CASE OF TRAVAŠ v. CROATIA
No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life)
Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Stéphanie Mourou-Vikström;Ksenija Turković
6. The applicant was born in 1975 and lives in Rijeka. He is a professor of theology. As a professor of theology he was qualified to teach Catholic religious education and courses in ethics and culture, as provided under the relevant domestic law (see paragraph 36 below). 7. On the basis of a proposal from the applicant’s local priest, the archbishop of the Rijeka Archdiocese (Riječka Nadbiskupija) issued the applicant with a canonical mandate (missio canonica) (no. 492/08-2002) authorising him to teach Catholic religious education. 8. On 1 September 2003, following the intervention of the Catechetical Office of the Rijeka Archdiocese (Katehetski ured riječke Nadbiskupije), the applicant was offered, without having to undergo a public competition, a contract of employment of indefinite duration as a layman teacher of Catholic religious education in two State high schools in Opatija. 9. The applicant’s appointment was based on the Agreement of 18 December 1996 between the Holy See and Croatia on education and cultural affairs and the relevant complementary domestic regulations (see paragraphs 32, 40-41, 43-44 below). He was thereby employed in the public service and remunerated by the State. 10. At the time, the applicant was married to T.F. They had married in a religious ceremony on 14 December 2002 and their marriage had been recognised at the same time by the civil authorities, as provided for under the relevant domestic law (see paragraphs 33 and 38 below). 11. The applicant’s subsequent divorce from T.F. was registered before the civil authorities, and in March 2006 he married another woman in a civil ceremony. 12. On 18 April 2006 the Rijeka Archdiocese informed the applicant that his civil marriage to another woman while still bound, in the eyes of the Church, by the religious marriage to his previous wife was contrary to Christian doctrine and disqualified him from teaching religious education. The relevant part of the letter read: “It has been established that in March this year you concluded a civil marriage although you are still bound by the Sacrament of Matrimony to a third person. The local Catechetical Office of the Rijeka Archdiocese issued you a mandate to teach Catholic religious education in school. Each religious education teacher must demonstrate that he is ‘outstanding in true doctrine and the witness of a Christian life’ (Canon 804 § 2) and must participate in the sacramental and evangelical community of a parish. The new situation does not enable you to do this. You are therefore invited to explain in writing as soon as possible the manner in which your canonical situation can be harmonised with canonical mandate no. 492/08-2002 and then, by 28 April 2006, to come for a meeting in the Catechetical Office.” 13. After obtaining the applicant’s explanation of his situation, on 31 August 2006 the Rijeka Archdiocese withdrew his canonical mandate to teach Catholic religious education. 14. On the same day the Rijeka Archdiocese informed the two schools in which the applicant was employed of the new situation. The relevant part of the letter read: “We should inform you that on 31 August 2006 canonical mandate no. 492/08-2002 was withdrawn from the teacher of religious education, Petar Travaš. The canonical mandate was withdrawn under Article 3 § 2 of the Agreement between the Holy See and Croatia on education and cultural affairs (Official Gazette-International Contracts no. 2/1997) because of a breach of Canon Law (Canon 804 § 2). Petar Travaš explained his situation in writing.” 15. On 8 September 2006, relying on section 106 § 1(2) of the Labour Act (regular termination of an employment contract), the schools dismissed the applicant from his teaching job on the grounds that he could no longer be a teacher of Catholic religious education without a canonical mandate. They stressed that it had been impossible to find another position for the applicant or to offer him an alternative post within the schools. The applicant was given two months’ notice and the right to an indemnity. 16. On 13 October 2006 the applicant instituted proceedings in the Opatija Municipal Court (Općinski sud u Opatiji), challenging the decisions on his dismissal. 17. On 22 February 2007 the Opatija Municipal Court dismissed the applicant’s civil action on the grounds that as stipulated in the Agreement between the Holy See and Croatia and the related Agreement between the Government of Croatia and the Croatian Episcopal Conference on Catholic religious education in State schools and pre-school institutions, he could not teach Catholic religious education without a canonical mandate. The Opatija Municipal Court also found that the schools had examined the possibility of appointing the applicant to another suitable post, but that as there was no such post, they had justifiably terminated his contract of employment. 18. The applicant challenged the judgment of the Opatija Municipal Court by lodging an appeal before the Rijeka County Court (Županijski sud u Rijeci). He argued that he had not breached the Labour Act or any other relevant legislation and that the Agreement between the Government of Croatia and the Croatian Episcopal Conference did not require that a person whose canonical mandate had been withdrawn should be dismissed. 19. On 17 October 2007 the Rijeka County Court dismissed the applicant’s appeal, endorsing the findings and reasoning of the Opatija Municipal Court. 