religious denominations could have their own courts which could examine problems of internal discipline. Moreover, the relevant provisions of the Labour Code were inapplicable to her case [75].

Before the ECtHR, Ms Țimpǎu complained of the domestic courts’ refusal to hear her case, relying on Article 6 (fair trial), Article 9 (thought, conscience and religion) and in substance Article 8 (right to respect for private and family life).

The judgment

On the Article 6 issue, the Court began by asking whether she had a “right” which could, at least on arguable grounds, be said to be recognised under domestic law in order to bring a challenge in the national secular courts [122]. 129. Both the County Court and the Court of Appeal had held that previous findings of the Constitutional Court about the jurisdiction of the secular courts in matters of religious disciplinary issues were applicable to her case and had refused to accept her argument that the Constitutional Court’s case-law suggested that secular courts could examine the lawfulness of the punishment imposed on her by the Archbishop, “that is, whether the withdrawal of his endorsement was carried out in accordance with the required procedure” [129]. The Court was not persuaded by the argument that the disciplinary problems of which she was accused were either of a doctrinal or religious nature or problems of the internal discipline of the Orthodox Church and could not, therefore, have been resolved by the ecclesiastical courts:

“Even assuming that the Court could accept the applicant’s assertions that the allegations against her could have been made about the conduct of any public-school employee regardless of the subject he or she taught and that therefore they could also fall within the jurisdiction of the school’s and the Inspectorate’s disciplinary bodies, the Court notes that they were included by the relevant ecclesiastical rules among the serious violations of the Orthodox denomination’s doctrine and morals and were treated as serious disciplinary offences” [137].

It concluded that she had no “right” that could be said to be recognised under Romanian law. To conclude otherwise would result in the creation by the Court of a substantive right that had no legal basis in the respondent State. The civil limb of Article 6 did not, therefore, apply to the facts of her case and her complaint was incompatible ratione materiae with the provisions of the Convention [139&140].

As to her submission under Article 8 linked with Article 9, no general right to employment or to the renewal of a fixed-term contract could be derived from Article 8 [148]. The Court concluded that the domestic courts had taken all relevant factors into account and that they had weighed up the interests at stake within the limits imposed on them by the need to respect the autonomy of the Orthodox Church:

“The conclusions thus reached do not appear unreasonable to the Court, particularly in the light of the fact that the applicant was or should have been aware, in accepting the task of teaching Orthodox religion, of the potential consequences of the heightened duty of loyalty vis-à-vis the Orthodox Church by which she thus became bound, for the purpose, in particular, of preserving the credibility of her teaching. As to the Church’s autonomy, it does not appear, in the light of the review exercised by the national courts, that it was improperly invoked in the present case” [216].

The Court held unanimously that there had been no violation of Article 8 [218].