ALASDAIR HENDERSON – 2/8/13
Sindacutul ‘Pastorul Cel Bun’ v. Romania  ECHR 646 – read judgment here.
The Orthodox Archbishop of Craiova in Romania, that is, not the Archbishop of Canterbury. The European Court of Human Rights recently handed down an interesting ruling on Article 11 (freedom of assembly and association) that could also have more far-reaching consequences for the application ofArticle 9 (freedom of religion).
The Grand Chamber, overruling the earlier decision of the Third Section, held by a majority that it was not a breach of the right to freedom of association for the Romanian Government to refuse to register a trade union formed by a group of Orthodox priests, after the Archbishop and Holy Synod (the governing body of the Romanian Orthodox Church) had decided formal trade unions should not be allowed within the church.
In 2008 thirty-two Orthodox priests decided to form a trade union called ‘Pastorul Cel Bun’ (the Good Shepherd), which had similar aims to secular trade unions, such as to promote the members’ interests and take legal action to defend their employment rights. However, the relevant church statute barred priests from taking part in civil legal proceedings without the Archbishop’s prior written permission (presumably because the Bible says it is a very bad idea for Christians to sue each other).
The thirty-two priests did not ask the Archbishop for permission before setting up the trade union. As a result, when they tried to register it formally with the Romanian Government, the Archbishop successfully appealed the court’s decision to grant registration and the trade union was not allowed to exist.
The Church already allowed clergy and staff to set up associations (in fact some of the priests involved in Pastorul Cel Bun set up such an association instead in 2010 with the approval of the Archbishop, who even offered them premises to use as their headquarters). However, the Archbishop argued that the emergence of a more formal trade union within the structure of the Church would seriously imperil the freedom of religious denominations to organise themselves in accordance with their own traditions and teaching. The effect of registering the trade union was to add a new legal institution to the existing Church institutions without the hierarchy’s permission, which jeopardised the autonomy of religious communities.
Some (but not all) of the priests appealed this decision to the European Court. Their complaint was upheld by the Chamber, but the Romanian Government appealed to the Grand Chamber. The Grand Chamber held by a majority of 11 to 6 that there was no breach of Article 11. It emphasised that because the case concerned the Orthodox Church, Article 9 was of considerable importance, and set out the following principles (emphasis added):
Where the organisation of the religious community is at issue, Article 9 of the Convention must be interpreted in the light of Article 11, which safeguards associations against unjustified State interference. 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. It directly concerns not only the organisation of these communities as such but also the effective enjoyment of the right to freedom of religion by all their active members. Were the organisational life of the community not protected by Article 9, all other aspects of the individual’s freedom of religion would become vulnerable…
In accordance with the principle of autonomy, the State is prohibited from obliging a religious community to admit new members or to exclude existing ones. Similarly, Article 9 of the Convention does not guarantee any right to dissent within a religious body; in the event of a disagreement over matters of doctrine or organisation between a religious community and one of its members, the individual’s freedom of religion is exercised through his freedom to leave the community…
Lastly, where questions concerning the relationship between the State and religions are at stake, on which opinion in a democratic society may reasonably differ widely, the role of the national decision-making body must be given special importance. This will be the case in particular where practice in European States is characterised by a wide variety of constitutional models governing relations between the State and religious denominations.
In the light of this, the Grand Chamber held that although there was an interference with the priests’ right to freedom of association, this interference was necessary and proportionate to protect the rights of others, specifically the Article 9 rights of the Romanian Orthodox Church. It found that religious communities are entitled to their own opinion of any collective activities of their members and that in principle this opinion must be respected by the national authorities, concluding that “it is 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.” On that basis, the Romanian Government’s decision not to register the trade union, and in effect to decline to get involved, was a valid one.
This judgment is a strong indication that the European Court encourages a very ‘hands-off’ approach by the State to the internal workings of religious organisations. Although there are several references to the wide margin of appreciation because of the different settlements between religions and the State in various European countries, the general feel of this ruling is that the State is best to keep well away from disagreements within religious bodies.
That said, there is one passage of the judgment which seems to run contrary to this. The Grand Chamber stated that “a mere allegation by a religious community that there is an actual or potential threat to its autonomy is not sufficient” and that the national courts must conduct “an in-depth examination of the circumstances of the case and a thorough balancing exercise between the competing interests” to ensure that the interference with freedom of association does not go beyond what is necessary. It is not exactly clear how States are supposed to not get involved, on the one hand, and conduct an ‘in-depth examination’, on the other.
The inner workings of the Romanian Orthodox Church may seem a long way from the UK, but in fact the issues have arisen closer to home recently. Last year’s furore over how the Church of England is going to ordain women bishops led to some threats from MPs that Parliament would step in and force the Church to do it in a particular way if it couldn’t agree. In the light of this ruling, they would perhaps be wiser to leave it to the Church to sort itself out.