20. On 18 and 19 February 2008 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovni sud Republike Hrvatske) and a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) respectively. He relied, inter alia, on Articles 8 and 14 of the Convention, and the corresponding provisions of the Constitution, arguing that there had been an unjust interference with his private and family life as a result of the decisions on his dismissal, and that his dismissal had been of a discriminatory nature. He contended, in particular, that the conclusion of a second marriage contract in a civil ceremony could not be a reason for dismissal under the Labour Act or any other State laws. He therefore considered that his dismissal based on the fact that he had divorced his former wife and remarried in a civil ceremony had disproportionately affected his private life. 21. On 3 December 2008 the Supreme Court dismissed the applicant’s appeal on points of law as unfounded, endorsing the reasoning of the lower courts. In particular, the Supreme Court stressed that the applicant’s dismissal had been based on the withdrawal of his canonical mandate, which was a necessary requirement for employment as a teacher of Catholic religious education as provided for under the relevant domestic law. The Supreme Court also held that it was not for the schools or the courts to enter into the examination of the reasons for the withdrawal of the applicant’s canonical mandate by the Church. 22. On 7 February 2009 the applicant supplemented his constitutional complaint by extending his arguments to the judgment of the Supreme Court. He contended in particular that the Supreme Court’s refusal to examine the reasons for his dismissal had essentially deprived him of the possibility to have those reasons effectively challenged in court. 23. A public hearing was held and on 22 May 2013 the Constitutional Court dismissed the applicant’s constitutional complaint, finding that there had been no violation of his right to respect for his private and family life, or any discrimination against him. The relevant part of the decision reads: “10.1.2. It follows from the available material and the [appellant’s] constitutional complaint that the appellant’s first marriage had been concluded in a religious ceremony before an official of the religious community and that [the appellant] was divorced on the basis of a final court decision as provided for under the relevant Croatian law. The Constitutional Court notes that the appellant subsequently concluded a new marriage in a civil ceremony without any restriction imposed by the State. It follows that the State did not inhibit his determination to remarry, nor did it prevent him from remarrying and founding a new family. Accordingly, the appellant’s right to marry under Article 12 of the Convention and his constitutional right to respect for his family life under Article 35 of the Constitution and Article 8 of the Convention has not been breached. ... 10.2.2. ... [T[he Constitutional Court starts by observing that the Republic of Croatia and the Holy See concluded an Agreement on education and cultural affairs, signed in Zagreb on 18 December 1996. The Act ratifying that Agreement came into force on 11 February 1997 and thereby this international treaty became part of the internal legal order of the Republic of Croatia with precedence in terms of its legal effects over the [domestic] statutes. By this Agreement the Republic of Croatia undertook certain obligations which must be abided by and respected. Primarily, it undertook to secure Catholic religious education in all State elementary and high schools and all pre-school institutions as a mandatory class for all those who have chosen that course, under the same conditions applicable to other mandatory classes. [The Agreement] stipulates that Catholic religious education will be taught by qualified religious education teachers who are suitable for that position, in the opinion of the Church authorities, and meet the requisite legal requirements of the Croatian legislation. It also stipulates that teachers of religious education must hold a canonical mandate (missio canonica) issued by the diocesan bishop, and that withdrawal of the mandate leads to an immediate loss of the right to teach Catholic religious education. Under the Agreement, teachers of religious education are members, together with their pupils, of the educational corps ... The Republic of Croatia undertook to regulate the programme and functioning of Catholic religious education in schools of all types and levels by a special agreement between the Republic of Croatia and the Croatian Episcopal Conference. The Constitutional Court considers it necessary to note at this point that the appellant is wrong when he argues that the Agreement between the Holy See and Croatia on education and cultural affairs does not require a canonical mandate as a condition for employment and that such a requirement only flows from the Agreement between the Government of Croatia and the Croatian Episcopal Conference on Catholic religious education in State schools and pre-school institutions of 29 January 1999. The appellant specifically contends that the Agreement between the Government [of the Republic of Croatia] and the Croatian Episcopal Conference is a bilateral agreement which ‘is not a statute and does not have the status of an international treaty’ and thus could not be binding for [him and the State] nor could it be applied to [his] case, as was done by the [lower] courts. Although the appellant relies on an erroneous premise that the canonical mandate, as a condition for employment as a teacher of religious education, has been stipulated (only) by the Agreement between the Government [of the Republic of Croatia] and the Croatian Episcopal Conference, it could be held that in essence he considers that the consequences of the withdrawal of the canonical mandate on his contract of employment, and his position of teacher of religious education, are contrary to the Constitution. The Constitutional Court reiterates that the requirement to hold a canonical mandate in order to teach religious education, and the consequences of its withdrawal (loss of the right to teach Catholic religious education), are provided for under Article 3 of the Agreement between the Holy See and Croatia on education and cultural affairs. ... 