CEDH · CASELAW;CLIN;ENG — 20 octobre 2009

.s3ABFC313 { font-size:10pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s5CB9E8AB { margin-top:12pt; margin-bottom:0pt; text-align:justify; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 123 October 2009 Lombardi Vallauri v. Italy - 39128/05 Judgment 20.10.2009 [Section II] Article 10 Article 10-1 Freedom of expression Refusal of a teaching post in a denominational university because of alleged heterodox views: violation   Article 6 Civil proceedings Article 6-1 Access to court Inadequate judicial scrutiny of decision to refuse an application for a teaching post in a denominational university because of applicant’s alleged heterodox views: violation   Facts – Since 1976 the applicant had been lecturing in legal philosophy at the Faculty of Law of the Catholic University of the Sacred Heart in Milan, on the basis of contracts renewed on an annual basis. When the post was advertised for the 1998/99 academic year, the applicant applied. The Congregation for Catholic Education, an institution of the Holy See, informed the President of the University that some of the applicant’s views “were in clear opposition to Catholic doctrine” and that “in the interests of truth and of the well‑being of students and the University” the applicant should no longer teach there. The Board of the Faculty of Law held a meeting and, noting that the Holy See had not approved the applicant’s appointment, decided not to consider his candidacy. Appeals by the applicant to the Regional Administrative Court and the Consiglio di Stato were dismissed. Law – Article 10: (a)   Applicability – Referring to its previous rulings, the Court observed that the protection afforded by Article   10 extended to the teaching profession. Furthermore, the factual basis for the refusal to renew the applicant’s contract had been “views in clear opposition to Catholic doctrine”; this quite clearly related to the exercise of his freedom of expression. Accordingly, the Government’s objection that this complaint was incompatible ratione materiae with the provisions of the Convention had to be dismissed. (b)     Merits – The decision of the Faculty Board, which amounted to interference, had been prescribed by law and had been aimed at protecting the rights of others in the form of the University’s interest in basing its teaching on Catholic doctrine. As to the necessity of the impugned measure, consideration had to be given, on the one hand, to the applicant’s right to freedom of expression, which entailed the right to transmit knowledge without restrictions, and, on the other hand, to the University’s interest in dispensing teaching based on its own religious convictions. As to the administrative stage of the proceedings before the Faculty Board, the Court noted that, when it decided not to consider the applicant’s candidacy, the Board had not informed the latter (nor indeed examined) to what extent his supposedly unorthodox views were reflected in his teaching work and, accordingly, how they were liable to affect the University’s aforementioned interest. The actual content of these “views” had remained completely unknown. As to the effectiveness of the judicial review of the administrative proceedings, the Court considered that in the instant case it had not been for the domestic authorities to examine the substance of the Congregation’s decision. However, the domestic administrative courts had confined their examination of the legitimacy of the impugned decision to the fact that the Faculty Board had noted the existence of the Congregation’s decision. By so doing, the domestic courts had declined to question the Board’s omission to inform the applicant as to which of his views had come under criticism. Moreover, the fact that the applicant had not been told the reasons for his dismissal had in itself ruled out any possibility of adversarial debate. This aspect had not been addressed by the domestic courts either. Accordingly, the review by the courts of the application of the impugned measure had not been adequate in the instant case. In sum, the University’s interest in dispensing teaching based on Catholic doctrine could not extend to impairing the very substance of the procedural guarantees afforded to the applicant by Article   10 of the Convention. The interference with his freedom of expression had not been necessary in a democratic society. Conclusion : violation (six votes to one). Article 6 § 1: Since the approval of a decision emanating from a State not party to the Convention had produced legal effects in the context of the Faculty Board’s decision, which fell within the jurisdiction of the domestic judicial authorities, it was the Court’s task to ascertain whether the decisions given by those authorities had been compatible with the applicant’s rights under Article 6 §   1. The domestic courts had taken the view that they could not rule on the legitimacy of the administrative decision in question because it had referred to the Holy See’s decision. In the Court’s view, this amounted to a restriction of the applicant’s right of effective access to court; such restrictions were permissible under Article   6 of the Convention provided they pursued a legitimate aim and were proportionate to that aim. However, they must not result in the applicant being denied the right in question. As to whether the impugned measure had been proportionate, the Court reiterated that the domestic courts had declined to question the failure to indicate, firstly, which of the applicant’s views supposedly ran counter to established doctrine and, secondly, the link between the views he had expressed and his teaching work. Furthermore, the fact that the applicant had not been told the reasons for his dismissal had in itself ruled out any possibility of adversarial debate. This aspect had not been addressed by the domestic courts either. In the Court’s view, the review by the courts of the application of the impugned measure had therefore not been adequate in the instant case. The applicant had not had effective access to court. Conclusion : violation (six votes to one). Article 41: EUR 10,000 for non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes