CASE OF FERNÁNDEZ MARTÍNEZ v. SPAIN
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;András Sajó;André Potocki;Angelika Nußberger;Ann Power-Forde;Corneliu Bîrsan;Dean Spielmann;Dmitry Dedov;Egbert Myjer;George Nicolaou;Guido Raimondi;Helena Jäderblom;Ineta Ziemele;Isabelle Berro-Lefèvre;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mark Villiger;Mihai Poalelungi;Paul Lemmens
12. The applicant was born in 1937 and lives in Cieza. He is married and the father of five children. 13. He was ordained as a priest in 1961. In 1984 he applied to the Vatican for dispensation from the obligation of celibacy. At that time he did not receive any answer. The following year he was married in a civil ceremony. He has had five children with his wife, to whom he is still married. The parties have not submitted any details concerning his status as a priest not having received a dispensation. 14. From October 1991 onwards, the applicant was employed as a teacher of Catholic religion and ethics in a State-run secondary school of the region of Murcia under a renewable one-year contract. In accordance with the provisions of a 1979 Agreement between Spain and the Holy See, “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” (see paragraph 50, below). In accordance with a Ministerial Order of 1982, “the appointment is to be made annually and renewed automatically, unless an opinion to the contrary is given by the Ordinary before the start of the school year, or unless the public authority, for serious academic or disciplinary reasons, considers it necessary to annul the appointment, in which case the Church authority shall be heard ...” (see paragraph 51, below). Furthermore, Article VII of the Agreement provides that “at all levels of education, the remuneration of teachers of Catholic religion who do not belong to the State teaching staff shall be decided jointly by the central administration and the Spanish Episcopal Conference, such that it will be applicable from the entry into force of the present agreement” (see paragraph 50, below). 15. In November 1996 the Murcian newspaper La Verdad printed an article about the Movement for Optional Celibacy of priests (MOCEOP), which read as follows: A representative of the diocese explained that the protest-oriented nature of the gathering might disturb the peace of the monastery. m. de la vieja – murcia Father Francisco Tomás, head of the community of the Brothers of La Luz, in Murcia, has refused to allow access to the monastery to about a hundred married priests who wished to celebrate mass and spend the day there with their wives and children. Francisco Tomás stated that the monastery was a place of private worship and that the priests had not applied for the necessary authorisation. He added that, because of the advanced age of Brother Manuel (80 years old), the only monk residing at La Luz, he did not feel it was appropriate to hold a meeting that might disturb the peace of the monastery as a result of the publicity given to the event and the protest-oriented intentions of the Movement for Optional Celibacy. Yesterday, the diocesan delegate for cultural heritage, Francisco Tomás, refused to allow the members of the Movement for Optional Celibacy (MOCEOP) to celebrate mass inside the monastery of La Luz, in El Valle. Father Tomás explained that the married priests had not sought permission to use the monastery’s church. In addition, the movement had intended to make the most of the day to hold an information meeting about the IVth International Congress of married priests held in Brasilia last July on the theme ‘Ministries of the third millennium’. Francisco Tomás also explained that only one 80-year-old monk lived in the monastery and that it was not desirable to disturb the peace of this brother with protests that would attract media attention to this place of private worship. For his part, the regional coordinator of MOCEOP, Pedro Sánchez González, stated that the requisite authorisation had certainly been applied for but the Movement had not received a reply and he did not think that such a permit would be indispensable for the celebration of mass in a hermitage. The publicity given to the event in the press had dissuaded a large number of the Movement’s members from attending the gathering in La Luz. Others, seeing the monastery’s doors closed, merely waved to their colleagues without getting out of their cars and turned round. Only about ten secularised priests stayed there with their families to explain their situation to the media and those present. Some of their children even held up a banner. They eventually went away to have lunch together, intending to celebrate mass amongst themselves. Lorenzo Vicente, Pedro Hernández Cano, Crisanto Hernández and José Antonio Fernández – a former seminary director – are among the married priests who gathered at La Luz yesterday to advocate optional celibacy and a democratic rather than a theocratic Church in which laymen would take part in electing their parish priest and their bishop. The rule of celibacy is Church-made and not divinely inspired. They also expressed their disagreement about certain economic issues: ‘Those of us who paid contributions to the clergy’s mutual insurance fund, which was subsequently incorporated into the social security system, lost all our rights when we became secularised. Moreover, nuns are in an even worse situation than priests because they donate their property to the community and lose everything’, they declared.” The article also contained a separate part, under a different heading: On issues such as abortion, birth control, divorce or sex, Pedro Hernández Cano and his friends from the MOCEOP said that they were in favour of responsible paternity. They added that abortion was ‘a personal problem which should not be prohibited by law, but [that] a social structure is needed to support women facing maternity. To castigate a woman as a sinner if she gets pregnant out of wedlock just encourages abortion’. The married priests emphasised that birth control was clearly necessary ‘and that, consequently, everyone should be free to choose the means that they find most appropriate’. ‘Sex is a gift from God and not a scourge, and even the Pope does not believe that it leads to damnation. If that were the case, he would not have put on hold the current 6,000 requests for secularisation’, they concluded.” 