CASE OF SINDICATUL "PĂSTORUL CEL BUN" v. ROMANIA
Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association);Pecuniary and non-pecuniary damage - award
Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Mihai Poalelungi;Nona Tsotsoria
6. On 4 April 2008 thirty-five clergymen and lay staff of the Romanian Orthodox Church, the majority of them Orthodox priests in parishes of the Metropolis of Oltenia (a region of south-western Romania), held a general meeting at which they decided to form the Păstorul cel Bun trade union. The relevant parts of the union’s constitution read as follows: “The aim of the union of clergy and lay persons working in parishes or other ecclesiastical bodies within the administrative and territorial jurisdiction of the Metropolis of Oltenia shall be accepted voluntarily and concerns the representation and protection of the professional, economic, social and cultural rights and interests of clergy and lay members of the union in their dealings with the Church hierarchy and the Ministry of Culture and Religious Affairs. In order to achieve the above aim, the union shall seek to: (a) ensure respect for the fundamental rights of its members to work, dignity, social protection, safety at work, rest, social insurance, unemployment benefits, pension rights and other rights laid down in the legislation in force; (b) ensure that each of its members is provided with work corresponding to his professional training and skills; (c) ensure compliance with the statutory provisions concerning the duration of leave and days of rest; (d) promote initiative, competition and freedom of expression among its members; (e) ensure the implementation and strict observance of the statutory provisions concerning protection of employment and the rights deriving therefrom; (f) apply fully the provisions of Law no. 489/2006 on religious freedom and the legal status of religious denominations, the Statute of the Romanian Orthodox Church and the Holy Canons of the Romanian Orthodox Church; (g) negotiate collective and individual labour agreements with the Archdiocese and the Metropolis expressly setting out all the rights and duties of the clergy and laity; (h) afford protection to its President and representatives, both during and after their terms of office; (i) ensure that it is involved and represented at all levels and on all decision-making bodies, in accordance with the statutory provisions in force; (j) use petitions, demonstrations and strikes as means of defending its members’ interests and protecting their dignity and fundamental rights; (k) take legal action against any individuals or other entities that disregard employment legislation, trade-union law, the provisions of the collective agreement drawn up within the Metropolis or employment contracts, if it has proved impossible to resolve the disputes in question by means of negotiation; (l) ensure the observance and implementation of statutory provisions relating to remuneration and guarantees of decent living conditions; (m) secure to the clergy and laity the benefit of all the rights enjoyed by other sectors of society; (n) set up its own mutual-aid funds; (o) produce and issue publications providing information to its members and defending their interests; (p) establish and operate cultural, educational and research organisations in the trade-union sphere, as well as social and socio-economic institutions, in accordance with the relevant statutory provisions and in the interests of its members; (r) raise equity to support its members; (s) organise and fund religious activities; (ş) make proposals for elections to local Church bodies and put forward a priest from among its members to take part in the Holy Synod of the Romanian Orthodox Church; (t) ask the Archdiocese to submit a report on its revenues and expenditure to the Assembly of Priests; and (ţ) ask the Archdiocesan Council to notify it, on a quarterly or annual basis, of any decisions relating to appointments, transfers and allocation of budgetary resources.” 7. In accordance with the Trade Unions Act (Law no. 54/2003), the union’s elected president applied to the Craiova Court of First Instance for the union to be granted legal personality and entered in the register of trade unions. 8. The representative of the Archdiocese opposed the application. He acknowledged that the members of the union were employed by the Archdiocese on individual contracts, but argued that the internal regulations of the Orthodox Church, approved by Government Ordinance no. 53/2008, prohibited the establishment of any form of association without the archbishop’s prior consent. 9. The union’s representative pursued his application, pointing out that the statutory requirements for establishing a trade union, as set out in the Trade Unions Act, were fulfilled and that the Act in question did not bar the professional groups concerned in this case from forming a union. 10. The public prosecutor’s office supported the application, expressing the view that the establishment of the union was lawful and that the Church’s internal regulations could not prohibit it, as the priests and lay persons concerned were all employed by the Church and as such were entitled to form an association to defend their rights. 11. In a judgment of 22 May 2008 the court allowed the union’s application and ordered its entry in the register of trade unions, thereby granting it legal personality. 