CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 9 juillet 2013

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ROMANIA   (Application no. 2330/09)               JUDGMENT   STRASBOURG   9 July 2013           In the case of Sindicatul “Păstorul cel Bun” v. Romania, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Dean Spielmann, President ,   Guido Raimondi,   Mark Villiger,   Isabelle Berro-Lefèvre,   Boštjan M. Zupančič,   Elisabeth Steiner,   Danutė Jočienė,   Dragoljub Popović,   George Nicolaou,   Luis López Guerra,   Ledi Bianku,   Vincent A. De Gaetano,   Angelika Nußberger,   Linos-Alexandre Sicilianos,   Erik Møse,   Helena Jäderblom,   Krzysztof Wojtyczek, judges , and Michael O’Boyle, Deputy Registrar , Having deliberated in private on 7 November 2012 and on 5 June 2013, Delivers the following judgment, which was adopted on the last ‑ mentioned date: PROCEDURE 1.     The case originated in an application (no. 2330/09) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a trade union, Păstorul cel Bun (“The Good Shepherd” – “the applicant union”), on 30 December 2008. The President of the Grand Chamber acceded to a request by the members of the applicant union not to have their identity disclosed (Rule 47 § 3 of the Rules of Court). 2.     The applicant union, which had been granted legal aid, was represented by Mr R. Chiriţă, a lawyer practising in Cluj Napoca. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, of the Ministry of Foreign Affairs. 3.     The applicant union alleged that the refusal of its application for registration as a trade union had infringed its members’ right to form a trade union, as guaranteed by Article 11 of the Convention. 4.     The application was allocated to the Third Section of the Court (Rule   52 § 1). On 31 January 2012 a Chamber of that Section, composed of Josep Casadevall, Egbert Myjer, Ján Šikuta, Ineta Ziemele, Nona Tsotsoria, Mihai Poalelungi and Kristina Pardalos, judges, and Santiago Quesada, Section Registrar, delivered a judgment in which it unanimously declared the application admissible and held, by five votes to two, that there had been a violation of Article 11 of the Convention. 5.     On 9 July 2012, following a request submitted by the Government on 27 April 2012, a panel of the Grand Chamber decided to refer the case to the Grand Chamber in accordance with Article 43 of the Convention. 6.     The composition of the Grand Chamber was determined in accordance with the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24. Corneliu Bîrsan, the judge elected in respect of Romania, withdrew from sitting in the case (Rule 28). The President of the Grand Chamber accordingly appointed Angelika Nußberger to sit as an ad hoc judge in his place (Article 26 § 4 of the Convention and Rule 29 § 1). 7.     The applicant union and the Government each filed further observations (Rule 59 § 1). 8.     Leave to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2) was granted to the non-governmental organisation (NGO) European Centre for Law and Justice and the Orthodox Archdiocese of Craiova, both of which had already intervened as third parties in the proceedings before the Chamber, and also to the Moscow Patriarchate, the NGOs Becket Fund and International Center for Law and Religion Studies, and the Governments of the Republic of Moldova, Poland, Georgia and Greece. 9.     A hearing took place in public in the Human Rights Building, Strasbourg, on 7 November 2012 (Rule 59 § 3).   There appeared before the Court: (a)     for the Government Ms   C. Brumar ,   Agent , Ms   I. Cambrea ,   Co-Agent , Mr   D. Dumitrache , Ms   A. Neagu ,   Advisers ; (b)     for the applicant union Mr   R. Chiriţă , Mr   I. Gruia ,   Counsel , Ms   O. Chiriţă ,   Adviser .   The Court heard addresses by Mr Chiriţă, Ms Brumar and Ms Neagu. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 10.     On 4 April 2008 thirty-two Orthodox priests from parishes of the Metropolis of Oltenia, most of which were within the jurisdiction of the Archdiocese of Craiova (a region of south-western Romania), and three lay employees of the same archdiocese held a general meeting at which they decided to form the Păstorul cel Bun trade union. The relevant parts of the union’s constitution, as adopted at the meeting, 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 has been freely defined. It shall consist in representing and protecting the professional, economic, social and cultural rights and interests of its members, both clergy and laity, 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: (a)     ensure respect for the fundamental rights of its members to work, dignity, social protection, safety at work, rest, social insurance, unemployment benefits, pension entitlements and other entitlements laid down in the legislation in force; (b)     ensure that each of its members is able to carry out 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)     ensure the full application of 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 agreements and contracts of employment 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 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 acting in breach of employment legislation, trade-union law, the provisions of the collective agreement signed 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)     strive to secure to the clergy and laity the benefit of all the rights enjoyed by other sectors of society; (n)     set up 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 funds 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.” 