10.2.3. The Constitutional Court considers it necessary to examine the special requirement stipulated by the Vatican agreements for employment as a teacher of religious education – the canonical mandate. The Constitutional Court firstly notes that the Government of the Republic of Croatia have so far concluded seven agreements on questions of mutual interest with different religious communities, in particular with: - the Serbian Orthodox Church in Croatia (Official Gazette no. 163/03); - the Islamic community in Croatia (Official Gazette no. 196/03); - the Evangelical Church in Croatia and the Christian Reformed Church in Croatia (Official Gazette no. 196/03); - the Evangelical (Pentecostal) Church in Croatia, the Christian Adventist Church in Croatia and the Baptist Union of Croatia (Official Gazette no. 196/03); - the Bulgarian Orthodox Church in Croatia, the Croatian Old Catholic Church and the Macedonian Orthodox Church in Croatia (Official Gazette nos. 196/03 and 141/04); - the Jewish community Bet Israel in Croatia (Official Gazette no. 4/12); and - the Coordination of Jewish townships in Croatia (Official Gazette no. 4/12). All these agreements have been concluded under the Act on the Legal Status of Religious Communities (Official Gazette no. 83/02) and they all contain identical provisions concerning, for example, mandatory religious education classes for those who have chosen them, the teaching of these courses under the same conditions as other mandatory courses, and the necessity for teachers of religious education to hold the requisite mandate to teach religious education, which can always be withdrawn ‘for reasons of deficiencies related to the correctness of teaching and personal morality’. Such a requirement, given the nature of their job and its proximity with the mission of dissemination of the church’s teaching, in the Constitutional Court’s view, is not an excessive burden for persons who have chosen to become teachers of religious education. The assessment of a person’s adequacy [to teach religious education] by the competent church authorities is a concretisation of the freedom of the church’s activity and the right to religious freedom, which [also] includes the right of parents to a religious education of their children. 10.2.4. The enforcement of the obligation undertaken by an international agreement, namely the organisation of Catholic religious education in State elementary and high schools and pre-school education institutions, as provided for under the Agreement between the Holy See and Croatia on education and cultural affairs and the Agreement between the Government of Croatia and the Croatian Episcopal Conference, brought religious education teachers into the employment system of the Republic of Croatia. Although their employment status is not fully defined by these Agreements, the provisions of the Agreement between the Holy See and Croatia on education and cultural affairs in themselves show that the employment status of religious education teachers is a sui generis employment status – in order to teach religious education they must be suitable for that position in the opinion of the Church authorities; they must hold a canonical mandate and the withdrawal of the mandate leads to the loss of the right to teach Catholic religious education. At the public hearing – on the basis of evidence given by the Director of the Administration for legal affairs of the Ministry of Science, Education and Sport of the Republic of Croatia S.S.B., it has been undoubtedly established that the employment of all teachers of religious education was conducted without an open competition, although that has not been provided for under the relevant law. It was only [later], after the public hearing, by section 12 of the amendments to the Act on Tuition and Education in Elementary and High Schools (Official Gazette no. 90/11) that a new section 107 § 10(6) was introduced, which provides that a contract of employment without an open competition may be concluded for the position of religious education teacher. In June 2000 the Ministry of Education and Sport forwarded to all county offices for education, culture, information, sport and technical culture a letter concerning the employment status of religious education teachers in elementary and high schools; more precisely, concerning their hiring and dismissal. The letter indicates that a contract of employment is to be concluded with religious education teachers meeting the relevant requirements, and that if the diocesan bishop by means of a decree withdraws the canonical mandate to teach Catholic religious education from a religious education teacher due to deficiencies related to the correctness of the teaching and personal morality, the contract of employment is to be terminated under section 107 of the Labour Act as an extraordinary dismissal. 