The jurisprudence of the European Court of Human Rights (ECtHR) on religious freedom is well known and is the subject of frequent comment.Footnote ² The aim of this paper is to present an overview of a particular aspect, where the ECtHR had to consider a dispute in which a religious court was involved at an earlier stage. In these cases, nolens volens, the ECtHR had to adjudicate upon the competence and procedure of these courts and tribunals. To date, there have only been nine such cases, of which only three have led to a judgment. Yet, from the remaining six which were declared inadmissible or manifestly ill-founded, there is something to be learned about the approach of the ECtHR to religious courts.

At first glance, the cases seem to have nothing in common: the applicants were Danish, English, Finnish (two applicants), Greek, Italian, Slovak, German and a woman with dual Turkish–French citizenship. Five of them were priests, one a verger, the rest of undefined professions. The religious affiliations of the applicants were also different: (Roman) Catholics, Orthodox, Church of England, Lutheran, Jewish and one unspecified. This reflects European religious diversity, save for the absence of Muslims and Jehovah's Witnesses. The subject matter also differed:

1. i. Disciplinary proceedings linked to the suspension or removal of a priest from a parish: (X v Denmark, Tyler, Skordas, Šupa, Ahtinen);

2. ii. Welfare insurance of a verger (Helle);

3. iii. Difficulties in proceedings before (Catholic) religious courts and, later, the Italian courts (Pellegrini);

4. iv. Handover of premises and documents belonging to a religious community following the election of a new board (Kohn);

5. v. Parental rights and child abduction (Eskinazi).

A common feature was the fact that the application to the ECtHR effectively constituted an appeal against the decision of a religious court. Owing to the variety of systems of religious jurisdictions and the fact that courts of the same denomination are treated differently in various states (for example, Catholic courts in Italy, in Germany or in France), the ECtHR could not adopt a ‘one-size-fits-all’ solution. On the contrary, each case received detailed scrutiny.

In Tyler, courts of the Church of England were determined to be impartial and independent within the meaning of Article 6 of the European Convention on Human Rights (ECHR).Footnote ³ Mr Tyler was accused of conduct unbecoming a clerk in holy orders: charges of adultery were found proved in a consistory court on two occasions, the second being a re-hearing following an appeal.Footnote ⁴ He brought the case to Strasbourg, claiming that the Church of England was both prosecutor and a judge, and therefore not impartial. Based on the explanations provided by the UK government, the (then) European Commission of Human Rights confirmed that consistory courts of the Church of England when exercising disciplinary jurisdiction are impartial and independent within the meaning of Article 6 hence it declared the application manifestly ill-founded and inadmissible.

In Helle, the cathedral chapter of the Evangelical-Lutheran Church of Finland, which exercises an appellate jurisdiction from decisions of parish councils, was not considered impartial because a bishop presides ex officio. Mr Helle, after decades of work for the Church as a verger, discovered that he had not been employed full-time, hence his social insurance and pension rights were lower than he had expected.Footnote ⁵ He appealed against a decision of the parish council to the cathedral chapter, and thereafter applied to the ECtHR. It is implicit that the ECtHR did not perceive the cathedral chapter to be an impartial court within the meaning of Article 6 because the bishop presided ex officio. However, as the judgments of the cathedral chapter were within the remit of the supervisory jurisdiction of the Finnish Highest Administrative Court, there was no violation of Article 6. Interestingly, in the procedurally similar case of Ahtinen v Finland, the ECtHR sidestepped the issue, declaring the status of priest not to be a civil right protected by the ECHR.Footnote ⁶

Decisions of the Greek Orthodox courts are not subject to the control of state courts. In Skordas, a Greek Orthodox priest found himself in conflict with the local bishop, who prohibited him from celebrating masses.Footnote ⁷ The priest launched proceedings in the state civil and criminal courts, including the Council of State. The ECtHR declared that domestic remedies had not been exhausted, as not all of the various actions which the priest had initiated in the state courts had been determined. The priest had founded his application on Article 3 (torture), Article 4 (slavery and forced labour) and Article 9 (religious freedom). He did not refer to Article 6, which may explain its failure.

