The 26th Congress of the European Consortium was convened on 14–15 November 2014 in the University of Vienna, hosted by Professor Richard Potz. The topic of this year's congress was religious courts and tribunals, and all the working sessions were chaired by the President of the Consortium, Professor Augustín Motilla of University Carlos III, Madrid.
The introductory address was given by Professor Mark Hill QC. He reviewed the bases for faith communities having their own regulatory instruments and tribunals and sought to identify commonalities in trajectory from the various national reports which had been circulated in advance of the meeting. He raised a number of questions for discussion, including the rationale for such courts in general and whether there are minimum standards required by the state in terms of, for example, due process and the quality of judges.
This lecture provoked many participants to share their views, hence the discussion was very lively. The aspects discussed included the mysterious character of some of the courts (proceedings łin languages unknown to the state authorities) and political influence (some states currently influencing even the major churches to amend their procedural law in order to prevent sexual abuse of children). Lars Friedner tried to ground this somewhat emotional discussion by saying that the ecclesiastical courts can be compared to the courts of sport organisations and therefore perhaps they are not as special as they are believed to be. This view was partly shared by Professor Francesco Margiotta Broglio: he noted that the question now arose mainly with the increased appearance of Muslim courts; however, he had written a book about the civil and criminal jurisdiction of churches in state law as long ago as 1963.
In the afternoon session Dr Wolfgang Wieshaider (University of Vienna) addressed the issue from the perspective of the state. The autonomy of churches is the point of the departure for all debates in this area. An important option could be arbitration, which exists in all EU countries, though the different states vary significantly as regards their approach to arbitration. Usually the state sets very basic rules and requirements for courts of arbitration, which churches and religious communities could readily adopt. However, most churches are reluctant to use this option, which is unsuited to many areas of human life, such as managing divorce.
Professor Pierre-Henri Prélot noted that once the state recognises the jurisdiction of churches, it imposes certain conditions linked to this recognition, such as the standards anchored in Article 6 of the European Convention on Human Rights. Professor Sophie van Bijsterveld noted that arbitration could indeed be a good solution: state courts should be relieved not to have to adjudicate on these issue. The participants reported a number of developments from their respective states, including a French court punishing a Jewish man for maliciously not giving a get (Jewish divorce). Professor Hill referred to a case before an English family court which recognised an arbitration by the Jewish Beth Din of New York, subject to the civil judge being satisfied that the welfare of the affected children was paramount. This led Professor Roberto Mazzola to a suggestion that the existence of religious courts allows the state to do or accept things which would not be possible under their national law. Finally Professor Motilla noted the particular position of sharia courts, historically established by the caliphates, where religious law is applied.
On Saturday the third session took place: Dr Michał Rynkowski analysed whether religious courts could come within Article 267 of the Treaty on the Functioning of the EU, namely whether such courts would be authorised to submit a request for a preliminary ruling to the Court of Justice of the European Union (CJEU). Dr Rynkowski considered whether various religious courts in member states met the criteria set by the CJEU. This triggered a lively discussion on the kinds of issues which could be brought before the CJEU: non-discrimination cases, for example. The key issues were subsidiarity, with decisions made by a body with the appropriate level of expertise, and, as Professor Ringolds Balodis reminded the gathering, transparency and accountability.
