Judicial Pride and Prejudice: Dedov’s Dissent in Fernández Martinez v Spain

By Roger Kiska, J.D. | July 30, 2014

Last month, the Grand Chamber of the European Court of Human Rights decided the case of Fernández Martínez v. Spain. Much has been written about the main judgment, a decision that upheld the religious autonomy of the church by the slimmest of margins—the votes of nine judges to eight. But less has been said about Judge Dmitry Dedov’s two-page dissenting opinion, which raises a few eyebrows. If his views take hold it could mark the end of religious freedom as we know it.

Firstly, some brief facts. In 1984 Mr Martínez, a Catholic priest, applied to the Vatican to be excused from the obligation of celibacy. Before they responded—and this took some time—he got married and had five children. In 1991 he started work as a teacher at a Catholic religious and morals state school under a renewable one-year contract. Under the terms of a treaty between Spain and the Holy See, the contract would be renewed by the Ministry of Education as long as the local Bishop continued to give his approval.

In 1996 an article about the Movement for Optional Celibacy of Priests was published that made Martinez’s dissent from the celibacy rule public. Nine months later, the local Bishop withdrew his approval of Martinez as a teacher, and his contract was not renewed. Martinez sued the Spanish government and his case made it through the Spanish domestic courts to the Grand Chamber of the European Court of Human Rights, which narrowly rejected Martinez’s application, thus maintaining the autonomy of the Catholic Church to dismiss its clerics.

Judge Dedov clearly disagreed with this ruling. He began his dissent with a lofty view of the court’s ‘task’. He thought it was to ‘balance the rights and place them into some hierarchy’. But no one has actually given him or the court the legal or political mandate to establish any ‘hierarchy’ of rights. No authority was cited on this point too. In fact, the court has never attempted to develop a system where certain rights would always trump others. Rather, it has always stressed that attention must be given to the facts and circumstances of the particular case.

However, the court’s task so defined gave Judge Dedov room to be unapologetic about his prejudices against the celibacy rule. He said that the Church was not entitled ‘to persecute [its] members for exercising their fundamental human rights’. He went on to say, ‘If the Convention system is intended to combat totalitarianism, then there is no reason to tolerate the sort of totalitarianism that can be seen in the present case.’ One wonders what those who survived the horrors of real totalitarianism in the twentieth century would say.

In the end, the thrust of Judge Dedov’s opinion is this: ‘[T]he celibacy rule contradicts the idea of fundamental human rights and freedoms. This, in my view, should be used as a principal reason for finding a violation of Article 8 of the Convention.’ It is one thing for a judge to disparage a religious practice. It is quite another for him to criticize it on the basis of human rights.

If Judge Dedov wrote the main judgment, would he order the Church to change its rules? He does state that ‘optional celibacy is the best way out of this problem’. What would he say about monks, nuns and ascetics of other faiths, or all the other priests that remain today with the Catholic Church? We get a hint of this when he discusses what he regards as Spain’s chief failure: ‘[T]he State has failed, not just to abstain from interference concerning the applicant, but also to exercise its positive obligation with respect to at least 6,000 priests of the Catholic Church [in Spain].’ It appears that in Judge Dedov’s world, the State must liberate the woeful prisoners of celibacy.

With respect, he cannot be right. The celibacy rule does not contradict human rights for the simple reason that one can choose not to abide by it. There is a clear difference between not having a right and choosing not to exercise it. Judge Dedov dismisses the argument from free choice for the rather opaque reason that ‘family life cannot be subjected to any transaction’. He seems to be saying that one cannot choose to sacrifice one’s ability to have a family in order to be a priest, or for any other reason. But people make such sacrifices all the time, and for various reasons. Taken to its logical conclusion, Judge Dedov’s position is fundamentally absurd and illiberal. With no legitimacy he imposes his value system and his version of a ‘hierarchy of rights’ on the Convention by elevating Article 8 to the status of an inalienable natural right. That in any case flatly contradicts the wording of the article. The lack of citation of any authority is stark, although to his literary credit Judge Dedov does mention The Hunchback of Notre Dame and The Thorn Birds in support of his disdain for the celibacy rule. But one wonders if that goes anywhere remotely beyond confirming his pride and prejudice.

Ultimately, Judge Dedov’s dissent clearly reveals that he was not content with interpreting and applying the law. If judicial preconceptions are not contained, religious freedom will be extinguished by those whose very role is to protect its existence. It can only be hoped that the court continues to be the guardian of human rights through the rule of law, and not the rule of judges.

Share on Facebook
Share on Twitter
Tagged with: •