CASE OF FERNÁNDEZ MARTÍNEZ v. SPAIN
Remainder inadmissible;No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)
Alejandro Saiz Arnaiz;Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra;Mihai Poalelungi
8. The applicant was born in 1937 and lives in Cieza. He is married and has five children. 9. He was ordained as a priest in 1961. In 1984 he applied to the Vatican for dispensation from the obligation of celibacy. The following year he was married in a civil ceremony. With his wife, to whom he is still married, he has five children. 10. From October 1991 onwards, the applicant was employed as a teacher of Catholic religion and ethics in a State-run secondary school of Murcia under a renewable one-year contract. In accordance with the provisions of an Agreement of 1979 between Spain and the Holy See, it was the responsibility of the Bishop of the diocese to confirm, every year, the renewal of the applicant’s employment, and the Ministry of Education was bound by the Bishop’s decision. 11. In November 1996 the Murcian newspaper La Verdad contained an article about the “Movement for Optional Celibacy” for priests. It reported that the applicant had previously been rector of a seminary and included a photograph showing him, together with his wife and their five children, attending a gathering of the movement, of which he was a member. The article quoted the comments of a number of participants, naming four of them including the applicant. The members in question were urging the ecclesiastical authorities to introduce optional celibacy and calling for the Church to be democratic rather than theocratic, with the possibility for the laity to elect priests and bishops. They further indicated their disagreement with the Church’s position on abortion, divorce, sexuality and contraception. The article explained that the publicity given to the event in the press had dissuaded a significant number of the Movement’s members from attending the gathering. Others had approached the agreed venue but, on seeing the media present, had simply waved to their colleagues without getting out of their cars and had driven away immediately. Only about ten secularised priests, including the applicant, had remained with their families. 12. On 15 September 1997 the Vatican authorities granted the applicant’s request for dispensation from celibacy. The document stipulated that anyone granted such a dispensation was barred from teaching the Catholic religion in public institutions, unless the local bishop decided otherwise “according to his own criteria and provided that there [was] no scandal”. 13. On 29 September 1997 the Diocese of Cartagena informed the Ministry of Education of its intention not to approve the renewal of the applicant’s contract for the 1997/98 school year. The Ministry notified the applicant of the decision, which was effective from 29 September 1997. 14. In an official memorandum of 11 November 1997 the Diocese reiterated that, in accordance with the applicable provisions, the applicant was required to give his lessons “without any risk of scandal”. The Diocese explained in that connection that the publicity given by the applicant to his personal situation had entailed a breach of that duty, thus preventing the church authorities from proposing him again for the following school year, in order to protect the sensitivity of the parents of children who attended the centre where the applicant was teaching. 15. Having been unsuccessful in his administrative complaint against that decision, the applicant appealed to the Murcia Employment Tribunal no. 3, which gave its judgment on 28 September 2000. The judge began by referring to the arguments used by the Diocese to justify the non-renewal of the applicant’s contract, namely the fact that he had made public his situation as “married priest” (he had not received dispensation from the Vatican until 1997) and father, together with the need to avoid scandals and to protect the sensitivity of the parents of the school’s pupils, as they might be offended if the applicant continued to teach Catholic religion and ethics. In this connection the judge took the following view: “ ... in the light of the facts thus presented, Mr Fernández Martínez was discriminated against because of his marital status and his membership of the Movement for Optional Celibacy, his appearance in the press having been the ground that led to his dismissal.” 16. The judge further pointed out that: “The principle of non-discrimination at work encompasse[d] the prohibition of discrimination on account of belonging to a trade union, as [was] the case for membership of any other association.” 17. Lastly, the judge noted that the applicant’s situation as “married priest” and “father” had been known to the pupils and to their parents and to the directors of the school centres where he had worked. Consequently, the judge upheld the applicant’s appeal, declared his dismissal null and void and ordered his reinstatement in his former post. 18. The Ministry of Education, the Education Authority for the Region of Murcia and the Diocese of Cartagena lodged an appeal (suplicación). In a judgment of 26 February 2001, the Murcia High Court of Justice upheld the appeal, finding as follows: “... The teaching [of Catholic religion and ethics] is associated with the doctrine of the Catholic religion ... Accordingly, the bond created [between the teacher and the Bishop] is based on trust. [As a result,] it is not a neutral legal relationship, such as that which exists between citizens in general and public authorities. It can be placed on the borderline between the pure ecclesiastical dimension and a skeleton employment relationship.” 