5.1. (Civil) society and religion in general
5.4. legal treatment of religious organisations in Hungary
the religious organisations registered in Hungary – having legal personality – can be grouped in the two basic categories: churches and associations. Due to the minimum require-ments for the establishment of a Church and to the very attractive financial opportunities, hundreds of Churches were established based on Act IV of 1990 on the freedom of conscience and religion and the churches while the number of the constituted associations was insig-nificant. Another important Hungarian specificity is that in addition to the organizations registered as churches there have been established associations and foundations (often in collaboration with the founders of the churches) to perform social and cultural tasks – to which the church itself was committed – in a more efficient manner.
in order to analyze the decrease, after 2012, in the number of religious organisations and in the number of those associations which acquired the status of church after the change of the legislation, and in order to see why the number of religious associations increased, it is required to give a schematic description of a specific legal-political process.
While the Hungarian constitutional framework guaranteed equal treatment for all Churches, the social significance and effect of the most popular ones was not ignored. As the Constitutional Court stated: ‘also, treating the Churches equally does not exclude taking the actual social roles of the individual Churches into account’. Some scholars429 emphasize that act XXXii of 1991 on the restoration of property of Churches was undue to the required ideological neutrality and to the constitutional principle of the separation
428 Rixer Ádám: Az előzetes hatásvizsgálatok jelentősége a vallási szféra szabályozásában. [The role of the preliminary impact assessment in the regulations related to the religious sector] In: Dr Erdélyi László (ed.): II. Egyházügyi, vallásszabadsági tudományos konferencia: 2013. május 30. [2nd Conference on the freedom of religion and on the matters of the churches – 3 of May 2013] Boldog Élet Alapítvány, Budapest, 2014. 43–56.
429 Ruff Tibor: Egyház – állam – emberi jogok. [Church – State – Human Rights] Fundamentum 1997/2.
59.
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of the State and Churches because it favoured the Churches, i.e. only Churches received compensation or indemnity under the Hungarian law, contrary to other institutions of civil society (associations, foundations) which did not. according to decision 4/1993. (II. 12.) of the Constitutional Court, the importance of separation makes the positive discrimina-tion (affirmative acdiscrimina-tion) reasonable for the benefit of Churches.
in the summer of 2011, Hungarian Parliament adopted the Act C of 2011 on the right to freedom of Conscience and religion and the Legal status of Churches, denomina-tions and religious Communities which stripped hundreds of religious communities from their status of recognized churches. only fourteen communities – 12 Christian and two Jewish – were granted the right to keep their status.430
all other religious communities in Hungary were forced to undergo an absurd and highly arbitrary re-registration procedure which, amongst a whole range of barriers, in-cluded a final obstacle of being voted on by the Parliament, as to whether each group is a religious organization or not. Such procedures could hardly be much further away from international human rights standards and academically accepted determinations of what constitutes a religion. the fact that only fourteen religious communities were automati-cally granted the status of religion by the new act, but Muslims, Hindus, Buddhists and hundreds of Christian denominations have been rejected – clearly shows how arbitrary and discriminatory the act was.431
although the original arbitrary list of 14 churches was later extended due to the in-creasing international pressure, it is clear that the act and the consequent amendments on the Constitution still don’t guarantee the freedom of religion.
Provided that the religions can even overcome the administrative barriers and meet the arbitrary standards that were imposed on them through standards made up by government committees and imposed by civil servants, they will only be finally accepted if they can get a 2/3 majority vote by Members of the Parliament. As a journalist of Hungarian daily newspaper Népszava noted in an article about the act, ‘Gods are sitting in the Parliament and will be able to decide what is a religion and what is not’.432
Nine Hungarian churches which lost their church status – three reformed Jewish com-munities and six Christian denominations – filed a claim to the European Human Rights Court in Strasbourg after exhausting all available domestic legal remedies (Magyar Keresz-tény Mennonita Egyház and Izsák-Bács and Others v. Hungary – ECHR Application nos. 70945/11,23611/12, 26998/12, 41150/12, 41155/12, 41463/12, 41553/12, 54977/12 and 56581/12).
it is interesting to note that the act was twice rejected by the Hungarian Constitutional Court, but both times the Hungarian government managed to uphold it with questionable legal maneuvers. First time, in December 2011, after the Hungarian Constitutional Court rejected the Act based on a procedural mistake, the Government withdrew it, and submitted the same act just a few days later with minor changes, none of which contributed to religious freedom (Act CCvI of 2011 on the right to freedom of Conscience and religion and
430 http://cerf-institute.org/2013/09/24/osce-meeting-2013-report-hungarian-law-on-churches-and-its-implications-on-freedom-of-religion-freedom-of-religion/>accessed 12 August 2014
431 ibid.
432 ibid.