16. By a “rescript” of 20 August 1997, the Pope granted the request for dispensation from celibacy that the applicant had submitted thirteen years earlier, stipulating that the applicant was dispensed from celibacy and lost his clerical “state”. He forfeited the rights related to that “state”, as well as the ecclesiastical honours and functions (dignitates et officia ecclesiastica in Latin). He no longer had the obligations associated with the clerical “state”. The rescript further noted that the applicant was barred from teaching the Catholic religion in public institutions, unless the local bishop decided otherwise, for lower-level schools (in institutis autem studiorum gradus inferioris), “according to his own prudent judgment [prudenti iudicio] and provided that there [was] no scandal [remoto scandalo]”. The applicant was notified of the rescript on 15 September 1997. 17. On 29 September 1997 the Diocese of Cartagena informed the Ministry of Education in a written memorandum about the applicant’s termination of service as a teacher in the school where he was working. 18. The Ministry informed the applicant on 9 October 1997 that his employment had been terminated with effect from 29 September 1997. 19. In an official memorandum of 11 November 1997 the Diocese observed as follows: “[The applicant], a secularised priest, taught classes in Catholic religion and ethics ... by virtue of the powers conferred on bishops by the rescripts ... Those powers ... may be exercised for the teaching of subjects related to Catholic religion, provided there is no ‘risk of scandal’. When the [applicant’s] situation became a matter of public and common knowledge, it was no longer possible for the bishop of the diocese to make use of the powers conferred upon him by the rescript; accordingly, the document authorising [the applicant] to teach Catholic religion and ethics was not signed, with effect from the current academic year. [The applicant]’s personal and employment situation has also been taken into account, since [he] is entitled to receive unemployment benefit for at least a year and a half. The Diocese of Cartagena regrets this situation, while pointing out that the decision was taken also out of respect for the sensitivity of many parents who might be upset to learn of the situation of [the applicant], who was teaching Catholic religion and ethics in an education centre. Lastly, the Diocese trusts that Christian people and society in general will understand that the circumstances surrounding these facts cannot be assessed solely from an employment or professional standpoint. For the Catholic Church, the sacrament of the priesthood is of a nature that surpasses the strictly employment or professional context.” 20. The director of the secondary-education centre where the applicant had been teaching sent a note to the Bishop of Murcia in which the centre’s board of teachers expressed its support for the applicant and stated that he had given his classes during the school year 1996/97 to the full satisfaction of the teachers, the pupils and their parents, and the centre’s management. 21. Initially, the applicant lived on unemployment benefit. In 1999 he found a job in a museum, where he worked until his retirement in 2003. 22. Having been unsuccessful in his administrative complaint against the decision of the Ministry to terminate his employment, the applicant filed an appeal against that decision with an administrative court. The appeal was dismissed on 30 June 2000 on the ground that the decision to formalise the termination of the applicant’s employment was “the only course of action open to the administrative authorities” once the Diocese had decided not to propose the applicant for appointment. 23. The applicant then brought proceedings for unfair dismissal before Murcia Employment Tribunal no. 3. The Employment Tribunal gave its judgment on 28 September 2000. 24. The tribunal began by examining the facts as established and noted that the applicant had held various posts within the Catholic Church, such as director of the seminary of Murcia or that of episcopal vicar of the region of Cieza and Yecla. It further observed that the applicant was a member of MOCEOP. 25. The tribunal then referred 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 a “married priest” (he had not received a dispensation from the Vatican until 1997) and father, together with the need to avoid scandal and to respect 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 tribunal took the following view: “[I]n 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 cause of his dismissal.” 26. The tribunal further pointed out: “The principle of non-discrimination at work encompasses the prohibition of discrimination on account of belonging to a trade union and union activity, and this applies to membership of any other association.” 27. Lastly, the tribunal noted that the applicant’s situation as a “married priest” and father had been known to the pupils and their parents and to the directors of the two schools where he had worked. 28. Consequently, the tribunal upheld the applicant’s appeal, declared his dismissal (as it was described in the judgment) null and void, ordered the Region of Murcia to reinstate him to his former position, and ordered the State to pay him the outstanding salary. It dismissed the applicant’s claim in so far as it was directed against the Diocese of Cartagena. 29. 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 allowed 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 falls on the borderline between the purely ecclesiastical dimension and a nascent employment relationship.” 30. 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), 16 (freedom of thought and religion), 18 (right to respect for private and family life) or 20 (freedom of expression) of the Spanish Constitution, since the applicant had taught religion since 1991, the Bishop of Murcia 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 of Murcia 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 cease proposing the person concerned for a post of that nature, in accordance with the requirements of the rescript granting dispensation from celibacy. 31. 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. 32. 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 person in question for the post of teacher of Catholic religion.” 33. 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. 34. 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. He alleged in particular that the decision not to renew his contract on the ground that he had made public his membership of MOCEOP and his dissenting opinions on the celibacy of Catholic priests constituted an unjustified interference with his private life and was incompatible with his right to freedom of religion. 35. By a decision of 30 January 2003, the chamber to which the case had been allocated declared the amparo appeal admissible and, in accordance with sections 50 to 52 of the Organic Law on the Constitutional Court, notified the decision to the parties and requested a copy of the case file from the courts below. 36. In its mandatory intervention before the Constitutional Court, the public prosecutor’s office (Ministerio Fiscal) argued in favour of granting the applicant’s amparo appeal. In this connection, it criticised the reasons given by the High Court of Justice, which had considered the non-renewal of the contract justified in so far as the applicant had acted in a manner that was contrary to the rescript of dispensation when he had agreed to make his family situation public. The public prosecutor’s office noted that the applicant’s public appearance had taken place well before the dispensation from celibacy was granted to him, and therefore before the existence of that rescript. It further pointed out that the applicant’s membership of the movement in question had been known to the Church authorities. It took the view that since the applicant’s conduct which had served as the justification for the non-renewal of his employment – namely, his attendance at an event organised by the movement – came within the scope of his freedom of thought, the dismissal amounted to a violation of his right to equality (Article 14 of the Constitution), read in conjunction with his right to freedom of thought (Article 16 of the Constitution). 37. In a judgment of 4 June 2007, served on 18 June 2007, the Constitutional Court dismissed the amparo appeal. 38. The Constitutional Court first examined the alleged violations of Articles 14 (right to equality) and 18 (right to respect for private and family life) of the Constitution and dismissed those complaints, the first because the decision not to propose the applicant for appointment as a teacher was not based on any intention to discriminate against him on account of his marital status, and the second on the ground that he himself, of his own free will, had made public both his personal and family situation and the fact that he was a member of MOCEOP. 39. The Constitutional Court then addressed what it regarded as the main question in the amparo appeal, namely, the alleged violation of Articles 16 and 20 of the Constitution. It thus sought to ascertain whether the facts in issue could be justified by the religious freedom of the Catholic Church (Article 16 § 1 of the Constitution) in conjunction with 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 (Article 16 § 1 of the Constitution) in conjunction with his right to freedom of expression (Article 20 § 1 (a) of the Constitution). For that purpose, the court relied on the criteria laid down in its judgment no. 38/2007 of 15 February 2007 concerning the constitutionality of the system of selection and recruitment of Catholic religion teachers in State schools. In this connection it emphasised the special status of teachers of religious education in Spain and took the view that this status justified the fact that the religious beliefs of such teachers would be taken into account in the selection process. 