19. Moreover, the court referred to the Bishop’s prerogatives in such matters and took the view that in the present case there had not been a violation of Articles 14 (prohibition of discrimination), 18 (right to respect for private life) or 20 (freedom of expression) of the Spanish Constitution, since the applicant had taught religion since 1991, the Bishop having extended his employment from year to year even though his personal situation had been identical. The court concluded that, when the applicant had decided to reveal that situation publicly, the Bishop had merely used his prerogative in accordance with the Code of Canon Law, that is to say, ensuring that the applicant, like any other person in that situation, carried out his duties with discretion and without his personal circumstances causing any scandal. In the court’s view, if such a situation became public knowledge, it was the Bishop’s duty to stop proposing the person concerned for a post of that nature, in accordance with the requirements of the official document granting dispensation from celibacy. 20. In addition, as regards Article 20 of the Constitution in particular, the court noted that for the purposes of Article 10 § 2 of the European Convention on Human Rights, the restrictions imposed on the applicant’s rights had to be considered legitimate and proportionate to the aim pursued, namely the avoidance of scandal. 21. Furthermore, the court analysed the question of the bond of trust and concluded as follows: “... Where such a bond of trust is broken (and in the present case there are circumstances that reasonably allow such a conclusion to be reached), the Bishop is no longer obliged to propose [the applicant] for the post of teacher of Catholic religion.” 22. Lastly, as to the nature of the contract, the court took the view that, since its renewal was subject to annual approval by the Bishop for the following school year, it was a temporary contract, which in the present case had simply expired. It was thus not possible to consider that the applicant had been dismissed. 23. Relying on Articles 14 (prohibition of discrimination), 18 (right to respect for private and family life) and 20 (freedom of expression) of the Constitution, the applicant lodged an amparo appeal with the Constitutional Court. In a decision of 30 January 2003, the Chamber to which the case had been allocated declared the appeal admissible and, in accordance with sections 50 to 52 of the Institutional Law on the Constitutional Court, notified the decision to the parties and requested a copy of the case file from the courts below. 24. In a judgment of 4 June 2007, served on 18 June 2007, the Constitutional Court dismissed the appeal. 25. In its decision, the Constitutional Court took the view that the arguments raised in fact fell within the scope of Articles 16 (freedom of thought and religion) and 20 of the Constitution. In this connection it began by noting that the applicant’s situation as “married priest” had been known to the Diocese, which had discontinued its renewal of the contract only when the article was published in the press, a fact for which the applicant himself had been responsible. The court further highlighted the special status of teachers of religious education in Spain, being different from that of other teachers and justifying the fact that teachers of religion were selected purely on the basis of religious criteria rather than the ordinary criteria provided for in domestic law. 26. The Constitutional Court further took the view that the main question in the amparo appeal was whether the facts at issue could be justified by the religious freedom of the Catholic Church, in relation to the State’s duty of religious neutrality (Article 16 § 3 of the Constitution), or whether, by contrast, they constituted a breach of the applicant’s right to freedom of thought and religion in relation to his right to freedom of expression (Article 20 § 1 (a) of the Constitution). In answering this question the court began by noting that the reason for the non-renewal had been the article in a regional newspaper, regarded as causing a scandal according to the arguments of the Diocese of Cartagena in its official memorandum of 11 November 1997. On this point, the court took the view that the duty of neutrality precluded it from ruling on the notion of “scandal” invoked by the Diocese or on the merits of the “optional celibacy of priests” advocated by the applicant. It further observed that the judgment of the High Court of Justice provided for judicial review of the Bishop’s decision, in particular concerning his inability to propose candidates who did not have the requisite professional qualifications for the post and the obligation to ensure respect for fundamental rights and civil liberties. 