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the Legal status of Churches, denominations and religious Communities).433 next time, in February 2013, the Constitutional Court again rejected several provisions of the new act, on the basis that the act failed to stipulate that detailed reasons must be provided when a request for the church status is refused, no deadlines are specified for the Parlia-ment’s actions, and no legal remedy is offered.434 the Court also stated that granting church status by parliamentary vote can result in political decisions. the Hungarian Parliament then decided to incorporate parts of the new act in the Constitution itself. this unheard of manoeuvre rendered Constitutional Court unable to examine the act, as the act was techni-cally incorporated into the Constitution itself, so it cannot be said that it is unconstitutional.
this move didn’t pass unnoticed and Hungary was again receiving harsh criticism for violating fundamental rights. In June 2013, the Venice Commission of Council of Europe in its report regarding the parts of the Fourth amendment concerning religious communities, stated among other things the following:435
‘The Venice Commission is worried about the absence in the Act of procedural guaran-tees for a neutral and impartial application of the provisions pertaining to the recognition of churches.’
‘According to the latest information at the disposal of the rapporteurs, Parliament adopted a Bill of Recognition on 29 February 2012, with 32 recognized churches. It is en-tirely unclear to the rapporteurs and to the outside world, how and on which criteria and materials the Parliamentary Committee and Members of Parliament were able to discuss this list of 32 churches, to settle the delicate questions involved in the definition of religious activities and churches supplied in the Act, within a few days, without falling under the influence of popular prejudice.’
one in a series of arbitrary criteria that religious communities must satisfy before they are voted upon by Parliament, is the request that they don’t represent any threat to national security. Churches which would be rejected because they would allegedly represent threat to national security, would not be informed why they are considered as a threat or what should they change or improve, and they would have no legal remedy available.
Such ‘national security’ criteria is in direct contradiction with 2004 oSCe guidelines for Review of Legislation Pertaining to Religion or Belief, prepared by OSCE/Office for Democratic institutions and Human Rights, adopted by the venice Commission. in the guidelines it is clearly stated that ‘’national security’ is not permissible limitation under European Convention on Human Rights Article 9.2 or International Covenant on Civil and Political Rights Article 18.3”.436
Subsequently, the 5th amendment on the Constitution was accepted by the Hungarian Parliament which was supposed to handle the criticism of the act and the 4th amendment.
Hungary’s State Secretary of Justice, Robert Répassy, announced that the government would adjust the recent, highly controversial amendments to the country’s Constitution adopted by the Parliament in March 2013. Répassy admitted that the modifications contained in the 5th amendment of the Constitution were initiated as a result of pressure exerted by the
433 ibid.
434 ibid.
435 ibid.
436 ibid.
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european union and various human rights organizations, which had criticized the March 2013 revisions as violating certain fundamental rights.
it is obvious that the government didn’t introduce any measures that would improve the situation of religious freedom in Hungary. the 5th amendment was nothing but a failed attempt to make it seem as if Hungary had listened to its critics while actually not chang-ing anythchang-ing.
in the recent report about the 5th amendment, Human Rights Watch stated the following:437
‘The Hungarian government’s largely cosmetic amendments show it’s not serious about fixing the human rights and rule of law problems in the constitution It’s come to the point where the European Council and the European Commission need to make it clear there will be consequences for Hungary, and to move from talk to action.”
‘While allowing any religious group to refer to itself as a ‘church,’ the amendments do not address the discrimination against churches the government has not recognized. A parliamentary committee, instead of an independent body, confers recognition, which is necessary for a church to apply for government subsidies.’
the next important sequel was the idea that Hungary’s new ‘Church act’ violated the rights of religious communities when it stripped them of their church status, the european Court of Human Rights ruled on april 8, 2014.
Religious communities’ loss of full church status breached their rights to freedom of assembly and association and their rights to freedom of thought, conscience and religion, a statement said.438 ‘the Court found in particular that the Hungarian government had not shown that there were not any other, less drastic solutions to problems relating to abuse of State subsidies by certain churches than to de-register the applicant communities’ – the court said.439 ‘Furthermore, it was inconsistent with the State’s duty of neutrality in religious matters that religious groups had to apply to Parliament to obtain reregistration as churches and that they were treated differently from incorporated churches with regard to material benefits without any objective grounds’ – it added.440
The latest developments was that on 11 July 2014, the judicial committee of the par-liament did not support the application submitted by 10 religious associations in order to become churches. The final word must be declared by the Parliament, but the position of the Committee (and its justification) anticipates the content of the final decision. ‘The activity of the religious communities concerned, either carried out by themselves or through their institutions – in particular the preservation of historical and cultural values, the activity related to educational, academic, charitable, social care and to family, child and youth welfare, cultural or sports activities – is remarkable but has insignificant social support.
Thus it can be concluded that the organizations listed above carry out their activities with insignificant benefits if one regards their impact on society as a whole.’
437 ibid.
438 http://www.politics.hu/20140408/hungary-church-law-violates-small-church-rights-says-strasbourg-court/> accessed 21 July 2014
439 ibid.
440 ibid.
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in this context for the application of Par. (1) of art. 33 of the related act, the Consti-tutional Court in Paragraph 2 of Decision 27/2014 (vii. 23.) CC established further con-stitutional requirements.