The courts of the Roman Catholic Church (such as the Roman Rota) were considered in one case (Pellegrini).Footnote ⁸ Ms Pellegrini was called to appear in nullity proceedings brought by her husband in a Catholic marriage tribunal. Under Italian law, judgments of the Rota are recognised by the state courts (a procedure known as delibazione). Ms Pellegrini challenged this decision before the ECtHR, claiming that that the Catholic courts and tribunals violated Article 6 so far as the procedural rights of litigants were concerned. For example, she was summoned to appear before the (Catholic) court without being told what the subject of the case was; she was not informed about the right to be represented by a lawyer; and she did not receive all the court documents. The ECtHR acknowledged that neither the Holy See nor the State of the Vatican City were party to the ECHR, therefore the Court addressed its remarks to Italian courts, indicating that care should be exercised in recognising the judgments of ecclesiastical courts.

In Šupa, a Slovak state court, as part of a complex set of proceedings, made reference to Catholic jurisprudence in the Supreme Tribunal of the Apostolic Signatura.Footnote ⁹ The ECtHR was able to avoid making any substantive determination as to the status of proceedings of the Signatura by declining to entertain the application owing to the delay in making it.Footnote ¹⁰

In Kohn and Eskinazi the ECtHR tacitly recognised the competence of the Arbitration and Administrative Court of the Central Jewish Council in Germany and of rabbinical courts in Israel respectively.Footnote ¹¹ In Kohn, the question related to the property (rooms and equipment) of the association after a change of governance. The German courts claimed that the state courts were authorised to intervene, notwithstanding the autonomy of the religious community, since the question as to which of the boards was legitimate engaged civil rights. The ECtHR came to the conclusion that the Arbitration and Administrative Court of the Central Jewish Council was properly authorised to decide conclusively in such a case.

In Eskinazi, a French–Turkish citizen stayed with her daughter in Turkey despite the explicit request of the father, a French–Israeli citizen, who wanted them to return to Israel. On the application of the father, rabbinical courts in Tel Aviv (Batei Hadîn Harabaniim Haezorim) ordered Ms Eskinazi to return to Israel with her daughter. The Turkish courts recognised these orders as valid and therefore ordered Ms Eskinazi to return to Israel. Ms Eskinazi challenged these orders in the ECtHR, which had to investigate the legal position of rabbinical courts in Israel (they not being a party to the ECHR). The ECtHR determined that in Israel there is a parallel jurisdiction of state and religious courts, between which a plaintiff may choose. All of these courts are under the supervision of the Israeli Supreme Court, sufficient for the purposes of compliance with Article 6.

The ECtHR avoided taking any position on the role of the consistorial court of the Danish National Church in X v Denmark.Footnote ¹² Before baptising children, a priest required their parents to attend a special course of five hours, which was deemed by the church authorities unjustified and hence illegal. The priest was asked to stop or he would be forced to resign. The priest claimed that his freedom of religion had been infringed. However, the ECtHR determined that the status of priest is a civil right and not therefore covered by Article 6.

The absence of any consistent jurisprudence is interesting, and it is noteworthy that the judgments do not cross-refer to one another. The two Catholic tribunals mentioned, namely the Roman Rota (Pellegrini) and the Apostolic Signatura (Šupa), are housed in Vatican territory (on the Piazza della Cancellaria in Rome) and are not subject to the jurisdiction of the ECtHR, hence the judicial restraint. The court was more robust when dealing with the Evangelical-Lutheran Church of Finland.

With the exception of Skordas and Eskinazi, the cases were of a financial character or related to property. There is very little ECtHR jurisprudence on matters of religious doctrine. The application by the serial litigator Revd Paul Williamson concerning the ordination of women priests did not relate to church courts and was summarily declared inadmissible.Footnote ¹³ There are also several cases in the ECtHR which have touched upon religious law but not the jurisdiction of church courts as such.Footnote ¹⁴

A picture seems to emerge of the ECtHR placing reliance on the idea of separation of powers, and of the independence and impartiality of courts and tribunals (and the judges who sit in them) for the purposes of Article 6. While no single principle has been enunciated to date, of one thing we can be certain: there is likely to be no shortage of litigation for both civil and ecclesiastical lawyers in the years ahead, both in the domestic courts and in Strasbourg.