27. Noting that the Bishop’s decision did not fall completely outside the supervision of the domestic courts, the Constitutional Court found as follows: “... the interferences with the applicant’s rights are neither disproportionate nor unconstitutional ... They are justified by respect for the lawful exercise of the Catholic church’s fundamental right to religious freedom in its collective or community dimension (Article 16 § 1 of the Constitution), in relation to the right of parents to choose their children’s religious education (Article 27 § 3 of the Constitution). [Indeed], the reasons for the non-renewal of the applicant’s contract ... are of an exclusively religious nature, related to the rules of the faith to which the applicant freely adheres and whose beliefs he sought to teach in a public education centre.” 28. Moreover, the court referred to its judgment no. 38/2007 of 15 February 2007, observing as follows: “... it would be quite simply unreasonable, as regards the teaching of religion in secondary education centres, if the religious beliefs of those who decide of their own free will to apply for such teaching posts were not taken into account in the selection process, on the basis of guaranteeing the right to religious freedom in its collective and community dimension.” 29. Two judges appended a dissenting opinion to the majority judgment. 30. The applicant subsequently requested that the Constitutional Court’s judgment be declared null and void, on the ground that two of the judges in the Chamber which had given the judgment were known for their affinities with the Catholic Church, one of them being a member of the International Secretariat of Catholic Lawyers. 31. In a decision of 23 July 2007 the Constitutional Court dismissed the applicant’s request on the ground that, under section 93(1) of the Institutional Law on the Constitutional Court, the only possible remedy against a judgment of that court was a request for clarification. 32. The relevant provisions of the Spanish Constitution read as follows: “Spaniards are equal before the law; they may not be discriminated against in any way on grounds of birth, race, sex, religion, opinions or any other condition or personal or social circumstance.” “(1) Freedom of thought, religion and worship shall be guaranteed to individuals and communities, without any restrictions on its expression other than those necessary to maintain public order as protected by law. (2) No one may be compelled to make statements regarding his or her ideas, religion or beliefs. (3) No religion shall have the nature of State religion. The public authorities shall take account of all religious beliefs within Spanish society and consequently maintain appropriate relations of cooperation with the Catholic Church and other faiths.” “(1) The right to respect for honour, for private and family life and for one’s image shall be guaranteed. ...” “(1) The following rights shall be recognised and protected: (a) the right to free expression and dissemination of thoughts, ideas and opinions through words, in writing or by any other means of reproduction; ... (2) The exercise of such rights may not be restricted by any form of prior censorship. ... (4) The said freedoms shall be limited by respect for the rights recognised in the present Title, by the laws implementing the same, and in particular by the right to respect for honour, private life and one’s image and to the protection of youth and childhood. ...” 33. The relevant provisions of this law at the time of the admissibility of the applicant’s amparo appeal read as follows: “A decision shall be given on the admission of an amparo appeal. The section shall decide unanimously, by an order without reasoning (providencia), to admit the appeal in whole or in part ...” “Once the amparo appeal has been admitted, the chamber shall submit an urgent request to the body or authority from which the decision, act or fact emanated, or to the judge or court which previously heard the case, to transmit to it, within a maximum period of ten days, the judicial case-files or documentary evidence relating to the case.” “1. After receiving the judicial case-files and on the expiry of the summons period, the chamber shall transmit the files to the person who submitted the amparo appeal, the parties who appeared in the proceedings, the Government advocate in cases involving public authorities, and the public prosecutor’s office. The hearing shall take place within a period applicable to all parties of not more than twenty days during which observations may be submitted. 2. The chamber may, of its own motion or at the request of the parties, decide to hold a hearing instead of waiting for the deadline for the submission of arguments. 3. After the submission of arguments or the expiry of the period allowed for that purpose, the chamber, or if appropriate the section, shall give the requisite judgment within ten days.” “The provisions of the Institutional Law on the Judiciary shall be applied, supplementing the present Law, in matters of ... requests for [the] withdrawal and abstention [of judges].” 