11.     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, submitting that the application for registration was in conformity with that Act and that the formation of a trade union was not prohibited by the Religious Freedom Act (Law no.   489/2006). 12.     The public prosecutor’s office, representing the State in the proceedings, supported the application for registration, submitting that the establishment of a trade union for members of the clergy and lay staff was not in breach of any provision of the law. It added that since the union’s members were employees working under contracts of employment, they were entitled, like any other employees, to join together as part of a trade union to defend their rights. 13.     The Archdiocese of Craiova, intervening in the proceedings as a third party, confirmed that the union’s members were employed by the Archdiocese but argued that the establishment of the union, without the Archbishop’s consent and blessing (“permission”), was prohibited by the Statute of the Romanian Orthodox Church, as approved by Government Ordinance no. 53/2008. It added that the Statute barred priests from taking part in proceedings in the civil courts, even in connection with personal disputes, without the archbishop’s prior written permission. Pointing out that priests chaired parish assemblies and governing bodies, the Archdiocese submitted that they were thus unable to form trade unions since the Trade Unions Act prohibited anyone performing management functions from doing so. Lastly, it produced written statements from eight members of the union indicating that they no longer wished to be part of it. 14.     Having observed that the application for registration satisfied the formal requirements of the Trade Unions Act, the court decided that the application should be examined in the light of Articles 2 and 3 of that Act, 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. 15.     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. 16.     The relevant passages of the judgment read as follows: “The third party submits that the application to form the trade union infringes both the special legislation on religious freedom and the legal status of religious denominations and also, in the absence of any blessing from the Archbishop or of any prior written permission to take part in court proceedings (a requirement that applies even to personal disputes), the Statute of the Romanian Orthodox Church. Having regard to the provisions of the Church’s Statute and of the Religious Freedom Act (Law no. 489/2006), the court dismisses the third party’s arguments as unfounded for the reasons set out below. The court notes that, pursuant to section 5(4) of Law no. 489/2006, religious communities, associations and groups are required to observe the Constitution and their activities must not threaten national security, public order, public health and morals or fundamental rights and freedoms. The court further observes that the Statute of the Church, as approved by Government Ordinance no. 53/2008, does not expressly forbid the establishment of a trade union for clergy and lay staff in accordance with labour legislation. The third party, which contends that the right to form a trade union is subject to receiving the archbishop’s blessing, has not disputed that the union’s founding members are contractual employees. The third party’s arguments have been analysed in the light of both sections 7 to 10 of the Religious Freedom Act, which acknowledges the important role of the Romanian Orthodox Church and its organisational and operational autonomy, and section 1(2) of the same Act, which provides that ‘no one shall be prevented from or coerced into embracing a religious opinion or faith contrary to his or her beliefs’ and that ‘no one shall suffer discrimination or persecution or be placed in an inferior position on account of his or her faith, membership or non-membership of a religious denomination, group or association, or for exercising freedom of religion in accordance with the law’. In so far as members of the clergy and laity are recognised as employees, they have the statutory right to form a trade union. This right cannot be subject to any restrictions based on religious affiliation or to prior consent from the hierarchy. In the court’s opinion, the principle of hierarchical subordination and obedience set forth in the Statute cannot be used as a basis for restricting the right to form a trade union; the only permissible restrictions in this sphere must be prescribed by law and 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. The third party’s argument that the applicants did not obtain the archbishop’s permission to take part in proceedings in the civil courts must likewise be dismissed, given that Article 21 of the Constitution provides: ‘Everyone shall be entitled to apply to the courts for protection of his rights, freedoms or legitimate interests. The exercise of this right shall not be restricted by any statute.’ The establishment of a trade union does not necessarily indicate the existence of a dissident strand within the Romanian Orthodox Church with a disregard for hierarchy and the rules imposed by the Church; on the contrary, it is likely to contribute to employer-employee dialogue on such matters as 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 opportunity to elect representatives and stand for election to decision-making bodies, with due regard for the special characteristics of the Church and its religious, spiritual, cultural, educational, social and charitable purpose. Having regard to the foregoing, in accordance with section 15 of Law no. 54/2003, the court allows the application, dismisses the objection by the third party, grants legal personality to the union and orders its entry in the register of trade unions.” 17.     The Archdiocese challenged that judgment, arguing that the provisions of domestic and international law on which it was based were not applicable to the case at hand. Relying on Article 29 of the Constitution, which guarantees religious freedom and the autonomy of religious communities, it contended that the principle of religious freedom could not be overridden by other constitutional principles such as freedom of association, including the right to organise. 18.     It submitted that the emergence within the structure of the Church of a trade union-type organisation for members of the clergy would seriously imperil the freedom of religious denominations to organise themselves in accordance with their own traditions. The first-instance court’s judgment had added a new institution to the existing Church institutions, namely a trade union for priests, thereby jeopardising the autonomy of religious communities as guaranteed by the Constitution. 19.     The Archdiocese also criticised the applicant union’s stated aims, contending that they conflicted with the duties that were set out in the “job description” and accepted by priests by virtue of their “vow of faith”. It pointed out that upon ordination, all priests had undertaken to abide by all the provisions of the Church’s Statute, the rules of procedure of the Church’s disciplinary and judicial bodies and the decisions of the Holy Synod of the Romanian Orthodox Church, local church assemblies and the parish council. 20.     In June 2008 the Holy Synod declared that initiatives by priests from various regions of the country to set up trade unions were in breach of the law, the canons and the Church’s Statute. 21.     In a final judgment of 11 July 2008 the Dolj County Court allowed the appeal by the Archdiocese and revoked the registration of the trade union. 22.     The relevant passages of the judgment read as follows: “The Romanian Orthodox Church is organised and operates in accordance with its Statute, as approved by Government Ordinance no. 53/2008. The Statute prohibits priests from setting up associations, foundations or organisations of any kind, and hence trade unions. This prohibition is designed to safeguard the rights and freedoms of the Romanian Orthodox Church by allowing it to preserve the Orthodox tradition and its founding tenets. By virtue of section 6(2) of Law no. 54/2003, internal regulations may not contain any provisions that are in breach of the Constitution or the law. The establishment of a trade union would result in the consultative and deliberative bodies provided for by the Statute being replaced by or obliged to work together with a new body (the trade union) not bound by the traditions of the Church and the rules of canon law governing consultation and decision-making. The freedom to organise religious communities is recognised by the Constitution and Law no. 489/2006 on religious freedom and the legal status of religious denominations. Each denomination draws up its own statutes governing its internal organisation, its members’ rights and obligations, its decision-making procedures and the operation of its disciplinary bodies. Pursuant to Article 14 (w) of [the Statute of the Orthodox Church], the Holy Synod takes decisions concerning the establishment, operation or dissolution of national ecclesiastical associations and foundations set up and managed by the Romanian Orthodox Church; [it] grants or denies permission for the establishment, operation or dissolution of ecclesiastical associations and foundations which have their own governing bodies and operate within the territorial subdivisions of the Romanian Orthodox Patriarchate. It follows from the above-mentioned provisions, which make no reference to trade unions, that the associations and foundations must be ecclesiastical and national in nature. It also follows from Article 50 (e) of the Statute of the Orthodox Church that priests may not represent their parishes in court proceedings without the bishop’s prior written consent. Similarly, in view of the oath of obedience towards the bishop which they took upon ordination, members of the clergy may not take part in court proceedings concerning personal matters without the bishop’s prior written permission. Law no. 54/2003 provides that 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. In the present case the Statute defines the parish, which is a subdivision of the Orthodox Church, as a community of Orthodox Christians, both clergy and laity, established within a specified geographical area, under the ecclesiastical, legal, administrative and economic authority of the diocese, and led by a priest. An examination of the list of priests involved in the present case reveals that they chair their parish assemblies and councils. Since they perform management functions and receive stipends on that account in accordance with the above-mentioned provisions, they may not form trade unions. Having regard to the foregoing, the court allows the appeal, quashes the judgment and refuses the application for registration of the trade union.” 