40. At this point, the Constitutional Court explained as follows: “... the task of the Constitutional Court in the present case, as in other cases where there is a conflict between fundamental rights of a substantive nature, is to ascertain whether the courts [below] weighed up the competing rights at stake in a manner that reflected their constitutional definition ... In doing so, it is not bound by the assessment already made by those courts. In other words, the assessment of this Court is not confined to an external review of the adequacy and consistency of the reasons given for the decision or decisions ...; rather, in its capacity as the ultimate guarantor of fundamental rights, it must resolve any conflict that exists between the affected rights and determine whether those rights have indeed been infringed in terms of their individual constitutional content. However, for this purpose it is necessary to apply different criteria from those applied by the courts [below], as the reasons given by the latter are not binding on this Court nor do they limit its jurisdiction to merely reviewing the grounds of their decisions. ...” 41. As regards the facts of the case, the Constitutional Court began by noting that the reason for the non-renewal had been the article in a regional newspaper, which had caused a scandal according to the arguments put forward by the Diocese of Cartagena in its official memorandum of 11 November 1997. That article had made public two personal characteristics of the applicant already known to the Diocese, namely his family situation as a married priest and father, and the fact that he was a member of a movement that challenged certain precepts of the Catholic Church. That publicity had formed the factual basis of what the Diocese had referred to in its memorandum as constituting a scandal. 42. Noting that the High Court of Justice had effectively reviewed the Bishop’s decision, in particular concerning the latter’s inability to propose candidates who did not have the requisite professional qualifications for the post and the obligation to respect fundamental rights and civil liberties, the Constitutional Court found as follows: “The extensive passages cited from the judgment appealed against demonstrate that it neither rejects the possibility of judicial review of the ecclesiastical authority’s decision nor does it shy away from weighing up the fundamental rights competing in this particular case with the right to religious freedom (Article 16 § 1 of the Constitution), which it does in an unequivocal manner.” 43. The Constitutional Court then engaged in its own balancing of the competing fundamental rights: “Having dealt with the balancing of the rights at stake in the impugned judgment, this Court must now assess, above and beyond the reasoning of that judgment, the conclusions reached by it after weighing up the conflicting fundamental rights. In doing so the Court must consider not just the rights contemplated in that judgment, but also the right to freedom of thought and religion, an issue which it submitted, of its own motion, for the consideration of the parties... The actions and opinions which resulted in the appellant in the present case not being proposed by the Diocese as a teacher of Catholic religion and ethics were his public disclosure, firstly, of his situation as a priest who was married and the father of five children and, secondly, of his membership of the Movement for Optional Celibacy (as made clear by the judgments of the courts below and expressly conceded by the amparo appellant himself). It is clear that, from the State’s (secular) perspective, these actions and opinions must be considered in terms of a possible infringement of the right to freedom of thought and religion (Article 16 § 1 of the Constitution) in conjunction with the right to freedom of expression (Article 20 § 1 (a) of the Constitution), relied on in the application for amparo relief. In order to resolve this issue it must be borne in mind that no rights, not even fundamental rights, are absolute or unlimited. In some instances the provision of the Constitution recognising a right expressly limits that right; in other cases, the limitation stems from the need to preserve other constitutional rights or values which warrant protection. In that connection this Court has repeatedly held that the fundamental rights recognised by the Constitution can yield only to the limitations expressly laid down by the Constitution itself or those which can be indirectly inferred from the Constitution as being justified in order to preserve other rights or values protected by the law. In any case, the limitations imposed may not impede the exercise of the fundamental right in question to an unreasonable degree (see Constitutional Court judgments no. 11/1981 of 8 April 1981, legal ground 7; no. 2/1982 of 29 January 1982, legal ground 5; no. 53/1986 of 5 May 1986, legal ground 3; no. 49/1995 of 19 June 1995, legal ground 4; no. 154/2002 of 18 July 2002, legal ground 8; no. 14/2003 of 28 January 2003, legal ground 5; and no. 336/2005 of 20 December 2005, legal ground 7). In the present case the interference with the appellant’s right to freedom of religion, in its individual dimension, and his right to freedom of thought (Article 16 § 1 of the Constitution) taken in conjunction with the right to freedom of expression (Article 20 § 1 (a) of the Constitution), as a result of his not being proposed by the Diocese for appointment as a teacher of Catholic religion and education for the 1997/98 school year – in the context, therefore, of his claim to continue teaching the creed of a particular religious faith in a public educational establishment – was neither disproportionate nor unconstitutional, since it was 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 conjunction with the right of parents to choose their children’s religious education (Article 27 § 3 of the Constitution). The reasons determining the decision not to propose the appellant as a teacher of Catholic religion and ethics were of an exclusively religious nature, related to the rules of the faith to which he freely adheres and whose beliefs he sought to teach in a public educational establishment.” 