34. The applicable provisions of this Law in the present case are the following: “1. Requests for withdrawal shall be submitted by a party as soon as it becomes aware of the ground for such withdrawal. If the party was aware of that ground before the litigation, the request must be made at the start of the proceedings, failing which it will be declared inadmissible. In particular, a request for withdrawal shall be declared inadmissible in the following cases: (1) where it is not submitted within a period of ten days from the service of the first decision identifying the judge ...; (2) where it is submitted while the proceedings are pending, if the ground for withdrawal was already known beforehand. ...”. 35. The relevant provisions of this Agreement read as follows: “... Religious education shall be taught by the persons who, every school year, are appointed by the administrative authority from among those proposed by the Ordinary of the Diocese. The latter shall notify sufficiently in advance the names of persons who are considered competent ...”. 36. Section 6(1) of this Law reads as follows: “Registered churches, faiths and religious communities shall be fully autonomous and may establish their own principles of organisation, internal rules and staff regulations. In such principles ..., they may include clauses for the purpose of safeguarding their religious identity ... and ensuring respect for their beliefs, without prejudice to respect for the rights and freedoms enshrined in the Constitution, and in particular [rights to] freedom, equality and non-discrimination”. 37. In its second additional provision, this Law provided as follows: “The teaching of religion shall be adapted in line with the provisions of the Agreement on education and cultural affairs between the Holy See and the State of Spain ... Religious education shall be proposed systematically by [education] centres and shall be voluntary in nature for the pupils.” 38. The third additional provision of this Law reads as follows: “... 2. Teachers who, without having the status of public servant, give religious education classes in public education institutions, shall perform their duties in a contractual framework, in accordance with the Labour Code. ... They shall receive the same level of remuneration as temporary teaching staff. 3. It shall be incumbent in all cases on the religious entities to propose a candidate for the said teaching of religious education; such proposal shall be renewed automatically from year to year ...” 39. At the time of the events in the present case, the teaching of Catholic religion in public education centres was organised in accordance with Institutional Law no. 1/1990 of 3 October 1990 on the general organisation of the education system, which, in its second additional provision, referred to the Agreement of 3 January 1979 on education and cultural affairs between the Holy See and Spain. 40. The Catholic religion in Spain has the same status as the other faiths which have also entered into cooperation agreements with the State, namely the Evangelical, Jewish and Muslim communities. 41. Parents have the right to ensure that their children receive religious education at school and if appropriate to choose the faith that they are taught. In all cases the State covers the cost of such education, as provided for in the relevant agreements, which also stipulate that teachers are appointed after a declaration of suitability has been issued by the competent church authority. That principle was developed in the Constitutional Court’s judgment no. 38/2007 of 15 February 2007 (see paragraph 44 below). 42. The relevant canons of the Code of Canon Law provide as follows: “The Ordinary [of the diocese] is to be careful that those who are appointed as teachers of religion in schools, even in non-catholic ones, are outstanding in true doctrine, in the witness of their Christian life, and in their teaching ability.” “The Ordinary [of the diocese] has the right to appoint or approve teachers of religion and, if religious or moral considerations so require, the right to remove them or to demand that they be removed.” 43. In this judgment the Supreme Court set out the following points: “... The present case displays the characteristics provided for in Article 1 § 1 of the Labour Code, capable of classifying the legal relationship between the parties as “contractual” in nature: [an activity] carried on voluntarily for another, being remunerated and under a form of management. No rule grants such teachers [of religious education] the status of public servant. [In addition], the relationship is not administrative in nature, this being an imperative condition [for classification as a public servant].” 