ECtHR Decides for Catholic Church in Fernández-Martínez v. Spain

Fernández-Martínez v. Spain (no. 56030/07) – Chamber Judgment 15 May 2012.  [Excerpts from the Court’s press release:] The case concerned the decision not to renew of 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”.

The applicant, Mr José Antonio Fernández Martínez, is a Spanish national who 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. A newspaper article published in 1996 published a photo of Mr Fernández Martínez, together with his wife and five children, and reported that he was a member of the “Movement for Optional Celibacy”, a group disagreeing with the Church’s position on abortion, divorce, sexuality and conception.

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 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, and the High Court of Justice – noting that the restrictions imposed on the applicant’s rights had to be considered proportionate to the aim pursued, namely the avoidance of scandal – found that the contract, which had to be renewed annually by the bishop, had simply expired. Mr. Fernández Martínez had therefore not been dismissed.

On June 2007 the Constitutional Court dismissed the applicant’s appeal.

Before the ECtHR the applicant, relying on Article 8 of the Convention, 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 Court observed that the question 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. 

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. As to the Article 6 complaint, 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.

Babar Ahmad and Others v. United Kingdom (nos. 24027/07, 11949/08, 36742/08, 66911/09, 67354/09) – Chamber Judgment 10 April 2012. Between 1999 and 2006 all six applicants were indicted on various terrorism charges in the United States of America. Mr Ahmad and Mr Ahsan are accused of various felonies including providing support to terrorists and conspiracy to kill, kidnap, maim or injure persons or damage property in a foreign country. Abu Hamza has been charged with 11 different counts of criminal conduct related to the taking of 16 hostages in Yemen in 1998, advocating violent jihad in Afghanistan in 2001 and conspiring to establish a jihad training camp in Bly, Oregon (the USA) between June 2000 and December 2001. Mr Aswat was indicted as Abu Hamza’s co-conspirator in respect of the latter charges. Mr Bary and Mr Al-Fawwaz were indicted, along with Osama bin Laden and 20 others, for their alleged involvement in, or support for, the bombing of US embassies in Nairobi and Dar es Salaam in 1998. Mr Al-Fawwaz has notably been charged with more than 269 counts of murder.

On the basis of those indictments, the US Government requested each applicant’s extradition from the United Kingdom. As a result, all six applicants were arrested in the UK and placed in detention pending extradition. They then contested their extradition in separate proceedings in the English courts, without success, their requests for leave to appeal to the House of Lords and the Supreme Court ultimately being rejected between 2007 and 2009.

The present cases concern applications lodged by the six applicants between 2007 and 2009. The Court decided to deal with the applications together since they raised similar issues.

In its judgment of 10 April 2012, the European Court of Human Rights held, unanimously, that there would be: 

no violation of Article 3 (prohibition of inhuman and degrading treatment) of the European Convention on Human Rights as a result of conditions of detention at ADX Florence (a “supermax” prison in the United States) – if Mr Ahmad, Mr Ahsan, Mr Abu Hamza, Mr Bary and Mr Al-Fawwaz were extradited to the USA;

and, no violation of Article 3 of the Convention as a result of the length of their possible sentences if Mr Ahmad, Mr Ahsan, Abu Hamza, Mr Bary and Mr Al-Fawwaz were extradited.

The Court adjourned its examination of Mr Aswat’s application as it required further submissions from the parties, on the relevance of his schizophrenia and detention at Broadmoor Hospital to his complaint concerning detention at ADX (see below “future procedure”).

Continuation of interim measures

The Court also, decided to continue its indication to the United Kingdom Government (made under Rule 39 of the Rules of Court) that the applicants should not be extradited until this judgment became final or until the case was referred to the Grand Chamber at the request of one or both of the parties.