44. The Constitutional Court referred to its judgment no. 38/2007 of 15 February 2007, observing as follows: “As this Court held in judgment no. 38/2007 of 15 February 2007, and reiterated in point 5 of the legal grounds of the present judgment, ‘it would be quite simply unreasonable, as regards the teaching of religion in schools, 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 external and collective dimension’ ... It should certainly be reiterated, as regards the justification and constitutionality of the impact on or modification of the appellant’s fundamental right to freedom of religion and thought (Article 16 § 1 of the Constitution) taken in conjunction with the right to freedom of expression (Article 20 § 1 (a) of the Constitution) that, as this Court held in the aforementioned judgment no. 38/2007 of 15 February 2007, ‘the relationship between religious-education teachers and the Church is not entirely the same as that found in organisations which pursue ideological aims, as examined on a number of occasions by this Court, but represents a specific and distinctive category which, while it presents certain similarities, is also different in some respects’. In that connection the Court stated in the same judgment, referring to one of the factors which distinguished the relationship between religious-education teachers and the Church from the relationship within an organisation pursuing ideological aims, and allowed teachers’ rights to be modified in line with the educational ethos of private educational establishments, that the requirement imposed by the ecclesiastical declaration of suitability ‘does not merely consist in a duty to refrain from actions contrary to the religious ethos but extends in a more profound manner to a determination of the individual’s capacity to impart Catholic doctrine, understood as a set of faith-based religious convictions. Since the object of religious instruction is the transmission not only of specific knowledge but of the religious faith of the person who teaches it, this will in all probability imply a series of requirements that transcend the limits of an organisation pursuing ideological aims, beginning with the implicit requirement that persons who seek to transmit a religious faith must likewise profess that faith’ ...” 45. Finally, the Constitutional Court turned to an argument made by the appellant, based on the fact that he advocated changing the rules of the Catholic faith itself, and concluded as follows: “The conclusion reached in the present case as a result of the balancing of the conflicting fundamental rights – on the one hand the Catholic Church’s fundamental right to freedom of religion in its collective or community dimension (Article 16 § 1 of the Constitution) read in conjunction with the State’s duty of religious neutrality (Article 16 § 3 of the Constitution), and on the other hand the appellant’s fundamental right to freedom of thought and religion (Article 16 § 1 of the Constitution) read in conjunction with the right to freedom of expression (Article 20 § 1 (a) of the Constitution) – is in no way altered by the appellant’s claim that through his reforming views on celibacy for Catholic priests he sought to defend evolutionary change to rules of the Catholic faith which he considered to have become outdated with the passage of time. As pointed out in the Government law officer’s submissions, the State is debarred by its duty of religious neutrality (Article 16 § 3 of the Constitution) from entering into or determining possible disputes within the Church, in this specific case between proponents and opponents of celibacy for priests. Nor is it for the Court, in more general terms, to pass judgment on the suitability or compatibility of the actions, opinions and conduct of persons appointed to teach a particular religion vis-à-vis the orthodoxy of the religious faith in question. As a State body exercising public authority, the Court must confine itself in the present amparo appeal, in accordance with its duty of neutrality, to finding established the strictly religious nature of the reasons given by the religious authority for its decision not to propose the appellant as a teacher of Catholic religion and ethics. It further finds that the appellant’s fundamental rights to freedom of thought and religion and freedom of expression, within the ambit of which his actions, opinions and choices in this regard might in principle fall, were affected and modified only to the extent strictly necessary in order to ensure their compatibility with the freedom of religion of the Catholic Church. Accordingly, the present amparo appeal must be dismissed.” 46. Two judges appended a dissenting opinion to the majority judgment. They criticised the fact that the balancing of the rights by the Constitutional Court had been confined to a reference to the religious grounds given in the decision to discontinue the applicant’s employment. In their view, the publicity given to a form of conduct that was already known beforehand could not justify the non-renewal of the contract. 47. The applicant subsequently submitted an application requesting that the Constitutional Court’s judgment be declared null and void, on the ground that two of the judges of 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 Jurists. 48. In a decision of 23 July 2007, the Constitutional Court rejected the application on the ground that, under section 93(1) of the Organic Law on the Constitutional Court, the only possible remedy against a judgment of that court was a request for clarification.