44. The relevant passages of this judgment read as follows: “... The fact that teachers of religious education must be appointed from among persons previously proposed by the Bishop and that this proposal requires a prior declaration of suitability based on moral and religious considerations, does not mean that the lawfulness of such appointments cannot be reviewed by the national courts, with a view to determining whether they are in accordance with the law, as is the case with all discretional acts of authorities when they have effects vis-à-vis third parties ... Firstly, the courts must review whether the administrative decision [of appointment] has been adopted in accordance with the applicable legal provisions, that is, whether the appointment was made from among persons proposed by the Bishop to provide religious instruction ... in conditions of equality and with respect for the principles of merit and capacity. Or ... the reasons for not appointing a given person must be considered [by the courts] and, specifically, whether it is a result of the person not being included among those nominated by the ecclesiastical authority, or of other grounds that may likewise be subject to review. ... The competent courts must also determine whether the person’s not being included among those proposed by the Bishop of the diocese is the result of applying criteria of a religious or moral nature to determine the person’s suitability to provide religious instruction, criteria that the religious authorities are empowered to define by virtue of the right to freedom of religion and the principle of the religious neutrality of the State. [It is also for the courts] to examine whether the non-inclusion is based on grounds that do not stem from the fundamental right of religious freedom and are not protected thereby. Lastly, once the strictly ‘religious’ grounds for the decision have been determined, the court will have to weigh up any competing fundamental rights in order to determine to what extent the right to freedom of religion, exercised through the teaching of religion in schools, may affect the employees’ fundamental rights in their employment relationships. ... The authority granted to the ecclesiastical authorities in determining the persons qualified to teach their religious creed constitutes a guarantee of the freedom of churches to organise the teaching of their doctrines without interference from the public authorities. ... The cooperation [required by the Constitution] in that regard is fulfilled in the appointment of the teachers, for which the public authority is responsible (Article 16.3 of the Constitution). In conclusion, the declaration of suitability is one of the requisites necessary for appointment. This requirement is in conformity with the right to equal treatment and the principle of non-discrimination (Article 14 of the Constitution).” 45. In this judgment the Constitutional Court set out the following findings: “... The [applicant’s] complaints must be examined in the light of the principles established in judgment no. 38/2007 of 15 February 2007. ... Contrary to the arguments of the courts below, the Bishop’s decision [to propose one candidate or the other] does not fall entirely outside the review of the courts. Thus, ... once the strictly religious grounds for the non-renewal decision have been determined, ... it is incumbent on the [Constitutional] Court to verify whether the courts have appropriately balanced the fundamental rights in issue and to reconcile the requirements of religious freedom (both individual and collective) and the principle of the State’s religious neutrality with the judicial protection of fundamental rights and of the teachers’ employment relationships. ... In the present case, it does not appear that in exercising her duties as teacher of Catholic religion and ethics the applicant called into question the doctrine of the Catholic Church concerning marriage or defended civil marriage, such that her personal situation was completely separated from her professional activity. [After balancing the fundamental rights in issue], it is noteworthy that the religious grounds put forward by the Bishop are at odds with the applicant’s rights not to suffer discrimination, with her freedom of thought concerning the right to marry and with her personal and family privacy.” Recital 24 “The European Union in its Declaration No 11 on the status of churches and non-confessional organisations, annexed to the Final Act of the Amsterdam Treaty, has explicitly recognised that it respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States and that it equally respects the status of philosophical and non-confessional organisations. With this in view, Member States may maintain or lay down specific provisions on genuine, legitimate and justified occupational requirements which might be required for carrying out an occupational activity.” Article 4 Occupational requirements “1. ... Member States may provide that a difference of treatment which is based on a characteristic related to [religion or belief] shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate. 2. Member States may maintain national legislation in force ... or provide for future legislation incorporating national practices existing at the date of adoption of this Directive pursuant to which, in the case of occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief, a difference of treatment based on a person’s religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person’s religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos. ... Provided that its provisions are otherwise complied with, this Directive shall thus not prejudice the right of churches and other public or private organisations, the ethos of which is based on religion or belief, acting in conformity with national constitutions and laws, to require individuals working for them to act in good faith and with loyalty to the organisation’s ethos.”