23.     On 29 September 2008 the attempt to set up the applicant union was discussed within the Synod of the Metropolis of Oltenia. The Synod decided that if the union’s members were to lodge an application with the Court, they should be punished and referred to the disciplinary bodies. As a result, the members concerned were summoned to the Archdiocese headquarters, where some of them signed declarations to the effect that they no longer wished to pursue the application. 24.     In a letter of 21 June 2010, the chancery of the Romanian Orthodox Patriarchate reminded the Archdiocese that priests were forbidden to apply to domestic and international courts without the consent of their hierarchy and asked it to obtain written declarations from the priests in question stating that they no longer wished to pursue the application and, in the event of their refusal, to refer them to the appropriate disciplinary bodies. Some of the priests, despite having signed the declarations, informed the Court that they intended to pursue the application lodged on behalf of the union. 25.     On 19 April 2010 three priests who had been members of the applicant union set up an association called Apostolia together with five other people. The association received the approval of the Archbishop of Craiova, who made premises available for use as its headquarters. It was registered with the Craiova Court of First Instance on 8 June 2010. 26.     The association’s aims, as set out in its constitution, are: to educate the people in the spirit of Orthodox morality; to promote a sense of solidarity between the clergy and the faithful; to raise funds for the publication of documents to defend the faith and traditions; to organise and support cultural, religious and social activities; to take a stand against events, initiatives and demonstrations that denigrate Christian morality, the Orthodox faith, national identity and traditions; and to use all legal means to publicise its own decisions concerning the protection of pastoral, social and professional interests. II.     RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE A.     Domestic law and practice 1.     The Constitution 27.     The relevant provisions of the Constitution read as follows: Article 29 “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.” Article 40 “Citizens may freely associate to form political parties, trade unions, employers’ organisations and other forms of association.” Article 41 “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.” 2.     The Trade Unions Act 28.     The Trade Unions Act (Law no. 54/2003), in force at the material time, has been replaced by the Social Dialogue Act (Law no.   62/2011), which has incorporated the previous provisions concerning trade-union freedom. These provisions read as follows: Section 2 “Anyone discharging duties on the basis of a contract of employment, including public officials, shall have the right to form and to join trade unions. The establishment of a trade union shall require a minimum of fifteen members engaged in activities within the same profession or sector of activity. No one shall be compelled to join, not to join or to leave a trade union.” Section 3 “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.” Section 6(2) “The internal regulations may not contain any provisions that are in breach of the Constitution or the law.” Section 14 “In order for the trade union to acquire legal personality, the representative of its founding members must submit an application for registration to the court of first instance within whose jurisdiction its registered office is located. Two copies of the following documents, certified by the trade union’s representative, must be appended to the application for registration: (a)     the minutes of the founding meeting of the trade union, signed by at least fifteen founding members; (b)     the constitution of the trade union; (c)     the list of members of the union’s governing bodies ...; (d)     the authority form for the representative ...” Section 15 “The competent court of first instance shall examine the application for registration within five days, verifying whether: (a)     the documents referred to in section 14 above have been appended; (b)     the minutes of the trade union’s founding meeting and its constitution are in conformity with the applicable statutory provisions. If the court of first instance finds that the statutory conditions for registration have not been met, the president shall summon the trade union’s representative to a private meeting and shall ask the representative, in writing, to remedy the situation within seven days. If the court finds that the application for registration satisfies the requirements of the first subsection of this section, it shall proceed, within ten days, to examine the application for registration in the presence of the union’s representative. The court of first instance shall allow