10.2.5. It therefore follows that the appellant also entered the State education system without participating in an open competition. At the public hearing he stated that, on the basis of the local priest’s recommendation the bishop had given him the mandate, the Ordinary had acted as an intermediary, and the school had given him the employment. Thus, by having the canonical mandate and meeting all other requirements, the appellant and the defendants concluded a ‘classical’ contract of employment under the Labour Act, which does not mention the canonical mandate or the consequences of its possible withdrawal. At the public hearing, when asked whether he had been aware of the consequences of his conduct on the right to teach religious education, the appellant stated that he had passed the exam in canon law which he could not have passed without learning [also the issues] concerning those consequences. It follows that the appellant knew that his position depended on the mandate given by the diocesan bishop and that he would lose it if the mandate were withdrawn. Accordingly, although he had concluded a ‘classical’ employment contract under the Labour Act, the appellant could not have expected, after he had lost the canonical mandate as a consequence of entering into a new civil marriage while he was still in a ‘religious’ marriage with a third person, that he would be able to continue to teach religious education. However, he could have expected, irrespective of the internal instructions of the Minister, that the schools where he was employed would take all necessary measures to employ him in another post. This is because the withdrawal of the canonical mandate leads to the loss of the right to teach Catholic religious education and not dismissal or the loss of his degree in theology. Under section 2 of the By-law on the educational level and pedagogical-psychological education of teachers in high schools (Official Gazette nos. 1/86 and 80/99), a degree in theology [opens the possibility] of teaching courses in ethics and culture. According to the findings of the first-instance court, the defendants had examined the possibility of employing the appellant in another post but, as such a post had not existed, they terminated his contract of employment by so-called regular dismissal, which gives rise to the right to a notice period and an indemnity. In so doing, the defendants acted in the usual manner for terminating a contract of employment by so-called regular dismissal. The Constitutional Court therefore finds that the appellant has not been treated differently from other workers, including employees in schools, in the situation of a termination of a contract of employment by so-called regular dismissal. The assessment of the lawfulness of the termination of the appellant’s contract of employment was, in the light of the relevant labour law, conducted by the [competent] courts at three levels of jurisdiction. In view of the fact that for the position of teacher of religious education there is a further special requirement, without which it is impossible to conclude a contract of employment (a canonical mandate), and having found that the appellant, due to the withdrawal of [the canonical mandate] no longer met the requirements for teaching Catholic religious education, and the fact that the defendants had tried to find him another post ..., the [competent] courts, in the Constitutional Court’s view, applied a constitutionally acceptable interpretation according to which the appellant’s contract of employment had been terminated in accordance with the relevant law. 10.2.6. Against the above background, in view of the defendants’ conduct following the withdrawal of the appellant’s canonical mandate and in view of the manner in which the competent courts provided him with judicial protection in terms of the State’s obligations under the Vatican agreements, the Constitutional Court finds that the appellant has been afforded sufficient protection of his [employment rights].” 24. Judge D.K. appended a concurring opinion to the decision, agreeing with the findings of the majority. However, he argued that the Constitutional Court had not sufficiently appreciated the fact that the applicant had voluntarily consented to his position depending on the canonical mandate, which the diocesan bishop was authorised to issue and to withdraw. 25. The President of the Constitutional Court gave a dissenting opinion in which she argued, in particular, that the normative framework for the employment of teachers of religious education, based on the Agreement between the Holy See and Croatia on education and cultural affairs, had not been implemented sufficiently precisely in the relevant domestic employment system, which had left a number of issues undetermined. 26. The decision of the Constitutional Court was served on the applicant’s representative on 27 May 2013. 27. In March 2010 T.F. applied to the Rijeka First-instance Inter-diocesan Matrimony Court (Interdijecezanski ženidbeni sud prvog stupnja u Rijeci) for the annulment of her religious marriage to the applicant on the grounds that, when entering into the marriage, he had demonstrated “a positive act of the will excluding marriage itself” (see paragraph 45 below, canon 1101 § 2). 28. On 16 August 2012 the Rijeka First-instance Inter-diocesan Matrimony Court accepted T.F.’s application and annulled her religious marriage to the applicant. The decision was then forwarded for examination to the Zagreb Inter-diocesan Appeal Court (Međubiskupijski prizivni sud u Zagrebu). 29. The proceedings were held in the applicant’s absence because he had failed to respond to the court’s summons. During the proceedings, an email sent by the applicant to T.F. on 4 December 2009 was admitted as evidence. In the email the applicant stated that if he “could return all other sacraments [he] would gladly do it. This way, if [he] managed to get rid of only one, which, as [they] both knew, never existed, [his] heart would be happier.” 30. On the basis of the evidence adduced, on 24 April 2013 the Zagreb Inter-diocesan Appeal Court upheld the decision of the Rijeka First-instance Inter-diocesan Matrimony Court annulling the applicant’s religious marriage to T.F.