Religion – Weltanschauung – Recht [ RWR ]

In today’s Chamber judgment in the case of Fernández Martínez v. Spain (application no. 56030/07), which is not final, the European Court of Human Rights held, by a majority, that there had been no violation of Article 8 of the European Convention on Human Rights. The case concerned the decision not to renew the contract of a priest, who was married with five children, to teach Catholic religion and morals, following the publication of an article disclosing his membership of the „Movement for Optional Celibacy“.

Principal facts

The applicant, Mr José Antonio Fernández Martínez, is a Spanish national who was born in 1937 and lives in Cieza (Spain). He was ordained as a priest in 1961. In 1984 he applied to the Vatican for dispensation from celibacy. He was married in a civil ceremony in 1985, and he and his wife have five children. He taught Catholic religion and morals in a State high school from October 1991, his contract being renewed every year by the Bishop of the Diocese of Cartagena.

In November 1996 the Murcia newspaper La Verdad published an article about the „Movement for Optional Celibacy“ for priests. It reported that Mr Fernández Martínez, a member of the movement, had previously been rector of a seminary, and published a photograph of him attending a meeting of the movement, together with his wife and their five children. The article included comments by a number of participants urging the ecclesiastical authorities to introduce optional celibacy and democracy within the Church, in other words the possibility for the laity to elect priests and bishops. They indicated their disagreement with the Church’s position on abortion, divorce, sexuality and contraception.

On 15 September 1997 the Vatican authorities granted Mr Fernández Martínez’s application for dispensation from celibacy, specifying 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 is no scandal“.

On 29 September 1997 the Diocese of Cartagena informed the Ministry of Education of its intention not to renew Mr Fernández Martínez’s contract for the 1997/98 school year. The Ministry notified him of the decision, which was effective from 29 September 1997.

Mr Fernández Martínez appealed to the Murcia employment tribunal, which found that he had been discriminated against because of his civil status and his membership of the Movement for Optional Celibacy. It declared his dismissal null and void and ordered his reinstatement in his former post. The Ministry of Education, the regional education authority and the Diocese appealed.

The High Court of Justice accepted the appeal, examined the question of the bond of trust between the teacher and the bishop, and emphasised the bishop’s prerogatives in ensuring that people in the applicant’s position carried out their duties with discretion, making sure that their personal situation was not a source of scandal. If their situation became a public matter, it was the bishop’s duty not to renew their teaching contract. The court noted that for the purposes of Article 10 § 2 of the Convention, the restrictions imposed on the applicant’s rights had to be considered proportionate to the aim pursued, namely the avoidance of scandal. The nature of the contract – the fact that it had to be renewed annually by the bishop – made it a temporary contract, which had simply expired. Mr Fernández Martínez had therefore not been dismissed.

Mr Fernández Martínez lodged an amparoappeal with the Constitutional Court, which highlighted at the outset the special role of teachers of religious education in Spain and found that the reasons for not renewing the applicant’s contract had been purely religious. It further held that it would be unreasonable for the selection process for teachers of religious education not to take into account the candidates’ religious beliefs. On 4 June 2007 the Constitutional Court dismissed the appeal.

Complaints, procedure and composition of the Court

Relying on Article 8 of the Convention, Mr Fernández Martínez alleged that the nonrenewal of his contract because of his personal and family situation had infringed his right to respect for his private and family life. He complained that he had been discriminated against and that the public disclosure of his status as a married priest with several children formed part of his freedom of expression. Relying on Article 6 § 1 (right to a fair hearing), Mr Fernández Martínez complained that two of the judges who had delivered the Constitutional Court judgment had not been impartial and should have stood down because their religious beliefs favoured the Catholic Church.

The application was lodged with the European Court of Human Rights on 11 December 2007. Judgment was given by a Chamber of seven judges, composed as follows:

Josep Casadevall (Andorra), President,
Corneliu Bîrsan (Romania),
Alvina Gyulumyan (Armenia),
Egbert Myjer (Netherlands),
Ineta Ziemele (Latvia),
Mihai Poalelungi (Republic of Moldova), judges,

Alejandro Saiz Arnaiz (Spain), ad hoc judge,

and also Santiago Quesada, Section Registrar.

Decision of the Court

Article 8

The question arising in the present case was whether the State was required to give precedence to Mr Fernández Martínez’s right under Article 8 (right to respect for private life) over the rights of the Church under Articles 9 (right to freedom of religion) and 11 (freedom of association) and whether it had afforded him sufficient protection.

The Court observed that under Spanish law, the concept of autonomy of religious communities was accompanied by the principle of State religious neutrality, which prevented the State from expressing a position on matters such as celibacy for priests. Admittedly, this obligation of neutrality was not unlimited. The Constitutional Court had confirmed on 4 June 2007 that restrictions could be imposed in this sphere through judicial review of decisions by the bishop, who was required to respect fundamental rights and freedoms. However, definition of the religious or moral criteria serving as a basis for not renewing a candidate’s contract was the exclusive prerogative of the religious authority. The domestic courts could weigh up the competing fundamental rights at stake and examine whether the decision not to renew the contract had been based on anything other than strictly religious factors, those being the sole aspects protected by religious freedom.

The Court observed that Mr Fernández Martínez had had the opportunity to bring his case before the employment tribunal and the Murcia High Court of Justice, and had ultimately been able to lodge an amparoappeal with the Constitutional Court. Moreover, the decision dispensing him from celibacy had specified that anyone granted such a dispensation was barred from teaching the Catholic religion in public institutions except by permission of the bishop.

The Court considered that the grounds on which Mr Fernández Martínez had not had his contract renewed were of a strictly religious nature. The requirements of the principles of religious freedom and neutrality precluded it from carrying out any further examination of the necessity and proportionality of the decision not to renew his teaching contract.

The Court considered that in not renewing Mr Fernández Martínez’s contract, the ecclesiastical authorities had been discharging obligations associated with their religious autonomy. Lastly, since candidates were free to apply for posts as teachers of religious education, it would be unreasonable not to take their religious beliefs into account in the selection process, in order to preserve the right to religious freedom in its collective dimension.

Since the competent courts had struck a fair balance between several private interests, the Court found that there had been no violation of Article 8.

Article 6 § 1

Mr Fernández Martínez had produced no evidence to support his allegation that he had not been aware until after the Constitutional Court’s judgment of the alleged lack of impartiality of two of the court’s judges whose religious beliefs favoured the Catholic Church. The Court observed that Mr Fernández Martínez had not used all the means available to him in domestic law to challenge the impartiality of the judges concerned and dismissed his complaint on that account for failure to exhaust domestic remedies.

Separate opinion

Ad hoc Judge Saiz Arnaiz expressed a separate opinion, which is annexed to the judgment.

Press release ECHR 212 (2012) 15/05/2012