or refuse the application for registration in a reasoned judgment. The judgment shall be transmitted to the union’s representative within five days of its delivery.” Section 16 “An appeal on points of law shall lie against the judgment of the court of first instance.” Section 27 “To achieve their aims, trade unions shall be entitled to use specific means of action, such as negotiation, mediation, arbitration, conciliation, petitions, demonstrations and strikes, in accordance with their constitution and subject to the conditions laid down by law.” Section 28 “Trade unions shall defend their members’ rights under labour law ..., collective agreements and contracts of employment before the domestic courts and in dealings with other public authorities ... In exercising this prerogative, [they] shall be entitled to take any form of action provided for by law, including applying to the courts on behalf of their members, without requiring an express instruction from them. ...” Section 29 “Trade unions may submit proposals to the competent authorities concerning regulations in fields relating to the right to organise.” Section 30 “Employers shall invite delegates from representative trade unions to attend board meetings when issues of professional, economic, social, cultural or sporting interest are being discussed. For the purpose of defending and promoting their members’ professional, economic, social, cultural and sports rights and interests, trade unions shall receive from the employer the information required for the negotiation of collective agreements or, where appropriate, the conclusion of branch agreements, as well as information regarding the establishment and use of funds for the improvement of working conditions, workplace safety and social protection. Decisions by the board and other similar bodies concerning matters of professional, economic, social, cultural or sporting interest shall be communicated to the trade unions in writing, within forty-eight hours of their adoption.” 3.     The Religious Freedom Act 29.     The relevant provisions of the Religious Freedom Act (Law no.   489/2006) read as follows: Section 1 “The State shall respect and guarantee the right to freedom of thought, conscience and religion of any person within national territory, in accordance with the Constitution and international treaties to which Romania is a party.” Section 5 “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.” Section 8 “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.” Section 10 “The State shall contribute, on request, to the remuneration of clergy and lay staff of recognised religious communities, according to each community’s number of adherents and actual needs.” Section 17 “On a proposal by the Ministry of Culture and Religious Affairs, the Government shall issue an ordinance granting 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 or fundamental rights and freedoms.” Section 23 “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 their doctrine or moral principles.” Section 24 “Employees of religious communities which are affiliated to the State insurance scheme shall be subject to the legislation on the State social-security system.” Section 26 “Matters of internal discipline shall be exclusively subject to the provisions of internal regulations and canon law. The fact that a religious community has its own judicial bodies shall not preclude the application of criminal legislation in respect of its members.” 4.     Law on the unitary wage scale for workers paid from public funds 30.     Law no. 330/2009, which has since been replaced by Law no.   284/2010, contained provisions on the remuneration of the clergy and lay staff. It provided that the State and local authorities were to pay all of the wages of members of the clergy employed in public institutions, and part of the wages of leaders of recognised religious communities and members of the clergy and laity employed by such communities. 31.     Thus, the State pays clergy employed by recognised religious communities a monthly stipend equivalent to between 65% and 80% of the salary of a State school teacher. Clergymen holding senior positions receive a higher stipend. 32.     A total of 16,602 posts are funded in this way, divided up among religious communities according to their number of adherents as established in the most recent population census. In the latest census (2011), 86% of the Romanian population identified themselves as Orthodox Christians. The State budget also covers all social-security contributions payable by employers in respect of members of the clergy employed by them. 33.     Lay staff receive a monthly allowance equivalent to the national guaranteed minimum wage. This allowance and all social-security contributions payable by employers in respect of these employees are covered by local authority budgets. The law provides for 19,291 posts for lay staff, divided up according to the same population-based criterion as for clerical staff (see paragraph 32 above). 34.     Priests and lay staff of religious communities pay social-security contributions calculated on the basis of their wages and enjoy all the rights deriving from them: medical insurance, unemployment insurance and pension entitlements. In 2010 their wages were reduced by the same percentage as those of public-sector employees (a reduction of 25%, with a view to balancing the State budget). 