Schüth v. Germany, No. 1620/03, ECtHR (Fifth Section), 23 September 2010

Organist employed by a catholic parish. Dismissal motivated by the conception of a child in the context of an extramarital relationship. Violation of article 8 of the ECHR.

Art. 8 ECHR
Art. 9 ECHR
Art. 11 ECHR

1. Although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves. The boundaries between the State’s positive and negative obligations under Article 8 do not lend themselves to precise definition, but the applicable principles are nonetheless similar. In particular, in both instances regard must be had to the fair balance which has to be struck between the general interest and the individual interests; and in both contexts the State enjoys a certain margin of appreciation.

2. Religious communities traditionally and universally exist in the form of organised structures and, where the organisation of the religious community is at issue, Article 9 of the Convention must be interpreted in the light of Article 11, which safeguards associative life against unjustified State interference. Indeed, the autonomous existence of religious communities is indispensable for pluralism in a democratic society and is thus an issue at the very heart of the protection which Article 9 afford.
(The applicant, who held the post of organist and choirmaster in a parish church, had been dismissed for having conceived a child in the context of an extramarital affair following his own divorce. The Court observes that, in the present case, the obligation of loyalty imposed on the employee in the service of the organization could not require him to spend a life of abstinence, undermining the very heart of the protection guaranteed by Article 8 of the Convention)

 

For the purposes of the decision in the present case, which differs from that adopted in the contemporary case Obst v. Germany (425/03), turns out to be decisive the role exercised by the applicant, who could not have been required to comply with an aggravated duty of loyalty.