12. The court based its decision on the provisions of section 2 of Law no. 54/2003, Article 39 of the Labour Code, Article 40 of the Constitution, Article 22 of the International Covenant on Civil and Political Rights and Article 11 of the European Convention on Human Rights. 13. It noted that the Religious Freedom Act (Law no. 489/2006) allowed religious organisations to operate independently as long as there was no threat to national security, public order, public health, morals and fundamental rights and freedoms. Noting further that it was not disputed that the union’s members were employed on contracts, it held that as a result, their right to organise, which was guaranteed by labour law, could not be made subject to their employer’s prior consent. 14. Regarding the Church’s internal regulations, the court held that the fact that priests had a duty of subordination and obedience vis-à-vis their employer under the Church’s Statute could not justify restricting a right guaranteed by labour legislation since such a duty did not constitute a measure that was necessary in a democratic society in the interests of national security, public safety, the prevention of disorder or crime, the protection of health or morals, or the protection of the rights and freedoms of others. 15. Reviewing the union’s constitution, the court found that its establishment was not necessarily a manifestation of a dissident faction within the Romanian Orthodox Church with a disregard for hierarchy and traditions, but that, on the contrary, it might encourage employer-employee dialogue regarding the negotiation of employment contracts, observance of working and non-working hours and the rules on remuneration, protection of health and safety at work, vocational training, medical cover and the right to elect representatives and stand for election to decision-making bodies, in accordance with the special characteristics of the Church and its spiritual, cultural, educational, social and charitable purpose. 16. The Archdiocese appealed against the court’s judgment, submitting that the provisions of domestic and international law on which it had been based were not applicable to the present case. It argued that Article 29 of the Constitution guaranteed religious freedom and the autonomy of religious communities and that this principle could not be overridden by freedom of association. It further submitted that by acknowledging the trade union’s existence, the court had interfered with the traditional organisation of the Church, thus undermining its autonomy. 17. In a final judgment of 11 July 2008 the Dolj County Court allowed the appeal, quashed the first-instance judgment and, on the merits, refused the application for legal personality and for entry in the register of trade unions. 18. The County Court observed that the Constitution and Law no. 489/2006 guaranteed the autonomy of religious communities and their right to make their own organisational arrangements in accordance with their internal regulations. It further noted that there was no reference to the concept of a trade union in the Statute of the Orthodox Church, which provided that the establishment, operation and dissolution of religious associations and foundations were subject to the blessing of the Church’s Synod and that priests had a duty of obedience towards their superiors and could not undertake civil transactions, including those of a personal nature, without their prior written approval. 19. It held that the prohibition on setting up any form of association within the Church without the consent of the hierarchy was justified by the need to protect the Orthodox Christian tradition and its founding tenets, and that if a union were to be established, the Church hierarchy would be obliged to work together with a new body operating outside that tradition and the rules of canon law governing decision-making. 20. Lastly, it noted that under Law no. 54/2003, persons performing management functions were not allowed to form trade unions and, bearing in mind that under the Church’s Statute, priests assumed leadership of their parishes, concluded that they were covered by this ban. 21. The relevant provisions of the Constitution read as follows: “Citizens may freely associate to form political parties, trade unions, employers’ organisations and other forms of association.” “The right to work shall not be restricted. Everyone is free to choose his or her profession, trade or occupation and workplace. Employees are entitled to social protection measures. These concern employees’ health and safety, working conditions for women and young people, the establishment of a national gross minimum wage, weekly rest, paid annual leave, work performed in particular or special conditions, vocational training, and other specific situations as provided for by law. The normal average working day is a maximum of eight hours. For equal work, women shall receive equal pay to men. The right to collective labour bargaining and the binding force of collective agreements shall be guaranteed.” “Freedom of thought and opinion and freedom of religion shall not be restricted in any form. No one shall be compelled to embrace an opinion or religion contrary to his or her own beliefs. Freedom of conscience is guaranteed; it must be manifested in a spirit of tolerance and mutual respect. Religious denominations shall be free and religious communities shall be organised in accordance with their own regulations, subject to the conditions laid down by law. All forms, means, acts and actions of religious enmity shall be prohibited in relations between religious denominations. Religious communities shall enjoy autonomy in relation to the State and shall receive State support, including the provision of facilities offering religious assistance in the army, hospitals, prisons, asylums and orphanages.” 22. The relevant provisions of the Trade Unions Act (Law no. 54/2003) are worded as follows: “Anyone working on the basis of a contract of employment, including public officials, shall have the right to form or to join trade unions. The establishment of a trade union shall require a minimum of fifteen employees in the same occupation or branch of activity. No one shall be compelled to join, not to join or to leave a trade union.” “Persons performing management functions or functions involving the exercise of public authority, the judiciary, the military, the police and members of the special forces may not set up trade unions.” 23. Under the Religious Freedom Act (Law no. 489/2006), freedom to practise religious beliefs is guaranteed. The relevant provisions of the Act read as follows: “The Romanian State shall respect and guarantee the right to freedom of thought, conscience and religion of any person within the territory of Romania, in accordance with the Constitution and international treaties to which Romania is a party.” “Members of religious communities shall be free to choose the form of association in which they wish to practise their faith – religious community, association or group – in accordance with the terms and conditions of this Act. Religious communities, associations and groups shall be required to observe the Constitution and the law and not to threaten public safety, public order, health, morals and fundamental rights and freedoms.” “Recognised religious communities shall have the status of charitable corporations. Under the provisions of the Constitution and this Act, they shall be organised and shall operate independently in accordance with their own statutes or canons.” “The State shall contribute, on request, to the remuneration of clergy and lay staff of recognised religious communities, according to the number of worshippers and the actual needs of the communities.” “On a proposal by the Ministry of Culture and Religious Affairs, the Government shall grant the status of a State-recognised religious community to religious associations which, through their activities and number of members, are of public interest and of proven sustainability and stability. The State shall recognise statutes and canons to the extent that their content does not threaten public safety, public order, health, morals and fundamental rights and freedoms.” “Religious communities shall select, appoint, employ and dismiss staff in accordance with their own statutes, codes of canon law and regulations. Religious communities may impose disciplinary sanctions on their employees, in accordance with their own statutes, codes of canon law and regulations, for breaches of the community’s doctrine or moral principles.” “Employees of religious communities who are insured within the State insurance scheme shall be subject to the legislation on the State social-insurance system.” “Matters of internal discipline shall be exclusively subject to the provisions of internal regulations and canon law.” 24. The State-Funded Remuneration Act (Law no. 330/2009) contains provisions on the remuneration of the clergy and lay staff. It provides that the State is to contribute to the remuneration of clergy members and lay persons employed by recognised religious communities. Thus, the State pays clergy employed by recognised religious communities a monthly stipend equivalent to between 65% and 80% of the salary of a secondary-school teacher. The State also covers all social contributions payable by employers in respect of members of the clergy. 25. As regards lay staff, Law no. 330/2009 provides that they are to receive a monthly allowance equivalent to the national guaranteed minimum wage. This allowance and all social contributions payable by employers in respect of these employees are covered by local government budgets. Clergymen holding senior positions receive a higher stipend. 26. The Statute of the Romanian Orthodox Church, adopted by the Church’s Synod in November 2007 and approved by Government Ordinance no. 53 of 16 January 2008, replaced the previous Statute, which dated from 1949. The relevant provisions read as follows: “The Patriarchate is made up of dioceses and archdioceses, grouped into metropolises.” “The Holy Synod shall take decisions on the establishment, organisation and dissolution of national ecclesiastical associations and foundations ... It shall grant or refuse its blessing for the establishment, organisation and dissolution of Orthodox associations and foundations that operate in dioceses and have their own governing bodies.” “The parish is the community of believers, clergy and laity, within a specified geographical territory and subject to the canonical, legal, administrative and economic authority of the diocese or archdiocese. It is led by a priest appointed by the bishop.” “Without the bishop’s prior written consent, the priest may not represent the parish in court proceedings or in dealings with the authorities or third parties. By virtue of the oath of obedience taken at the time of their ordination, members of the clergy and monks may not take part in court proceedings save with the prior written permission of the bishop.” “Priests and other church staff have the rights and are bound by the obligations set forth in the Holy Canons, this