5.     Internal organisation and regulations of the Romanian Orthodox Church 35.     The Romanian Orthodox Church became independent in 1885. It has close relations with Orthodox churches in other countries. 36.     Under the communist regime, Law no. 177/1949 guaranteed freedom of religion, and the Romanian Orthodox Church continued to operate under the supervision of the Ministry of Religious Affairs, which approved its Statute in 1949. Staff of the Church were paid from the State budget under the statutory provisions governing public servants. 37.     The current organisation of the Romanian Orthodox Church is governed by its own Statute, in accordance with the Religious Freedom Act (Law no. 489/2006). The Church is headed by a Patriarch and has six metropolises in Romania, which comprise archdioceses, dioceses and approximately 13,500 parishes, served by some 14,500 priests and deacons. 38.     The highest authority is the Holy Synod. It is made up of the Patriarch and all serving bishops. The central governing bodies also include the Church National Assembly, which includes three representatives of each diocese or archdiocese and is the central deliberative body, and the Church National Council, which is the central executive body. 39.     At local level, the parishes, comprising Orthodox clergy and congregations, are legal entities registered with the administrative and tax authorities for the purpose of their non-profit-making and commercial activities. The priest is responsible for the administration of the parish. He chairs the parish assembly (the deliberative body comprising all parishioners) and the parish council (the executive body). 40.     The current Statute of the Romanian Orthodox Church was adopted by the Holy Synod on 28 November 2007 and approved by a Government ordinance on 16 January 2008. 41.     The relevant provisions of the Statute read as follows: Article 14 w “The Holy Synod shall take decisions on the establishment, organisation and dissolution of national ecclesiastical associations and foundations. It shall grant or refuse permission (approval) for the establishment, organisation and dissolution of Orthodox associations and foundations that operate in dioceses and have their own governing bodies.” Article 43 “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.” Article 50 “In fulfilling their mission ..., priests shall perform the following duties: (a)     celebrating Mass on Sundays, feast days and other days of the week ...; teaching religion in accordance with diocesan guidelines; and ensuring daily access to the church ...; (b)     applying all the provisions of the Statute and of regulations issued by the Church and the central bodies at parish level; (c)     implementing decisions by the hierarchy and the diocesan bodies concerning parish activities; (d)     drawing up and implementing the annual programme of religious, social, charitable and administrative activities at parish level and informing the diocese and parishioners of these activities; (e)     representing the parish in court proceedings and in dealings with the authorities or third parties, subject to prior written consent from the bishop; 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 concerning personal matters without the bishop’s prior written permission; (f)     convening and chairing the parish assembly, parish council and parish committee; (g)     implementing decisions of the parish assembly and council; (h)     keeping a register of parishioners; (i)     keeping a register of baptisms, marriages and deaths ...; (j)     managing the parish assets in accordance with the decisions of the parish assembly and council and overseeing the management of the assets of cultural and social institutions and church foundations set up within the parish; (k)     drawing up and keeping an inventory of all parish property ...” Article 52 “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.” Article 88 “The bishop ... shall order the appointment, transfer or dismissal of clergy and lay staff in the different parishes ... He shall ensure the observance of discipline by members of the clergy and lay staff in his diocese, either directly or through ecclesiastical bodies.” Article 123 §§ 7, 8 and 9 “Members of the clergy shall serve the diocese by virtue of the mission they have freely assumed and the vows and solemn public undertaking they read out and signed prior to their ordination. Before assuming their pastoral mission, they shall receive a decision from the bishop setting out their rights and duties. Without the bishop’s permission, 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 or the interests of the Church.” Article 148 “The following ecclesiastical bodies shall have jurisdiction in matters of doctrine, morals, canon law and discipline in respect of serving or retired clergymen, priests and deacons: (A)     [General matters]: (a)     the parish disciplinary consistory; (b)     the diocesan or archdiocesan consistory; (B)     On appeal [by a staff member in the event of dismissal]: the Metropolitan Consistory, provided that the appeal has been declared admissible by the Metropolitan Synod or the Holy Synod.” Article 150 “The parish disciplinary consistory shall act as a disciplinary tribunal ... and as a mediation body for disputes among church staff, or between the priest and the congregation. If the parties are dissatisfied with its decision, the case shall be referred to the diocesan consistory, whose decision shall be final.” Article 156 “By virtue of the autonomy of religious communities under the law, internal disciplinary matters shall be settled by the Church’s judicial bodies. Their decisions shall not be subject to appeal in the civil courts.” 42.     During 2004 the priests of the Archdiocese of Craiova signed employment contracts of indefinite duration with the Archdiocese. The contracts set out the parties’ general rights and duties and specified the priests’ place of work, position, working hours, annual leave entitlement and monthly salary. The job description appended to the contract listed the priests’ duties as follows: “Offering spiritual guidance to parishioners in accordance with church regulations; Celebrating Mass every Sunday and feast day; attending to parishioners and setting up home in the parish; Managing the assets of the parish and of Church cultural institutions and foundations; Drawing up and maintaining an inventory of the parish assets; managing the parish’s finances and accounts; keeping records of parish revenue and expenditure and making them available to the archdiocesan inspectorate in the course of financial reviews and audits; Obtaining supplies of liturgical items from the archdiocese to be put on sale; Ensuring prompt payment of all financial contributions owed to the archdiocese; Refraining from taking part in court proceedings without the consent of the archdiocese, whether relating to disputes concerning the parish or to personal matters; Representing the parish in dealings with third parties in the event of a dispute; Refraining from any act that would be incompatible with the status of priest; Observing all the provisions of the Statute of the Church, other ecclesiastical instruments and the oath taken at the time of ordination. Any breach of the above-mentioned duties shall give rise to proceedings before the Church disciplinary bodies, which may impose a range of penalties up to and including dismissal.” 43.     On 17 May 2011, in response to an enquiry from the Church, the Ministry of Labour informed the Patriarch that, following an examination of the relevant legislation, experts from the Ministry had reached the conclusion that the Labour Code was not applicable to the employment relationship between the Romanian Orthodox Church and members of the clergy and that, as a result, the Church was not obliged to sign individual employment contracts with them. 44.     Accordingly, from November 2011 the employment contracts in question were replaced, at the bishop’s instigation, with appointment decisions issued by him. The decisions specified the place of work and the post occupied. They also stated the following: “In discharging his duties, the priest shall be directly subordinate to the bishop. He must work together with the other priests of the parish and the diocesan representatives. The priest shall perform his tasks ... in accordance with the requirements of Article   50 (a)-(k) of the Statute of the Church. In fulfilling his mission, he must be familiar with and, in accordance with the oath taken at the time of his ordination, scrupulously abide by the Holy Canons, the Statute of the Church, ecclesiastical regulations and the decisions of the Holy Synod and the diocese. He must submit to hierarchical authority and defend the legitimate interests of the Romanian Orthodox Church and his congregation. From the date of his appointment, the priest shall be entered in the register of positions and salaries. His salary shall be determined in accordance with the statutory provisions governing remuneration of members of the clergy. He shall be entitled to annual leave calculated on the basis of seniority. The priest shall be required to obtain supplies of items for sale (candles, calendars, liturgical items, books, and so on) from the diocese alone. He shall permanently supervise the activities of the kiosk ( pangarul ) where these items are on sale. In the event of misconduct or breaches of discipline or of the duties set out in this decision, the priest shall be dismissed by the bishop ... He shall be punished in accordance with the rules of the Church’s disciplinary bodies.” 6.     Domestic practice concerning the establishment of trade unions within the clergy and the existence of other forms of association within the Romanian Orthodox Church 45.     The law and the 1949 Statute did not provide for any restrictions on freedom of association for Orthodox believers and Church personnel. Under the communist regime, trade unions were set up by Church employees. 46.     In a final judgment of 4 October 1990 the Medgidia Court of First Instance, under the Political Parties and Other Forms of Association Act (Law no. 8 of 31 December 1989), authorised the operation of Solidaritatea, a trade union of Orthodox clergy and lay staff of the Archdiocese of Tomis (Constanţa), and granted it legal personality. 47.     In its constitution the Solidaritatea trade union stated that its aims were to strive for “a renewal of spiritual life and a restructuring of administrative activities ... in line with the new requirements of democratic life and full freedom of thought and action, and in acco