Statute, church regulations and the decisions of the archdiocese.” “The bishop ... shall order the appointment, transfer or dismissal of clergy and lay staff in the various parishes ... He shall ensure the observance of discipline by members of the clergy and lay staff in his diocese, whether directly or through ecclesiastical bodies.” “Members of the clergy shall serve the diocese in accordance with the duties they have freely assumed and with the vows and the solemn public undertaking they have read out and signed prior to their ordination. Before commencing their pastoral functions, they shall receive a decision from the bishop setting out their rights and duties. Without the bishop’s blessing, no priests, deacons or monks may form, be members of or take part in associations, foundations or other organisations of any kind. The status of priest, deacon or monk is incompatible with the pursuit of any other personal activities of an economic, financial or commercial nature that are contrary to Orthodox Christian morals and the interests of the Church.” “By virtue of the autonomy of religious communities under the law, the ecclesiastical courts shall resolve matters of internal discipline. Their decisions are not subject to appeal in the civil courts.” 27. In a judgment of 19 September 2005 the High Court held that it had jurisdiction to review the lawfulness of the dismissal or enforced retirement of Orthodox priests, seeing that employees of the Orthodox Church were covered by the general social-security scheme and, as a result, the statutory provisions on social insurance. That position was confirmed in two judgments delivered by the Cluj and Iaşi Courts of Appeal on 3 February 1998 and 3 June 2008 respectively. 28. In its judgment of 3 June 2008 the Iaşi Court of Appeal was required to determine a case in which the appellant, an Orthodox priest, challenged his enforced retirement on grounds of age, arguing that the measure was motivated by his membership of the Sfântul Mare Mucenic Gheorghe union of Orthodox clergy. It rejected the priest’s argument, observing that the decision on his enforced retirement had been taken before the union had been established. 29. In a judgment of 4 February 2010 the High Court of Justice and Cassation, on an appeal by an Orthodox priest against the refusal of the Labour Inspectorate to review the application of labour law by the diocese (his employer), upheld the refusal, holding that in matters of internal discipline, the provisions of internal regulations alone were applicable. 30. In a final judgment of 4 October 1990 the Medgidia Court of First Instance ordered the entry of Solidaritatea, a union of Orthodox clergy of the Archdiocese of Tomis (Constanţa), in the register of trade unions and granted it legal personality. 31. It further appears from the reasoning of the Iaşi Court of Appeal’s above-mentioned judgment of 3 June 2008 that the Sfântul Mare Mucenic Gheorghe union of Orthodox clergy was entered in the register of trade unions and granted legal personality as a result of a final judgment delivered on 5 June 2007 by the Hârlau Court of First Instance. 32. Romania ratified the revised European Social Charter on 7 May 1999. Article 5 of the Charter, concerning the right to organise, is worded as follows: “With a view to ensuring or promoting the freedom of workers and employers to form local, national or international organisations for the protection of their economic and social interests and to join those organisations, the Contracting Parties undertake that national law shall not be such as to impair, nor shall it be so applied as to impair, this freedom. The extent to which the guarantees provided for in this Article shall apply to the police shall be determined by national laws or regulations. The principle governing the application to the members of the armed forces of these guarantees and the extent to which they shall apply to persons in this category shall equally be determined by national laws or regulations.” 33. Article 12 § 1 of the Charter of Fundamental Rights of the European Union reads as follows: “Everyone has the right to freedom of peaceful assembly and to freedom of association at all levels, in particular in political, trade union and civic matters, which implies the right of everyone to form and to join trade unions for the protection of his or her interests.” 34. Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation reads as follows, in so far as relevant: “... (4) The right of all persons to equality before the law and protection against discrimination constitutes a universal right recognised by the Universal Declaration of Human Rights, the United Nations Convention on the Elimination of All Forms of Discrimination against Women, United Nations Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights and by the European Convention for the Protection of Human Rights and Fundamental Freedoms, to which all Member States are signatories. Convention No. 111 of the International Labour Organisation (ILO) prohibits discrimination in the field of employment and occupation. (5) It is important to respect such fundamental rights and freedoms. This Directive does not prejudice freedom of association, including the right to establish unions with others and to join unions to defend one’s interests. ... (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. ...” “1. ... Member States may provide that a difference of treatment which is based on [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.”